The opinion
John Mauzy Pittman, Chief Judge, dissenting. I disagree udge, the trial court did not commit reversible error by permitting police lieutenant Jason Dickinson to testify that the victim told him that appellant committed a battery against her. The majority, somewhat confusedly, simultaneously holds that Lieutenant Dickinson’s statement was not hearsay; that Lieutenant Dickinson’s statement was hearsay but was admissible under the residual exception; and that it does not matter whether or not the statement was hearsay because the admission of the statement was harmless in light of appellant’s admission that he killed the victim. The majority is wrong on all counts.
There was evidence that appellant and the victim worked at a Coca-Cola facility. Although both were married to other people and had families, they had a sexual relationship. Appellant wanted to terminate the relationship; the victim did not and telephoned him repeatedly. Appellant made harassment charges against the victim at work with regard to the telephone calls. Appellant confessed to killing the victim and hiding her body, saying that the murder occurred in the course of a discussion in which the victim threatened his family. The issues at trial went to the events surrounding the homicide and appellant’s mental state at that time. Over appellant’s hearsay objection, Lieutenant Jason Dickinson was permitted to testify that the victim told him that appellant committed a battery against her approximately ten days before her death. Lieutenant Dickinson’s testimony was abstracted as follows:
On June 13th, Mrs. Stone [the victim] came to the Sheriffs Department and she specifically asked for me. She wanted to advise me of a problem that she was having at work. She advised that she was having problems with a guy by the name of Jason Wooten. She advised me that he had been harassing her and she feared her job was in jeopardy. She appeared to me to be scared of him. She also advised me that she andjason Wooten had gotten into an argument and that he had grabbed her on the arm and caused a bruise. She showed me the bruise.
She also told me that Jason Wooten had filed a lawsuit against her and Coca-Cola Bottling Company for sexual harassment and she advised me that it wasn’t true. She advised that Jason had been following her around. I advised Mrs. Stone that she should go to the Camden Municipal Building and fill out an Affidavit Warrant of Arrest for Battery in the 3rd Degree and also fill out a restraining order to keep him away from her.
I prepared a report of my conversation with Mrs. Stone after the van was found. The reason that I didn’t prepare a report immediately is that we get people come in and ask questions like this all the time. They want some kind of guidance as to what to do. We mostly work felony cases. She came in, she knew me, she wanted my advice. I gave her the advice, I really didn’t think it was relevant to write a report. I didn’t think there was a reason. After she disappeared and after the van was found, I made the report because I felt there was a reason to make one. I don’t know if she went to Municipal Court or anywhere else and initiated the action that I suggested that she could do.
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. Ark. R. Evid. 801(c) (2005). The majority holds that the decedent’s statement to Lieutenant Dickinson was not hearsay because it was not offered to prove the truth of the matter asserted (f.e., that appellant committed a battery against her), but instead simply to establish appellant’s motive for killing her. This is preposterous. Certainly, in a proper case, evidence that would otherwise be hearsay may be relevant to motive without regard to the truth of the matter asserted, see Dednam v. State, 360 Ark. 240 , 200 S.W.3d 875 (2005), and statements proving motive are not excluded by the hearsay rule. See Piercy v. Wal-Mart Stores, Inc., 311 Ark. 424 , 844 S.W.2d 337 (1993). However, the fact that the victim made a report concerning alleged activities of appellant to Lieutenant Dickinson could have no bearing whatsoever on appellant’s motive in the present case for the simple reason that there was no evidence that appellant was aware that the victim had made any such report. In the absence of evidence of such knowledge, the only possible motive to be derived from Lieutenant Dickinson’s testimony would be that appellant decided to kill the victim to prevent her from reporting the battery to the police, and so to avoid any possibility of prosecution for third-degree battery, a Class A misdemeanor bearing a maximum penalty of a $1000 fine and a jail term not to exceed one year. See Ark. Code Ann. §§ 5-4-201 (b)(1) and 5-4-401(b)(1) (Repl. 1997). Even if it were reasonable to conclude that this would motivate any sane person to commit a homicide (and, I submit, it is not), the fact remains that the establishment even of this feeble motive would require the fact finder to believe that appellant did in fact perpetrate a battery on the victim — which is to say, that it depends on the truth of the matter asserted by the victim to Lieutenant Dickinson. This statement was hearsay.
The majority also holds that Lieutenant Dickinson’s statement was in fact hearsay, but was admissible under the residual exception set out in Ark. R. Evid. 805(b)(5), which permits the introduction of:
A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (i) the statement is offered as evidence of a material fact; (ii) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (iii) the general purposes of these mies and the interests ofjustice will best be served by admission of the statements into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.
Nothing in the record indicates that the State provided appellant with the notice required by this rule. Even had the State done so, this exception is to be narrowly construed, used rarely, and only in exceptional circumstances having circumstantial guarantees of trustworthiness equivalent to those supporting the common-law exceptions to the hearsay rule. Hill v. Brown, 283 Ark. 185 , 672 S.W.2d 330 (1984). This is not such a case. Here, the testimony was that the victim-declarant told Lieutenant Dickinson that appellant had been harassing her and committed a battery against her during an argument. There are no inherent guarantees of its trustworthiness in the victim’s statement; in fact, the opposite is true. According to the victim’s statement as related by Lieutenant Dickinson, she was in fear that she would lose her job because appellant had brought a sexual-harassment suit against both her and her employer. Under these circumstances, her statements depicting appellant as an untruthful aggressor in this matter are inherently suspect. Nor is the victim’s statement admissible simply because it was contained in a report given to police. By its own terms, the residual exception applies only to statements not specifically covered by any of the other exceptions, and such reports are specifically dealt with in Rule 803(8), which specifically excludes “investigative reports by police” from being admissible under the exception for public reports and records. The victim’s statement to Lieutenant Dickinson was not admissible under the residual exception.
Finally, the majority holds that the admission of the statement was harmless in light of appellant’s admission that he killed the victim. 1 It is true that an error in the admission of hearsay evidence does not automatically result in a reversal if the error was harmless; where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Proctor v. State, 349 Ark. 648 , 79 S.W.3d 370 (2002) However, to hold that the evidence of guilt in this case was overwhelming is to misunderstand the significance of appellant’s admission of homicide under the circumstances of this case. Here, because of the appellant’s admission, the focus of his trial was not whether he killed the victim but was instead his state of mind while doing so.
The jury was called upon to decide whether appellant was guilty of first-degree murder or, instead, of the lesser-included offense of second-degree murder. See McCoy v. State, 347 Ark. 913 , 69 S.W.3d 430 (2002). Did appellant act with purposeful intent, his conscious object being the death of the victim? If so, he was guilty of first-degree murder. But if appellant did not consciously intend to cause the victim’s death, the crime was at most second-degree murder, even given that appellant’s severe beating of the victim was deliberate conduct done with knowledge or awareness that his actions were practically certain to bring about the victim’s death. See id. It is therefore not enough to say, as the majority does, that there was evidence to show that appellant killed the victim. In Flores v. State, 350 Ark. 198 , 85 S.W.3d 896 (2002), the supreme court found an attorney’s representation to be ineffective and his errors (including failure to object to hearsay testimony that the appellant in that case had previously battered the victim) prejudicial because the appellant in that case was convicted of first-degree murder rather than second-degree murder in the beating death of his wife. Likewise, the hearsay evidence in the present case that appellant had recently followed and committed a battery upon the victim was prejudicial, and the trial court abused its discretion in admitting it. I would reverse and remand for retrial, and I respectfully dissent.
Hart and Crabtree, JJ., join in this dissent. In his videotaped confession, appellant stated that the victim told him at work that she thought she was pregnant with his child, and asked him to meet her at a secluded spot after work to discuss the situation. He stated that he drove his truck to the spot after work and met the victim, who emerged from her Coca-Cola truck and asked appellant what he was going to do about the pregnancy. The appellant stated that when he told the victim that his main priority was his wife and child, the victim said that she could “take care of [his] damned family” and “get rid of them.” Appellant further stated that, when the victim grabbed him by the shirt and screamed “we’ll do it my way,” he snapped, started yelling and screaming himself, and began beating her; and that he continued to strike, kick, and hit her with a pipe until she stopped talking.