# McConahay v. State > Supreme Court of Arkansas · December 2, 1974 · 257 Ark. 328 URL: https://www.frixlaw.com/law-library/cases/9777452 ## Case - **Full name:** Richard S. McCONAHAY v. STATE of Arkansas - **Court:** Supreme Court of Arkansas - **Decided:** December 2, 1974 - **Citations:** 257 Ark. 328; 516 S.W.2d 887; 1974 Ark. LEXIS 1352 - **Precedential status:** Published - **Opinion:** Dissent by Fogleman - **Judges:** Holt, Harris, Fogleman, Brown - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9777452 ## How later opinions describe it (automated extraction) - emphasizing right to trial by jury under the Arkansas habitual criminal statute ## Opinion text John A. Fogleman, Justice, dissenting. I dissent from the condition placed upon the affirmance. I would remand the judgment without modification. I definitely disagree with certain statements in the majority opinion. I further dissent from the rejection of the procedure on remand suggested by the Attorney General. I do not agree that representation by counsel, or lack of it, or waiver, has even a remote or minute bearing on the “truthfulness or veracity” of a record of conviction. Nor can I agree that records of convictions which are silent with respect to representation by counsel, or the waiver of the right thereto, are, in any sense of the word “infirm documents”. The fact that it is necessary that a foundation be laid for their introduction does not make them infirm. Neither do I agree that somehow appellant would, as implied by the majority, be deprived of the right to confront and cross-examine witnesses by the state’s suggestion. The relevance of the statement in that regard escapes me. I do not agree that appellant’s counsel had the right to rely on our previous decisions in not contesting the existence of the previous convictions, as the statute permits. We had no such decisions and appellant had every opportunity to contest the existence of these convictions, if he chose to do so, after they were admitted. I am sure that the majority does not really intend to say, though it does imply, that trials should be reduced to sporting matches in which one party o.r the other may “hide behind a log” of error and by reason thereof be afforded a second chance to do that which he could have done, without prejudice, in the first instance, had he chosen to do so. I cannot help feeling that an erroneous premise has led the majority into its unwarranted rejection of the procedure proposed by the state. That premise is the statement, or to say the least, the plain implication, that the question of representation or waiver of counsel in a previous conviction is necessarily for jury determination, at least at the option of a defendant in the position of appellant. I feel that elaboration upon the state’s proposed procedure is essential to its being understood and demonstrative of its propriety. Where we have found this error in previous cases, beginning with Wilburn, we have permitted the state to have the option of having the judgment affirmed but modified to provide for the minimum sentence which the jury might have imposed if the objectionable evidence had been excluded or to have it reversed and the case remanded for a new trial. We did this on the basis that, if the modification be accepted, there was no possible prejudice to the appellant. The state suggests that the Wilburn procedure is not necessarily exclusive and that there is an alternate procedure which we can and should follow in these cases. The Attorney General urges that we remand this case to the trial court for an evidentiary hearing of the type prescribed in Jackson v. Denno, 378 US. 368, 84 S.Ct. 1774 , 12 L.Ed. 2d 908 , 1 A.L.R. 2d 1205 (1964) where the question of the admissibility of a confession was involved, except that the state here would have the burden of showing, beyond a reasonable doubt, that McConahay was represented by counsel at his trial on the questioned convictions, or that he had knowingly and intelligently waived his right to such representation. If the state meets that heavy burden, he suggests, the constitutional error was harmless and the sentence should stand. If not, then the trial court could give the state the option of agreeing to a reduction of sentence under the Wilburn rule, or a new trial. I find this suggestion to be practical, without prejudice to any right of appellant and constitutionally in harmony with Jackson v. Denno, supra. Our statute on habitual offenders is Ark. Stat. Ann. § 2330.1 (Supp. 1973). In pertinent part, it reads: The following trial procedure shall be adhered to in cases involving habitual criminals: (2) If the defendant is found guilty, the same jury shall sit again and hear evidence of defendant's prior conviction^). Provided, that the defendant shall have the right to deny the existence of any prior conviction(s), and to offer evidence in support thereof. (Emphasis ours.) The statute only gave the defendant the right to deny the existence of any prior conviction. Clearly appellant had that right in this case but chose not to avail himself of it. There is no right on the part of a defendant to have the jury determine the weight or credibility of evidence of a previous conviction on the basis of representation by counsel or lack thereof or to consider the question of admissibility of evidence of a previous conviction. Where records of prior convictions are offered, either for enhancement of punishment or for impeachment of a witness, the question whether the party or witness was afforded the right to counsel, or waived it, goes to the question of admissibility of the evidence of the conviction. This is made clear in the leading case, Burgett v. Texas, 389 U.S. 109 , 88 S.Ct. 258 , 19 L. Ed. 2d 319 (1967). We have treated the matter in the same light. See Wilburn v. State, 253 Ark. 608 , 487 S.W. 2d 600 ; Richards v. State, 254 Ark. 760 , 498 S.W. 2d 1 ; Roach v. State, 255 Ark. 773 , 503 S.W. 2d 467 . The determination whether evidence is admissible is for the trial judge, even though he may have to decide a preliminary question of fact relating to the foundation for its admission. 75 Am. Jur. 2d 407, Trial § 345; 88 C.J.S. 407, Trial § 207. This is true, even though it is not error for the trial court, when in doubt about a matter essential to admission, to submit the question to the jury. 75 Am. Jur. 2d 407, Trial § 345; 88 C.J.S. 407, Trial § 207. See IX Wigmore on Evidence (3rd Ed.) 501, § 2550; McCormick on Evidence (2d Ed.) 121, § 53; Cantrell v. State, 117 Ark. 233 , 174 S.W. 521 ; Pine Bluff Co. v. Bobbett, 174 Ark. 41 , 294 S.W. 1002 ; Wimberly v. State, 90 Ark. 514 , 119 S.W. 668 ; Clements v. State, 199 Ark. 69 , 133 S.W. 2d 844 . It was clearly recognized in Burgett, that the error in admitting evidence such as is involved here might be harmless. There the United States Supreme Court said: The admission of a prior criminal conviction which is constitutionally infirm under the standards of Gideon v. Wainwright is inherently prejudicial and we are unable to say that the instructions to disregard it made the constitutional error “harmless beyond a reasonable doubt” within the meaning of Chapman v. California, 386 U.S. 18 , 17 L. Ed. 2d 705 , 87 S. Ct. 824 . Other courts have recognized that this is the case. See e.g. Donahay v. State, 255 S. 2d 598 (1971); Gilday v. Scafati, 428 F. 2d 1027 (1 Cir. 1970); United States v. Penta, 475 F. 2d 92 (1 Cir. 1973); Gilday v. Commonwealth, 355 Mass. 799 , 247 N.E. 2d 396 (1969); Subilosky v. Commonwealth, 358 Mass. 390 , 265 N.E. 2d 80 (1970); White v. State, 11 Md. App. 423 , 274 A 2d 671 (1971); Tucker v. United States, 299 F. Supp. 1376 (D.C., Cal., 1969), 431 F. 2d 1292 (9 Cir. 1970), United States v. Tucker, 404 U.S. 443 , 92 S.Ct. 589 , 30 L.Ed 2d 592 (1972). In Loper v. Beto, 405 US 473 , 92 S. Ct. 1014 (1972) this possibility was definitely recognized. The prevailing plurality of four, added this footnote to their opinion per Stewart, J.: In the circumstances of this case there is little room for a finding of harmless error, if, as appears on the record now before us, Loper was unrepresented by counsel and did not waive counsel at the time of the earlier convictions. Cf. Subilosky v. Moore, 443 F. 2d 334 ; Tucker v. United States, 431 F. 2d 1292 ; Gilday v. Scafali, 428 F. 2d 1027 . Furthermore, Mr. Justice White, in a concurring opinion essential to the decision, made these pertinent statements: ***** and as our past cases now stand, I agree with Mr. Justice Stewart that the Court of Appeals’ reasons for affirming the District Court were erroneous. This judgment, however, does not necessarily mean that Loper’s conviction must be set aside. There remain issues unresolved by the Court of Appeals, as to whether the challenged prior convictions were legally infirm; was Loper represented by counsel at the time of the earlier convictions; if not, did he waive counsel? These matters are best considered in the first instance by the Court of Appeals. The same is true with respect to the legal significance of the lack of proof with respect to the validity of one or more of the prior convictions used for impeachment purposes at Loper’s trial. In this connection, I do not understand our prior decisions to hold that there is no room in cases such as this for a finding of harmless error; and if this case is ultimately to turn on whether there was harmless error or not, Í would prefer to have the initial judgment of the lower court. The Supreme Court of California In Re Dabney, 76 Cal. Reptr. 636, 452 P. 2d 924 (1969) discussed the matter, viz. We do not believe that the Supreme Court’s description of the error as inherently prejudicial means that it can never be found “harmless beyond a reasonable doubt” within the meaning of Chapman, for the court apparently applied the Chapman test in Burgetl. It did not state that because the error was inherently prejudicial it could never be deemed harmless, but instead stated that the error was inherently prejudicial and that “we are unable to say that the instructions to disregard it made the constitutional error ‘harmless beyond a reasonable doubt’ * * It did not foreclose the possibility that on another record presenting different facts it could conclude that such error was harmless. By describing the error as inherently prejudicial, the court may have meant only that such error is always to some extent harmful by reason of its essential character and is therefore different from error in the admission of other unconstitutionally obtained evidence that is not always harmful, such as, for example, innocent responses to an interrogation not preceded by required Miranda warnings. (Miranda v. Arizona (1966) 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed 2d 694.) In this sense of “inherently,” used as descriptive of the essential character of the error, commenting on a defendant’s failure to testify is also inherently prejudicial. (See Griffin v. California (1965) 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed 2d 106.) Such error, however, may be found harmless under Chapman. Accordingly, we adhere to our holding * * * that the introduction into evidence of an unconstitutional prior conviction is not prejudicial per se and therefore does not necessarily effect reversible error. Both the court’s language in Burgett and the background provided by Spencer make clear, however, that only the most compelling showing can justify finding such error harmless beyond a reasonable doubt. If appellant was actually represented by counsel, or had waived his rjght to counsel, in the cases resulting in the conviction of which he complains, he has not been prejudiced and the error is harmless. Of course, we cannot, upon the present record say/that this is so. But this does not mean that appellant is entitled to a new trial without a determination whether the evidence was prejudicial or harmless. If remand for that purpose is innovative, so much the better, so long as substantial individual rights are not prejudiced. Retrials are a burden upon the whole judicial system, as well as upon witnesses, officers, and all others connected with them. Where they can be avoided without prejudice to individual rights of parties, they should. The procedure suggested by the state would be a positive step in this direction. The trial court has the means of determining the facts. If it should be found that the convictions admitted were, beyond a reasonable doubt, not constitutionally inadmissible, even though they appeared so to be, why should appellant have a new trial? The state’s suggestion is not as innovative as it might appear. In Johnson v. State, 9 Md. App. 166 , 263 A.2d 232 (1970) the Maryland Court of Special Appeals recognized that the U.S. Supreme Court in Burgett applied the harmless error test of Chapman v. State of California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.E. 2d 705 and was unable to say that the error was harmless. That court said: *** In short there was nothing before the trial court upon which it could properly determine that the prior convictions were valid and thus admissible. We think the purposes of justice will be advanced by permitting further proceedings in the case. As we find***that the other contentions of appellant do not constitute grounds for reversal, we remand the case, without affirming, reversing or modifying the judgment, with direction to the lower court to conduct forthwith an evidentiary hearing on the issue of the validity of the prior convictions, at which the procedure hereinbefore set out shall be followed. Rule 1071. On the evidence adduced at such hearing, the lower court shall determine as to each prior conviction admitted in evidence at the trial on the merits, whether or not it was constitutionally valid. Upon such determination the record will be transmitted to this court. The U.S. Court of Appeals for the Second Circuit, in United States v. DuShane, 435 F. 2d 187 (1970), also treated the matter, saying: Accordingly, on this record, the evidence of the Oklahoma conviction was improperly introduced. However, it may be that the Government can produce live witnesses whose testimony, after cross-examination, as to what transpired in Oklahoma in 1959 could be a proper basis for a finding of waiver. ***** Therefore, we remand for a further evidentiary hearing on the issue of waiver. After such hearing and the careful consideration that the issue requires, if the trial judge concludes that the Government has not carried its burden of proving waiver, the judgment of conviction should be set aside. If he finds waiver, the judgment of conviction will remain, but appellant will again be able to pursue appellate remedies, if he so wishes, on the fuller record. See also, People v. Moore, 391 Mich. 426 , 216 N.W. 2d 770 (1974), relating to post conviction relief. In Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed. 2d 908 , 1 A.L.R. 2d 1205 , when the question was one of admissibility of evidence, the court said: *** But if at the conclusion of such an evidentiary hearing in the state court on the coercion issue, it is determined that Jackson's confession was voluntarily given, admissible in evidence, and properly to be considered by the jury, we see no constitutional necessity at that point for proceeding with a new trial, for Jackson has already been tried by a jury with the confession placed before it and has been found guilty. True, the jury in the first trial was permitted to deal with the issue of volun-tariness and we do not know whether the conviction rested upon the confession; but if it did, there is no constitutional prejudice to Jackson from the New York procedure if the confession is now properly found to be voluntary and therefore admissible. If the jury relied upon it, it was entitled to do so. Of course, if the state court, at an evidentiary hearing, redetermines the facts and decides that Jackson’s confession was involuntary, there must be a new trial on guilt or innocence without the confession’s being admitted in evidence. Of course, where error of constitutional proportions is involved, it is prejudicial, unless it be judicially determined beyond a reasonable doubt that the error was harmless. We should remand this case to the trial court to conduct a hearing to determine whether the error in admitting the convictions objected to was harmless beyond a reasonable doubt. If it so finds, then appellant would be free to pursue a further appeal. If not, then the court should grant appellant a new trial unless the state should agree to a reduction of sentence as prescribed in Wilburn v. State, supra, and its progeny. I am authorized to state that Mr. Justice Brown joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9777452. Public record. Not legal advice.