Carl Presley v. State of Arkansas

Derrick HARRELL and Carl Presley v. STATE of
Arkansas

CR 97-282                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 29, 1998


1.   Criminal law -- rape victim -- testimony need not be
     corroborated. -- The testimony of a rape victim does not have
     to be corroborated by other testimony.

2.   Evidence -- rape and kidnapping -- substantial proof that acts
     occurred. -- The State's evidence was unquestionably
     substantial in showing that the victim had been raped; also,
     her testimony, coupled with the examining physician's,
     sufficiently proved the crime of kidnapping. 

3.   Criminal law -- accomplice defined. -- An accomplice is one
     who directly participates in the commission of an offense or
     who, with the purpose of promoting or facilitating the
     commission of an offense, solicits, advises, encourages, or
     coerces the other person to commit the offense, or aids,
     agrees to aid, or attempts to aid the other person in planning
     or committing the offense; the presence of an accused in the
     proximity of a crime, opportunity, and association with a
     person involved in the crime in a manner suggestive of joint
     participation are relevant facts in determining the connection
     of an accomplice with the crime.


4.   Motions -- directed verdict -- no error in denial of --
     evidence sufficient to show appellant aided in kidnapping. --
     The evidence showed that the first appellant aided in the
     kidnapping and rape of the victim, he was shown to have
     entered her house first while brandishing a gun, tackled her,
     and thereby permitted her to be restrained with duct tape on
     her arms and legs, and, along with the other two attackers,
     appellant threatened to kill her if she looked at them; with
     this substantial evidence bearing on appellant's participation
     in all the crimes with which the trio were charged, the
     supreme court could not say the trial court erred in denying
     appellant's motion for directed verdict.

5.   Constitutional law -- Brady Rule discussed -- rule includes
     impeachment as well as exculpatory evidence. -- In Brady v.
     Maryland, 373 U.S. 83 (1963), the Supreme Court held that the
     suppression by the prosecution of evidence favorable to an
     accused upon request violates due process where the evidence
     is material either to guilt or to punishment, irrespective of
     the good faith or bad faith of the prosecution; the Brady Rule
     has been interpreted to include impeachment as well as
     exculpatory evidence. 

     
6.   Criminal law -- guilty plea under First Offenders Act not
     equal to conviction -- victim's plea did not constitute prior
     conviction under Act. -- A plea of guilty under Arkansas's
     First Offenders Act, Act 346 of 1975, is not the equivalent of
     a conviction; Ark. Code Ann.  16-85-712(3) (1987) provides
     that there is a conviction when a plea of guilty is accepted
     by the court; however, a court's acceptance of a guilty plea
     pursuant to Act 346 is not a conviction; a court is
     specifically prohibited from entering a judgment of guilt
     where a defendant is sentenced under Act 346; since there was
     no showing here that the victim's guilt had been adjudicated
     or that a judgment had been entered by the court, her guilty
     plea for possession of cocaine did not constitute a prior
     conviction admissible under Ark. R. Evid. 609.

7.   Appeal & error -- no record reflecting conviction provided in
     support of argument -- argument without merit. -- Appellants'
     argument that, even if the victim's guilty plea under Act 346
     might not ordinarily constitute a conviction under the Act's
     terms, the trial court made the plea a conviction when it
     imposed a $500 fine against the victim when placing her on
     probation was without merit where the appellants' abstract
     reflected no conviction judgment imposing a fine; under Ark.
     Code Ann.  5-4-311 (Repl. 1997), if a judgment of conviction
     is not entered at the time of probation, the court must later
     discharge the defendant if the defendant complies with the
     conditions of his probation; because appellants failed to
     produce a record with a conviction judgment to support their
     argument, it was found to be meritless.

8.   Evidence -- criminal activity -- when evidence of may be
     introduced. -- Evidence of other criminal activity may be
     introduced accompanied by a cautionary instruction, if it is
     independently relevant to the main issue in the sense of
     tending to prove some material point rather than merely to
     prove the witness is a criminal.   

9.   Evidence -- proof required by appellants to prevail --
     "reasonable probability" defined. -- In order for the
     appellants to prevail in their argument that the victim's
     guilty plea and the conditions of her probation constituted
     impeachment material, they were required to demonstrate a
     reasonable probability that the result would have been
     different had they had the information concerning her prior
     possession of cocaine; "reasonable probability" is a
     probability sufficient to undermine confidence in the outcome.
     

10.  Evidence -- undisclosed information would have made no
     difference in outcome of case -- no abuse of discretion found.
     -- In denying appellants' motion for new trial, the trial
     court found the undisclosed information pertaining to the
     victim's previous drug felony would have made no difference in
     the outcome of their case; the supreme court was unable to
     find the trial court abused its discretion in so holding; the
     record was quite clear that the victim had met and seen these
     men earlier and offered no doubts that the appellants were two
     of the three intruders; appellants' suffered no prejudice by
     the trial court's denial of their new-trial motion on the
     basis of the victim's guilty plea. 


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed. 
     John Stratford, for appellant Derrick Harrell.
     Mark Ferguson, for appellant Carl Presley.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Tom Glaze, Justice.
     Appellants Derrick Harrell and Carl Presley appeal from
convictions of rape, kidnapping, aggravated robbery, residential
burglary, and theft.  For reversal, they claim the trial court
erred in denying their motion for new trial because of the State's
nondisclosure of exculpatory impeachment material that related to
the victim's credibility.  Harrell also argues the court erred by
denying his directed verdict as to his rape and kidnapping
convictions because the evidence was insufficient to support those
two crimes.  We first consider Harrell's separate point, and set
out the evidence in the light most favorable to the State as
appellee.  See Martin v. State, 328 Ark. 420, 426, 944 S.W.2d 512,
515 (1997).
     On the morning of December 1, 1995, Lorene Davis was at home
sick with the flu when she heard a noise.  When she got out of bed
to see what was causing the noise, she saw three men forcibly
entering her house.  Davis, who had seen these men previously,
testified at trial that Harrell and Presley, who wore no masks,
were the first to enter.  Harrell had a gun.  Davis related that
the first two men knocked her down.  The third intruder, Zachary
Crockett, bore a long gun, and after he entered, he and Presley
used duct tape on Davis's arms and legs to restrain her.  Presley
punched Davis in the face and stomach, and then raped her. 
Crockett assisted in Presley's rape of Davis, but left, responding
to Harrell's screaming, "Help [me] look for things in the house." 
Davis further testified that she got a good look at all three men,
that they pointed their guns at her, and that she never consented
to any of what happened.  Davis related that she was "real drowsy"
from her medicine, and on cross examination, agreed she was "pretty
doped up."
     At trial, a physician testified that she had examined Davis
after the events on December 1, and her findings were consistent
with Davis's story that she had been struck in the face, bound by
tape, and raped.  A forensic serologist also averred that the blood
group substance found on Davis's underwear could have been
Presley's.
     This court has repeatedly held that the testimony of a rape
victim does not have to be corroborated by other testimony. 
Sherrill v. State, 329 Ark. 593, 952 S.W.2d 134 (1997).  Thus, the
State's evidence here was unquestionably substantial in showing
Davis had been raped.  Also, Davis's testimony, coupled with the
physician's related above, sufficiently shows the crime of
kidnapping.  Arkansas law defines kidnapping in relevant part to
include where a person, without consent, restrains another person
so as to interfere substantially with his liberty with the purpose
of facilitating the commission of any felony or inflicting physical
injury upon or engaging in sexual intercourse with him.  See Ark.
Code Ann.  5-11-102(a)(3) and (4) (Repl. 1997).  However, Harrell
submits that the record fails to show he committed those crimes
either personally or as an accomplice.  We disagree.  
     An accomplice is defined as one who directly participates in
the commission of an offense or who, with the purpose of promoting
or facilitating the commission of an offense, solicits, advises,
encourages, or coerces the other person to commit the offense, or
aids, agrees to aid, or attempts to aid the other person in
planning or committing the offense.  Carter v. State, 324 Ark. 249,
921 S.W.2d 583 (1996).  The presence of an accused in the proximity
of a crime, opportunity, and association with a person involved in
the crime in a manner suggestive of joint participation are
relevant facts in determining the connection of an accomplice with
the crime.  Thomas v. State, 312 Ark. 158, 847 S.W.2d 695 (1993). 
     Here, the evidence, at the least, shows Harrell aided in the
kidnapping and rape of Davis.  He was shown to have entered Davis's
house first while brandishing a gun, and tackled Davis, permitting
her to be restrained with duct tape on her arms and legs.  All
three men, including Harrell, threatened to kill her if she looked
at them.  With this substantial evidence bearing on Harrell's
participation in all the crimes with which the trio were charged,
we cannot say the trial court erred in denying Harrell's motion for
directed verdict.
     We now turn to Harrell's and Presley's joint argument that the
trial court erred in refusing them a new trial, because after
trial, they learned Davis had previously pled guilty to the charge
of possession of cocaine and that the prosecutor had failed to
disclose this in response to their pretrial discovery motion. 
Appellants claim Davis's guilty plea was material impeachment
evidence that the State had the duty to disclose under the Brady
Rule.  Brady v. Maryland, 373 U.S. 83 (1963).  In the Brady case,
the Supreme Court held that the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution. 
Id. at 87.  The Brady Rule has been interpreted to include
impeachment, as well as exculpatory evidence.  Unites States v.
Bagley, 473 U.S. 667 (1985); Yates v. State, 303 Ark. 79, 794 S.W.2d 133 (1990).  
     Harrell and Presley first argue that Davis's prior plea of
guilty under Act 346 of 1975 -- Arkansas's First Offender Act -- to
a felony cocaine offense is material and admissible as a prior
conviction under Rule 609 of the Arkansas Rules of Evidence.  In
sum, Rule 609 provides for the impeachment of a witness's
credibility by proof of prior criminal convictions.  Bragg v.
State, 328 Ark. 613, 946 S.W.2d 654 (1997).  The State counters,
arguing that, because no judgment of guilt had been entered against
Davis, her guilty plea was not admissible as a conviction under the
terms of Rule 609(a).  
     In Duncan v. State, 308 Ark. 205, 823 S.W.2d 886 (1992), this
court unambiguously held that a plea of guilty under Arkansas's
First Offenders Act, Act 346, is not the equivalent of a
conviction.  In addition, Arkansas statutory law, Ark. Code Ann. 
16-85-712(3) (1987), provides in pertinent part that there is a
conviction when a plea of guilty is accepted by the court. 
However, a court's acceptance of a guilty plea pursuant to Act 346
is not a conviction.  A court is specifically prohibited from
entering a judgment of guilt where a defendant is sentenced under
Act 346.  See Ark. Code Ann.  16-93-303(a)(1) (1987).  See also,
Gage v. State, 307 Ark. 285, 819 S.W.2d 279 (1991).  Thus, since
there was no showing that Davis's guilt had been adjudicated or
that a judgment had been entered by the court, her plea did not
constitute a prior conviction admissible under Rule 609.
     Appellants also argue that, even if Davis's guilty plea under
Act 346 might not ordinarily constitute a conviction under the
Act's terms, the trial court made the plea a conviction when it
imposed a $500.00 fine against Davis when placing her on probation. 
They cite Ark. Code Ann.  5-4-301(d) (Repl. 1997), which provides
that the court shall enter a judgment of conviction if it sentences
the defendant to pay a fine.  On this issue, we note that the
appellants' abstract reflects no conviction judgment imposing a
fine, and point out that, under Ark. Code Ann.  5-4-311 (Repl.
1997), if a judgment of conviction is not entered at the time of
probation, the court must later discharge the defendant if the
defendant complies with the conditions of his probation.  Here,
appellants fail to produce a record with a conviction judgment to
support their argument, so we find it meritless.
     We now turn to appellants' final argument that, even if
Davis's guilty plea is not a prior conviction and admissible as
such, her guilty plea and the conditions of her probation still
constitute impeachment material in light of her testimony at trial. 
They allude to Davis's testimony that, on the day of her attack,
she said she was ill and "doped up" because of flu medicine she had
taken.  This testimony, they claim, created the impression she was
not involved in illegal drug activity and that the drug she took
was not an illegal drug.  Appellants add that, had the defense been
aware that Davis pled guilty to the cocaine offense only months
prior to appellants' trial, defense counsel could have explored
whether she was under the influence of illegal drugs and would have
consulted with Davis's probation officer to learn if she had been
passing her drug testing.  Appellants conclude that this evidence
was directly relevant to her credibility and whether her "memory of
events" of the crimes was accurate. 
     The trial court rejected the appellants' argument and, in
doing so, relied on Mosley v. State, 325 Ark. 469, 929 S.W.2d 693
(1996), where the court dealt with Ark. R. Evid. 404(b) which
provides that the evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show that
he acted in conformity therewith, but that it is admissible to show
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.  The Mosley court
related the well-established principle that the evidence of other
criminal activity may be introduced accompanied by a cautionary
instruction, if it is "independently relevant to the main issue in
the sense of tending to prove some material point rather than
merely to prove the witness (in the present case the victim) is a
criminal."     
     In order for the appellants to prevail on this issue, they
must demonstrate a reasonable probability that the result would
have been different had they had the information concerning Davis's
prior possession of cocaine.  The court in United States v. Bagley,
supra, held that "reasonable probability" is a probability
sufficient to undermine confidence in the outcome.  See
Pennsylvania v. Ritchie, 480 U.S. 39 (1987); Yates v. State, 303
Ark. 79, 794 S.W.2d 133 (1990).
     Here, in denying Harrell's and Presley's motion for new trial,
the trial court found the undisclosed information pertaining to
Davis would have made no difference in the outcome of their case. 
We are unable to find the trial court abused its discretion in so
holding.  Bennett v. State, 307 Ark. 400, 821 S.W.2d 13 (1991). 
     Although appellants urge that somehow Davis's testimony
concerning her having the flu and taking medicine misled the jury,
it is difficult to see what independent relevance Davis's guilty
plea might have other than to show she had previously committed a
drug felony.  While appellants speak in terms of questioning
Davis's "memory of events" that occurred on December 1, Davis's
trial testimony reflected no hint of confusion or inconsistancy of
what transpired.  Though appellants did not argue below, or now on
appeal, that identification was an issue, the record is quite clear
that Davis had met and seen these men earlier and offered no doubts
that Harrell and Presley were two of the three intruders.  She
testified that the men wore no masks, that she was able to get a
good look at them, and that she had no doubts when picking Harrell
and Presley out of a photo spread.  On the record before us, we
cannot say the trial court abused its discretion in denying the
appellants a new trial.
     In sum, we find that Harrell and Presley suffered no prejudice
by the trial court's denial of their new-trial motion on the basis
of Davis's guilty plea, since it is doubtful that the introduction
of such evidence to impeach Davis's testimony would have affected
the outcome of their case.  
     For the reasons above, we affirm.