Page:Ricarte v. State.pdf/7

106 because the plan for the robbery was conceived by inmates who were in the penitentiary and a key witness for the State identified Ricarte as the man called "Chief" whom he had known in the penitentiary. Since the fact of Ricarte's incarceration was admissible and was proved, the prosecutor was entitled to refer to it in his opening statement. See Rhodes v. State, 290 Ark. 60, 716 S.W.2d 758 (1986).

[10] Another argument is that the court should have instructed the jury that two witnesses were accomplices as a matter of law. One of them, Brannen's girlfriend at the time, testified that he told her to pick up a scanner at a motel a day or so after the robbery and that when she took it to Ricarte's house at Fayetteville she saw many pieces of jewelry on a bed: "Scads of it. There was a lot, a bed-full." There is no proof that she participated in the robbery. To the contrary, she said that when she saw the jewelry she was scared. The other witness was the one who had known Ricarte in the penitentiary as Chief. He recognized Ricarte as being Chief when Ricarte exchanged some of the jewelry for drugs, but there is no proof that the witness knew where the jewelry had come from. Neither of the two witnesses was shown to be an accomplice as a matter of law, their status being at most an issue for the jury.

[11] Upon another point the appellant attacks the constitutionality of the statute permitting the judge to instruct the jury that a defendant has a certain number of previous convictions, which is what the judge did in this case. Ark. Stat. Ann. §§ 41-1003 and -1005 (Supp. 1985). We upheld that procedure in Shockley v. State, 282 Ark. 281, 668 S.W.2d 22 (1984), saying that the number of previous convictions is a matter of law. See case note, 39 Ark. L. Rev. 553 (1986). In the Shockley case, however, and in this case as well, the proof of previous convictions was undisputed. Consequently it was proper in both cases for the judge to inform the jury of facts not in dispute. AMCI 7001-A and Comment thereto (1982). If the existence or validity of one or more previous convictions is disputed by testimony offered by the defendant, the issue may be submitted to the jury by the use of AMCI 7001. Here there was no issue of fact for the jury; so the court's actions were correct.

[12] The last point we need mention is the trial court's denial of a defense request that a pre-sentence report be obtained