*1 had made If the Buick lane. to the other swerving of suddenly turn, have, behind, could following stop, appellee, timely done the same. on lights were no there
Second, testified that appellee or turn. If either a indicating stop car appellant’s known the would have signal appellee a turn given left, could the appellee to turn in order was stopped “slow than simply hard rather started to brake immediately have car gotten had almost Since appellee vehicle down.” my could have the jury truck it hit appellant’s before stopped been a could have actions braking different concluded that the the instruction Accordingly, cause of the accident. contributing was not abstract.
Affirmed. of Arkansas v. STATE SMART
Dale
Steele abuse in the degree first on fondling eight year girl old June 27, 1987, in violation of Ark. Code Ann. 5-14-108 § Smart was convicted and sentenced to seven years, suspended four, on the condition that he counseling. obtain
On Smart argues that the use of the victim’s hearsay statements to A.R.E. pursuant and the victim’s live at trial is cumulative and prejudicial. Additionally, Smart argues the witnesses victim’s testifying statements under A.R.E. Rule 803(25) were allowed to testify about matters other than the sexual abuse incident. Finding no merit in the arguments, we affirm the trial court’s judgment.
The state’s was proof that Dale Smart and his wife had a babysitting arrangement with the Thackers. Veronica Thacker and some of her cousins with the Smarts while their stayed 27, 1987, parents worked. On the of June evening Dale Smart came in from work and after a drink of retired to his whiskey recliner. Smart then called Veronica over to the recliner where he her in his While placed lap. Veronica was in his he lap, proceeded to unbutton and unzip eight and fondled the old pants, year wife girl. Smart’s was not in the when this house incident occurred, house, her return to the Smart obtained assurances from Veronica that she would not tell about anyone what just following occurred. The Veronica morning reported incident to her mother and later in the Veronica afternoon told Breashers, Ms. Paula a volunteer SCAN worker and family White, with Ms. Helen Veronica spoke A week later friend. incident. County, Sheriff of about Pope Deputy state notified 803(25) the to A.R.E. Rule At trial pursuant Breashers, mother, Ms. statements to her Smart that Veronica’s The trial at trial. would be offered and Ms. White likeli- a reasonable statements possessed determined that these into evidence at them and admitted hood of trustworthiness trial, but offered at Not were these only trial. herself testified. Veronica Thacker that: 803(25)(A) states A.R.E. Rule of age under ten years made a child statement *3 involving that child against act or offense concerning any offenses, is admissible in any child or incest sexual abuse State, provided: in a court of this criminal proceeding finds, outside the conducted hearing 1. The Court in a a offered possesses that the statement jury, presence the follow- using reasonable of trustworthiness likelihood criteria . . . ing to the rule hearsay
A.R.E. Rule 803(25) provides exception of While years age. with children under ten cases of sexual crimes trauma to alleviate the it is true was enacted exception that direct testimony child victims requiring and distress of child, which a child nothing prohibits from the there is in this rule when the argues from The that testifying. appellant it meant to create “an enacted this hearsay exception either/or is, situation,” hearsay or the child’s may testify that the child trial, but not both. to others be introduced at may statements the statements or the the rule does not state that either admitted, on this nor does any commentary live be testimony may rule.
In Harris v. 295 Ark. was (1988), we addressed this issue. The recently appellant a six old. year convicted of second inflicted degree battery origin as to the of his statements hearsay child/victim’s and the child 803(25), were allowed under A.R.E. Rule injuries that the argued hearsay also testified at trial. The appellant were have been excluded at trial because should cumulative and We said: prejudicial.
Our evidence is court has held that the mere that fact exclusion, sound a for its may ground cumulative be hardly discretion of the trial but it is basis judge, admission, constitutes an holding that its otherwise proper, abuse of discretion.
Therefore, in this case the trial did not abuse his discretion admitting both the statements of victim and the live testimony. argues that when statements of
children are under admitted A.R.E. Rule the rule “a child . . permits only concerning any statement made . act or . . (Our .” asserts that emphasis). offense of Ms. Helen White was confined the mere sexual act of she fondling, but was relate statements permitted by the child as to how she felt the next and how she described day the incident to her mother. We find little of in this consequence testimony, nothing that warrants reversal. Veronica certainly said the incident made her “uncomfortable” and that she told her ache, eaten, mother she had a stomach not from anything she but from something that had been done to her. without Assuming, contends, deciding, that Rule 803(25) is as narrow as appellant there is nothing in this be proof regarded could as substan tially affecting rights appellant. A.R.E. 103.
The dissenting asserts that opinion the majority “evades the question of the constitutionality of A.R.E. Rule 803(25)(A).” There are clear and cogent reasons. The argument court, was not raised in the argued trial nor was it on appeal. omission, cases, Either according literally hundreds of our many of which are dissenting authored the obviates our by justice, dealing with issues that are not If presented. we undertook to arguments answer that were raised neither in here nor the trial court, the of process review would doubtless appellate collapse under its own New and weight. of error are more principles followed or entrenched rule do widely firmly than the that we not address arguments by raised the litigants.
The dissent discusses at some the confrontation length clause of the United Constitution is our by States and mystified failure to v. Iowa, _ U.S. __ (June 29, 1988). discuss that, same answer prevails. Veronica Thacker Beyond gave 328 the at abuse she had regarding experienced the sexual confronting the court directly of the while open
hands in this was breached Just how confrontation clause the appellant. dissenting in the explained opinion. case is AFFIRMED. J., concurs.
Newbern, J.,
Purtle, dissents. Justice, concurring. question Newbern, David this case. In his 803(25) of A.R.E. was not raised in validity 632, State, Ark. 732 v. 292 concurring in Johnson opinion this court had (1987), Dudley S.W.2d 817 noted that Justice of its the Rules Evidence authority asserted Uniform adopt 803(25). of the court it has not rules and that adopted State, v. Johnson dissenting also Justice Purtle’s opinion supra. have, case, of
We again escaped separation powers this created of Rule legislative problem by adoption to this court’s the Uniform Rules subsequent adoption of it. Evidence which not contain that or like anything did rule I write to restate caveat contained in separately only Justice by Dudley. opinion Justice, dissenting. yet This another Purtle, I.
John
in the
line of
v.
phenomenal
cases started
Johnson
opinion
State,
State,
632,
Ark.
v.
292
The Johnson majority opinion stated:
If we were this to terminate at portion *5 we be that in point, might interpreted suggesting any as where his case the witness is the trial out- present prior of-court be for live may testimony substituted as long there are indicia of the reliability prior statement. We do not mean to do that.
I the case was concurred in the Johnson decision because reversed. We an express held in Johnson that a person may a child if that opinion concerning the sexual abuse of nothing is based the the child. “history” given by but words, In other if the basis of witness’ is what only testimony child has told that witness heard the child or what witness has others, tell then the is inadmissible.
The amazing thing about all of these is that opinions somehow to manage the Sixth Amendment completely sidestep issue.
The question before us concerns the
rule.
hearsay
Roberts,
in Ohio v.
(1980),
The Confrontation Clause operates ways in two to separate restrict range First, hearsay. admissible in conform- ance with the Framers’ for face-to-face accusa- preference tion, the Sixth Amendment a rule of necessity. establishes In the usual case (including cases where cross- prior occurred), examination has must either prosecution produce, of, or demonstrate the the declar- unavailability ant whose it statement wishes use against defendant. The second once a aspect operates witness shown to be Reflecting unavailable. its underlying augment purpose accuracy factfinding process ensuring the defend- evidence, ant an effective means to test adverse the Clause countenances only marked with such trustworthi- ness that “there is no material departure from reason the general rule.”
I also Cogburn. concurred in The dicta in the majority opinion seemed to hold that A.R.E. Rule was constitu- tional, as in that applied case. The case was reversed particular “because of the error in admitting statement of the videotaped *6 witness’ stated Cogburn in majority
victim.” The abused had sexually had been that the child statement of opinion in and or in the trial court challenged not been case.” The this issue this “we not address therefore need demonstrated it not been decision also noted that had Cogburn state- before the out-of-court that the declarant was unavailable ruling no definitive seems to be ment could be admitted. There 803(25) Cogburn opinion. in the concerning Rule 1987, 6, was Hughes. on July case handed down third stated: majority opinion constitutionality question On does appeal appellant Clause, under Confrontation of A.R.E. Rule rather, under the rule he the in camera submits procedure before the trial that the child requires personally appear hearing reliability-credibility at the to establish the We if to at trial. of his statements are be introduced the argument. sustain and Cogburn, Hughes) (Johnson, uphold
None of these decisions 803(25). of A.R.E. Rule constitutionality We have abolished our rules as enacted and rules this readopted promulgated by which been court. Ricarte v. 290 Ark.
(1986).
803(25).
has never
adopted
court
That rule exists
It is
within the
of
province
as a statute
only.
dissenting
to
rules
court. My
General
write
of the
Assembly
this portion
more detailed reasons behind
opinion Hughes gives
Court,
of
v.
my
County
dissent. See State
Pima
Superior
Skala,
(Ariz.
Several witnesses purportedly stating even added allegations made the victim. Some them their own conclusions about the facts of case. taped state, turned out well for the so it used the and also deposition tape at the presented victim’s trial. person Neither the state nor our cases ever intended to allow such prior duplication testimony.
The most puzzling majority opinion aspect Coy is its present case failure mention the case complete Iowa, _ U.S. _, S. In Coy 108 Ct. 2798 the United States Court which considered statute attempted child protect testify abuse victims them to in court by allowing behind screen which shielded them from the accused. In Justice Scalia Acts 25:16 as follows: “It is not the manner quoted *7 of the Romans to deliver man die before the has any up to accused face, met his accusers face to a given has been chance defend himself against the charges.” The further stated: opinion therefore, “We doubted, have never Confrontation Clause guarantees the defendant a face to face with meeting witnesses appearing Kentucky before the trier of fact.
Stincer, U.S. _ (1987).” Justice Scalia then stated: “There something is deep in human regards nature that face to face confrontation between accused and accuser ‘essential to a fair ” trial in a criminal prosecution.’ Coy went on to discuss the fact that the procedure for the screen in providing front of the witnesses was specifically designed to enable the witnesses to avoid viewing accused as they gave testimony. The opinion then stated: “It difficult to imagine more obvious or damaging violation of the defendant’s right to face-to-face encounter.” is binding on this court. We therefore
should go ahead and rule that illegally acted when it amended A.R.E. 803 to allow a witness to testify being without confronted. This statute clearly violates the Confrontation Clause of the Sixth Amendment the United States Constitu- Furthermore, tion. it violates the doctrine of separation powers. We should not continue to dance around the real issue presented in this case.