Elliott v. State

JOSEPHINE LINKER HART, Judge, concurring.

I agree that this case should be affirmed, but I write separately because I cannot subscribe to the majority’s rationale in disposing of the third point on appeal. The so-called anatomical chart with appellant’s name written on it was, | gwithout a doubt, inadmissible hearsay. Rule 801 of the Arkansas Rules of Evidence defines hearsay as a statement made by an out-of-court declarant that is repeated in court by a witness that is offered to prove the truth of the matter asserted in the statement. The name on the anatomical chart, which depicted male genitalia, and was used in a forensic rape examination, was obviously offered to suggest who the perpetrator was.

The second part of the majority’s analysis is not persuasive. Hearsay is generally inadmissible unless it fits within one of the exceptions set forth in Arkansas Rule of Evidence 803 (2009). Pace v. State, 2010 Ark. App. 491 , 375 S.W.3d 751 . I disagree with the majority that the hearsay was admissible under the medical-diagnosis-or-treatment exception stated in Arkansas Rule of Evidence 808(4) as interpreted by Hawkins v. State, 348 Ark. 384 , 72 S.W.3d 493 (2002). The rule states:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

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(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensation, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

In Hawkins, the supreme court held that identification of the perpetrator of a child sexual-abuse victim was reasonably pertinent to diagnosis or treatment because it could prevent further abuse and helped the treating physician fulfill his duties as a mandatory reporter.

ImFirst, and I do not intend to put too fine a point on this, Vikki Hurst was conducting a forensic examination. Where hearsay is concerned, albeit from the perspective of confrontation clause jurisprudence, this fact has important legal significance. See Seely v. State, 373 Ark. 141 , 282 S.W.3d 778 (2008). Second, according to Hurst’s testimony, she just wrote “Clayton” because the victim “told me to write that and I don’t know who it is.” Hurst did not admit to trying to elicit the identity of the perpetrator at that point, and she did not testify that the name was in any way used to “treat” the victim. Hurst was gathering evidence, not treating the victim; the victim did not require medical intervention. Conversely, in Hawkins, the doctor/witness was attempting to diagnose the etiology of the victim’s trauma. Accordingly, this fact makes the instant case readily distinguishable from Hawkins. The hearsay in the instant case is more akin to the hearsay in Flores v. State, 348 Ark. 28, 43 , 69 S.W.3d 864, 873 (2002), where the supreme court reversed and remanded because of the erroneous admission of hearsay. Like the instant case, while a statement was made to a medical professional, there was no questioning by a doctor, or any medical professional, that “precipitated the hearsay statement.” Id.

Nonetheless, as the majority has acknowledged, this obvious evidentiary error does not require us to reverse this case because the error was harmless. It is well settled that evidentiary rulings are subject to harmless-error analysis, Sparkman v. State, 91 Ark.App. 138 , 208 S.W.3d 822 (2005), and we are bound to affirm if the error is harmless beyond a reasonable doubt. Here the victim unequivocally testified that the perpetrator was the appellant, Clayton Elliot. 11In Morgan v. State, 333 Ark. 294 , 971 S.W.2d 219 (1998), our supreme court held that evidentiary error is harmless if the same or similar evidence was otherwise introduced. That is the situation here.