*1 of Arkansas STATE Dominic LESHE James 803 S.W.2d CR 90-171 Arkansas Court of Supreme 4, 1991 February delivered Opinion [Rehearing denied March 1991.] *2 Deen, Deen, Gibson & by Thomas D. for appellant. Clark, Gen.,
Steve Att’y Moll, Sandra by: Bailey Asst. Gen., Att’y for appellee. Justice. The appellant, James Dominic Newbern,
David Leshe, was charged with two of counts one rape, by deviate sexual act and the other intercourse, sexual of his 10-year-old stepdaughter. He acquitted was of the sexual intercourse count and convicted of by deviate rape sexual act. He has seven stated of points Reversible appeal. error occurred awhen social worker to give allowed hearsay evidence of the victim’s statement her. judgment reversed, The and case is remanded. We will discuss other points as for guidance in necessary the event of retrial.
1. Sufficiency the evidence of The state sufficient evidence produced to take the question of Leshe’s guilt There was of jury. Ms. testimony Weindorf, worker, an Ashley County social relating a statement victim to her that Leshe had the victim engaged in oral intercourse. There was also Ms. Weindorf s and testimony Leshe, Deputy Sheriff Harris that when confronted with Ms. said, Weindorf s statement what child had made a inculpatory. been considered could have which statement evidence, but we of that admissibility with the here are problems we have determined after trial errors until not consider do evidence, should including that which perhaps of sufficiency State, 284 before the Harris jury. been not have S.W.2d statement testimony victim’s
2. Hearsay 21,1990. day, On the previous on March trial occurred victim not notified Leshe’s counsel the prosecution rely the state would testify and thus be present moved in began, Leshe’s lawyer the trial of Weindorf. When *3 it the that ground on Ms. Weindorf s limine to disallow could not show that the the state He asserted that hearsay. was to that Leshe’s and claimed was unavailable witness was the witness at stake. confront motion, Weindorf stated she knew hearing on the Ms. At a Ashley where County, her moved from the victim and mother had occurred, the County, to Desha where offense allegedly the Streeter, and then to a man named mother had married victim’s had this information a month before the State of She Mississippi. to County social worker Campbell, the trial date. Ms. a Desha transferred, that she file had been testified whom the case Leland, in victim and her mother obtained the address the social worker check and had a Mississippi Mississippi, said went to the social worker she family. Mississippi She said victim, mother, and Leshe. Ms. address where she found the her was, however, living Leshe was in information Campbell’s Greenville, notified the Campbell prosecutor Mississippi. 12, 1990. February the victim’s address around Mississippi mid-February but was The case had been set for trial in of the prose- at the An employee continued defendant’s request. mother called the cutor that in the victim’s February testified hearing in charges. office to she wanted At say drop to setting, asked the prosecution connection with the first trial of the to court to Leshe’s counsel assure require presence refused. victim when the trial reset. The was request than a month It was clear knew more that the prosecutor his witness had moved out before the second trial date that her he have a problem getting appear. and state County A Clerk for testified that the Deputy Ashley Circuit that a for the victim and subpoena office requested prosecutor’s be mailed to middle school in It was Mississippi. her mother mail, in the without a for a request receipt upon U.S. placed on March 1990. The stated that the delivery, prosecutor had to deliver the it principal agreed school but was not subpoena received him. also stated that he knew from prosecutor talking living officials that Leshe was Mississippi with and her victim mother and would show that Leshe’s influence was the reason the victim was present not to testify.
A sheriff from testified he deputy that was told Mississippi the victim’s living mother Leshe was with in her Mississippi.
The court found that the victim was living in a household with her mother and Leshe and was thus not position exercise her desire to He testify. also stated the Confrontation Clause was not a because problem the victim had made state- me, ments to different and “that persons, constitutes reliability.”
a. Rule 804(b)(5) i. Unavailability
The argument of the state at the trial and is here that the witness was unavailable and thus Ms. Weindorf s testi- hearsay mony could be admitted under ARE 804(b)(5) which makes an exception if the declarant is unavailable as a witness and there are circumstantial guarantees of equivalent trustworthiness to those stated for other exceptions. State, 24,
In v. Holloway 268 Ark. 2 (1980), 594 S.W.2d this court stated it was error permit introduction of from a prior trial because the state had dallied long too in its of the pursuit witness for the second trial to use uniform act by which witnesses are obtained from other for states criminal trials. Ark. Code Ann. (1987). 16-43-403 The state’s failure to utilize the uniform act procedure when it could have done so also held fatal to an to substitute attempt evidence in Doles v. hearsay State, 448, 275 Ark. S.W.2d (1982). 631 281 in determining discretion court has a trial
While
“unavailable,”
unlimited.
discretion is not
is
a witness
whether
In
State,
174,
S.W.2d 213
300 Ark.
v.
Bussard
made
serve subpoena
whatever was
no effort
this case
readily
which was
address
at her Mississippi
witness
key
state’s
which the Supreme
faith effort” of
“good
was no
There
available.
which
(1968), and of
v.
if. was admissible hearsay evidence argues state The former rule 804(b)(5). under Rule if not 803(24) under Rule that the latter contains with the exception identical to the latter is circum- Both “equivalent require unavailability requirement. of trustworthiness.” guarantees stantial child allegedly to conclude that because the It was error being to “others” that about abused had made statements was reliable evidence the court Ms. Weindorf narrative read to the child The court’s remark about what the child had said. of Ms. Weindorf related accusation to others than having made the concern, the child. The court’s of general reliability of the statement reliability be with to the respect must As we out in Ward pointed Ms. Weindorf. reported (1989), the reliability determine; the reliability for the question jury declarant the focus of the what the declarant said is to be hearsay report determining admissibility. court in task, court looks to the indicia To perform rule, hearsay in the four to the exceptions first reliability found indicators of the Rule 804. While these are not exclusive evidence, guarantees some “circumstantial hearsay reliability are required. of trustworthiness” about the of Ms. Weindorf questions
The court asked no *5 or her manner of conditions under which the statement was taken it, of the She her revealed some details. taking but to responded did information but stated the child not volunteer original notes she her Ms. Weindorf did not have the questions. conversation, but read from a narrative prepared made to points notes on the of interview. state day from those the child as evidence that use of sexual explicit terminology the child was to have likely the statement reliable because as of It being of a victim is gained knowledge rape. result clear, however, the terminology that at least some was that pretty the interviewer rather than the child. We the child of know but do responded we not know the asked or questions, questions what the were. precisely responses she testimony Ms. Weindorf in which read her
narrative the victim’s statement to her was not admissible “unavailable,” under Rule 804(b)(5) because witness was not it and was not admissible under Rule 803(24) because were there no guarantees “circumstancial of trustworthiness.”
3. Carnal abuse and rape overlap
a. Dismissal The trial court correctly overruled Leshe’s motion dis- miss. Leshe contended that his equal protection of laws was violated because the could prosecution charged have him with either same, carnal abuse or rape because are the they and carnal abuse carries a recognizes lesser sentence. He carnal abuse and are rape both defined as sexual intercourse or deviate sexual with a activity under the person age but that carnal abuse bemay committed age over the only person 18. He contends there no rational basis for the distinction.
In Sullivan v.
(1986), this court
recognized
overlapping definitions in the
statute,
rape
Ark. Code Ann.
5-14-103(a) (3) (1987), and the
statute defining first degree carnal abuse. Ark. Code Ann. §4-14-
The United States Constitution is not violated by
such overlapping provisions unless it would constitute discrimina
against
tion
Batchelder,
class of
See United
persons.
States v.
b. Lesser offense instruction on give an correctly refused The trial court was the issue we offense. That a lesser included abuse as carnal if we find no that even argues case. Leshe in the Sullivan decided statutes, from the resulting overlapping infirmity constitutional included in rape be a lesser offense carnal abuse to we must hold as one which included offense defines a lesser the statute because that a less in the charged “only respect offense differs from the .. . suffices to the same injury person or risk of injury serious 5-1-110(b)(2) Ann. Ark. Code establish the commission.” § have assembly must general is that argument The to the victim a less serious threat carnal abuse thought poses they range. it a lesser sentence gave because argument. only with such an agree
We cannot definitions, and one of one of rape difference between the two be over 18to abuse, that the perpetrator carnal is the requirement with the risk to the nothing That to do commit carnal abuse. has As can be determined victim. other elements are the same. case, created anomaly in the Sullivan explanation from our a result of the process the two statutes came about as without consideration the carnal abuse law amending apparently general assembly We think that the statute. cannot rape all, same thought at much less that it intended the difference to a victim because it was might greater act result in a risk of harm an older a different name or be committed given person. 4. Instruction on corroboration of confession defendant, court, made in will open “A confession of a unless conviction, other proof not warrant unless with accompanied (d) Ann. 16-89-111 that the offense was committed.” Ark. Code with testified that when Leshe was confronted Weindorf “he had told her he stated her revelation of what the victim Leshe thought he was.” Counsel for guessed he was sicker than he asked as follows: jury be instructed not be sustained may
You are instructed that a conviction but the evidence of a confession alone that evidence on each element the offense is corroborating required evidence of confession. It is for any you addition *7 or determine whether not there exists sufficient evidence corroboration. with the
We state’s contention that the court disagree ground this the that it did refused instruction on not properly to a in contain a reference confession “made court.” There open here, was no court confession and to have open included those words in just because are the statute would have they been The proposed instruction relevant. surplusage. agree We that, with Leshe’s contention despite the fact that no such instruction in the Arkansas Model Criminal appears Instructions court, by this it approved should have been if it given correctly instructed the jury on the law contained the in statute. We find no error, however, in the trial court’s refusal to give the instruction proffered. only statute requires proof offense was
committed
by someone
order to corroborate a confession.
State,
McQueen
232,
v.
283 Ark.
S.W.2d
675
358 (1984); Smith
State,
247,
v.
286 Ark.
(1985).
See Trotter v.
State,
269,
290 Ark.
5. suppression Confession The inculpatory statement alluded above was allegedly made in the presence Deputy Harris as well as Sheriff Ms. Weindorf. Harris testified that he had read to a standard Leshe form, rights and Leshe had placed his rights initials beside each statement on the form and signed his name at the bottom. Like the form State, we criticised in v. 284 Fleming 681 S.W.2d 390 (1984), the one used here contained no express he ground moved to suppress Leshe provision.
waiver rights. waived his not had Butler, 469, 471 U.S. v. 441 U.S.
In Carolina North that a that the mere fact Court stated (1979), Supreme an incarcerated person obtained from is eventually confession to make it. he waived his not show that conclusively does not remains, evidence showed waiver whether the The test circumstances, we do not reverse and totality under against is clearly prepon conclusion the trial court’s unless 770S.W.2d Burin the evidence. derance of statement was here suggest circumstances rights. informed of his Leshe was shortly after very made There was no evidence of Leshe was sober. Weindorf testified that *8 wrong trial court was to We cannot the say of duress. any sort statement. to the suppress refuse and remanded.
Reversed J., concurs.
Brown, Justice, high- concurring. This case Brown, L. Robert again complaints court will face as a that this lights problem stated, the Simply continue to increase. juvenile sex abuse cases testify decides not to complainant occurs when problem juvenile for trial. In or otherwise unavailable alleged the abuser against form, be to juvenile’s testimony the may presented what if any, jury? the told story is correct. An unsworn
Surely opinion the majority then translated into the to a social worker and juvenile the by meet and read to the does not jury worker’s own words social how- reliability. begs question, That the minimum standards of ever, standards, direct met those short of of what would have testimony. ever talked to prosecutor confirm that the nothing
There is statements for juvenile, transcription the much less recorded her oath, whether video or at statement under or use trial. A recorded audio, than a assuring reliability would have come much closer recorded, admissibility narrative. But even if social worker’s the cross-examination highly would have been without suspect defendant and clear of a rooted application firmly hearsay States, See v. United exception. Bourjaily (1987); U.S. State, v. 292 Ark. Cogburn
The United States
Court
from
Supreme
recently departed
what had been
as a trend in favor
child
perceived
witnesses.
Iowa,
Coy
Note,
Certain witnesses, videotaped of child depositions continue to pass constitutional muster. Arkansas permits the admission into evidence of for depositions alleged juvenile victims when good cause is shown. See Ark. Code Ann. 16-44-203 (1987). That statute contemplates deposition judge’s cham bers with cross examination defendant who is face to face with the alleged victim. We have upheld constitutionality that procedure. 388, 706 McGuire v. S.W.2d 360 (1986). Use of this procedure, though perhaps costly, would have obviated the problems we face in this case. *9 TRUCKING,
FISHER INC. v. LEASE, FLEET INC. 90-200
Supreme Court of Arkansas Opinion delivered February [Supplemental Opinion on Denial of Rehearing March 1991.]