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holding the Trial Court properly admitted the appellant's prior conviction for first degree sexual abuse of an unidentified child when the victim in the case was entrusted to the appellant for babysitting care
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[306 Ark. 374-A] Carolyn Whitefield, Texarkana, for appellant.
Sandy Moll Asst. Atty. Gen., Little Rock, for appellee.
BROWN, Justice.
For his petition for rehearing, the appellant argues that the trial judge used Ark.R.Evid. [306 Ark. 374-B] 803(25) in his decision to admit hearsay evidence and that because we held Rule 803(25) to be unconstitutional in our original opinion, the trial judge's admission of the hearsay testimony constituted reversible error. The petition for rehearing is denied, and we reaffirm the conviction.
With respect to Rule 803(25), our original opinion is amended by plurality decision. The hearsay statements at issue on appeal are the child's separate statements to her mother and father about the molestation. The child made the statements to her mother immediately after waking from a nightmare late at night and to her father the following morning. Both parents testified to those statements at trial. We recognized in our original opinion that since the child's statements to her mother followed a nightmare that caused her to become extremely agitated, they were admissible under the excited utterance exception set forth in Ark.R.Evid. 803(2) as well as under the factors referenced in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). The father's hearsay testimony the next morning, though largely cumulative to the mother's, was only admissible under the Wright criteria.
In Wright, the Court identified four criteria that had been used in various jurisdictions to determine the trustworthiness of hearsay statements: a) spontaneity and consistent repetition; b) the mental state of the declarant; c) the use of terminology unexpected of a child of similar age; and d) the lack of a motive to fabricate. The Court specifically held in Wright that consideration of evidence corroborating the commission of the crime was irrelevant to the hearsay inquiry and, thus, was constitutionally impermissible.
We noted in our original opinion that there was no evidence corroborating the commission of the crime (such as medical testimony of physical trauma) that was used by the trial court in making its decision to admit the hearsay testimony. Defense counsel confirmed this at the Rule 803(25) hearing preceding the trial when she said:
Any other corroborative evidence of the act which is subject to the statement. Here we have the testimony of the parents and of [the social worker] that there was no medical indication of abuse. So, there is no outside corroborative evidence.
[306 Ark. 374-C] Without the existence of the impermissible corroborative evidence, the trial judge could not have considered it under Rule 803(25)(A)1 l, despite his having made the general statement that he had considered all of the Rule 803(25) criteria. We did not reverse the appellant's conviction in our original decision, though Rule 803(25) did contain the suspect corroborative evidence factor, because no corroborative evidence was introduced at trial or considered by the trial court.
We applied the Wright factors in our original opinion in affirming the admissibility of both the mother's testimony and the father's, although, again, the mother's testimony also qualified under the excited utterance exception. One question left unanswered is the precise vehicle to be used for our application of these factors. Our Rules of Evidence state that hearsay is not admissible except as provided "by law or by these rules." Ark.R.Evid. 802. The Wright factors have not been formally adopted by rule of this court. That raises the question of whether the factors as set out in Idaho v. Wright qualify as "law" under our Rule 802 and, further, whether our original opinion in this case is "law" for Rule 802 purposes. In 1990 we held that our rules of evidence are supreme in establishing hearsay exceptions. See State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990).
What cannot be overlooked in this case is the fact that the Wright factors were present and were benchmarks for the trustworthiness of the child's statements. To some extent they are embraced within the Rule 803(25) criteria, which the trial judge considered. They also are available for consideration by a trial judge under the Rule's catch-all subparagraph which renders applicable "any other factor which the court at the time and under the circumstances deems relevant and appropriate." Ark.R.Evid. 803(25)(A)1 m. Spontaneity and consistent repetition figured in this case, as the prosecutor and social worker stated to the court at the Rule 803(25) hearing. No motive to fabricate was presented by the defense. At the age of 2 1/2 when the statements were made, the child had no knowledge of child/adult sexual activity, according to the mother. The description of the sexual act by the child was void of explicit sexual terminology. These were all matters that the trial judge had to consider because they were present in this case.
The Court in Idaho v. Wright held that corroborative evidence such as that contemplated in our Rule 803(25)(A)1 l [306 Ark. 374-D] violates a defendant's Sixth Amendment rights. Our Rule 803(25)(A)1 l is, therefore, clearly constitutionally suspect. Our original opinion, accordingly, is revised to limit the invalidation of Rule 803(25) to the suspect subparagraph (l ). The balance of Rule 803(25) remains intact. By retaining the balance of Rule 803(25), this permits consideration of the Wright criteria as relevant factors at the trial court's discretion under Rule 803(25)(A)1 m.
HAYS, GLAZE and CORBIN, JJ., concur.
HOLT, C.J., and DUDLEY and NEWBERN, JJ., dissent.
GLAZE, Justice, concurring.
While I join the majority court, I also register my disagreement with the majority court's decision in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), that is the source of the residual hearsay issue with which our court is confronted in this issue. In a sharply divided decision (5-4), the Court held Idaho's residual hearsay exception rule to be unconstitutional, because for confrontation purposes, the residual hearsay rule was not a firmly rooted hearsay exception. The majority stated that hearsay evidence used to convict an accused must possess indicia of reliability by virtue of its inherent trustworthiness and not by reference to corroborating evidence at trial.
Since the Wright decision, one member comprising the majority court has resigned and his vacancy has since been filled with a new appointment.
The dissenting justices in Wright took the majority court to task, stating their views that no constitutional justification existed to support the majority's decision to remove corroborating evidence from consideration of the question whether a child's statements are reliable. The dissent pointed out the obvious--it is a matter of common sense for most people that one of the best ways to determine whether what someone says is trustworthy is to see if it is corroborated by other evidence. To illustrate, the dissenting justices alluded to the child abuse case as an example, stating that, if part of the child's hearsay statement is that the assailant tied her wrists or had a scar on his abdomen, there is physical evidence or testimony to corroborate the child's statement. In other words, such physical evidence would show the child likely did not fabricate the abuse allegations, therefore making the child's story more worthy of belief. The dissenting opinion further sets out legal authority and commentary that, in [306 Ark. 374-E] my view, destroys the rationale employed by the majority court in its decision to strike down the corroborating residual hearsay rule--a rule which is identical to Arkansas's rule at issue in this case.
Little else can be gained by a further discussion of the Wright decision and the dissenting justices' views except to say that I respectfully hope the Supreme Court quickly reexamines that holding and mercifully overrules it.
HAYS, J., joins this concurrence.
DUDLEY, Justice, dissenting.
Before the trial on the merits, the State gave notice that, pursuant to A.R.E. Rule 803(25), it sought a hearing to determine the trustworthiness of the child's statements to her mother and father, as well as her statement to a social worker. The trial court held the hearing and, in its finding of fact, expressly stated that it considered each of the criteria of Rule 803(25) and found that the statements to the mother and father possessed a "reasonable likelihood of trustworthiness." The trial court did not rule on the competency of the child to testify, and did not rule that the social worker assigned to the case could give hearsay testimony under A.R.E. Rule 803(25).
At trial, the court ruled that the child was competent to testify; later reversed its ruling and ordered the child's testimony stricken. However, the court allowed the prosecutor to put the social worker's testimony in evidence as "not going to the truth of the matter asserted." The record of that ruling and testimony is as follows:
MS. WHITEFIELD [Appellant's attorney]:
Objection, Your Honor, to what she said.
MR. HUDSON [Prosecuting attorney]:
With the court's that is already in evidence. We don't offer it at this time for the truth of the matter. Only to show Ms. Howard was acting in response to that.
THE COURT:
It's admitted for the limited purpose.
A. [Social worker] I explained to Lindsey that I had some special dolls, and that I could bring them out if she could show me with these dolls what happened to her. So, I brought out these same dolls. What she did was she undressed, if I remember correctly, all of the figures except [306 Ark. 374-F] the young male. And after she got them undressed, she put her finger, fingers in the vaginal area of the female dole [sic], and she said to me, "Papaw George put his fingers in me."
The only testimony used to convict the appellant was the hearsay testimony of the mother, father, and social worker. That testimony was admitted under A.R.E. Rule 803(25). The appellant appealed and argued that A.R.E. Rule 803(25) was unconstitutional. The original majority opinion, George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), stated that the only incriminating evidence came in through A.R.E. Rule 803(25) and that rule was unconstitutional. Even so, the original majority opinion, with three (3) judges dissenting, affirmed the conviction. On rehearing, the supplemental opinion tacitly admits that the original opinion was in error, but rather than grant rehearing changes the basis of the original opinion. The supplemental opinion now holds that 803(25) is a severable legislative act and, since the trial judge did not apply the unconstitutional part of the act, 803(25)(A)(1)(l ), the decision remains affirmed.
I.
The short answer to the supplemental opinion is that the trial court did consider each of the factors, including the admittedly unconstitutional provision 803(25)(A)(1)(l ), in allowing the testimony of the father and mother. The trial court's finding of fact on this issue is as follows:
The court is called on to make a determination, not of whether or not the victim is a competent witness here today, but whether or not the criteria set out in Arkansas Rules of Evidence 803 subparagraph 25 enumerated specifically as a thru m, the court has previously announced that it has concluded, it is, the court is required to consider all of those criteria, and the court, also, makes its decision today on the assumption that the legislature intended for those criteria to be used specifically, and in the test of the statement offered, as opposed to whether or not the victim is a competent witness. The court finds that the state has, by a preponderance of the evidence, met the criteria required under Arkansas Rule 803 subparagraph 25. Taken as a whole, the court finds there is a reasonable likelihood of trustworthiness of the statement of the [306 Ark. 374-G] mother. That is the ruling of the Court.
Secondly, the trial court's ruling that the quoted hearsay testimony of the social worker was admitted for a "limited purpose" and "did not go to the truth of the matter asserted" was such a misapplication of the non-hearsay rule that it needs no comment.
II.
There are other fundamental reasons the supplemental opinion is in error. The first reason involves the validity of the legislative enactment of A.R.E. Rule 803(25).
A.
The Uniform Rules of Evidence were enacted by an invalid session of the General Assembly. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). This court declared their enactment invalid, but then, under our rule-making authority, adopted them as court rules. We adopted the Uniform Rules of Evidence "as they are set forth in Act 1143 of 1975 (Extended Session, 1976)." In re Adoption of the Uniform Rules of Evidence, 290 Ark. 616, 717 S.W.2d 491 (1986) (Per Curiam). A.R.E. Rule 803(25) is not set forth in Act 1143 of 1975 (Extended Session, 1976). It was not enacted until 1985. See 1985 Ark.Acts 405 § 1. Thus, this court has never adopted Rule 803(25).
In St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990), we held that the separation of powers doctrine did not preclude the General Assembly from enacting Rule 803(25) as a rule of evidence, and we affirmed its use in a criminal prosecution.
However, in State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), we reversed ourselves. We held that the legislature could not create an "exception to our rules of evidence." The plurality opinion in Sypult states that "we retreat from the positions we have taken in Curtis and St. Clair, supra," and that allowing the General Assembly to write the rules of evidence "could well open the door to total abrogation of the rules of evidence and procedure we deem vital to the interest and policies inherent in the judicial process." Sypult, 304 at 7, 800 S.W.2d at 404. Justice Newbern's concurring opinion expressed the view that rules of evidence are procedural in nature and that "it will be helpful for all to understand that the Arkansas Rules of Evidence are the primary, [306 Ark. 374-H] general source of evidence law." Id. at 13, 800 S.W.2d at 407. Justice Turner's concurring opinion, in which Justice Price joined, expressed, among other things, the need for uniformity and clarity so that lawyers and judges would have one place to look for the rules of evidence. Only two justices dissented from the holding.
In sum, this court alone can adopt procedural rules of evidence. Rule 803(25) is such a rule of evidence and has never been adopted by this court. The supplemental opinion's dictum about severability of subsection (A)(1)(l ) of the General Assembly's enactment of 803(25) is meaningless.
B.
In addition, the supplemental opinion implies that the Supreme Court of the United States created a new Arkansas rule of evidence in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In that case, the Supreme Court did not create a state rule of evidence. It did not attempt to do so; it could not do so. It only declared that the admission of a child's hearsay statement under Idaho's residual hearsay exception violated the accused's rights under the Confrontation Clause.
III.
Even if the Sypult doctrine is not considered, and, even if one looks to the legislature or the Supreme Court for this rule of evidence, the supplemental opinion is still in error.
A.
Arkansas Rule of Evidence 801(c) provides that, " 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Rule 802 provides, "Hearsay is not admissible except as provided by law or by these rules." Rule 803 then provides exceptions to Rule 802, which are phrased in the terms of nonapplicability of the hearsay rule, rather than in terms of positive admissibility, in order to repeal any implication that other grounds for exclusion are eliminated. The theory behind Rule 803 and its first twenty-four (24) exceptions, is that, under appropriate circumstances, a hearsay statement may possess circumstantial guarantees of trustworthiness sufficient to justify the nonproduction of the declarant even though he may be [306 Ark. 374-I] able to testify. It provides: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness." A.R.E. Rule 803 (Emphasis added). Twenty-four (24) exceptions follow in our Rules. Perhaps the best known is number (2). It is: "Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." A.R.E. Rule 803(2).
The legislatively enacted number (25) is not phrased in terms of nonapplicability of the hearsay rule, but, instead, provides that a child's hearsay "is admissible." Apparently, it is admissible in spite of any other ground of inadmissibility. Under it, hearsay evidence is admissible if it only possesses a "reasonable likelihood of trustworthiness." The rule provides that the hearsay statement of a child ten years old, or younger, is to be admitted in evidence even though the child is available to testify. (Rule 804 deals with hearsay exceptions when the declarant is unavailable). In sum, Rule 803(25) defies the symmetry of Rule 803 and the first twenty-four (24) hearsay exceptions and provides that the hearsay statements of a young child are not hearsay upon proof of certain criteria. The Rule is as follows:
A statement made by a child under ten (10) years of age concerning any act or offense against that child involving sexual offenses, child abuse or incest is admissible in any criminal proceeding in a court of this State, provided:
1. The Court finds, in a hearing conducted outside the presence of the jury, that the statement offered possesses a reasonable likelihood of trustworthiness using the following criteria:
a. the 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 the giving of the statement
f. the nature of the offense involved
g. the duration of the offense involved
h. the relationship of the child to the offender
i. the reliability of the assertion
j. the reliability-credibility of the child witness [306 Ark. 374-J] before the judge
k. the relationship or status of the child to the one offering the statement
l. any other corroborative evidence of the act which is the subject of the statement
m. any other factor which the Court at the time and under the circumstances deems relevant and appropriate.
2. The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.
3. If a statement is admitted pursuant to this Section the Court shall instruct the jury that it is for the jury to determine the weight and credit to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factors.
4. This Section shall not be construed to limit the admission of an offered statement under any other hearsay exception or applicable Rule of Evidence.
A.R.E. Rule 803(25).
B.
The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, operates in two (2) ways to restrict the range of admissible hearsay evidence. First, the state must either produce the declarant for cross-examination or show a good reason for his unavailability. Here, the child was declared incompetent to testify. The Supreme Court has not yet decided whether incompetency constitutes this type of unavailability. Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 3147, 111 L.Ed.2d 638 (1990). Certainly, a strong argument can be made that, if a declarant is not competent to testify in court, his statements made out of court to a third party are not somehow rendered competent so that they can be repeated in court. Even so, for the purposes of this dissent, it is assumed that the child who was not competent to testify at trial was "unavailable" as defined by our Rules of Evidence and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Second, once a witness is shown to be unavailable, his statement is admissible only if it bears "adequate indicia of [306 Ark. 374-K] reliability." If the evidence does not fall within a firmly rooted hearsay exception, such as the "excited utterance," it is presumptively unreliable and inadmissible for Confrontation Clause purposes. To fall within the admissible category, the evidence must show that "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility...." Idaho v. Wright, 110 S.Ct. at 3146 and 3149. In explaining the evidence required to make the declarant's truthfulness so clear, the Court used deeply rooted exceptions as examples. The opinion provides:
The basis for the "excited utterance" exception, for example, is that such statements are given under circumstances that eliminate the possibility of fabrication, coaching, or confabulation, and that therefore the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous. See, e.g., 6 Wigmore, supra, §§ 1745-1764; 4 J. Weinstein & M. Berger, Weinstein's Evidence p 803(2) (1988); Advisory Committee's Note on Fed.Rule Evid. 803(2), 28 U.S.C.App., p. 778. Likewise, the "dying declaration" and "medical treatment" exceptions to the hearsay rule are based on the belief that persons making such statements are highly unlikely to lie. See, e.g., Mattox [v. U.S.] 156 U.S., at 244, 15 S.Ct., at 340 [39 L.Ed. 409 (1895) ] ("[T]he sense of impending death is presumed to remove all temptation to falsehood, and to enforce as strict an adherence to the truth as would the obligation of oath"); Queen v. Osman, 15 Cox Crim.Cas. 1, 3 (Eng.N. Wales Cir.1881) (Lush, L.J.) ("[N]o person, who is immediately going into the presence of his Maker, will do so with a lie upon his lips"); Mosteller, Child Sexual Abuse and Statements for the Purpose of Medical Diagnosis or Treatment, 67 N.C.L.Rev. 257 (1989). "The circumstantial guarantees of trustworthiness on which the various specific exceptions to the hearsay rule are based are those that existed at the time the statement was made and do not include those that may be added by using hindsight." Huff v. White Motor Corp., 609 F.2d 286, 292 (CA7 1979).
Idaho v. Wright, 110 S.Ct. at 3149.
The supplemental opinion in the case at bar refers to Rule [306 Ark. 374-L] 803(25)'s "catch-all subparagraph." In Wright, in discussing the somewhat comparable residual exception rule, the Court wrote:
We note at the outset that Idaho's residual hearsay exception, Idaho Rule Evid. 803(24), under which the challenged statements were admitted, App. 113-115, is not a firmly rooted hearsay exception for Confrontation Clause purposes. Admission under a firmly rooted hearsay exception satisfies the constitutional requirement of reliability because of the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain types of out-of-court statements. See Mattox, 156 U.S., at 243, 15 S.Ct., at 339; Roberts, 448 U.S., at 66, 100 S.Ct., at 2539; Bourjaily [v. U.S.] 483 U.S., at 183, 107 S.Ct., [2775] at 2782 [97 L.Ed.2d 144 (1987) ]; see also Lee [v. Illinois ] 476 U.S., at 551-552, 106 S.Ct., [2056] at 2067-2068 [90 L.Ed.2d 514 (1986) ] (BLACKMUN, J., dissenting) ("[S]tatements squarely within established hearsay exceptions possess 'the imprimatur of judicial and legislative experience' ... and that fact must weigh heavily in our assessment of their reliability for constitutional purposes") (citation omitted). The residual hearsay exception, by contrast, accommodates ad hoc instances in which statements not otherwise falling within a recognized hearsay exception might nevertheless be sufficiently reliable to be admissible at trial. See, e.g., Senate Judiciary Committee's Note on Fed.Rule Evid. 803(24), 28 U.S.C.App., pp. 786-787; E. Cleary, McCormick on Evidence § 324.1, pp. 907-909 (3d ed. 1984). Hearsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Moreover, were we to agree that the admission of hearsay statements under the residual exception automatically passed Confrontation Clause scrutiny, virtually every codified hearsay exception would assume constitutional stature, a step this Court has repeatedly declined to take. See [California v.] Green, 399 U.S., at 155-156, 90 S.Ct., [1930] at 1933-1934 [26 L.Ed.2d 489 (1970) ]; [Dutton v.] Evans, 400 U.S., at 86-87, 91 S.Ct., at 218-219 [27 L.Ed.2d 213 (1970) ] (plurality opinion); [U.S. v.] Inadi, 475 U.S., at 393, n. 5, 106 S.Ct., [1121] at 1125, n. 5 [89 L.Ed.2d 390 (1986) ]; see also Evans, supra, 400 U.S., at 94-95, 91 S.Ct., at 222-223 (Harlan, J., concurring in result).
Id. 110 S.Ct. at 3147-3148 (Emphasis added).
[306 Ark. 375] Rule 803(25) is constitutionally infirm. It provides that the hearsay statement of a child ten years old, or younger, is admissible upon a showing only that it possesses a "reasonable likelihood of trustworthiness." " On its face, this is a lesser standard than is required by the Confrontation Clause which requires that the statement bear such an "adequate indicia of reliability" that "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Id. at 3146 and 3149 (emphasis added).
The Supreme Court of the United States has interpreted the Confrontation Clause of the Sixth Amendment in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). That case is precedent for the case at bar. Our form of federalism requires this court to follow the Supreme Court interpretation of matters relating to the Constitution of the United States.
IV.
In conclusion, this court alone can adopt the procedural rules of evidence. It has never adopted A.R.E. Rule 803(25). However, even ignoring the fact that we have never adopted the rule, precedent of the Supreme Court of the United States mandates that A.R.E. Rule 803(25) be held unconstitutional. Rehearing should be granted, and the appellant should be given a fair trial: After all the opinions in this case, the fact remains that the appellant stands convicted of a felony, but the only testimony against him is the hearsay testimony quoting a witness who was declared incompetent.
HOLT, C.J., and NEWBERN, J., join in this dissent.