White v. State

John I. Purtle, Justice, dissenting. I disagree with the majority opinion because it attempts to legislate on the matter of voluntary intoxication, to overrule prior case law, and to scramble the law on the introduction of prior bad acts to prove the present case.

Voluntary intoxication was designated as an affirmative defense in the Arkansas Criminal Code which became effective in 1976. The majority opinion correctly quotes the Code and Act 101 of 1977, which eliminated the affirmative defense of voluntary intoxication. The result of this action is where I most strongly disagree with the opinion. Act 101 in part reads as follows:

Section 1. Section 207 of Act 280 of 1975, the same being Arkansas Statutes Annotated § 41-207, is hereby amended to read as follows:

Section 207.(1) Intoxication that is not self-induced is an affirmative defense. . . .

(2) (a) “intoxication” means. . . .

(b) “self-induced intoxication” means intoxication caused by a substance which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know.

Section 2. All laws and parts of laws in conflict with this act are hereby repealed.

Section 3. [The emergency clause which is quoted in the majority opinion.] [Emphasis added.]

Simply stated, Act 101 of 1977 deleted the affirmative defense of voluntary intoxication established by Act 280 of 1975. The question thus presented is what is the effect of the repeal. Technically, the legislative action was not a repeal, but rather it was an amendment. The text clearly states that Act 280 “is hereby amended to read as follows.” Voluntary intoxication was simply removed from the statute. What is left in the statute to relate to self-induced intoxication? Only the definition. The part which the 1977 act excised from the Criminal Code (Act 280 of 1975) read as follows:

Section 207.(1) Self-induced intoxication is an affirmative defense to a prosecution if it negates the existence of a purposeful or knowing mental state.

The foregoing section was simply removed from the original act and the remaining sections were renumbered.

The majority has construed a statute which is clear and unambiguous. The basic and fundamental rule of statutory construction is that we give the words of a statute their usual and ordinary meaning. If there is no ambiguity, we give a statute effect just as it reads. Chandler v. Perry-Casa Public Schools, 286 Ark. 170 , 690 S.W.2d 349 (1985); City of North Little Rock v. Montgomery, 261 Ark. 16 , 546 S.W.2d 154 (1977). The present statute clearly and unequivocally states that intoxication which is not self-induced is an affirmative defense. There is not a word, or group of words, in the statute which even remotely indicates that self-induced intoxication is or is not any form of defense. In other words, the legislature removed from the law a single provision of its prior enactment. There is nothing to construe. The intent of the legislature is not to be considered unless there is ambiguity.

The great problem created by the majority opinion is that it establishes a pool of unwritten law. Hereafter if the court desires a particular result, it need only find that the legislature, by repeal, intended to achieve a different result.

I think this Court was correct in Varnedare v. State, 264 Ark. 596 , 573 S.W.2d 57 (1978), where we stated: “[b]y amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature, in effect, reinstated any prior Arkansas common law on the subject.” This is the only logical result so far as I am concerned. The present law, in my opinion, is the same as existed prior to any legislative enactment. Therefore, from my viewpoint, the giving of the instruction that voluntary intoxication is not a defense was prejudicial error, as is all error in criminal cases, unless it is later determined to be nonprejudicial.

I will now discuss what I perceive as errors concerning the “confession.” The questions and answers set out verbatim in the majority opinion clearly show that the appellant was still drunk at the time of the so-called confession. A suspect who is intoxicated during an interrogation cannot possibly knowingly, voluntarily, and intelligently waive his constitutional rights. See Orr v. State, 288 Ark. 118 , 703 S.W.2d 438 (1986). The “confession” is impossible to follow as it frequently relates to a prior incident which occurred several weeks earlier, in which he broke his wife’s ribs. To compound the error the court allowed an officer to inaccurately summarize the statement before the statement itself was presented to the jury.

The majority addresses the admissibility of that part of the statement concerning the previous criminal act in several ways. First it states, “[accordingly, we find the testimony about the prior beating admissible so long as it is for some purpose other than to prove the character of the person in order to show he acted in conformity therewith.” The opinion continues by stating that a prior bad act is admissible pursuant to A.R.E. Rule 404(b) “if it is ‘independently relevant to the main issue — relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal — then evidence of that conduct may be admissible with a proper cautionary instruction by the court.’ ” Price v. State, 268 Ark. 535 , 597 S.W.2d 598 (1980), quoting Alford v. State, 223 Ark. 330 , 266 S.W.2d 804 (1954). The opinion further argues that “[tjhe fact that the appellant’s wife was the victim in both incidents is the basis for its admissibility as it reflects a specific propensity to commit the particular sort of crime in question.” The majority cites as analogous our decisions in child abuse and incest cases where we have permitted evidence of prior similar acts with the same child or other children in the household “because, as here, they show a proclivity toward a specific act with a person or class of persons with whom the accused has an intimate relationship.” Finally the Court concludes that the prior act “is probative of the appellant’s participation in the crime charged and is therefore admissible under Rule 404(b).” The opinion then holds that A.R.E. Rule 403 is the real test to be applied and that the probative value of this evidence outweighed any prejudice.

The relationship of husband and wife, by definition, shows intimacy. The intimacy of the parties was not an issue in this trial. The prior bad act, therefore, cannot be said to have been introduced for the purpose of showing intimacy. This evidence simply does not fall within the exception to the general rule in cases of carnal abuse and incest. See Alford, supra, at 335 .

My interpretation of the majority opinion is that it overrules Alford as to the fundamental rule of exclusion which forbids the prosecution from proving the commission of one crime by proof of the commission of another. In Alford we stated:

The rule itself has been announced in some fifty decisions of this court and is so familiar that we need not discuss at length the reasons for its acceptance by every English and American court. Basically, the rule rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilt should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its appeal to the jury by proof of prior convictions, with their conclusive presumption of verity, and still less is there reason to allow the jury to be prejudiced by mere accusations of earlier misconduct on the part of the defendant. . . .

What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning. [Emphasis in original.]

In prior decisions we have held that it is the general rule that proof of prior bad acts is never admitted when its only relevance is to show that the defendant is a man of bad character. The evidence of the first beating was not relevant to prove intent, but rather was offered for the purpose of proving intent, by showing that the defendant was a bad man.

The issue at trial was not whether he had beaten his wife before, but rather whether he intended to murder her. The defendant admitted beating his wife, although he denied any intent to kill her. The fact of the first beating might have been relevant to prove a second beating, but this evidence was in no respect relevant to establish any intent to murder. The evidence of the first beating should have been excluded because, clearly, its prejudicial effect substantially outweighed any probative value on the issue of intent. See A.R.E. Rule 403.

I would reverse and remand for a new trial.