Pearl Gennette y v. State of Arkansas

Annotate this Case
Pearl Gennette ANTHONY v. STATE of Arkansas

CR 97-655                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 16, 1998


1.   Evidence -- defendant's testimony at previous trial --
     admissibility of. -- A defendant's testimony at a former trial
     is admissible in evidence against him in later proceedings; a
     defendant who chooses to testify waives his privilege against
     compulsory self-incrimination with respect to the testimony he
     gives; that waiver is no less effective or complete because
     the defendant may have been motivated to take the witness
     stand in the first place only by reason of the strength of the
     lawful evidence adduced against him.

2.   Evidence -- appellant voluntarily testified at first trial --
     privilege against self-incrimination waived at second trial. -
     - By voluntarily testifying at her first trial, appellant
     waived her privilege against self-incrimination with respect
     to the testimony that she gave; the fact that appellant
     exercised her right to remain silent at the second trial did
     not preclude the use of her testimony given at the first
     trial, if it was otherwise admissible. 

3.   Evidence -- party's attempt to fabricate evidence -- how
     admissible. -- A party's attempt to fabricate evidence is
     admissible, not merely as an admission under Uniform Evidence
     Rule 801(d)(2), but as proof relevant to show his own belief
     that his case is weak; fabrication of evidence of innocence is
     cogent evidence of guilt. 

4.   Evidence -- trial court has discretion to decide propriety of
     evidence offered in rebuttal -- what constitutes genuine
     rebuttal. -- The trial court has discretion to decide the
     propriety of evidence offered in rebuttal; however, genuine
     rebuttal is evidence offered in reply to new matters; the
     supreme court has disallowed evidence presented as rebuttal
     where the evidence was not responsive to the defense evidence.
     
5.   Evidence -- neither appellant's prior testimony nor testimony
     of witness was proper rebuttal evidence -- trial court abused
     discretion in admitting. -- Neither appellant's prior
     testimony nor the testimony of the witness was proper rebuttal
     evidence where the testimony presented by the prosecution
     during rebuttal did not contradict the witness's testimony or
     any other evidence presented by appellant; by introducing
     appellant's prior testimony, the prosecution created an
     opportunity to present the witness's testimony, which was not
     otherwise appropriate as rebuttal, in an effort to discredit
     appellant's alibi; the introduction of this testimony during
     rebuttal constituted an abuse of the trial court's discretion
     and prejudiced appellant; the case was reversed and remanded.

6.   Appeal & error -- preservation of argument for appeal -- party
     bound by scope and nature of arguments at trial. -- In order
     to preserve an argument for appeal, the objection below must
     be specific enough to apprise the trial court of the
     particular error about which appellant complains; a party is
     bound on appeal by the scope and nature of the objections and
     arguments presented at trial.

7.   Appeal & error -- issue not presented at trial -- not reached
     on appeal. -- Appellant's contention that the trial court
     commented on the evidence while instructing the jury that a
     witness had violated Rule 615 of the Arkansas Rules of
     Evidence was not presented to the trial court and so was not
     preserved for appeal; at trial the appellant made a general
     objection, she did not apprise the trial court of the argument
     made on appeal; therefore, the supreme court would not address
     it.


     Appeal from Hempstead Circuit Court; Jim Gunter, Judge;
reversed and remanded.
     Kiel & Goodson, by:  John C. Goodson, for appellant.
     Winston Bryant, Att'y Gen., by:  C. Joseph Cordi, Jr., Asst.
Att'y Gen., for appellee.

     Ray Thornton, Justice.
     Appellant Pearl Gennette Anthony was convicted of two counts
of delivery of a controlled substance, cocaine, and sentenced to
two consecutive thirty-year terms of imprisonment in the Arkansas
Department of Correction.  She does not challenge the sufficiency
of the evidence to support her convictions.  Instead, she argues
that the trial court erred by (1) allowing the State to introduce
certain rebuttal testimony, (2) admitting a bus manifest as a
business record, and (3) improperly commenting on the evidence.  We
agree with the first point and reverse and remand for a new trial.
     In her first point of appeal, appellant contends that the
trial court erred during the rebuttal phase by permitting the State
to introduce portions of her testimony from her first trial, which
ended in a mistrial, and the testimony of Holly Scott.  Appellant
elected not to testify at her second trial, and she alleges the
introduction of this testimony was improper in two respects:  (1)
the introduction of her testimony from the first trial was, in
effect, a direct comment on her failure to testify in the second
trial, in violation of her Fifth Amendment privilege against self-
incrimination; and (2) both her testimony and that of Ms. Scott
were improper rebuttal.  
     During its case in chief, the State presented the testimony of
Johnny Alexander, a detective with the Pine Bluff Police
Department, who testified that he bought cocaine from appellant on
two separate occasions on the evening of October 19, 1995. 
Detective Alexander testified that he and a confidential informant
purchased crack cocaine from appellant at her home around 7:48 p.m. 
He further testified that around 11:30 p.m., he returned to
appellant's home to make a second buy.
     After the State rested, appellant presented the testimony of
Faye Walker.  Ms. Walker testified that, on the evening of October
19, 1995, she saw appellant in Idabel, Oklahoma, at Choctaw Bingo,
a bingo parlor.  On cross-examination, Ms. Walker testified that
she did not know whether appellant won any money that night or how
appellant traveled to the bingo parlor.      
     Appellant also presented the testimony of her son, Edmund
Colbert, who testified that she left their residence at
approximately two or three o'clock on the afternoon of October 19,
1995.  Mr. Colbert testified that appellant told him she was "going
up town," and then she would "probably go to bingo."  He also
testified that he was home that evening and that appellant returned
home "a little after one."
     Before the defense rested, the court advised appellant of her
Fifth Amendment rights, and she choose not to testify.  During the
rebuttal phase, the trial court allowed the State to introduce
testimony from appellant's first trial where she had testified that
she was playing bingo in Idabel, Oklahoma, on the night she
allegedly sold cocaine to Detective Alexander, that she won two
mini pots that night, and that she rode a Sue Long Corporation bus
to the bingo parlor.  Appellant objected to the use of her prior
testimony by asserting that it was improper rebuttal, that it
violated her Fifth Amendment right against self-incrimination, and
that it was misleading and confusing.  The trial court ruled that
appellant's prior testimony was admissible for the purpose of
rebutting the defense of alibi.    
     After the State read portions of appellant's testimony from
her first trial, the trial court then permitted the State to
introduce the testimony of Holly Scott, co-manager of Choctaw
Bingo.  Ms. Scott testified that their records showed that
appellant neither won two mini pots nor rode the Sue Long bus to
the bingo parlor that night.
     We begin our review by addressing appellant's contention that
the admission of her prior testimony amounted to a direct comment
on her election not to testify in violation of her Fifth Amendment
rights.  This argument is without merit.
     In Harrison v. United States, 392 U.S. 219 (1968), the Supreme
Court considered whether the defendant's former testimony was
improperly admitted at his second trial, following a reversal of
his conviction in the former trial.  The Court held that because
the defendant was compelled to testify in the earlier case to
respond to illegally obtained confessions, his testimony in that
case violated his Fifth Amendment right against self-incrimination
and could not be introduced in the second trial.  Id. at 224-25. 
However, the Court specifically noted:
     In this case we need not and do not question the general
     evidentiary rule that a defendant's testimony at a former
     trial is admissible in evidence against him in later
     proceedings.  A defendant who chooses to testify waives his
     privilege against compulsory self-incrimination with respect
     to the testimony he gives, and that waiver is no less
     effective or complete because the defendant may have been
     motivated to take the witness stand in the first place only by
     reason of the strength of the lawful evidence adduced against
     him.
Id. at 222.  See also United States v. Houp, 462 F.2d 1338 (8th
Cir. 1972);  People v. Carlson, 677 P.2d 390 (Colo. Ct. App. 1983);
Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994); State v. Hunt,
457 S.E.2d 276 (N.C. 1994); Bryan v. State, 837 S.W.2d 637 (Tex.
Crim. App. 1992). 
     Based on the authorities cited above, we conclude that, by
voluntarily testifying at her first trial, appellant waived her
privilege against self-incrimination with respect to the testimony
that she gave.  The fact that appellant exercised her right to
remain silent at the second trial does not preclude the use of her
testimony given at the first trial, if it would otherwise be
admissible.  Accordingly, we turn to appellant's argument regarding
the admissibility of the evidence during rebuttal.
     Appellant contends that neither her prior testimony nor the
testimony of Ms. Scott was proper rebuttal because it was not
responsive to any evidence that she introduced in her second trial. 
Appellant argues that the rebuttal evidence did not contradict the
testimony of Ms. Walker, the alibi witness; instead, Ms. Scott's
testimony impeached appellant's prior testimony.
     The State, however, asserts that the evidence was properly
admitted as rebuttal in order to show that appellant's alibi was
fabricated.  The State relies primarily on Kellensworth v. State,
276 Ark. 127, 633 S.W.2d 21 (1982), in support of this proposition. 
In Kellensworth, the defendant did not testify, but his parents
testified in his defense and established an alibi.  Id. at 130, 633 S.W.2d  at 23.  The State called a rebuttal witness who admitted
that he had testified about a false alibi during the defendant's
previous trial, which had ended in a mistrial.  Id.  Defendant
argued that the testimony of the rebuttal witness was inadmissible
because it improperly put his character in issue and attacked the
credibility of his parents upon a collateral issue.  Id.
     This court, noting that the defendant failed to cite any
authority for his argument, held that the rebuttal testimony was
"clearly admissible."  Id.  We stated:
          It is settled beyond question that a party's attempt to
     fabricate evidence is admissible, not merely as an admission
     under Uniform Evidence Rule 801(d)(2) but as proof relevant to
     show his own belief that his case is weak.  As one court has
     said, in a case involving a fabricated alibi, "fabrication of
     evidence of innocence is cogent evidence of guilt."  Harvey v.
     United States, 215 F.2d 330 (D.C. Cir., 1954).  In a case
     similar to the present one, involving the recantation of
     previous testimony about a fabricated alibi, the court held
     that the testimony was admissible not merely in rebuttal but
     as part of the prosecution's case in chief, a point we do not
     reach.  State v. Thompson, 71 S.D. 319, 24 N.W.2d 10 (1946).
          Wigmore states the principle as being based upon one of
     the simplest of inferences:
               It has always been understood - the
          inference, indeed, is one of the simplest in
          human experience - that a party's falsehood or
          other fraud in the preparation and
          presentation of his cause, his fabrication or
          suppression of evidence by bribery or
          spoliation, and all similar conduct is
          receivable against him as an indication of his
          consciousness that his case is a weak or
          unfounded one; and from that consciousness may
          be inferred the fact itself of the cause's
          lack of truth and merit.  The inference thus
          does not necessarily apply to any specific
          fact in the cause, but operates, indefinitely
          though strongly, against the whole mass of
          alleged facts constituting his cause.
     Wigmore, Evidence,  278 (Chadbourn Rev., 1979).
Kellensworth, 276 Ark. at 130-31, 633 S.W.2d  at 23-24 (emphasis in
original). 
     The State also cites Flowers v. State, 30 Ark. App. 204, 785 S.W.2d 242 (1990), where the court of appeals considered whether
the trial court erred in admitting appellant's pretrial statement
to police to rebut her plea of self-defense.  The court of appeals
upheld the admission of the evidence and stated that "[a]s a rule
of general application, proof of an attempt to fabricate evidence
of innocence, or other conduct amounting to an obstruction of
justice, is admissible."  Id. at 207, 785 S.W.2d  at 243.
     Under Kellensworth and Flowers, the evidence in question in
the instant case was admissible during the State's case in chief. 
If the prosecution had presented appellant's prior testimony at
that time, appellant would have had the opportunity to testify or
to produce other evidence in support of her alibi.  However, the
State obtained an unfair advantage by introducing appellant's prior
testimony after the defense had completed its presentation and
appellant had waived her right to testify.  Moreover, appellant's
prior testimony did not contradict any testimony offered by
appellant in this proceeding.
     We are mindful that the trial court has discretion to decide
the propriety of evidence offered in rebuttal.  See Isbell v.
State, 326 Ark. 17, 931 S.W.2d 74 (1996); Schalski v. State, 322
Ark. 63, 907 S.W.2d 693 (1995).  However, genuine rebuttal is
evidence offered in reply to new matters, Schalski, 322 Ark. at 67-
68, 907 S.W.2d  at 696, and we have, on occasion, disallowed
evidence presented as rebuttal where the evidence was not
responsive to the defense evidence.  See Landrum v. State, 320 Ark.
8, 894 S.W.2d 933 (1995) (concluding it was error for the trial
court to allow rebuttal evidence on a collateral matter elicited by
the prosecutor during cross-examination); Birchett v. State, 289
Ark. 16, 708 S.W.2d 625 (1986) (disallowing evidence presented as
rebuttal where the testimony impeached responses extracted by the
prosecutor on cross-examination).
     We conclude that neither appellant's prior testimony nor the
testimony of Ms. Scott was proper rebuttal evidence.  As noted
above, Ms. Walker testified that she saw appellant at the bingo
parlor on October 19, 1995.  However, when the prosecutor asked Ms.
Walker whether she knew if appellant won anything that night, she
testified that she did not, and she also testified that she did not
know how appellant traveled to the bingo parlor.  The testimony
presented by the prosecution during rebuttal did not contradict Ms.
Walker's testimony or any other evidence presented by appellant. 
By introducing appellant's prior testimony, the prosecution created
an opportunity to present Ms. Scott's testimony, which was not
otherwise appropriate as rebuttal, in an effort to discredit
appellant's alibi.  Under these circumstances, we conclude that the
introduction of this testimony during rebuttal constituted an abuse
of the trial court's discretion and prejudiced appellant.
     Appellant's second point for reversal is that the trial court
erred in admitting into evidence the bus manifest because the
prosecutor did not lay a sufficient foundation to admit the
manifest under Ark. R. Evid. 803(6), the business records exception
to the hearsay rule.  Because we have held that Ms. Scott's
testimony was improper rebuttal, we need not address this issue.
     For her final point on appeal, appellant contends that the
trial court commented on the evidence while instructing the jury
that a witness, Faye Walker, had violated Rule 615 of the Arkansas
Rules of Evidence, the witness-exclusion rule.  Specifically,
appellant argues that, by instructing the jury as to the purposes
of the rule, the trial court commented on the credibility of Ms.
Walker, which is prohibited by Art. 7, Sec. 23, of the Arkansas
Constitution.  
     This argument was not presented to the trial court and was not
preserved for appeal.  We have repeatedly held that in order to
preserve an argument for appeal, the objection below must be
specific enough to apprise the trial court of the particular error
about which appellant complains.  Gibson v. State, 316 Ark. 705,
875 S.W.2d 58 (1994).  Furthermore, a party is bound on appeal by
the scope and nature of the objections and arguments presented at
trial.  Brown v. State, 326 Ark. 56, 931 S.W.2d 80 (1996).  
     When the trial court announced that it intended to instruct
the jury concerning the purposes of Rule 615, as set out in Fite v.
Friends of Mayflower, Inc., 13 Ark. App. 213, 682 S.W.2d 457
(1985), the appellant made a general objection.  She did not,
however, apprise the trial court of the argument she now makes on
appeal; therefore, we do not address it.
     For the reasons stated above, this case is reversed and
remanded for a new trial.               
     Arnold, C.J., and Glaze and Imber, J.J., dissent.
                                

     Tom Glaze, Justice, dissenting.  I take serious exception to the
part of the majority opinion that holds the trial court erred in
allowing State rebuttal witness Holly Scott to testify, and in
permitting the State to use appellant's earlier trial testimony to
show she lied.  Appellant claimed she was playing bingo in Oklahoma
on the evening of October 19, 1995.  Contrary to appellant's
version of events, two police officers and their informant
testified that she twice sold them cocaine on the same night.
     At appellant's first trial, she took the witness stand and
testified that, on October 19, 1995, at about 7:00 p.m., she caught
a bus at the State Line, rode to Choctaw where she played bingo,
and won two mini pots.  She said she returned to the State Line
that night at 11:30 p.m. where her car had been parked and drove
home.  Appellant's alibi contradicted the State's case-in-chief
wherein Officers Ervin Dennis and Johnny Alexander and informant
Vercina Lindsey testified appellant twice sold them cocaine on the
evening of October 19 -- at 7:48 p.m. and 11:38 p.m.
     At appellant's second trial, the State presented its same case
against appellant, but appellant chose not to testify in her own
defense.  Instead, she put her alibi defense before the jury by
calling Faye Walker and Edmund Colbert, her son.  Walker related
that she had seen appellant on the evening in question at the bingo
parlor.  Appellant's son, Colbert, who resided with appellant, also
asserted his mother went to play bingo at Choctaw on the evening in
dispute, but his story became questionable on cross examination. 
The prosecutor asked Colbert whose car was parked in appellant's
front yard on the evening of October 19, 1995, and whose license
number was YEW 523.  Colbert's response was that the car would have
been his, but he had paid no attention to his license plate. 
Colbert claimed appellant, on October 19, 1995, had left home
driving her car and stated that she would probably play bingo in
Oklahoma.  The State, however, submitted that license plate YEW 523
was appellant's.
     Obviously, details of appellant's alibi defense were in
dispute -- for example, (1) whose car was in appellant's yard at
the time the drug sales took place? (2) did appellant drive her car
to Oklahoma to play bingo or did she take a bus? (3) did appellant
go to Oklahoma on October 19, or were the officers and their
informant telling the truth when they testified she sold them
cocaine twice on the evening in controversy?
     Our case law is clear that the State is entitled to rebut
appellant's alibi by showing that it was fabricated.  See McCree v.
State, 280 Ark. 347, 658 S.W.2d 376 (1983).  Here, the trial court
properly concluded that the State had a right to rebut appellant's
alibi defense and that a part of that rebuttal involved the
credibility of the witnesses presented.  
     This court has held that it is within the trial court's
discretion to decide the propriety of evidence offered in rebuttal. 
Isbell v. State, 326 Ark. 17, 931 S.W.2d 74 (1996).  Because
appellant's alibi conflicted with the State's case and with
significant details of her son's testimony, it was well within the
trial court's discretion to allow the jury to have all versions of
what was said to have occurred on October 19.  How else could the
jury determine whose story to believe?       
     Accordingly, the trial court allowed the State to call Holly
Scott, co-manager of Choctaw Bingo, who testified that her business
had no record of appellant winning a mini pot on October 19, 1995,
nor was appellant's name listed on the bus manifest showing she had
been a passenger on the bus appellant claimed she rode that night. 
The trial court also allowed the State to read relevant portions of
appellant's earlier trial testimony where appellant claimed she
drove her car to the State Line to board the bus to Oklahoma even
though a car bearing her license plate had been seen in her front
yard at the time officers said she had sold them cocaine.   
     In conclusion, the majority's decision allows appellant to
present the part of the alibi defense she thinks favors her, but to
exclude those versions that draw her defense into serious question. 
Once appellant asserted alibi as a defense, all evidence touching
on that defense was relevant.  Again, the trial court clearly did
not abuse its discretion when determining the propriety and
admissibility of portions of appellant's prior trial testimony and
that of Scott's.  I would affirm.
     Arnold, C.J., and Imber, J., join this dissent.