Johnson v. State

632 added). 353, (1966). (Emphasis 407 S.W.2d 728

Ark. v. Reed- Berkeley Pump Co. We that principle restated Co., 384, 653 S.W.2d 128 Land Ark. Joseph 279 worth, Here, showing nor any no of net proof there was not which does result we for error do reverse of prejudice, Wallace, 589, 721 S.W.2d Bank v. 290 Ark. Peoples in prejudice. Ferrell, 143, 671 S.W.2d 753 (1987); Ricketts v. 283 Ark.

659 Our Rule 61 Rules of Civil Procedure. Rule Arkansas (1984); rule is that “The behind this identical to FRCP 61. philosophy aof technical error should not be disturbed because proceedings Wood, Gutshall F.2d 174 which in no resulted prejudice. Rule to ARCP 61.

(C.A. 1942).” Reporter’s Notes Affirmed.

Glaze, J., not participating. v. STATE of Arkansas Henry

Joe JOHNSON 732 S.W.2d 817 CR 86-150 Court Arkansas Supreme 6, 1987 July delivered

Opinion

Lohnes T. Tiner and Dunlap, Chet for appellant. Clark, Gen., Franke,

Steve Att’y by: Taylor Lee Asst. Att’y Gen., for appellee. Newbern, Justice. This ais child sexual abuse case

David in which appellant was convicted raping the nine-year-old (the son boy) the woman with whom was living (the he mother). findWe that one of the appellant’s eight points of appeal reversal. It was requires prejudicial error for the trial court to have permitted who examined physician alleged victim to state, albeit that the had indirectly, boy been abused. sexually remaining will points be addressed to the only extent it may be helpful in the event of a retrial. and the mother appellant together had lived for eight

years. with them Living was the who boy, was mother’s son but the son of the appellant, a who younger daughter was fathered appellant.

At the trial the boy testified that the was appellant planning 27, 1985, on go fishing April with the and two boy other men. As the plans a decision made it developed, that would be an

overnight and thus the could trip, go. not He testified that he

became and went into angry the house where his mother whipped him for on picking his little sister. He then told his mother appellant sexually had molested him. His mother took him to a doctor, where he told the hospital examining pediatrician, same thing. The then his boy testified that statements about the untrue, similar, had been as appellant had his subsequent, officer, worker, statements to a social police and deputy prosecutor.

The other testimony of witnesses indicated that the had boy accused the appellant having anal and oral intercourse with and recanting him then and recanting the accusation then the recantation.

Police officers testified that the during appellant, question- arrest, after his ing admitted his around the rubbing penis boy’s and “it might anus that have in.” said when saying slipped They began the he refused them to they questioning appellant permit him, record his statement. After had tape they questioned they statement, him and said sign asked a written version of his he he a lawyer. he talked with not until after had sign anything would having denied The appellant the ceased. point questioning At that admission to the officers. any made such (1) the the thus consisted

The evidence against appellant statement, (2) the appellant’s about the officers’ told him and his the had boy about what doctor’s statement abused, (3) the statements had been boy that the opinion when he what had told them boy about the persons various he back his accusations. and when took appellant accused the The Opinion 1. Doctor’s testified he found no

The examined the boy doctor who had taken boy evidence of anal intercourse the said physical The lack of such evidence would that doctor said that place day. rule it had occurred. He testified that possibility

not out the that had him with boy relationship appellant told the sexual acts had occurred on several existed for some months if he had The then asked the doctor prosecutor occasions. abuse. The

examined other children for sexual many alleged confer- wrangling and at that bench objected, point appellant hearing began over jury ences otherwise out an opinion whether the doctor could whether express sexually this case had been abused. allow the his express opinion court refused to doctor However, the

whether the told him the truth. court boy had doctor “an as to whether or child give allowed the opinion objected, contending abuse existed.” The doctor appellant no for out-of-court opinion boy’s had basis such an other than give doctor his statément. The court that the could responded facts, the based with the opinion upon “history, coupled physical related, conditions his . . . and the facts and living parent ¡ circumstances at hand . . .” The that the appellant argued examination “history,” negative and the completely physical for were the bases the doctor could have had his only opinion. wished

court said the could be asked and if question appellant on he do so. The to cross-examine the bases for the could doctor had been admonished not to his based say him. When the jury on his belief of what the told solely courtroom, went like this: returned to the the questioning

<

ERRATA page 292 ARKANSAS at REPORTS Detach at perforation, back, moisten over the first paste four lines of text page 637 of Johnson v. State:

on BY MR. prosecutor]: HUNTER [the

Q. Kemp, Doctor during the yomtalked time that to [the boy] him, and examined what voice, was his demeanofftbne that thing? sort of

BY MR. HUNTER prosecutor]: [the

Q. Doctor Kemp, during the time that talked to you him, and examined what was his boy] [the demeanor^©»© voice, of thing? sort A. He frightened. seemed concerned. Somewhat very tense, anxious, Worried. and Very nervous. Obviously upset. with the con- Somewhat—obviously embarrassed versation, and what was he to me. saying indicated,

Q. Ok. And Doctor you’ve Kemp, by area, pointing to genital and the rectal how area he described happened what to him. words,

Did boy] ever use words to particular [the describe what he told this defendant did him? you to

A. He used words like his thing, and I would say, “What do mean you his And thing” he would—he would “Well, say, “No, know what I you mean.” And I would say, ., . . what do mean.” And you he would then to point his said, own and penis say, mean, “This is Iwhat and I “You mean this is what you’re when talking about his you say thing,” he would say, “Yes.” like Descriptions that.

DoQ. you remember how he to referred his hind part? A. He his initially to rectal area in—in pointed describing where the thing placed.

Q. Did he refer it ever as to his bottom? Yes,

A. he used that term once. Q. Do you remember what in connection he referred to hind his as his part bottom?

A. He me kept saying to that he—he his put thing bottom, know, my or—or would point—he say, point you back here. Doctor based

Q. examination of Kemp, upon your took, boy], history you his including living [the circumstances, examination, did formu- physical you late degree an within a reasonable opinion of medical certainty, as to whether or not had been sub- boy] [the abuse?

jected sexual Yes,

A. I did. will Q. you And Doctor tell ladies Kemp, what that is? gentlemen jury, opinion please, I child’s comments ignore A. feel like I could not His sincerity— me.

MR. TINER counsel]: [defense The answer is

Judge, responsive. I’m objecting.

MR. HUNTER: Honor,

Your he’s what his opinion entitled explain was based on.

THE COURT:

Doctor, an state you said formed Can you opinion. you what was relative to child general terms molestation or abuse? I child

A. had an on the that this opinion history based me, dealing with children gave my experience act had occurred that I consid- through years, an to ered detrimental this child’s health.

MR. TINER: we the Bench?

Judge, may approach THE COURT:

Yes. IS A NOTE: THE FOLLOWING (REPORTER’S THAT TOOK PLACE OUT BENCH CONFERENCE JURY). OF THE HEARING OF THE MR. TINER: time, move for mistrial

Judge, at this we’re to going said, he that the child upon history because “Based him, And and based other children.” gave upon examining we’re based and that is upon, improper, that’s what it’s for asking a mistrial.

THE COURT:

I am to motion. And I to tell going deny your going am time, Hunter, at on you this Mr. to else. go something MR. HUNTER:

are,We your Honor.

MR. TINER:

We would ask the Court to admonish the jury disregard the last statement that was by made the Doctor.

THE COURT:

No, that will be denied.

It is the doctor apparent ultimately conveyed jury his error, that the opinion telling the truth. It was however, for the court to have permitted the doctor to given have his “an opinion that act had occurred that considered [he] detrimental this child’s health.” The “act” to which only doctor’s could have referred was the anal intercourse related to him the by The of an boy. opinion expert that a child has been sexually abused is objectionable on the it is an basis that 704; State, on the “ultimate issue.” Jennings A.R.E. 39, 709 289 Ark. S.W.2d 69 here is whether question an such opinion may if it is on expressed nothing based but the given “history” child. State,

In Russell v. 289 Ark. 712 S.W.2d 916 (1986), a testified in a psychologist rape child sexual abuse that, case based on her what the child told experience, had her was “consistent with a child who has been abused.” majority said:

The argues that trial appellant the court erred in allowing to the witness answer whether the child’s state- ments were consistent with sexual abuse because the subject matter was not the beyond knowledge common the The jury. argument is meritorious.

The general test for admissibility expert testimony is whether the will aid the testimony trier of fact in the or understanding determining evidence a issue. fact Robinson, v. 702; Inc. Byers Trucking, B&J R. Evid. Unif. An important 665 S.W.2d

281 Ark. will testimony whether the determining consideration in the the situation is beyond aid the trier of fact is whether and draw its own to understand ability trier of fact’s Robinson, Byers Trucking, supra. B&J Inc. conclusions. to determine

Here, were jurors fully competent lay consistent with the victim was whether the history given by sexual abuse. trial court erred in we conclude the

Accordingly, whether The issue then becomes admitting testimony. the against The case the error State’s prejudicial. was so strong, inconsequential, so error appellant was we find no prejudice. evidence came from overwhelming primarily The The victim’s was testimony victim and a pediatrician. ....

explicit, graphic, unequivocal was The us now the error prejudicial. In the case before State, overwhelming evidence in Russell v. found majority supra, (and child’s unre guilt of the accused’s based on the graphic of the canted) relating appellant. trial the acts testimony “over evidence us now be characterized as hardly before can evidence whelming,” as it consisted of the doctor’s solely opinion, tjie inconsistent, boy, out-of-court statements made allegedly with statement disputed respect by the orally appellant. strong against the evidence

Although appellant it such to the was not of enough go jury, permitted allowing as to make the error in overwhelming proportions give non-prejudicial. doctor to his opinion and the Clause

2. A.R.E. 803(25)(A) Confrontation had said of witnesses as what the Testimony which was admitted to A.R.E. 803 pursuant about appellant provides: rule, following hearsay are not excluded though

even the declarant is available as witness: A (25) (A) statement made a child under (10) ten years of age concerning or any act offense against that child offenses, involving sexual child abuse or incest is admissi- ble in any State, criminal proceeding in a court of this provided: finds,

1. The Court in a hearing conducted outside of presence jury, the statement offered possesses reasonable likelihood of trustworthiness using the follow- ing criteria:

a. the of age the child

b. the maturity of the child

c. the of time the statement

d. the content of the statement

e. the circumstances surrounding giving of the statement

f. the nature the offense involved

g. the duration of the offense involved

h. the of the child to the relationship offender i. the reliability assertion

j. the child reliability-credibility witness before the Judge

k. the or status relationship child to the one offering the statement

l. other any corroborative evidence of the act which is subject the statement m. any other factor which the Court at the time and under circumstances deems relevant

appropriate the give of shall the statement

2. The proponent to offer the notice of his intention party adverse reasonable of statement. the particulars statement and the to this Section pursuant If statement is admitted 3. a is the to jury that it for jury Court shall instruct the the the statement given and credit be weight determine the determination, that, it consider the the shall making and statement, child, of the nature the of the age maturity and made, was which the statement the circumstances under factors. other relevant any the shall not be construed to limit 4. This Section under other any hearsay offered statement admission of an . . rule of Evidence. . applicable or exception Roberts, v. 488 that in Ohio argument is appellant’s the Confrontation (1980), the Court said Supreme U.S. 56 a prerequisite Clause of the Sixth Amendment as requires, rule, witness whose making to the that the hearsay an exception i.e., discussed, declarant, the be is to be out-of-court statement of reliability there be indicia of adequate unavailable that in this case the was statement. The out appellee points not unavailable. Roberts, whether the

In was supra, question Ohio be at trial hearing taken a could used the testimony preliminary at a of the general in the absence of the witness. After discussion rule in the context of history hearsay exceptions of Clause, which was noted that both unavaila- Confrontation it of the are of the witness and indicia of statement

bility reliability sum, when a declarant is not hearsay the court said: “In required, trial, at the Confrontation Clause for cross-examination present that he is unavailable.” In this case showing a normally requires for the witness was at the trial. He was also available present cross-examination, the court allowed the appel- of as equivalent his though him hostile witness even testimony lant call as a favorable to the appellant. this we to terminate this of the at portion

If were case suggesting any as that in might we point, interpreted out-of-court for the trial his present prior where the witness

643 long statements be substituted for live as as there may of are indicia We do not mean to reliability prior statement. Inadi,_ U.S __, that. United States v.

do In S.Ct. (1986), Court considered whether the Supreme hearsay rule exception permitting out-of-court statements admissibility co-conspirators made in the course furtherance of could be conspiracy admitted despite availability there, here, witnesses in The claim question. as was that Ohio v.

Roberts, supra, as required unavailability the witness prerequisite to the any exception hearsay rule. Supreme Court said that case was to be a hardly interpreted as wholesale evidence, revision of the of law and that the unavailability requirement did not with respect to to the apply every exception rule. The noted hearsay Supreme Court that the unavailability requirement in the applied situations where of the testimony witness the at trial was to be the as had given same it been when of out court. the better Obviously testimony given would live, and then cross-examination could be much more meaning However, ful. where the in court can be to be testimony expected substantially court, different from that of given out as in the case of a co-conspirator out-of-court whose statement surrepti obtained, tiously the reason for the requirement unavailability disappears. then becomes whether are question solely there sufficient indicia of to make an to the reliability exception hearsay understatement, rule. With a of touch the Court Supreme observed:

When the Government—as of here—offers the statement drug one dealer to another in of illegal furtherance an the conspiracy, significance statement often will derive its from the circumstances which it was made. Conspira tors are likely to when each speak differently talking to other furtherance of their illegal aims than when the testifying on witness stand. Even when the declarant stand, takes the his in-court seldom will testimony reproduce significant a of the value of portion evidentiary his during statements course of the S. conspiracy. [106 Ct. at 1126]

We find the same reasons permit apply admissibility out-of-court statements of an as alleged child abuse victim alleged to admit the statements of the applied co-conspirators. boy’s as to the out-of-court of who testified

One the witnesses As ab- was a accusing appellant psychologist. statements following: his included the testimony stracted appellant, sexually who have been for children It is not unusual abused, that have been Often children abused to recant. coming aware of the implications,

when become they abuse, often sexual talking quite about the forward and which they of the implications will recant. Some they court, that it causes changes going become aware of are causing are they the pain they perceive in the family, family other members. statements argued boy’s has that the not appellant We reliability. quote psychologist’s

lacked sufficient indicia it was his showing for expert testimony solely purpose being about that a child is to recant a statement likely Thus, in member. view family abused sexually by great known of a reality, common and here the prospect, between and out-of-court statements difference trial victim, does unavailability requirement apply alleged Inadi, States v. supra. in this more it did in United any case than under this primary argument Although appellant’s he also contends that the unavailability, is the one about point gave in this case 803(25)(A) prosecu A.R.E. application other cases as it advantage tion an undue not available in and that that crime evidence by hearsay it permitted prove of the laws. protection to due rights equal violated his process this point, this second under proposition No is cited for authority State, 857, Ark. 545 it. Dixon v. 260 thus we will not address retrial, we (1977). become an issue upon S.W.2d 606 Should this Note, Colum. L. Rev. 1745 and the court to 83 refer the parties Note, Note, 13 (1985); L. Rev. 806 (1983); 98 Harv. (1985). L. Rev. 157

Pepperdine Statement Appellant’s

3. The at some he asked for counsel argued had appellant or he to the officers. during gave police before the statement point until the he did not mention a getting lawyer testified that They a of what he had told sign was written version asked to appellant trial court by resolved credibility them. This was a issue be

645 as to determining admissibility State, 478, v. 284 Ark. 683 statement. Jackson appellant’s (1985). S.W.2d 606

4. Bill Particulars with Stat. appellant charged violating Ark. Ann. § 27, 41-803 “on or [,] about 1985 in Poinsett He April County.” filed a motion for bill of asking a that the exact particulars place and time of the alleged acts stated. The motion was denied.

A bill of as to particulars time offense precise was committed need not be granted unless the time is material to the allegation. Ark. Stat. 1977); Ann. 43-1015 v. (Repl. Payne § State, 309, State, 224 Ark. 272 S.W.2d (1954); 829 Venable v.

177 Ark. 5 (1928). S.W.2d 716 at an

Charging location which offense occurred is necessary to establish the jurisdiction of the court. Ark. Stat. Therefore, 1977).

Ann. 43-1016 (Repl. it is sufficient if the § court having jurisdiction alleged of the offense can be determined State, 646, 232 from the information. Haller 217 Ark. S.W.2d 829

5. What is Statement? The appellant contended that when the boy was questioned by a officer his police responses consisted only “yes asked, and no” questions answers to and that those responses did questions not constitute alleged a “statement” child victim abuse contemplated by 803(25)(A). A.R.E. While this context, court has not defined “statement” in this other courts have it in done similar For example, situations. in United States v.

Katsougrakis, F.2d (2nd 1983), Cir. cert. den. 104 S.Ct. a (1984), nod of the head in ato was held to response question Guzman,

be a statement. United (2nd In States 754 F.2d 482 1985), Cir. were questions give held admissible to to meaning In responses. our the of the opinion, responses alleged victim in this case constituted clear assertions and were sufficient to be considered a “statement” as in the rule. contemplated Testimony

6. Conflicting of the statement to a recording boy’s police A tape A worker who was present officer for social jury. was the played the make testified she heard boy when statement was made the did on the The officer testified tape. statement which not appear claims this appellant the all that was said. The contained tape tape the made the testimony presented by prosecution conflict in Such a so that it should have been admitted. untrustworthy the testimony to to weight given conflict to the be goes only See admissibility. the and not to its presented by prosecution State, 113 (1982). 277 Ark. 640 S.W.2d Roleson v.

7. Other Evidence Crime be statement was to tape recording boy’s When the objected on the basis that the jury, for the the played appellant recording does as hearsay, tape statement was the rule not permit statements, meaning to and the witness opposed (presumably testify either the officeror the in court could boy) present to The also that argued what the statement had been. appellant is, offense, the that contained evidence of another tape prejudicial with the was asked if the had ever “fooled around” boy appellant the basis court objection, sister. on that for the boy’s Focusing asked was. At that response question point what that, said, “alright, counsel inaudible appellant’s tape Judge. gonna I don’t think—I think the be able jury’s don’t hear the The said he would anyway.” judge permit tape tape his to be then asked that objection played. appellant treated as a one. continuing objection

We need not decide whether the was waived retried, or If case is it is clear the court should review not. this that it is if it evidence before admitted ascertain contains tape that another and take committed crime appellant appropriate get action to see to it that such evidence does not before the any jury. Boy’s

8. The Age contends that when the made his out-of- appellant old, nine but years court statements he was accusing appellant at the ten. argues time of the trial he was The appellant -

647 803(25)(A) designed A.R.E. was a child from young protect trial, the the the age trauma of and thus critical is the age child at of the rather at the age the time trial than the the time made, statement was and the rule thus does not the permit be statements to admitted.

The birth certificate of the showed that his tenth 3, occurred His birthday May accusatory 1985. statements were 30, given on recanting and 1985. His statements the April accusations occurred after court it May 1985. The ruled that would be unfair the to exclude the statements appellant boy’s 3,1985, case, made after May in the circumstances of this he and admitted both the statements accusatory recantations citing A.R.E. 803(24).

Although the judge’s ruling was probably respon sive to the we appellant’s objection, find no error here. We have found none, no authority, appellant has cited supporting of Rule appellant’s interpretation 803(25)(A) meaning as that the declarant must be than ten old less at the time of years trial as to the time the rule opposed statement made. The refers to a “statement made a child ten by years” being under as admissible. Our view is that had the of the authors rule meant restrict it to a by age statement made a child “under ten years of at the time of trial” would have so. It they said seems clear to us that the Rule permits the statements to be admitted in this case because were “made a child ten they years.” under

Reversed. JJ.,

Purtle, Dudley, concur. J.,

Hays, dissents. Justice, John I. with Purtle, concurring. Although agree I result, concurring I write a opinion because of primarily misleading statement of the majority:

If we were to this terminate at this portion opinion we might be point, interpreted suggesting any as that in case where witness for the trial his out-of- present court statements substituted for live as may as there are indicia of long reliability state- prior ment. We do not mean to do that. does not it says what it exactly actually accomplishes

The what words mean Dumpty—the words of Humpty do. But in the all not hold that in The does mean. they opinion the majority says out-of-court at trial his prior witness is present cases where a However, the testimony. for live be substituted may statements that, in all cases 803(25), A.R.E. hold to pursuant does of child victim alleged the declarant is the sexual/physical where trial, may his out-of-court statements for the abuse and present indicia of as there are testimony long for live as be substituted child victim was alleged The of the statements. reliability prior was in fact questioned consideration and in the case under present majority of the trial.The the course during defense counsel by Roberts, There the Ohio v. 448 U.S. misinterprets hearing testimony of the witness’ preliminary transcript at the was unavailable evidence because the witness allowed into to the full subject right was taken trial. The former testimony confrontation, subject to full and i.e. taken under oath Further, had made sub- the state effective cross-examination. attendance at the trial stantial efforts the witness’ compel to Roberts. to confrontation was right Roberts was that the thrust and the could not be located

not violated because the witness indicia bore sufficient testimony evidence indicated that her prior fact a basis satisfactory the trier of that it afforded reliability former After testimony. for the determination of the truth of the cases that had examined canvassing the many previous Clause of the Sixth between the Confrontation relationship rule, Justice to the hearsay Amendment and the many exceptions Court, Blackmun, for the stated: writing in two separate

The Confrontation Clause operates First, in of admissible range hearsay. to restrict the ways for face-to-face conformance with the Framers’ preference accusation, a rule of Sixth Amendment establishes where (including prior In the usual case cases necessity. occurred), must prosecution cross-examination has of, the unavailability or demonstrate the either produce, wishes to use against whose statement it declarant . defendant. . . once a witness is shown

The second aspect operates aug- Reflecting underlying be unavailable. its purpose factfinding ensuring ment in the accuracy process by evidence, an to test defendant effective means adverse with such hearsay Clause countenances marked only that no material from trustworthiness “there is departure of the rule.” general reason included in Roberts questioning admitted witness af- only Roberts’ Confrontation was not attorney.

forded, it was utilized.

What majority decision present appears was, fact, overlook is in Roberts the witness or declarant unavailable. The at one without majority doing point, expressly so, distinguish Roberts on the basis that in the attempts present case the was not declarant unavailable. It is because the precisely witness was not unavailable not have that the should been admitted. To hold in the face right otherwise flies smack dab of both the Confrontation Clause the Sixth of Amendment the common against hearsay. law rule the admission of (the better?) Arkansas act to allow and all attempts more the any recitations of declarant is though statements even prior available for trial and Court nor cross-examination. Neither this the General this funda- Assembly power possesses nullify mental law Anglo-American against the admission principle such evidence. reaches its conclusion in the case majority present Inadi,_U.S._, to U.S. v.

analogy (1986), 106 S.Ct. 1121 where the in statements were those of an unindicted co- dispute The admission of the of a co- conspirator. out-of-court statements is on the See A.R.E. conspirator concept founded agency.

801(d)(2)(v). To the out-of-court of an compare statements alleged child abuse victim with the statements of co-conspirators seems, best, in a drug at rather strained. The Court in Inadi ring stated:

If the declarant is the same can available and information to the of fact in of live trier the form presented with full cross-examination and the testimony, opportu- declarant, is to view demeanor of there little nity justification for on the weaker When two relying version. available, longstanding

versions of the same are evidence as well to hearsay, of the law principles applicable evidence. Confrontation Clause favor the better analysis, but The Court did not the confrontation reject requirement rather reaffirmed it in the above. The language quoted do further stated: “These same principles [confrontation] The opinion expressly statements.” apply co-conspirators’ Roberts where it stated: distinguished

The admission of declarations into evi- co-conspirators’ dence thus furthers the “Confrontation Clause’s actually mission” which is to “advance ‘the very accuracy ” in criminal truth-determining trials.’ process Moreover, Inadi has been reasoning behind the decision in brought into Court’s recent decision question by Supreme York,_U.S__, Cruz v. New 107 S. Ct. 1714 Justice Scalia, Court, for the held that where a writing nontestifying codefendant’s confession the defendant is not incriminating defendant,. admissible . . the Confrontation directly against trial, Clause bars its admission at even if the joint jury their defendant, instructed not to consider it even if the against the defendant’s own confession is admitted him. against Roberts,

Ohio v. is still valid law on supra, subject this Stincer,_U.S__, according to the opinion Kentucky (1987), S. Ct. 2658 where the Court considered a Kentucky statute which resembles A.R.E. Stincer the closely 803(25). In trial court conducted in hearing, an chambers at which the excluded, accused was to determine the of two child competency victim witnesses. The accused’s counsel was at the present hearing. The held out of the of hearing was presence jury the defense counsel was allowed full cross-examination. The holding Stincer is limited to the of whether due question process and confrontation were denied the him appellant by excluding from the hearing at which the of the seven reliability-credibility old eight year victims was determined. The Court held that rights accused’s were not violated. I with the decision. agree Both and confrontation were reliability preserved. majority in this case neither. preserves

I the child sexual molestation recognize in this problem attention, country is serious and demands immediate not only and the legislature general public. from the courts but from the must be undertaken with all The effort to deal with this problem However, is the word of caution deliberate deliberate speed.

which in mind. has time and History we must always keep proven or in a state again anger, that decisions made in the heat hastily excitement, are found to have been unwise. frequently Children are to be confused on cross-examination apt by dates, cannot recall exact lawyer. They frequently places details of be reluctant or complete prior experiences. They may scared, Also, or children sometimes they be vindictive. may in a manner intended to or interviewer. respond please parent These are but a few of the matters which must be considered in deciding the trustworthiness of These statements. hearsay problems must be resolved of the trial court by simple process making a evaluation of the prior independent credibility-reliabil- witness, or ity trustworthiness of not the child but also of only each statement. Corroboration of such prior hearsay hearsay if we are to our testimony mandatory system justice. preserve case, The child in this a nine old made the accusation year boy, after the refused to take the child on an appellant overnight fishing After trip. alleged told the victim he could appellant not go, the child went inside the house and started trouble with his sister, little for which his mother him. He then told his whipped mother the had been him. The appellant molesting mother took him to a pediatrician the same The doctor found day. absolutely no evidence that the child’s accusation was The child said true.

the appellant had done it to him that and for several months day before. The child recanted his subsequently story.

The doctrine of long exclusion of existed before the hearsay Constitution and of Rights Bill were adopted by people United States. The exclusion was a basic tenet of the hearsay common law. Trial was found to be by depositions fundamentally lacking trustworthiness and thus such Star-Chamber proceed- were ings aside of the Sixth Amendment. swept adoption Inadi, Marshall, Justice in his 106 S.Ct. at dissenting opinion 1129, remarked: “The Raleigh, of Sir Walter condemned plight on the alleged an who had since deposition accomplice recanted, have loomed in the of those who drafted may large eyes that constitutional guarantee.” have eroded the Exceptions However, Confrontation Clause and the rule against hearsay.

652 the test of to be founded so much upon erosion seems not

present of the it is the convenience in search of the truth as upon reliability must be against hearsay permitted state. to the rule Exceptions reason, then the should exceptions for a and only compelling in of the light and construed. strictly Especially defined narrowly child, A.S.A. videotaped testimony for procedure providing 43-2036, to a safeguards most of the attendant which retains § trial, showing reliability I would an affirmative require unavailability. as hearsay, clearly

The inherent untrustworthiness case, of the in the led to the development demonstrated present The exclusion doctrine in the common law. hearsay exceptions few in number and were founded upon doctrine were hearsay necessity. hearsay testimony showing reliability test demanded this case should be this pass two-part required indicia, even on Ohio v. Roberts. We have no by appeal, the time these hearsay circumstances at relating reliability I holds that a statements were made. No case have read allegedly concurring statute See 803(25) my as broad as is constitutional. State, 564, Ark. 732 Wesley in Charles 292 Cogburn Therefore, (1987).

S. W.2d 807 I insist the Arkansas procedure unconstitutional. Dudley, Justice, I concur concurring. solely

Robert H. cases. judges hearing issue a caveat to the trial criminal The Uniform Rules of Evidence are the most perhaps The trial and trial outstanding judges of the Uniform Laws. have accustomed to the use of them and

lawyers grown appreciate than in scattered using rules which are located one rather place, cases. For the first time since their the courts are faced adoption, with of evidence is in existence. of whether a rule question

The Uniform Rules were as the Arkansas Rules of adopted See Evidence an invalid session of the General Assembly. State, We

Ricarte v. 290 Ark. S.W.2d invalid, then, but under our rule-making declared their adoption Ricarte, at 104. The them as court rules. id. authority, adopted Court has not Legislature 803(25), later enacted Rule but this rule, will do so. such a adopted probably this Court or the then becomes whether question

653 General Assembly has the of authority promulgate rules evidence. This in the separation powers issue not raised case at bar and not answered by opinion. today’s the

Obviously, judges trial are to be faced with the going question 803(25) of whether Rule is a of the Rules of part decision, Evidence. If I were a trial faced such judge with a I would carefully language consider the in Ricarte following the case, at 104: supra,

Under our own and rule-making power existing under statutory as of this date we authority, the adopt Uniform Rules the of Evidence as law in Arkansas. We have no misgivings about either the of our or its action validity wisdom, but a few comments are appropriate.

For more fifty years than there has been a trend steady in of committing favor to the the regulation courts and practice Dean took procedure. Wigmore strong Editorial, stand in the matter as as 1928. 23 111.L. early Rev. 276. Many agreed. others In 1940 the American Bar Association chose as subject for its annual Ross essay “To contest: What Extent under Rule- May Courts Power Rules Making Prescribe of Evidence?” The win- Green, Jr., ning Prof. Thomas F. essay by argued persua- all that rules of evidence are to the sively subject properly rule-making courts’ 26 A.B.A.J. 482 Other power. (1940). articles include another submitted

pertinent essay Ross A. Morgan, Charles 26 A.B.A.J. Riedly, (1940); 601 Procedural?,” “Rules of or 10 Evidence—Substantive Miller, (1957); Vanderbilt L. 467 Joiner Rev.

“Rules Practice and A Study Procedure: of Judicial Rule Making,” 55 Mich. L. Rev. 623

Arkansas made kept has with step progress Our elsewhere. Constitution of 1874 confers upon all Court “a control over Supreme general superintending 7, courts of 4. note in inferior law Art. We equity.” § on that the Court of New Mexico relied passing Supreme New Mexico consti- language almost identical tution as for court’s action authority adopting Rules of Evidence as the law in that state. Uniform Inc., 307, v. Hubbard 89 N.M. Broadcasting, Ammerman in depth court analyzed where the (1976), 551 P.2d rule-making power. its mandatory used legislature Arkansas

In criminal practice committing regulation words in court: to this and procedure shall Arkansas the State of Court of

The Supreme time, of to rules from time to prescribe, have the power to any with respect and procedure practice, pleading, cases. in criminal or all proceedings That action was 1985). 22-242 (Supp. Stat. Ann.

Ark. § it legislative merely delegation power; not an improper State, Miller v. 262 inherent power. the court’s recognized 223, 555 (1977). statutory language S.W.2d 563 Ark. which the in 1973 statute by was repeated above

quoted to power the Court’s Supreme legislature recognized in civil cases. to procedure rules with respect prescribe § statutes, Rule of the adopted those we have 22-245. Under Civil Procedure. and the Rules of Criminal Procedure for the certification we rules adopted More recently first court to adopt We are not the court reporters. action. That judicial step Rules of Evidence by

Uniform Mexico, in New as mentioned been not only has taken Code, Florida, Evidence earlier, In re Florida but also in Montana, Montana Rules of (1979); in 372 So.2d 1369 Evidence, 10, (1984); Code Ann. and Ch. Mont. Evidence,

Wisconsin, Rules 59 In re Promulgation of Court of the (1973). Supreme Wis. 2d R1-R377 Evidence Federal Rules of United States adopted similar to the 1971 and to federal statutes quite pursuant Note, in Arkansas. See Reporter’s 1973 statutes enacted 409 U.S. 1132 Justice, trial I find no error in the dissenting. Hays,

Steele an as a Dr. Charles to Kemp express opinion court permitting The trial that this child had been abused. sexually medical expert boy testifying told the doctor not to state that judge had told him. on what the rely solely and not to truthfully, could was asked if he within those limits the doctor Working degree with a reasonable formulate an as to sexual abuse opinion took, of medical based certainty on the he history living circumstances, and he physical findings; doctor said could and it. proceeded state

The jurors doubtless recognized the doctor was merely stating an bound they were not it in the slightest.

The defense to show was free on cross-examination whether it was on conjecture based fact or on it, and that is how we ought leave judgment of trial We have court. recognized that the trial court is in best all position weigh the factors affecting State, evidence, McQueen admissibility 283 Ark. should, 675 S.W.2d believe, and we I (1984), be restrained in overruling those actions. HALL, HALL,

Ivan HALL, Mona Individually, Ivan as Father and Next Friend of HALL Justin Troy

HALL Del LUNSFORD 87-52 732 S.W.2d 141

Supreme Court of Arkansas delivered

Opinion July Jr., Gordon Humphrey, L. Arkansas, Legal Services of for appellant.

Case Details

Case Name: Johnson v. State

Court Name: Supreme Court of Arkansas

Date Published: Jul 6, 1987

Citation: 732 S.W.2d 817

Docket Number: CR 86-150

Court Abbreviation: Ark.