*1 Kendell CAMP v. STATE of Arkansas CA CR 98-873
Court of of Arkansas Appeals
Divisions II and III delivered Opinion April Martin E. Lilly, appellant. Gen.,
WinstonBryant, Gen., Gil Att’y by: Ass’t Dudley, Att’y for appellee.
John MauzyPittman, case, Judge. in this Kendell was convicted at a Camp, trial of jury third-degree *2 $500 his He was fined for beaten wife. domestic battery having con- in court costs. On $211 and ordered to appeal, appellant pay in a officer to court erred allowing testify tends police and in as made the victim admitting report to statements by of the victim. He also the officer about interview made by in an affidavit that contends that the trial court erred admitting for order in of her was filed the victim support request affirm. We protection. trial,
At
the victim refused to
Over
objec-
testify.
tion,
then
introduce Officer
Holt’s
the State was
allowed to
Barry
the officer at the
the victim’s statements to
testimony concerning
and
three hours after the
incident
some
hospital
alleged
of that interview. The trial court
officer’swritten
expressly
report
was admissible under both Ark. R. Evid.
found
the evidence
and
(excited-utterance
(residual-
803(2)
804(b)(5)
exception)
is unavailable).
when witness
hearsay exception
for
that the
In his first
argues
point
appeal, appellant
in
trial court erred
the officer’s
admitting
Rule
He
no
that the trial
under
makes
804(b)(5).
argument
Therefore,
under
erroneous.1
court’s
wаs
803(2)
ruling
1
argument
ruling
cannot
does attack this
in his
but an
be
brief,
reply
Appellant
628,
in a
brief.
v.
Also admitted over was an affi- appellant’s objection davit executed victim on after the by day battery. court, affidavit was filed with the in apparently chancery conjunc- tion with the victim’s for divorce from in an complaint appellant, effort to an order obtain of The trial court found this protection. evidence under admissible On 804(b)(5). appeal, appellant сontends that in court erred so The State ruling. argues abandoning argument issue. We hold on has right waived the appeal, appellant ruling to have the decided. propriety dissenting judges argument, next did maintain, as counsel oral at that ruling did in his first brief that the under court’s was erroneous because much “argument heading.” he stated as in his interesting This position might long ago be debatable had not been decided that this was law. not the Seе Brockwell (1976) (mere v. 807, 260 Ark. 545 S.W.2d State, 60 statement of for point appeal argument argued); insufficient if Dougan reversal; waived not see v. State, 330 point (1997) (mere 827, Ark. 957 182 alleged subheading S.W.2d mention of an in a error of argument one’s addressed). brief, without citation will not be any authority, The dissent further maintains that in did, fact, raise the excited-utterance argument in his brief because initial “he on facts related the excited utterance touch[ed] with However, all due to discern this on the basis of the exception.” respect, (i.e., hints and traces in the eight-word mentioned dissent mention parenthetical that the victim’s statement was made three after the hours which mention battery, appears in a paragraph 804(b)(5)) devoted of Rule residual-hearsay exception requires degree bordering precognition. reading on A fair of the briefs in this case sensitivity leads to the conclusion that abandoned the excited-utterance inescapable appellant simply (a denies), in his fact that the brief dissent both admits and that State discussed the issue in brief its own in such a manner awakened interest in the argument, advancing and that the first time in responded brief. reply
137
information
was cumulative to the collective
pro-
affidavit
the officer’s
vided to the
through
jury
argues
in its admission was hаrmless.
error
Appellant
contained “sub-
cumulative because it
the affidavit was merely
than was originally
more information
provided
stantially
that we need not decide
we conclude
Officer Holt.” Again,
the evidence.
the trial court erred
admitting
whether
law
settled that
is not
is well
prejudice
presumed,
v.
absent
Bell
and we will not reverse
a showing
prejudice.
State,
285,
courts have
Ark.
Here, we conclude that the information contained in the affidavit cumulative to that which was introduced through the officer’s and his whose introduction testimony appel lant has failed to demonstrate was While improper. information, that the affidavit contained more argues substantially we cannot affidavit detailed the attaсk on the agree. physical victim for stated which It further prosecuted. abused had the victim for some ten and had years threatened to kill her if she to the went to police. According record, abstract of the this same information was con appellant’s tained in either the or officer’s his written report circumstances, both. Under these we conclude that informa tion in the affidavit was cumulative to the evidence other merely trial, wise introduced at error in was not admission any prejudicial.3
Affirmed.
Robbins,
Meads,
and Bird and
C.J.,
JJ., agree.
word
mention of the
was sufficient
the trial court of
“trustworthy”
apprise
any
argument.
Confrontation Clause
dissenting judges
concede
we have
described
contents of
correctly
acknowledge
longstanding
go
abstract.
rule that
will not
They
arguments.
Yet,
record to reverse.
to make two inconsistent аnd
they proceed
faulty
majority’s
First, the dissent states that the
conclusion that the affidavit
officer’s
is based on
and cannot stand
while
because,
abstract
report
speculation
indicates that some unknown
of the
were
jury,
excised before it went to the
portions
argues
abstract “fails
show what information was excised.” Second, the dissent
this
something
case should be reversed on
account of
they say aрpears
transcript
but
agree
arguments.
abstract. We
with either
of these
The first is
dissenting judges’
based on the
abstract,
unsubstantiated
assumption,
abstracted version
officer’s
the redacted
jury.
is not
version shown to the
In
arguments
longstanding
are
governing
event, both
rules
contrary
appellate practice.
4-2(a)(6)
the Rules
of the Arkansas
that an
Court
Supreme
requires
us with
abstract of those
of the record that are
to an
present
parts
necessary
understanding of the issues
for decision.
the burden
on an
presented
Clearly,
bring
sufficient
record
to demonstrate reversible error.
McGhee v.
Neither Holt’s testimony regarding Cindy Camp’s First, neither was his admitted. nor written report properly the “excited utterance” to Rule 803(2), admissible pursuant An excited utterance is state- rule. “[a] while the or condition made ment event relating startling the event or stress excitement caused declarant was under the of behind the excited utterance exception condition.” The theory excitement which that “circumstances condition of may produce utterances of reflection and stills produces temporarily capacity Wade, fabrication.” Luedemann flee conscious It that “the must be established it rea- after the accident for utterance was made soon enough accident, rather of the stress of be considered sonably product Id. excited deliberation.” “An reflection or than intervening there time to contrive have been made before utterance must is, before reflective it must have been madе and misrepresent; at at 775. senses took over.” Id. and deliberative testified taking Cindy Holt extensively regarding Barry information, basic first from her statement. He obtained Camp’s what He then asked her as her name and date birth. hap- such if it back to her and asked he read After taking pened. it her comments. Cindy Camp agreed reflected accurately did, testified that three hours Holt and she report. signed *6 between the time told him thе incident passed Cindy Camp occurred and time made the he contact with her. Cindy Camp time had to contact a friend who met her at the hospital. friend,
Mrs.
after
a
Holt.
Camp,
meeting
interrogated by
then
She
to review
make
given
opportunity
that it
sure
reflected her remarks. Three hours
accurately
passed
between the
incident and
time she
the statement.
In
gave
facts,
view of these
must conclude
remаrks
Cindy Camp’s
to Holt were born of deliberation and reflection rather than an
Luedemann,
excited condition. See
(officer’s
supra
testimony
a statement
to him at an accident scene
regarding
given
regarding
how an accident
occurred
not an excited utterance
despite
officer
arrived “minutes”
after
accident
having
occurred);
denied,
cert.
(1996),
Johnson
Moreover, neither Holt’s nor his written was admissible to Rule pursuant 804(b)(5). That rule provides that a is statement not excluded rule if the declarant hearsay unavailable as witness if it has circumstantial “equivalent guar- antees of trustworthiness” other exclusions provided by The evidence lacked such 804(b). circumstantial guar- equivalent antees of trustworthiness. See Doles v. statement (1982)(witness’s given police shortly
after crime occurred was not admissible to Rule pursuant It should be noted that 804(b)(5)). investigative reports by are excluded as an police rule. specifically Ark. R. Evid. This 803(8)(i). further indicates that the report lacked such guarantees. states that the failed challenge
his initial brief the of the evidence tо Rule admissibility pursuant concludes 803(2). that because the did not so, do there is a separate introduction ground affirming the evidence that went thus unchallenged obviating any need discussing evidence admissibility rule that if an presents Rule 804(b)(5). general Here, error, wins. meritorious allegation *7 error that the majority has raised an allegation appellant meritorious; therefore, the assumes, is appellant without deciding, the should have The to win. majority says appellant ought Ark. R. the court cites an alternative ruling by appealed 274, 278-79, 778 P. — Crim. 14 Pearrow Feagin, On Neither this support proposition. face, most, Pearrow a civil 14 does not. At holds Rule case, reversal the trial court’s if to obtain an wants appellant counterclaim, the must there denial of a argue appellant must for the counterclaim and not a basis valid denying procеdural if been meritorious it had counterclaim would have the argue in a that a defendant criminal been allowed. Pearrowdoes hold the that would show that case must arguments present, appeal, the not admissible under articulated theory evidence was any under conceivable trial court or theory. any law on its head the familiar case stands princi- majority reason trial court’s if we will affirm a ruling any ple Here, was correct. erroneously ruling majority opinion abandonment of an issue failing an equates appellant’s with a concession appellant appeal, submit, court’s correct. We given posture ruling procedural case, tell is abandoned his of this that all we can abandon- error. 803(2)-based allegation appellant’s not, somehow, ment this issue does permit correct. If decision was 803(2) assume that court’s correct, 803(2) the trial court’s Rule ruling fact, have In for reasons we should why. previ- explain opinion the trial court’s ruling wrong. ously explained, event, in his was raised initial In any reads, brief “THE brief. The heading A ADMITTING POLICE ERRED IN TRIAL COURT ARKANSAS TESTIMONY UNDER OFFICER’S HEARSAY 804(b)(5).” RULE EVIDENCE AND OF claim that excited facts then noted related utterance did not apply. Specifically, noted that Holt testified that seemed when Cindy he Camp upset contacted her and that three hours between the time the passed incident occurred and when Holt met her. 857, 862,
In Dixon v. reversal, raised (1977), “without cita- points any tion of without authority real actually . .” The argument. Court of Arkansas Supreme adopted position Supreme Court of Oklahoma and concluded that of error “[assignments brief, counsel in their presented by unsupported by convincing will not be considered on authority, unless it without further research apparent аre well taken.” they Given that the cited to this court authority regarding *8 excited rule, utterance to the that he hearsay presented an on facts related to the excited touching utterance that he the both exception, argued below and in point his reply brief, and, most that it is importantly, without apparent further research taken, that his is well it is untenable for the to the majority issues here dodge presented by asserting per- ceived violation on the of the procedural part For these appellant. reasons, same the cases cited the for the majority proposition that the failed to the challenge of the evi- admissibility dence to Rule are distinguishable.
Also, affidavit was Cindy Camp’s admitted properly pur suant to 79, 83, See Poe v. 804(b)(5). affidavits (1987)(“[O]rdinary taken under oath do not the same carry trustworthiness as to exceptions listed in Rule 804.”) concludes that the majority affidavit introduced into evidence was cumulative to Holt’s merely testi and the admission, mony its report. Consequently, majority holds, However, was harmless. since both the and the testimony admitted, were not report properly affidavit was not cumu lative.
Moreover, the resorts to majority to conclude speculation that the affidavit was cumulative to Holt’s and his writ- testimony ten Thе affidavit report. that the provided threatened to for ten had continued and the violence kill Cindy Camp did not to this. our review Limiting Holt testify years. abstract, before information was or was not this put whether of Holt’s is matter written speculation jury through report because the trial court excised portions abstract that fact is borne out abstract. excised fails to what information was Holt’s written show report Thus, it it to the from before was jury. given without cumulative report conclude that affidavit was or examination of the record determine resorting speculation of the read. Were we what version inspect jury record, see that the affidavit was not we would court excised written because the trial Holt’s passages statements threatened Cindy regarding Camp’s her had ten before to kill the violence continued for years аdmitted into evidence. be information not to found affidavit other provided or his The affidavit either Holt’s written report. pro- that the had choked her incident vided during fur- earlier. The abuse that occurred six months affidavit physical there ther she afraid provided domestic abuse. ...” an “immediate and danger present of this information is obvious. The prejudicial impact *9 Further, does not concludes that abstract of the аt trial that the admission reflect that appellant argued Clause and that affidavit violated the Confrontation consequently, Thus, review. the major- the issue not preserved appellate the admission of that it will not concludes analyze ity the constitutional standard harmless beyond affidavit under abstract, stated to the the trial court reasonable doubt. According to Rule 804(b)(5). the affidavit was admissible asked, or basis I of Yоur Honor what facts “Can inquire the statement on make finding that the Court relying “No, can’t. I ruled The trial court you replied, trustworthy?” of trustwor- guaranties 804(b)(5).” Certainly, “particularized Clause of Confrontation of evidence is touchstone thiness” Idaho v. 497 U.S. See argument. Wright, own remarks did not limit his to Rule objection trial court terminated 804(b)(5), further summarily discussion. In view of the abstracted that the request evidence, court trustworthiness of the analyze Con- frontation Clause As properly preserved. argued by trial and at the introduction of the affida- vit was afforded the contrary protection appellant by Confrontation Clause. See Wilsonv. Pine generally City Bluff, 286, 292, (1982)(“The [Con- frontation the state from the defendant [Cjlause prevents trying ex affidavits or in lieu of by using examination parte depositions and cross-examination of the of the witnesses front trier of Further, the fact.”) admission аffidavit must be analyzed under the constitutional standard harmless a reasonable beyond doubt.
Granted, our case law mandates that an issue must be raised addressed, both at trial and on before be that the may raised, abstract must reflect that it sowas and that an appellate court affirm, to the record to reverse. In order go read the narrowly abstract and Further, it concludes that evidence appeal. was cumulative with- out able determine from the being abstract whether it was cumulative. Our case law does mandate this outcome.
I dissent. respectfully in this dissent. J., joins Neal,