Combs v. State

¶1dissenting. Heretofore we have held the testimony of an accomplice must be wholly disregarded in determining whether there is substantial evidence of the guilt of the accused, no matter how plausible and credible it may seem. By this decision we are adding the requirement that the testimony of the accused must also be wholly disregarded, no matter how incredible per se and implausible in the light of the remaining proof.

¶2I respectfully submit that is a higher quantum of proof than is consistent with either common sense or with our statutory law. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, that in misdemeanor cases a conviction may be had upon the testimony of an accomplice.

¶3The legislature deliberately used the words “tending to connect the defendant with the commission of the offense” and that if the proof merely showed that a crime had occurred, and the circumstances thereof, it would not be sufficient. (My emphasis). The word “tend” means “to influence in a particular direction,” “to have a tendency, conscious or unconscious, to any end, object or purpose.” Webster’s New International Dictionary, Second Edition.

¶4Since this act was passed in 1883 we have gradually interpreted it with increasing strictness until we are effectively requiring substantial evidence of guilt independent of either the testimony of the accomplice, or now, of the accused. I know of no other area of law where so great a burden of proof exists.

¶5I am unwilling to disregard the testimony of the accused. I recognize some value in avoiding an application of the law that puts the accused in jeopardy of his own version of the events under scrutiny, but the law must often choose between imperfect solutions, and every accused, indeed, every litigant, must weigh the risks inherent in giving testimony, including the risk of being disbelieved. If the accused chooses to testify then it follows that his testimony must be weighed as other proof is weighed, against the tuning fork of truth and if it can be said after disregarding the testimony of the accomplice there is substantial evidence tending to connect the accused to the crime, and overall, substantial evidence to sustain the conviction, the verdict should be upheld.

¶6I can find no precedent to support the position the majority is taking by this decision, that is, that we can consider the discrepancies in an accused’s version of the facts if they are made out of court, unsworn, often without the guidance of counsel, but not if they occur in court, under oath, and made, presumably, after careful consultation. I note the majority opinion cites no authority for this rather significant holding. What I do find in our own cases supports a contrasting view. In Clayton v. State, 247 Ark. 643, 447 S.W.2d 319 (1969) and Ford v. State, 205 Ark. 706, 170 S.W.2d 671 (1943), we said the testimony of the defendant alone may be sufficient corroboration of the testimony of the accomplice:

The rule is also well established that the testimony of the defendant alone may be sufficient corroboration of an accomplice. In Dickson and Johnson v. State, 197 Ark. 1161, 127 S.W.2d 126, we said: “We have but recently held that the testimony of a defendant may in itself be a sufficient corroboration of the evidence of an accomplice. Morris v. State, 197 Ark. 778, 126 S.W.2d 93; Morris v. State, 197 Ark. 695, 123 S.W.2d 513.” Ford at p. 708.

¶7It is obvious the appellant gave the police the same bizarre account she told the jury, in fact she confirms that in her testimony.1 So why we are drawing a distinction between her version in court as opposed to her version out of court is not made clear. If she is to avoid the stigma of her own conduct for two months after the death of her husband she can do so only by successfully convincing a listener that she lived those long weeks outwardly in a normal fashion, going out in public, to parks, stores and business places as an absolute prisoner, held entirely against her will. That she, by her account, was subjected to repeated rapes and sexual and physical abuse, but was powerless to free herself from an unspeakable ordeal over an eight week period. That somewhat incredible account is contrasted to the testimony of four disinterested witnesses that she had innumerable opportunities to simply walk or drive away, that she was free and on her own time after time. Three of the four went further and stated she gave every indication of being perfectly at ease in her state.

¶8Added to that are other circumstances which, in greater or lesser degree, incriminate the appellant: the presence of blood in six separate places in her station wagon, the sale by her of the incriminating vehicle soon after her husband’s death; her statement, undeniably false, to the car dealer that she needed money to get her husband out of jail; her statement to a witness after the arrest of the accomplice that she was scared and was going to Michigan; the fact that she and the accomplice went to a Safeway dumpster and threw her husband’s clothes and belongings away; the fact that all of the pictures of her husband were carefully cut out from her photograph album; finally after being freed of her ordeal by the arrest of her captor, instead of going to the police, she went to the home of a girl friend and it was the police who later contacted her.

¶9I believe the corroborating proof in this case is entirely consistent with other decisions and I would affirm the trial court. See Henderson v. State, 279 Ark. 435, 652 S.W.2d 16(1983);Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980); Olles v. State, 260 Ark. 571,542 S.W.2d 755 (1976);Jackson v. State, 256 Ark. 406, 507 S.W.2d 705 (1974).