holding there was no basis for reversal on hearsay grounds where no instruction was requested to limit the evidence to its admissible purpose
How later courts described this case
- holding there was no basis for reversal on hearsay grounds where no instruction was requested to limit the evidence to its admissible purpose
- affirming introduction of statements as impeachment evidence under Rule 613 after circuit court incorrectly ruled they were admissible under the recorded-recollections exception in Rule 803(5)
Written by the judges who cited it.
The opinion
John I. Purtle, Justice, dissenting. The first prejudicial error made in this case was the admission into evidence of the statement of the appellant. It is elementary that the burden is upon the state to demonstrate that a statement made while in custody was freely and voluntarily given. Clark v. State, 264 Ark. 630 , 573 S.W. 2d 622 (1978). The statement was made a short time after the appellant was taken into custody. His Miranda rights were allegedly read to him while he was still at the scene of the shooting. The officer who gave him his Miranda warnings subsequently stated:
He appeared to know what his faculties was. Quite obviously he was drinking. I could smell alcohol on his breath. I think the defendant understood his rights and every question I asked him.
The county sheriff stated that appellant appeared to be very nervous, that he could tell from his observations of the appellant that he had been drinking but nevertheless, in his opinion, appellant could understand the rights that Lieutenant Duvall gave him. The third officer involved stated that he knew Chisum had been drinking from the odor of alcohol and from his nervousness. He further stated that he thought Chisum was under the influence of alcohol so much that he should not have been allowed to drive an automobile. He stated further that he was not staggering and his speech was not slurred.
During the time in which these three officers talked with the appellant there was no one else around. At first it was the appellant and Duvall and later they were joined by the other officers. All three officers, who obviously have an interest in the outcome of the case, indicated the appellant had been drinking. In fact, the breathalyzer indicated that he tested .14 at 10:30 or 11:00 a.m. following his having been taken into custody at 8:00 or 8:30 that morning. I think we can assume he had hot had anything additional to drink during the time he was in the custody of the officers. While he was being held in custody, an attorney appeared at the request of the appellant’s father. When the attorney appeared, the officers were running a trace metal test on the appellant and the attorney asked the appellant not to say anything and he asked them not to ask any more questions. The attorney stated he did not know that the appellant had given a statement to the officers, and they did not tell him that they had taken one. In his opinion, the appellant could not give a voluntary and intelligent statement because he was drunk. According to the lawyer, the appellant had a very definite odor of alcohol about his person, his speech was slurred, and he could not get him to tell what had happened. The lawyer further testified that the appellant was incoherent and evidently had no memory at all of any events which had happened the evening before and on the date in question up until the time the lawyer observed the appellant. The appellant was later questioned about the incident and he could not remember talking to Lieutenant Duvall. He could only remember talking to one officer but he did not know who it was. It seems to me that the preponderance of the evidence clearly shows the statement was not voluntarily and intelligently given and should have been excluded. It was a useless thing for the state to insist on presenting such statement when the evidence was otherwise more than adequate to obtain the conviction.
The second error I find in this case was the admission into the record of statements given by witness Alta Garrison. The statements had allegedly been made in the presence of the sheriff and his secretary at the time of the initial investigation. The statements had not been signed by the witness. In fact, when she was asked about the statements, she stated she did not remember them. I agree with the majority that the statements were not admissible under Uniform Evidence Rule 803 (5), Ark. Stat. Ann. § 28-1001 (Repl. 1979). It is wrong to affirm the trial court when it committed error by allowing evidence to be admitted for an improper purpose. Although the same evidence may have been properly admitted under different circumstances, in this case the other circumstances never arose. There certainly is no precedent for the trial court or this court to complete the state’s cases for it when it fails to do so. I do not want to be a part of starting such a practice.