Scamardo v. State
2013 Ark. 163
| Ark. | 2013Background
- Appellant Scamardo was convicted of sexual assault in the second degree and sentenced to 144 months’ imprisonment.
- Appeal challenges two evidentiary rulings at trial: exclusion of extrinsic evidence of a prior inconsistent statement by the victim, and admission of the victim’s father’s testimony about the victim’s statements to him after the incident.
- Victim testified she was touched on her private area by Scamardo during a Labor Day weekend in 2008 at her grandparents’ Fort Smith home.
- Nurse-exam findings were normal, which the State argued could be consistent with touching; overall credibility of the victim was central.
- The Arkansas Court of Appeals previously reversed and remanded; the Supreme Court granted review to address the evidentiary issues and the potential retrial implications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of aunt’s impeachment testimony under Rule 613(b) | Scamardo; Wales testimony admissible for impeachment | State; evidence should be barred under 608/801 | Rule 613(b) permits impeachment; error not harmless, remand on this issue |
| Admissibility of father’s testimony as to victim’s post-incident statement | Statement made about a month after the incident was admissible under Bing theory | Not “shortly after” the offense; admissibility improper; hearsay concerns | Elbowed; Bing theory not satisfied; reversed and remanded for new trial on this basis |
Key Cases Cited
- Kennedy v. State, 344 Ark. 433, 42 S.W.3d 407 (2001) (prior inconsistent statement impeachment allowed when witness denies making it; fallow-rule 613(b))
- Yankaway v. State, 366 Ark. 18, 233 S.W.3d 136 (2006) (excludes extrinsic evidence of prior inconsistent statements if the witness admits making the statement)
- Bing v. State, 23 Ark.App. 19, 740 S.W.2d 156 (1987) (post-offense statements to third parties admissible under certain theories; ‘shortly after’ requirement)
- Kennedy, supra, 344 Ark. 433, 42 S.W.3d 407 (2001) (impeachment use clarified; Rule 613(b) applications)
- Laswell v. State, 2012 Ark. 201, 404 S.W.3d 818 (2012) (abuse-of-discretion standard in evidentiary rulings)