three judges found violations of both the Confrontation Clause and Ark. R. Evid. 804 (2001); whereas, three concurring judges found only a violation of Rule 804 and three dissenting judges found no violation of either Rule 804 or the Confrontation Clause
How later courts described this case
- three judges found violations of both the Confrontation Clause and Ark. R. Evid. 804 (2001); whereas, three concurring judges found only a violation of Rule 804 and three dissenting judges found no violation of either Rule 804 or the Confrontation Clause
Written by the judges who cited it.
The opinion
JOHN E. JENNINGS, Judge, concurring. I join in the majority’s decision to reverse. In my view this result is required by the supreme court’s decision in Scott and Johnson v. State, 272 Ark. 88 , 612 S.W.2d 110 (1981), and Rule 804(b)(1) of the Arkansas Rules of Evidence. I do not believe that the Confrontation Clause of the Sixth Amendment requires reversal. And while I agree with the dissent that there was an opportunity to cross-examine at the bond hearing, I do not believe that there was a sufficiently “similar motive” to cross-examine as to the testimony that is relevant in the case at bar. Clearly Rule 804(b)(1) requires both opportunity and “similar motive.”
At the bond revocation hearing, by the time the officer testified about appellant’s admission that he intended to tie Ms. Mayhan up and kill her, there was already evidence before the judge that Proctor had committed burglary. At this stage of the proceedings the revocation of his bond on the prior unrelated charge was a foregone conclusion. For this reason, the attorney at the bond revocation hearing did not have much motive to cross-examine the officer on this particular testimony.
Finally, I must agree with Judge HAYS that the fact that Proctor had a different lawyer at the bond revocation hearing is of no consequence.
PITTMAN and FIart, JJ., join in this concurrence.