*1 342 WINFREY, v. STATE of Arkansas
Williаm Jr. 738 391 S.W.2d CR 87-67 of Arkansas Court Supreme October delivered Opinion *3 Adametz, Jr., John H. and William H. Craig, for appellant. Clark, III, Steve Gen., by: Robert A. Ginnaven Asst. Att’y Gen., for Att’y appellee.
Robert H. Justice. A found the Dudley, jury appellant of the of Damon Franklin was less than eleven guilty rape who old; years guilty of the of Adrian Adams who was also less rape old; than eleven of commit the of years guilty and attempt rape Franklin, Stat. years Kesia also less than eleven old. Ark. Ann. § 1977). judgments 41-1803 and the of 41-701 We reverse (Repl. § conviction.
Soon after crimes were the had one reported, the prosecutor of and of his interview each the three victims make a employees written out her of the victims and some report setting impressions trial, of after concerning their statements the crimes. At the first victim had her direct the testimony, appellant’s completed See counsel moved for the state to the Ark. Stat. produce reports. the 1977). Ann. 43-2011.3 state (Repl. responded The § were the work the state and of them reports product production was state’s accepted argument not The trial court the required. and ruled view the counsel could but reports, them, have not use them for copies of could cross-examina- tion as error for purposes. assigns ruling The appellant different reasons.
First, argues that the were reports “state ments,” and he entitled to have the state in produce them 43-2011.3(b) accordance with Ark. Stat. Ann. and (e). The § cited statute that after a state’s witness testifies provides, part, examination, shall, on direct the court on motion the defend by ant, witness, order the state to produce statement of any prior which state has in its which possession, relates to subject matter of the witnеss’ The testimony. statutory definition “statement” includes “a verbatim recital of an oral substantially statement made said to an agent witness the state and recorded with the such contemporaneously making of oral statement.” The words in the latter “substan key quotation are verbatim tially Among recital.” the factors to be taken into account in deciding whether statement is verba substantially tim (not precisely verbatim) are the extent to which conforms to it witness, language length the written statement interview, length to the comparison whether quotations context, be out of may of time between the interview lapse *4 and the which need be transcription, only contemporaneously, not made. C. Practice and simultaneously Wright, Federal Procedure: 2d (1982). Criminal In if there is no general, § assurance that the witness said in whatever attributed him then it be report, unfair for his to be grossly credibility jeopardized using cross-examination. On report hand, other if the trial court can rest assured that the witness said him, whatever is attributed then that part report containing the statements should be ordered for produced defendant.
Selected between the colloquy prosecutor’s employee, appel- counsel, court, below, lant’s and the trial shows that quoted statements theof witnesses in reports contained were substan- verbatim, context, tially nothing was taken out of and the victims’ words were quoted writing at the time the interview. made that you And these Attorney] reports
Q [Defense include, not, statements attributed directly also do they about made to they you children? Statements the three what happened? word for Actual statements
A employee] [Prosecutor’s some that quotes I know I are possibly word? —There down, but not word fоr word. wrote includes, Well, three reports a substantial of these Q part it, told either you as I what these three children understand not or did happened, happen?
A Yes. reflection of what the
Q And are a true it—Your reports children told you?
A True. statements, these were formal
Q though And even or did are told that either things you happened, that they not happen? Right.
A Parker, at the time that right. you THE All Ms. COURT: children, record your ques- three did you interviewed the tions, with a way in that and their responses, responses accustomed to thing type you’re question/answer or a Prosecutors take of a seeing suspect, the Deputy witness, being or done court? interviews in a more
THE WITNESS: I do usually my not so much of a direct informal I don’t—It’s way. It’s more of a discussion the way direct answer. question, I, I with the children. talk write down or words? phrases, key THE COURT: Do you of this nature? Things
THE WITNESS: Yes. Yes. direct
THE You there have been some say may COURT: quotes? sure, Now,
THE WITNESS: I believe. I’m not because to, to at haven’t—But I of the time I try believe—Most the to the Somеthing give least it in children’s words. put the Prosecutors an idea how the children relate information. some
In contained a parts, reports substantially verbatim, made, and recital of victims’ contemporaneously statements. The trial court erred in order the state to refusing produce those of the which contained the copies parts reports victims’ substantially verbatim statements. court,
In reading the trial it is lengthy ruling by its ruling that was basеd apparent of the mainly acceptance upon argument state’s that were the “work of the reports product” state and need be disclosed. There is no “work simply product” exception for the witnesses’ statements production Ark. Stat. 43-2011.3(b) (e). Ann. v. Goldberg and See United § States, 425 94 (1976) Wright, U.S. and C. Federal Practice Procedure: 2d 437 (1982). Criminal §
Even the trial though refusing court erred to order the state produce copies stаtements for appellant, reversal is not for violation the if required state statute the error State, was harmless. Berna v. 282 Ark. 670 S.W.2d (1984). Since the trial court allowed counsel to examine statements, gain full of their knowledge contents, violation of the statute was production harmless.
The appellant contends that even if the error was harmless law, under state it must be reversed under the Confrontation Amendment, Clause of the Sixth as to this State applied through the Due Process Clause of the Fourteenth Amendment. The argument that, is based the fact though even court upon trial allowed appellant’s counsel to view the it reports, expressly ruled that the appellant could not use the statements cross-examina- tion for impeachment In purposes. ruling, of its the court part stated: “The main thing I want to across can’t you, you 1, 2, use Court’s or 3 for impeachment [the statements] purposes.”
The Confrontation Clause provides two types protections for a criminal defendant: the face right physically
348 cross- him, to conduct right and the against those testify who _ U.S._, Ct. Fensterer, 106 S. Delaware v. examination. a defendant deny error curiam). It is constitutional (1985) (per . . . which jurors the facts from jury “to to the right expose reliability to the relating draw inferences could appropriаtely 85-1347, Ritchie, at 13 No. slip op. v. Pennsylvania the witness.” J., 24, 1987) (Powell, Feb. States Court (United Supreme Alaska, at 318 415 U.S. Davis v. opinion), quoting plurality Indeed, confrontation (1974). “the main and essential purpose of cross-examina for the opponent opportunity to secure has Davis, Court at 315-316. The Supreme tion.” 415 U.S. in testify of a witness’ motivation “recognized that exposure constitutionally function of the ing is a proper important Davis, at 316- 415 U.S. оf cross-examination.” protected right statements at bar contained prior 317. The in the case reports testimony inconsistent with their the witnesses which were in part trial, right using denied at and the trial court appellant of the victims. during statements cross-examination prior with Damon of the interview For example, report anal has also had Franklin reflects in “William [appellant] part: and Damon victims], of the other intercourse with Adrian [one at when were all sleeping has seen this. He recalls once bedroom), in William’s William’s house Franklin was (Joyce him, and then Damon saw William to Adrian to ‘suck’ trying get he anal intercourse on him.” performed trial,
However, Franklin that he had at Damon testified commit, commit, any never seen the or attempt sexual crime Adrian. upon statement, that the appellant
In her Kesia Franklin said her: sex and anal intercourse upon committed oral painful middle of the wake Kesia in the up William would bathroom. Sometimes he night and her into the carry sex on her. Other wake her oral by performing up from He would a towel just get times he would her pick up. He hallway. the bathroom and it on the floor place down, her towel face remove would then Kesia place she in street clothes —more clothing (sometimes slept on her. anal interсourse gown), perform often in a her mother’s Kesia said both her bedroom door and bedroom door Kesia would or cry would be closed. When for over her try yell William would his hand help mouth. He also would if she ever threaten her —He said told he would anyone again get gun “do it and then I’ll *7 and blow head off.” your Kesia bought
William also clothes and candy keep him, her from She was afraid of and her telling. that kept from telling. She didn’t know if he would really get gun, but her, he would often sо she knew he would hurt her slap if he got mad.
Kesia denies vaginal intercourse. She said he would hurt, his in always put “thing” her “behind.” This sometimes she would bleed and have stomach cramps.
He oral sex on her before he took usually performed her into the She she’d said wake and find his hallway. up head between her legs.
Yet, her testimony at trial was that the only appellant attempted her, to have anal sex with but was unsuccessful. Adams,
The statement of Adrian reflects: “William part, made Adrian oral sex on him perform once that Adrian can only trial, remember.” At Adrian did not testify performed sex oral him. upon
The
quoted parts
statements are inconsis
prior
tent with
court,
of the trial
part
but the trial
testimony,
by direct
restriction on the right
cross-examination,
of
prevented appel
lant’s counsel from using the statements for impeachment pur
course,
Of
poses.
right
cross-examination includes the right
to show
unbelievable,
testimony
or that the witness could
not remember events crucial to the
United States v.
testimony.
Abel,
45, 50
469
(1984).
U.S.
Because this
of evidence can at
type
times make the difference between conviction and
acquittal,
Supreme Court has found that this
type
direct restriction
cross-examination violates the
Davis v.
Confrontation Clause.
Alaska,
350 no magnitude the first be constitutional error ‘would cure it.’ Brookhart want showing of prejudice amount 308, Alaska, 318 415 U.S. at Janis, 1, v. 384 3.” Davis v. U.S. 129, Illinois, This 131. v. 390 U.S. (1974) quoting Smith 667, 473 U.S. Bagley, States v. in United language repeated Court, although expressly not Then, (1985). at 677 Davis, wrote: overruling supra, auto- an hоwever, support Davis does Read properly, rule, merely language and the above-quoted matic reversal trial of that case the the view that on the facts reflects to the damage” error had done “serious petitioner’s court’s defense. Arsdall,_U.S._, S. Ct. at 1437 v. Van
Delaware (1986). analyz standard for
The Court then explained *8 ing cases such the one bar: as at im- constitutionally that the we hold
Accordingly, a impeach of a to denial defendant’s proper opportunity errors, bias, is like Confrontation Clause witness for other The correct analysis. harmless-error subject Chapman to whether, assuming damaging is that the inquiry potential realized, reviewing of the were fully cross-examination harmless court nonetheless that the error was might say Whether such an error beyond a reasonable doubt. harmless in a case a host particular upon depends factors, These reviewing all accеssible courts. readily in testimony factors include the of the witness’ importance case, testimony the whether the was cumula- prosecution’s tive, corroborating the or or absence evidence presence contradicting the the witness on material testimony the extent of otherwise points, permit- cross-examination ted, and, course, the overall strength prosecution’s U.S., 1728; 254, case. Cf. 89 S. Ct. at Harrington, 395 at Florida, U.S., 432, Ct., S. Schneble v. at 92 at 1059. (Emphasis supplied.)
Here, state case the the could not make its without of the victims. was the factor testimony key Their credibility Yet, court, guilt. by ruling determinations of trial appellant’s inconsis- attorney prohibited using from prior tent statements for impeachment appellant purposes, prevented from we questioning Accordingly, witnesses’ credibility. cannot say error was harmless doubt. beyond a reasonablе dismiss,
Appellant asks us
reverse
rather than
because,
reverse and remand
he
argues,
evidence was not
sufficient to
the three convictions. We reject the
support
argu
ment and remand for a new trial. The uncorroborated testimony
of the minor victims was sufficient evidence to have sustained the
State,
convictions.
277 Ark.
Sanders v.
Reversed and remanded for a new trial. JJ., dissent. Glaze,
Hickman Justice, I would affirm the dissenting. Hickmаn, Darrell case, convictions this I because find error have been any same, harmless. The outcome would have been and it exactly will Indeed, be the same on a retrial. if the statements are prior used, will buttress only the state’s case and convince the jury, so, even more that the is guilty. defendant the state- Actually, are ments more damning than the at trial. testimony presented dissenting. With due to the respect majority’s Glaze, Tоm record, analysis it strenuously disagree reversal supports First, of this case. the trial court did not prohibit use of the three proper summaries of interviews obtained by Mary Second, Parker from the children.1 Parker’s handwritten summa- ries do as qualify statements which the could use for the unlimited cross-examination of the three children.
I will first consider claim that he was denied the appellant’s use proper of Parker’s summaries. The reсites a remark majority made the by ruling trial when for judge request on appellant’s Parker’s summary interviews. At a the hearing, rather lengthy trial judge said, is quoted correctly as main having thing “The 1,2 want to is put across that use or you, you (the can’t Court’s summaries) for impeachment The purposes.” judge you put —if this remark in context with his other exactly comments— was
1 Parker was the case of coordinator the state’s Assistance Unit. Victim/Witness of each Parker’s interview perused in his The
right ruling. judge of narratives were summaries child and said the handwritten that Parker thoughts of and consolidations conclusions opinions, testified, “I Parker involving the three children. together statements”; interviews. she the nor did tape didn’t take actual the by or signed approved interview summaries were None of the words, do not summaries simply qualify In other those children.2 43-2011.3(b) (e)(1) Stat. statements under Ark. Ann. as § so, his clearly was limitеd in 1977). being appellant That (Repl. cross-examining the chil- of those actual summaries when use so, ask counsel that he could judge dren. Even the told appellant’s course, in the Of about matters contained interviews. appellant answers, have the and appellant’s been bound childrens’ Parker, who be next course of action would his examination was the actual authoress of those summaries. surmise,
In it perhaps, appellant retrospect, easy how he intended to use exacting stating should have been more summaries, the Parker could have been more judge Nonetheless, it is clear me what the trial ruling. in his precise use discussing instant case when judge ruled in the summaries; it not to preclude appellant’s three of the the manner in which only appellant examination children — went about make this clear is to set Again, only way it. point entire its I will judge’s ruling. length, out Because of take the judge’s those I believe privilege highlighting parts support intention to allow broad cross-examination of children:
The Court finds that these statements do not constitute statements within the . . . And while meaning [11.3] contain faults given by information that summarize witness, witnesses, this and the other two prospective more they’re in the nature of a work product do, in Prosecuting Attorney’s They my office. opinion, whilе, contain And to the exculpatory information. view some, might contain information which a witness could 2 For the better reader to understand the nature of the I attach to this summaries, dissenting the shortest one which Parker made after her interview of Adrian. opinion Although longer, the other two are same style. *10 examined, be cross could be only witness who probably words, / cross examined is the that In person wrote it. other how, Daemоn, Adrian, don’t see or Kesia be asked could about, about statements that they made to another person is, did they say something that That for the different. of to a purpose impeachment, show prior inconsistent statement, be. that’d This—the material’s simply not phrased, or adopt so as to that kind use this. The of of the, Court also finds quite that the statements contain a bit more information than Kesia Franklin has testified on her direct examination. But the Prosecuting the failure of matters, to Attorney into are inquire those which means, exculpatory by any doesn’t make her statement any more available to the Defense for the of purpose impeach- ment, or other use. The any attorneys for the defendants have had the to view the opportunity statements. They object to each strongly and of the Court. every ruling They that, are during admonished their сross of any examination witnesses, is, Kesia, Adrian, Daemon, these that are they from prohibited referring to references. specific However, they are permitted inquire had made if any If, statements to any kind if witness was people. asked about different kind of things that they would be ordinarily entitled to inquire during about cross exami- nation. I simply, because of the method that I chose apprise defendants of that which the State felt like that it couldn’t—wouldn’t be required to provide, give them leg so up, to speak, against other In any witnesses. other words, you may while have a pretty good frame mind statements, about what’s contained in these I don’t think you that have gained such an appreciation exact that terminology you and, could pose questions, that kind of But I thing. don’t want to limit you any toway the things that I think testimony has alluded already to, is, and that common sense рermit. And that did you make a anyone? statement to Have told you anybody? This, that, and the other. Have you that there was alleged involved, Now, other abuse especially whatnot? kind think, thing, would be And the mere fact permissible. that something you might inquire may about have statement, been this you’re not to be going prohibited *11 it’s duplicated. about that because simply from inquiring can’t you thing you, The I want to across that main just But 2 or 3 purposes. use Court’s for impeachment statements one those something because appears now, maybe And the it. you doesn’t mean can’t ask about this, it a I’ll about little go next time I do like something like, Because, creating I’m it seems maybe differently. aggressive But I want to be as you. you for some problems to I want limit that should be. don’t as feel like you you you I think that way. examination in And your any cross than the more the maybe spirit understand probably this, And, you that I I would say words that and speak. if you by I that any way, prefer would must fault fault to as may inappro- State asking question object that the do, I’ll State will and rule priate. you object, And the if you in in the any way it. So are not upon pinned from into, and the cross you go scope latitude that can to, to going to be able use Simply, you’re examination. the, that, Now, this to that has jury to extent. the overheard something you. us about a statemеnt say being provided And then we came ought back here. I think we leave just the matter where it is. I don’t need to one say anything That I way regard. or the other about what was done in that find the, that Defense or the question, request by That it should been quite appropriate. requested have sinister, under the statute. And that there’s nothing inap- or propriate, whatnot by anyone.
As can be seen from ruling, suggested its court cross-examine the aрpellant regarding children Parker’s summa- ries and allow the state to it when deemed the object appellant’s The court said it then rule questioning inappropriate. the state’s no objection. Appellant made to follow the attempt and, direction, instead, court’s merely inquired of the children truth, whether told yes. had Parker the to which said they they sum, In Parker’s summaries did not as statements qualify under Ark. Stat. Ann. 43-2011.3(b) (e)(1) (2) (Repl. § 1977), and was not entitlеd to the same use of appellant those summaries as he would have had if had been statements under that statute. Neither I agree, can from view trial my judge’s ruling, that use court prohibited appellant’s Parker’s summaries so as rights to violate under the confrontation clause of the United States or Arkansas Constitu- tion. The case fails to rise magnitude. to one of constitutional The trial statements, court merely found were not summaries which believe is justified one of Parker’s reading any three summaries.
The trial court allowed cross-examine children, summaries, regarding the Parker but limited his actual *12 summaries, viz., use of those him allowing their use when examining the children to show inconsistent statements prior view, made them. In my that was a matter Parker, required pursue with after made having inquiry subject matter with the children.
I cannot say trial court its making abused discretion in its ruling, I certainly cannot agree constitutional rights were violated by such I would affirm. ruling.