McConahay v. State

Carleton Harris, Chief Justice, dissenting. I agree with the procedure suggested by the State as far as this particular litigation presently before the court is concerned. In Wilburn v. State, 253 Ark. 608 , 487 S.W. 2d 600 , this court, upon the authority of the United States Supreme Court cases cited in Wilburn, reversed the judgment because the evidence offered concerning one of appellant’s three prior convictions did not reflect that Wilburn was represented by counsel in the earlier conviction, or that he had waived counsel, and we remanded the case for another trial “unless the attorney general within 17 days elects to accept a modification of the punishment so as to sentence Wilburn to the minimum time of three years plus one additional year as penalty for the second offense, or a total of four years in the state penitentiary.”

I am in agreement with the State’s proposal that this cause should be remanded for further proceedings to be conducted before the trial judge in order to determine whether the prior convictions were, as a matter of law, constitutionally infirm. Evidence should be presented before the court relative to whether appellant was represented on those occasions by counsel, or if he waived the right to counsel. If the additional evidence affirmatively reflects either of these facts, then, of course, the documents which were presented before the jury were properly admissible, and the original sentence should stand. On the other hand, if the evidence does not reflect either of these two facts, the State would then elect under the option set forth in Wilburn and either accept the minimal enhancement sentence of four years, or retry appellant with the possibility of obtaining, upon conviction, an enhancement sentence of from four to 21 years. I cannot see how McConahay can be prejudiced under this procedure, for unless the evidence, beyond a reasonable doubt, reflects that McConahay was represented by counsel, or waived the right to counsel, the judgment stands reversed. On the other hand, if the evidence reflects beyond a reasonable doubt that McConahay was represented by counsel, or waived that right, he still has suffered no prejudice, for the jury has already passed upon his prior convictions (the same jury that passed on the current grand larceny charge), and our statute has thus been complied with. I recognize that McConahay did not take the stand to testify relative to these prior convictions — but he certainly had the opportunity to testify and to deny that he had been convicted. Thus far, I agree with fellow Justice Fogleman, and we are in accord with regard to disposition of this case.

However, as far as future cases are concerned, I would suggest the following procedure:

The jury shall first hear all the evidence relating to the current charge against a defendant and shall retire to reach its verdict as to this particular charge, based only upon the evidence of the current offense (this is the requirement of the statute). If the jury finds the defendant guilty, the court, before permitting any evidence to be presented to the jury by the prosecuting attorney relative to prior convictions under the habitual criminal act, should conduct an in chambers hearing, and pass upon the validity or admissibility of the evidence to be offered to the jury concerning prior convictions. Should the court find a constitutional defect (the defendant was not represented by counsel or did not waive the right to counsel in the earlier convictions), the court would not permit such evidence to be introduced before the jury. If, on the other hand, the evidence convinces the trial court beyond a reasonable doubt that the defendant was represented by counsel, or waived the right to counsel at the trials which resulted in prior convictions, this evidence would then be admitted before the jury, and that body (the same jury which found him guilty on the current charge), would pass upon whether he had been convicted of the prior offenses, and would then fix his punishment, considering both the current and previous convictions. The requirement of the statute that “the same jury shall sit again and hear evidence of defendant’s prior conviction(s)” would thus be observed.

This procedure would guard against inadmissible testimony concerning prior convictions being offered in evidence, preventing reversals in cases involving habitual offenders, and at the same time, in every respect, safeguarding the rights of a defendant. 1 It follows that I disagree with the views expressed in the majority opinion, and accordingly, respectfully dissent. 2

Lest I be accused of legislating, let it be pointed out that the General Assembly of 1971, through Act 470, enacted legislation reading as follows:

“SECTION 1. The Supreme Court of the state of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and procedure with respect to any or all proceedings in criminal cases and proceedings to punish for criminal contempt of court in all the inferior courts of law in this state.”

Under this legislation, it is my view that a rule should be promulgated embracing the procedure set out in this opinion. For that matter, there is nothing suggested that conflicts with the statute, the only purpose being to prevent inadmissible testimony from being offered.

I would even go along with the majority opinion insofar as disposition of this case is concerned, if the opinion provided that future cases should be handled in the manner set out in this dissent.