*1 Arkansas v. STATE of GEORGE Arthur L. S.W.2d
CR 91-100 Cоurt Arkansas Supreme 15, 1991 July delivered Opinion Rehearing Denial of Opinion on [Supplemental November 1991.*] * JJ., C.J., Newbern, Glaze, Corbin, JJ., Holt, Dudley Hays, would concur. grant rehearing. *2 Whitefield,
Carolyn appellant. Lee Moll, Gen., Att’y Asst. Sandy Att’y by: Bryant, Winston Gen., for appellee. from the This arises Brown, appeal L. Justice.
Robert George, degree for first Arthur L. conviction the appellant, years. ten assessed a sentence of abuse where the jury sexual old at the time of who was girl years was young victim 'fi *3 When the events old the time of the trial. and at years offense '/2 occurred, was under the she of this subject appeal that are with his ran a care service private day who appellant, care of age The was in the of Texarkana. City appellant wife in his home on The issues charge. primary the time of the criminal 68 at under of the rights appellant relate to the confrontation appeal into evidence of the Sixth Amendment and the introduction a part conviction for similar offense prior appellant’s case-in-chief. state’s in care daughter enrolled their Ginger day
Paul Oliver from year, and wife for one with the his appellant approximately stayed 1989. The victim September 1988 to August September during Monday through Friday. work hours with the Georges child that there was one other at only Because of the fact 1989, to a daughter the Olivers moved their August Georges’ where Landing new care named Tot’s facility day September however, did daughter, she be with other children. The could and October Georges’ September return to on occasion 31. visits, night visit Halloween on October including 1989 for to to the daughter go Oliver her did not want Mrs. testified that but wanted for a visit Georges’ night go by on Halloween had to two weeks earlier. Mrs. Oliver was night
On the November was had daughter having nightmare. her who She awakened on occasion she nightmares had a series but recently, bite her room which her. might of dinosaurs in complained she seen fear was a film that had inspired by dinosaur apparently Time. at about dinosaurs entitled Land Landing Tot’s Before fears, daughter’s daughter but allay Mrs. Oliver tried to her Oliver, “Yes, according Mrs. there’s dinosaurs in responded, and they going they going there are to bite me and are to bite me George bites me.” Oliver like Mrs. what her Papaw pursued meant, said, daughter Oliver, and her daughter according to Mrs. “He bites me on tee tee.” then my genital She to her area. pointed
Mrs. Oliver asked her and she daughter again George about mother, “Yes, according to her he me like the replied, bites bed, going dinosaurs are to bite me.” Mrs. Oliver went back but fifteen daughter about minutes later her awoke and again brought George up dinosaurs.
Mrs. Oliver her conversation her relayed husband who incredulous, but next he his morning daughter asked him, about the and she appellant, according to his repeated testimony, that she going was afraid the dinosaurs were to bite her George” “like did. The Papaw father asked where she had been bitten, daughter and the “bent over and her dress and pulled up leaned behind,” over and at pointed her to his according testimony. 3, 1989,
On November Mrs. Oliver made an appointment with a social worker for the Arkansas Department Human Services, Fellers, Evonne daughter. to interview her Ms. Fellers used an correct doll anatomically and had the victim identify *4 parts of the The body. victim with the played vaginal area of the and, doll to the response social worker’s about what question done, the had down, “stood appellant her up, pulled pants bent over, raised her buttocks and her to buttocks.” At pointed Oliver, Mrs. point who was in interjected the room that her daughter said usually George bites her on the tee “Papaw tee.” During interview the did victim not verbalize anything to the social worker.
The was appellant changed with first sexual degree abuse as a over person age eighteen who in sexual contact with a engaged person age under fourteen under Ark. Code Ann. 5-14-108 § Thereafter, the state filed motion for a to hearing determine the trustworthiness of the victim’s statements to her mother, father, and the social worker under Ark. R. Evid. 803(25), 4,1990. and that hearing was held on theAt September conclusion of hearing, Olivers, where the the social worker testified, and the victim the court ruled that the victim’s state- on the based trustworthy Oliver were to Mr. and Mrs. mеnts Also, whole. since the as a the state taken by presented evidence cross-examined, trial court and been had testified victim right denied his to confront was not appellant found that the him. against witness 10, 1990, and on September
The trial commenced jury 12, At the trial victim testified 1990. until September lasted cross-examined, to largely unresponsive but she and was at counsel, was confused and times and her defense her the trial court testimony, At conclusion contradictory. and instructed the testify that the victim was incompetent ruled testimony, victim’s testimony. her disregard jury The trial court was deemed admissible. her parents, related of its case the part the state to introduce as also permitted abuse dated first sexual degree conviction for appellant’s prior that offense which constituted acts prior 1990. July and September pre- between occurred September home, although this is not clear from Georges’ at the sumably record. Clause
Confrontation contends that he was argument, For his first the appellant victim due to her his to cross-examine the right denied effectively times, and, outright at confusing contradictory responses rendered the victim unavailable refusal to answer This questions. addition, cross-examination, he to the according appellant. were unrelia- that the victim’s statements her argues parents the Sixth right When to confront witnesses under ble. it denied, is error for argument goes, Amendment is so Ark. into evidence under trial court to admit statements 803(25). R. Evid. Court has held that the Confronta
The U.S. Supreme
defendant the
tion Clause in the Sixth Amendment assures the
with his accuser and
rights
twin
of a face-to-face confrontation
*5
Iowa,
In
the Court
from its
Wright
quoted
holdings on
prior
Confrontation Clause and concluded that
of a
reliability
statement could be met where the
hearsay statement falls
firmly
within a
rooted
or where it is
hearsay exception
supported
trustworthiness,
guaranties of
which
be
must
shown
particular
Illinois,
from the
of the
See
Lee v.
totality
circumstances.
also
Roberts,
(1986);
The facts in were to the facts Wright similar before us. There, the declarant involved was old the time at of the years '/2 crimes charged, and the trial court found her unable to communi- cate to the jury, thus unavailable. The trial court in the case found the victim present to after her incompetent testify, inconsistent, jury which was contradictory, at Nevertheless, times as the Court in non-responsivе. Wright out, a pointed finding of did inability communicate not render the victim’s statement se prior per unreliable or even presump- tively unreliable. The Court was willing to that this only say might have some relevancy determining trustworthiness.
The victim’s statements of child abuse had been Wright made ato pediatrician. determining the reliability of the statements, victim’s the trial court had looked not only at the statements, of the but circumstances also at evi- corroborative evidence, dence of the abuse itself such as medical the opportu- offense, nity defendant commit the and the sister’s testimony that the abuse had Due to the trial transpired. court’s factors, consideration of unrelated to the circumstances of the statements, victim’s the Court excluded these statements as not rooted in a firmly and not exception possessing sufficient guaranties of under trustworthiness the Confrontation Clause.
In reviewing the factors set out in Idaho Wright *6 us, we look to case before them the applying and trustworthiness in the The victim repetition. and consistent at spontaneity first by the criterion satisfied certainly spontanеity case present following nightmare her mother a her statement to blurting out Moreover, that has maintained consistently she about dinosaurs. by area. This is confirmed genital bit her her the appellant father, her to and demonstration made her mother statements she worker, and father the social where was bitten to her and she and hearing pre-trial and demonstrations at the her statements — at times was contradic- testimony her though admittedly trial that her told defense counsel For she once tory. example, contradictions, Such being “wrong.” bitten was statement about however, to the of courtroom impact be attributed easily can austerity judge, presence old. The year trauma on a 3 '/i her and the subtle the tension of parents, of the appellant, unsettling all contributed to a very of defense counsel antagonism however, to large, the child. and she adhered By environment for area genital appellant. bitten in the story being her her Moreover, while excited the time she told she was at was nothing suggest there is that she story, mother the story to fabricate the deranged any against or had motive Her to her which are factors. Wright story other appellant, not have been within would parents unique plausible Mrs. Oliver girl years. of such tender experience with kind of her was unfamiliar daughter any confirmed that age. at her certainly sexual which is understandable experience bitten added Her demonstrations of where she was additional credence to her statements. hold, therefore, that was in though
We victim judge’s finding at trial due to the effect unavailable testify of trustworthiness guarantees lack of sufficient competency, the trial case under the criteria to Wright support existed of the victim’s state court’s that finding parents’ We rights. did violate confrontation ments not the appellant’s inability the victim’s holding thus follow the case in that Wright at did not invalidate testify trial effectively presumptively her We further hold reliability parents. of her statements to (but father), her mother not her qualify the victim’s statements to 803(2), they Ark. R. as an excited utterance under Evid. because following nightmare hour were made at an lаte unusually terrified clearly the victim.
Rule 803(25) in call The Idaho v. does Rule of Evidence holding Wright was 803(25), Assembly which General in into passed by in that The Court held corroborative evidence question. Wright unrelated the circumstances of the victim’s statements was to a irrelevant determination of those state- reliability Yet, 803(25) ments. Rule the trial specifically contemplates court’s use of in deciding such corroborative evidence trustwor- Moreover, 803(25)(1). 803(25) thiness. Ark. R. Evid. does not include the factors deemed trustworthi- specific important in in Wright a) ness and used the case before us: and spontaneity declarant; consistent repetition; b) c) mental state of the use of d) unexpected a child of similar lack of terminology age; motive to fabricate. behind the reasoning admission of state
ments of an unavailable victim is that the are so statements trustworthy, cross-examination the victim would be of little Hence, to the help defense. the Confrontation Clause of the rights defendant are not violated. In the case we have held present that the trial court found that the victim’s appropriately statements to her were and we used the parents trustworthy, Wright factors arrive at our Though conclusion. the trial judge consid clearly 803(25), ered Rule we do find not from our examination of the he record that used irrelevant reaching corroborative evidence in his decision. Nor was this specific argued at point appellant trial on appeal, although the did appellant raise the issue of the of Rule constitutionality 803(25) the extent generally. To the trial court did consider (and, corroborative evidence again, the record does not reflect did), that he we was hold that it harmless error.
Nevertheless, in light case we no Wright longer believe 803(25) that Rule passes constitutional muster. Under its terms trial could judge on rely heavily corroborative evidence the crime in an admitting unavailable victim’s state and, so, ments as trustworthy doing run afoul of Confronta tion Clause. As the U.S. Court stated in Supreme Wright, the factors to be considered must relate the circumstances of the the crime. mere proof and not to itself dеclaration therefore, are, 803(25) in Rule included factors
Impermissible factors, are not. Rule Wright, specified and relevant face, we so hold. on its defective constitutionally - Rule 404(b)
Prior Conviction into the introduction contends also appellant sexual abuse degree first conviction for evidence of his prior in pertinent part: rule reads The applicable reversible error. Crimes, Evidence of Wrongs, or Acts. (b) Other crimes, to prove or acts is not admissible wrongs, other he show that acted of a in order to character person *8 however, admissible for be may, therewith. It conformity motive, opportunity, such as of proof other purposes, or absence intent, knowledge, identify, plan, preparation, of or accident. mistake 404(b). Evid.
Ark. R.
degree
was first
charged
case where the crime
In a 1981
abuse,
by pretrial
unsuccessfully
the defendant had tried
sexual
his
under
credibility
from impeaching
the state
prevent
motion
had made to a
a
contendere
he
609(a)
plea
Evid.
with nolo
Ark. R.
State,
379, 625
v.
274 Ark.
See Jones
boy.
rape invоlving young
motion,
the
471
trial court denied
(1981).
S.W.2d
The
was
ruling
We held that the
did not take the stand.
defendant
have
conviction “would
been
on the basis that the
wrong
prior
its significantly prejudicial
value
compared
scant
as
probative
381;
W.2d at 472. We noted
In focused on acts deviate sexual admissibility perpetrated different 452 State, 732 S.W.2d Free v. 293 Ark. victim. See testimony “we will allow such holding we said that (1987). so in the child or other children to show similar acts with the same ‘a toward showing proclivity when is helpful same household it with whom with a or class persons act specific person 71; 732 Ark. at 293 relationship.’” has an intimate accused State, 130, 717 455; Ark. S.W.2d S.W.2d at White v. 290 quoting We further held in Free that such evidence of similar acts assists sexual instinct of accused. proving depraved While there is the from potential prejudice resulting abuse, admission similar crimes of sexual Rule 404(b) crimes, wrongs establishes that such evidence “other clearly bemay acts” admissible to not the bad character of prove, defendant, motive, Here, but his or intent. the trial court plan, admitted a sexual abuse conviction into evidence which had occurred less than two months before the trial that the subject of this Neither the state’s exhibit of the conviction nor the appeal. at trial more to the earlier provide particulars relating conviction. Yet the trial court found that the appellant’s convic tion for a similar act was some evidence of intent and was admissible on under that basis the Rule. trial court did not abuse ruling. its discretion so conviction for first
prior degree sexual abuse occurred within two months of the trial in this case. The offense also occurred prior within the same time frame the offense here. Under such intent, motive, circumstances the conviction is prior probative or plan. This is so even though the sexual abuse involved prior State, another See person. Baldridge Ark. App. (Prior
S.W.2d 127 (1990). sexual advances to a niece were of similar probative advances toward a nephew.) are, further,
We legitimate unable to draw a or reasona *9 ble distinction between introduction a similar act prove intent and introduction a conviction for a similar act to prove intent. 404(b), “crimes,” in referring to does not make that distinction, and we question whether the distinction meaningful is when the real issue is the probative value of an element of proof the offense weighed against its prejudicial impact.
We have a held that prior conviction is to prove inadmissible general crime, intent to commit a because the far prejudice State, 330, exceeds the probative value. See v. 223 Ark. Alford 266 S.W.2d (1954). 804 We also have held that in special circumstances where crime, intent is an specific element of the evidence of that intent is admissible. Id. We concluded in Alford that “our very cases plainly the common sense conclusion support of other proof offenses is when it sheds competent actually intent; on the light defendant’s otherwise it must be excluded.” 370 338; of child abuse S.W.2d case at 266 at 808.
223 Ark. involved, and here, instinct was we sexual depraved have such may unnatural sex acts nоted have that similar our cases prior State, See, Ark. Young v. on instinct. e.g., such an light shed 397, (1988). 757 S.W.2d therefore, child
We, of similar admissibility affirm the motive, under Rule intent plan acts as probative abuse above, State, as of Jones v. discussed 404(b). case Nevertheless, to extent Jones is its facts. distinguishable on we overrule it. holding today, with our inconsistent gave court a cautionary we note that the trial Lastly, conviction: prior relating instruction you may would instruct that you The Court further to the conviction of testimony relating prior consider the determining the defendant only purpose had to the pertaining intent defendant have may charge alleged. other activity held that criminal previously
We have proof main tends to which is relevant to the issue and independently defendant than that the merely some material rather prove point cautionary with the is a criminal be admissible may proper State, Ark. 757 S.W.2d instruction. See Young acts This has been to show other sexual concept applied itwhy and accused. Id. We see no reason between victim case us. shоuld not in the before apply Directed Verdict grounds: moved for directed verdict on three appellant stating 1) vague criminal information was erroneous 1989”; 2) the the event “on or about November occurred not was an element of age was which essential appellant’s proven at trial 3) the crime the victim’s charged; incompetency her rendered statements to her mother presumptively inadmissible. *10 a
We
that
that
reciting
have held
in an information
27,1985,”
state
abuse
“on
April
sexual
act occurred
or about
unless the time was somehow
beyond
need not
a date
this
specify
632,
State,
v.
Ark.
material to the
See
292
allegation.
Johnson
371
On the second state failed to before it point prove age rested was above as the first appellant eighteen degree sexual abuse statute was requires. appellant actually trial, old years аt time of the trial court the state permitted to its case to over reopen that the was after the prove appellant motion for directed but appellant’s verdict before the appellant on had his case. Such matters are put with the trial discretionary court, and we will not reverse absent abuse discretion. See State, Curtis Ark. S.W.2d (1983). (The recalling a for additional jury evidence was with discretionary court.) the trial We find no on this prejudice point. argument
The third
dealing with
of the
competency
victim testify
to
and the
trustworthiness
her
has
declarations
been
already
discussed. See Idaho v. Wright,
Holt, C.J., JJ., Newbern, dissent. Justice, Robert H. Dudley, dissenting. basic issue in case whether the received a fair trial under the appellant applicable laws. In my (2) there were two opinion significant errors which him of a fair deprived trial.
1. Admissibility hearsay evidence Before trial the prosecuting attorney recognized he would have difficulty proving alleged the crime since the victim and, was not probably competent testify, addition to proving touching child, organ sex or the buttocks of the little he had to prove that the act touching for the purpose gratifying sexual desire of alleged either the or the appellant result, victim. As a he filed motion pursuant A.R.E.
for a hearing determine the trustworthiness of the child’s mother, father, statement to her and social worker. He stated that at trial he would offer evidence of those statements and offer evidence of a conviction of prior appellant sexual abuse. The
372 ruled that motion and 803(25) on the evidence court heard trial with their conversations about testify father could mother and be addition, conviction could and, that the child, prior ruled in of the accused. credibility impeach used to allowed the the court trial, objection, over the appellant’s At contradictory, confused and testimony Her testify. child to See Chambers truth, testify. and, was not competent in she the criteria for (1982) for State, S.W.2d 306 275 Ark. then allowed the trial court determining competency. statements the father, worker to about mother, testify and a social trial, thе trial court Later in the of them. had made to each child the child declaring made an error it had realized and ruling, so it reversed its her to allowing testify, competent It further instructed testimony child’s stricken. ordered the Thus, testi- the sole testimony. the child’s not to consider jury hearsay testimony was the to convict the appellant used mony out, father, set their mother, worker. As previously and social 803(25). Rule was admitted under A.R.E. testimony argument with the agrees appellant’s majority opinion 803(25) and holds: “Rule is unconstitutional that Rule face, Yet, we so hold.” on its defective constitutionally court’s admittance of affirms the trial majority opinion mother, father, and social worker statements “consistent,” were “spontaneous,” because the child’s statements basis Such a is without a holding and “trustworthy.” “plausible,” rules of evidence. under our govern Rules of Evidence proceedings
The Arkansas 101; State, Ark. Rule Ricarte v. courts in this State. A.R.E. evidence. 100, 717 are our sole rules of (1986). They S.W.2d 488 is not “Hearsay hearsay. Rule 801 defines provides: rules.” Rule law or these by admissible except provided rule does not (24) apply that the 803(1) through provides Not one of those twenty-four (24) specific exceptions. to those statements, out-of-court is based “consistent” upon exemptions statements, out-of- “trustworthy” out-of-court “plausible” 803(2), can be said apply court statements. One exception, statements, con tacitly but the majority opinion “spontaneous” testimony to the cedes that even that is not exception applicable Thus, of the the admission the father and social worker. of the father and social worker was unmistakably our without basis under rules and was error. As others have said, would set out “I reverse the reasons previously majority opinion.” *12 addition, although
In
it is
of
consequence
and
not
to
dissent, the
not be
the
“spontaneous” exception may
applicable
since
alleged
mother’s
the
incident
occurred
probably
weeks,
(2) days,
(2)
at least two
and most
two
the
likely
before
However,
(See
-21.)
child told her mother.
A-18 to
appendix pp.
since that
was not
be
suggested
proven
or
exception
applicablе
court,
and was
relied
trial
the
by
by
not
prosecutor
upon
addition,
various dates were not
In
the general
fully developed.
residual
Rule 803(24), would be insufficient in this
exception,
just
case
as it was in the
case
almost identical
of Idaho v. Wright,
U.S_,
110 S.Ct.
2. conviction Proof of did not appellant receive a fair trial for a second reason. The trial court of allowed into proof prior conviction evidence However, during the State’s case-in-chief. before discussing error, might it be specific to discuss helpful generally issue as embodied the Arkansas Rules of Evidence.
The majority opinion interchangeably discusses Rules and 404(b) 609(a). serve different They very and purposes, should not be confused. Rule 404(b) provides: Crimes, Wrongs,
Other or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove character of a person order to show that he acted in however, therewith. It conformity be admissible for may, other motive, such as purposes, proof opportunity, intent, preparation, knowledge, plan, identify, absence of mistake or accident. rule,
Under this evidence of other crimes is admissible in the State’s case-in-chief when it furnishes the content of part might crime. This case well have been a good example Here, application the rule. with ten accused worked toup children, (10) old, young some young as one at a care year day center. He probably changed wet under- diapers changed for him to touch the so, necessary it was doing probably
pants. not buttocks, intent. That would but without a culpable children’s crime that would make it a fact a crime. The additional been have buttocks for the purpose of the touching would be the See desire of at least one participants. the sexual gratifying commen- original §§5-14-108,5-14-101(8), Code Ann. Ark. had appellant previously If it could be shown thereto. tary deviate sexual his sexual desire gratifying convicted of been mental state in this contact, his culpable it would tend to show -204. Such proof Ann. 5-2-202 to See Ark. Code case. §§ details to show “a collateral enough necessarily proof requires with a or сlass of persons act person toward specific proclivity See Free v. relationship.” the accused has an intimate with whom State, (1987) and cases quoted Ark. 732 S.W.2d have also been admissible show might therein. The proof care center to molest day had the at the appellant opportunity *13 course, before of another crime is these children. Of value of the evidence 404(b), under Rule the probative admitted of unfair A.R.E. weighed against danger prejudice. must be the Rule 403. hand, not into 609(a)
On the other Rule does come play of direct evidence in its case-in- during the State’s presentation Rather, and is during chief. it comes into issue cross-examination crime, the but not to furnish of the content of designed part instead, the is to allow the cross-examiner attack designed of the rule is as follows: (a) of the witness. Subsection credibility attacking credibility the General Rule. For the purpose witness, he been convicted of a crime of a evidence that has (1) if crime was shall be admitted but the only punishable in excess of one 1 under year death or imprisonment ][ convicted, court the law under which he was and the value of this admitting determines that the probative a evidence its effect to a or outweighs party prejudicial statement, witness, or (2) dishonesty involved false regardless punishment. that, a subsections of the rule unlike
Subsequent provide conviction, conviction admitted 404(b) pursu- Rule a prior prior not include 609(a) may ant to Rule for impeachment purposes surrounding details and the conviction. collateral circumstances
374-A Elkind, (1986) Cotchett and Federal Evidence Courtroom (citing cases). federal at bar involves proof case a similar crime which was
introduced direct a during examination of State’s witness its it under 404(b). case-in-chief. involves Rule Accordingly, proof However, the State did any not offer the collateral details crime prior jury. jury given Apparently, only case number and the fact that the had a accused committed prior Therefore, D-27.) did tend felony. proof not (Appendix show the mental state of accused culpable during instead, Thus, it showed that was a bad touching; only he person. this case should be reversed on this also. point
Unfortunately, majority 609(a) discusses a Rule opinion and, case, prior affirming goes conviction so far as to State, Ark., 379, 625 overrule v. S.W.2d Jones (1981), case A.R.E. involving 609(a). Such violates fair holding correct, If the is if the play. majority Jones case is opinion overruled, and must be it be ex applicable facto. cannot overruled post State, v. Rhodes 276 Ark. 634 S.W.2d If case, it holding Jones involved in this is now the law the case and be State, can overruled only Rhodes prospectively. supra. reasons, (2)
For the two stated it is that the my opinion not appellant did receive a fair trial.
Holt, C.J., J., Newbern, in this join dissent. SUPPLEMENTAL OPINION ON OF *14 DENIAL REHEARING NOVEMBER 1991 S.W.2d
Carolyn Whitefield, for appellant. Gen., Moll, Bryant,
Winston Att’y by. Sally Asst. Att’y Gen., for appellee. L. Brown, petition rehearing, Justice. For his
Robert appellant argues that trial used Evid. judge Ark. R. 374-B decision to admit evidence
803(25) hearsay in his be unconstitutional in our 803(25) we held Rule because trial admission of the judge’s original opinion, error. The for rehearing constituted reversible testimony petition denied, and we reaffirm the conviction. is original to Rule our 803(25), оpinion
With respect statements at issue amended decision. by plurality her are the child’s statements to mother and separate on appeal The child made the statements to father about the molestation. from a late at waking nightmare her mother after immediately Both following morning. and to her father the night parents We recognized testified to those statements at trial. in our that since the child’s statements to her mother original opinion her to nightmare followed a that caused become extremely were admissible under the excited utterance agitated, they forth in Ark. R. Evid. as well as under the set exception referenced in S. factors Idaho Ct. Wright, L.Ed.2d 638 The father’s the next hearsay testimony mother’s, morning, though cumulative to the was largely only admissible under the criteria. Wright the Court identified four criteria that been Wright, had used in various to determine the trustworthiness of jurisdictions a) b) statements: and consistent spontaneity repetition; declarant; c) the mental state of the the use of terminology d) of a child of similar the lack unexpected age; of motive to fabricate. The Court held in that considera- specifically Wright tion of evidence corroborating the commission of the crime was and, thus, irrelevant to the hearsay inquiry constitutionally impermissible.
We noted in our that there evidence original was no opinion corroborating (such the commission of the crime as medical trauma) that was used testimony physical the trial court making its decision to admit the Defense hearsay testimony. counsel confirmed 803(25) hearing this at the Rule preceding trial when she said: other corroborative evidence of the act which is
Any subject to the statement. Here we have the parents and of social there was no [the worker] So, medical indication of abuse. there is no outside corrob- *15 orative evidence.
374-C Without the existence of the corroborative evi- impermissible dence, the trial could not have it judge considered under Rule 803(25)(A)1./, general his made the statement having despite that he had considered all of Rule criteria. We did not decision, conviction our appellant’s though reverse in originаl 803(25) did contain the suspect Rule corroborative evidence factor, because no corroborative evidence was at trial introduced by or considered the trial court.
We in factors our in applied Wright original opinion affirming the of both the mother’s and the admissibility testimony father’s, although, again, the mother’s also qualified under the excited utterance One left unan- exception. question precise swered the vehicle be used for our these application factors. Our Rules of Evidence state is not admissi- ble law or rules.” Ark. except provided “by by these R. Evid. 802. The Wright factors have not been formally adopted by rule of this court. That raises the question whether the factors as set and, out in Idaho as “law” under our Rule Wright qualify further, whether in original our case is “law” opinion this for Rule In 1990 we held purposes. that our rules of evidence are in establishing See supreme hearsay exceptions. State v. Sypult, 304 Ark. S.W.2d 402
What cannot be overlooked this case is the fact that the factors were Wright and were present benchmarks for the trustworthiness of the child’s statements. To some extent they are embraced within 803(25) criteria, the Rule which the trial judge considered. They also are available consideration trial aby under the judge Rule’s catch-all which renders subparagraph applicable “any other factor which the court at the time and under the circumstances deems relevant and Ark. appropriate.” R. Evid. 803(25)l.m. and consistent Spontaneity repetition case, figured as the prosecutor social worker stated to the court at the 803(25) hearing. No motive to fabricate was presented by defense. At the age when the statements 2l/i made, were the child had no knowledge of sexual child/adult activity, according the mother. The description the sexual act the child was void of sexual These explicit terminology. all were matters trial had judge to consider because they were present in this case. Court Idaho v. Wright held that corroborative
evidence such as that in our Rule contemplated 803(25)(A) 1./
374-D Our Rule rights. Amendment Sixth a defendant’s violates therefore, Our is, constitutionally suspеct. clearly 1./ 803(25)(A) limit the invalidation is revised to accordingly, original opinion, of Rule /. The balance subparagraph the 803(25) suspect balance of Rule the retaining intact. By remains criteria as of the Wright consideration 803(25), permits under Rule discretion at the trial court’s factors relevant 803(25)(A)l.m JJ., concur. and Corbin, Glaze,
Hays,
JJ.,
C.J.,
dissent.
and Newbern,
Dudley
Holt,
Justice,
the
concurring.
join
majority
While I
Tom Glaze,
court’s
majority
with the
court,
disagreement
register my
I also
the
(1990), that is
374-E view, the rationale my destroys by court in emplоyed majority down corroborating its decision to strike residual rule — a rule rule which is identical to Arkansas’s at issue this case. gained Little else can be a further discussion of the decision Wright dissenting justices’ views except say that I respectfully hope Supreme Court reexamines quickly *17 that and it. holding mercifully overrules
Hays JJ., join Corbin, and this concurrence. Justice, Dudley, Robert H. dissenting. Before the trial on merits, that, the the State notice gave to A.R.E. Rule pursuant 803(25), it to sought hearing determine the trustworthiness of father, the child’s statements to her mother and as well as her and, statement to social worker. The trial court held the hearing fact, in its it finding stated that considered expressly each the 803(25) criteria Rule and found that the to statements mother and father possessed a “reasonable likelihood trustwor- thiness.” The trial court did not rule on the of the competency child to and did not testify, rule that the social worker to assigned give the case could under A.R.E. Rule testiony 803(25). trial, At the court ruled that the child was to competent later reversed testify; ruling its and ordered the child’s testimony However, stricken. allowed court to prosecutor put social worker’s testimony in evidence as “not going to the truth of the matter The asserted.” record of that ruling and testimony as follows:
MS. WHITEFIELD [Appellant’s attorney]: Honor,
Objection, Your to what she said. MR. HUDSON [Prosecuting attorney]:
With the court’s that is We already evidence. don’t offer at it this time for the truth the matter. to show Only Ms. Howard acting was to that. response THE COURT:
It’s admitted for the limited purpose. A. I I that had explained Lindsey [Social worker]: dolls, some special and I bring could them out if she So, could show me with these dolls what I her. happened out these brought same dolls. What she did was she undressed, if I remember all of the figures correctly, except 374-F undressed, she put them got she And after male.
the young female dole of the area vaginal in the fingers finger, her fingers his me, George put “Papaw she said [sic], me.” the appellant used to convict testimony
The only
father,
worker. That
mother,
and social
testimony
803(25).
appel-
Rule
under A.R.E.
was admitted
was uncon-
803(25)
Rule
A.R.E.
argued
lant appealed
State, 306
George
original majority opinion,
stitutional.
incrimi-
that the only
stated
(1991),
The short factors, admittedly including each of court did consider (1) (/), allowing (25) (Á) 803 unconstitutional provision of finding trial court’s mother. The of the father and testimony is follows: on this issue fact determination, not of a is called on make
The court here witness the victim is a competent whether or not in Arkansas criteria set out but whether or not the today, 25 enumerated Evidence 803 subparagraph Rules of m, an- the court has previously as a thru specifically is, concluded, court is required it nounced that it has court, also, criteria, makes its and the all those consider of legislature on the assumption decision today and in the to be used specifically, for those criteria intended offered, or not to whether as opposed test of the statement finds that the witness. The court victim is a competent evidence, met the has, of the a state preponderance Arkansas Rule 803 subparagraph under criteria required whole, there is a reasonable the court finds 25. Taken as of the of the statement likelihood of trustworthiness 374-G mother. That is the ruling the Court. the trial
Secondly, ruling court’s that the quoted hearsay of the worker was social admitted for a “limited go and “did not to the truth of purpose” the matter asserted” was such rule misapplication that it needs non-hearsay no comment.
II. There are other fundamental reasons the supplemental is in error. The first opinion reason involves the validity legislative 803(25). enactment of A.R.E. Rule
A.
The Uniform Rules of Evidence were enacted by an invalid
State,
session
the General Assembly. See Ricarte v.
290 Ark.
100, 717S.W.2d
This court declared their enactment
invalid,
then,
but
under our rule-making authority, adopted them
as court rules. Wе
the Uniform Rules
adopted
of Evidence “as
are
forth
they
Session,
set
in Act 1143 of
(Extended
1976).”
In re
Evidence,
616,
Adoption
Rules
290 Ark.
Uniform
In St. Clair v.
301 Ark.
However, in
State v.
Sypult,
Ark.
374-H at 407. law.” Id. at 800 S.W.2d of evidence source general Price in which Justice concurring opinion, Turner’s Justice for uniformity the need among things, other joined, expressed, would have one place and judges that lawyers so clarity dissented from the justices two Only of evidence. for the rules look holding. rules of sum, adopt procedural this court alone can
In evidence and has never is such a rule of evidence. dictum opinion’s this court. The by supplemental been adopted the General Assem- (A)(l)(/) subsection severability about 803(25) meaningless. is enactment bly’s
B.
addition,
opinion implies
the supplemental
a new Arkansas rule
States created
Court of the United
Supreme
In that
III. considered, and, even if one doctrine is not Even if the Sypult Court for this rule of looks to the evidence, or the legislature Supreme is still in error. the supplemental opinion A. “ that, ‘Hear- 801(c) Rule of Evidence provides
Arkansas statement, the declarant while by is a other than one made say’ offered in evidence to hearing, prove at the trial or testifying Rule 802 is not “Hearsay truth of the matter asserted.” provides, Rule 803 law or these rules.” by admissible except provided are in the then to Rule which exceptions phrased provides rule, rather than in terms of nonapplicability in order to any implication terms of positive admissibility, repeal The theory other for exclusion are eliminated. grounds that, twenty-four (24) exceptions, behind Rule 803 and its first circumstances, may statement under appropriate of trustworthiness sufficient guarantees circumstantial possess he be though may of the declarant even justify nonproduction *20 374-1 to testify. following able It “The are not provides: by excluded the rule, hearsay though even the declarant is available as a A.R.E. added). Twenty-four witness.” Rule 803 (Emphasis (24) exceptions follow in our Rules. the is best known number Perhaps It is: “Excited utterance. A statement relating to startling event or condition made while the declarant was under the stress of excitement caused the event or condition.” A.R.E. Rule 803(2).
The legislatively (25) enacted number is not phrased rule, but, terms of instead, of the nonapplicability hearsay that a child’s “is provides admissible.” it Apparently, admissible in other spite any ground inadmissibility. Under it, evidence is if only admissible it possesses a “reasonable likelihood of trustworthiness.” The rule that the provides old, statement of a child ten years younger, is be admitted in evidence though even the child (Rule is available to testify.
deals with when hearsay exceptions unavailable). the declarant is sum, defies the symmetry of Rule 803 and the first twenty-four (24) hearsay exceptions provides that the hearsay statements a young child are not hearsay upon proof certain criteria. The Rule is as follows:
A statement made aby child under ten (10) age years act or concerning any offense against child involving offenses, sexual child abuse or incest is admissible in any criminal proceeding State, a court of this provided: finds, 1. The Court in a hearing conducted outside the presence that the jury, statement offered possesses reasonable likelihood of trustworthiness using follow- ing criteria:
a. age of the child
b. the maturity of the child
c. the time of the statement
d. the content of the statement e. the circumstances surrounding giving of statement
f. the nature of the offense involved g. the duration of the offense involved h. of the child to the offender relationship i. reliability of assertion j. reliability-credibility child witness *21 374-J the Judge
before child to the one or status of the relationship k. the the offering statement of the act which corroborative evidence any
l. other the statement subject is the time which at the and m. factor the Court other any deems and appropriate. the circumstances relevant under give of the shall 2. statement proponent to offer the notice of his intention adverse reasonable party n of the statement. and the particulars statement admitted to this Section If a pursuant 3. statement it is for the to jury jury Court instruct the shall the statemеnt given and credit to be weight determine the that, determination, it shall consider the making and child, statement, the nature of the age and maturity made, under which the statement was the circumstances factors. other relevant any not to limit the 4. This Section shall be construed other any admission of offered statement under an Evidence. or exception applicable 803(25). A.R.E. Rule
B.
Amendment,
Clause of the Sixth
made
The Confrontation
Amendment,
through
to the States
Fourteenth
applicable
range
in two
to restrict the
of admissible
(2) ways
operates
First,
evidence.
the state must either
produce
reason for his
good
declarant for cross-examination
show a
Here,
the child was declared
unavailability.
incompetent
not
whether
yet
Court has
decided
testify.
Supreme
incompe-
v. Wright,
constitutes
Idaho
unavailability.
tency
type
argument
can be
(1990). Certainly,
strong
S. Ct.
that,
court,
his
competent
testify
made
if declarant is not
not
made
court to a third
are
somehow
statements
out of
party
can
in court. Even
rendered
so,
so that
be
competent
thеy
repeated
dissent,
child
it is
that the
who
of this
assumed
purposes
as defined
was not
at trial
“unavailable”
competent
testify
Roberts,
374-K
If the
does
fall within a
reliability.”
firmly
evidence
not
rooted
utterance,”
such as the “excited
it is
exception,
presump-
tively unreliable and inadmissible for Confrontation Clause
To fall within the
purposes.
category,
admissible
evidence
“the
must show that
declarant’s truthfulness is so clear from the
surrounding circumstances
test of cross-examination
would be of
. . .”
marginal utility.
Idaho v.
110S. Ct. at
Wright,
3149. In
explaining
evidence
to make the
required
clear,
declarant’s truthfulness so
the court used
rooted
deeply
*22
exceptions
examples.
opinion provides:
The basis for the “excited utterance”
exception,
exam-
such
that
statements are
under
ple,
given
circumstances
fabrication,
that eliminate the
possibility
coaching,
confabulation, and that therefore the circumstances sur-
rounding
making
provide
statement
sufficient
assurance that the statement is
and that
trustworthy
cross-
See,
examination would
superfluous.
be
6
e.g., Wigmore,
1745-1764; 4 J.
supra,
Weinstein & M. Berger,
§§
¶
Weinstein’s Evidence
803(2)[01]
(1988); Advisory
Committee’s Note on Fed.
803(2),
Rule Evid.
28 U.S.C.
Likewise,
778.
App., p.
the “dying declaration” and
“medical treatment”
to the
are
exceptions
hearsay rule
based on the belief that
making such
persons
statements
See,
Mattox,
U.S.,
are
unlikely
lie.
highly
e.g.,
156
at
244,15 Ct.,
S.
at 340 (“[T]he sense of impending death is
falsehood,
to remove
presumed
all temptation to
and to
enforce as strict an adherence to the truth as would the
obligation
oath”);
Osman,
v.
Queen
15 Cox Crim. Cas.
1, 3
N.
(Eng.
1881)
Wales Cir.
(Lush,
J.)L.
(“[N]o
who is
person,
immediately going into the
his
presence of
Maker, will do so with
lie
Mosteller,
his
upon
lips”);
Child Sexual Abuse and Statements for the
Purpose
Treatment,
Medical Diagnosis or
67 N.C. L. Rev. 257
(1989). 4iThe circumstantial guarantees of trustworthi-
ness on which the various specific
to the
exceptions
hearsay
rule are based are those
existed at
that
the time the
statement was
and do
made
not include those that
bemаy
added by using
hindsight.”
White Motor Corp.,
Huff
286,
609 F.2d
(CA7 1979).
292
Idaho v. Wright,
The supplemental bar opinion the case at refers to Rule
374-L discussing Wright, “catch-all 803(25)’s subparagraph.” rule, wrote: the Court exception residual comparable somewhat Idaho’s residual at the outset We note which 803(24), Evid. under Idaho Rule exception, admitted, 113-115, is not were App. statements challenged for Confrontation hearsay exception rooted firmly rooted firmly Admission under a purposes. Clause re requirement the constitutional satisfies exception longstanding accorded weight because of the liabiltiy the trust assessing legislative experience judicial See out-of-court statements. of certain types worthiness Mattox, 339; Roberts, Ct., U.S., at 448 at S. U.S., 2539; at Ct., U.S., Bourjaily, at at 100 S. -552, Ct., 2782; Lee, U.S., 183, 107 at 551 S. see also at J., Ct., (BLACKMUN, dissenting) at 106 S. 2067-2068 ex within established (“[Statements squarely legislative judicial ‘the possess imprimatur ceptions in our weigh . heavily . . and fact must experience’ assessment reliability of their for constitutional purposes”) omitted). hearsay exception, The residual (citation state contrast, ad hoc instances in which accommodates *23 falling recognized hearsay within a ments nоt otherwise to be sufficiently be reliable might nevertheless exception See, at Senate Commit e.g., Judiciary admissible trial. Evid. 28 U.S.C. 803(24), App., pp. tee’s Note on Fed. Rule 324.1, 786-787; Evidence pp. E. McCormick on Cleary, § admitted (3d 1984). Hearsay ed. statements 907-909 definition, there by under the residual almost exception, reliability not share the same tradition do of fore a admissiblity firmly statements under supports rooted of Moreover, were we to hearsay agree exception. residual statements under the the admission of Clause automatically passed exception Confrontation would every scrutiny, virtually exception codified stature, has a this Court step assume constitutional 155-156, Green, U.S., 399 at to take. See declined repeatedly 86-87, 91 Ct., 1933-1934; Evans, U.S., S. 400 at at U.S., Inadi, Ct., at at (plurality S. 218-219 opinion); Evans, Ct., 1125, 5;n. see also supra, n. 106 S. at J., Ct., U.S., 94-95, 222-223 (Harlan, at 91 S. at n result). concurring added). Id. at 3147-3148 (Emphasis is infirm. It constitutionally provides that the old, a statement of child ten years younger, a showing admissible that it a upon only “reasonable possesses face, On likelihood trustworthiness.” its this is a lesser sltandard than is the Confrоntation Clause required which that the statement bear such an requires “adequate indicia of reliability” that ‘‘the declarant’s is so clear truthfulness from circumstances that the test cross-examina- surrounding tion would be Id. marginal utility.” at 3146 and 3149 added). (emphasis Court of Supreme the United States has interpreted Confrontation Clause of the Sixth Amendment Idaho v. S. Wright, 110 Ct. 3139 That case is precedent case at bar. Our form of federalism this court to follow requires Court Supreme interpretation matters relating Constitution the United States.
IV. conclusion, this court alone can adopt procedural rules It evidence. has never 803(25). However, A.R.E. Rule adopted even ignoring rule, the fact that we have never adopted precedent Supreme Court of the United States mandates that A.R.E. Rule 803(25) be held unconstitutional. Rehearing should be granted, and the should appellant given be fair trial: case, After all the opinions the fact remains that the appellant stands convicted of a but felony, only against him is the hearsay testimony quoting witness who was declared incompetent.
Holt, C.J., J., Newbern, join in this dissent.
STATE of Arkansas HILL Jerry CR 91-159 811 S.W.2d Court
Supreme of Arkansas delivered Opinion July