Clark v. State

Robert H. Dudley, Justice, dissenting. The majority opinion holds that the trial court erred in admitting the hearsay testimony of Donna McKuen and Carol Crider and in refusing to exclude Ms. McKuen from the courtroom after defendant requested the exclusion of all witnesses under Ark. R. Evid. 615. However, the majority opinion then holds the errors were harmless. I agree that the trial court erred in both rulings, but I cannot agree that the errors were harmless. Accordingly, I dissent.

The victim, a ten-year-old girl, was understandably affected by the surroundings in the courtroom, the people confronting her, and the unpleasant responsibility of testifying that her father had committed the crime of rape against her. Even so, the record does not disclose that the State made any attempt to videotape the young victim’s testimony, see Ark. Code Ann. § 16-44-203 (Repl. 1994), or that the State attempted to introduce the hearsay testimony through Ark. R. Evid. 803(25). The young victim was so recalcitrant that she would not answer questions aloud. Instead, she could only write her responses to questions, and the examining attorney then read the answers to the jury. Under the circumstances, her direct testimony in the State’s case-in-chief was very limited. It is, in material part, abstracted as follows:

He picked me up to go to his house on April 8. Nobody else was with us. We went in his car. When he stopped the car he told me to get in the backseat. He put my short pants on the floor. He put his clothes in the front seat. After I got in the backseat my father got in the backseat with me. He was on top of me. It was dark outside. I was laying in the backseat on my back. My dad stuck his private in my private. It felt like a bottle. I told him to stop. My father did this to me about an hour. I had to go to the hospital later because my dad hurt me. I was bleeding. My dad has never done this to me before.

Ms. McKuen gave hearsay testimony to many more details. Her direct testimony in the State’s case, in material part, was as follows:

I asked her if something bad had happened to her and she said yes ma’am. I asked her if anyone had done anything bad to her and she said “Yes, my daddy.” I asked her if she ever wanted to see him again and she said “No.” I said I know it is difficult for you to talk about, but can you tell me what happened and she said “Yes, my daddy got on top of me.” She told me that he took off, and she said “My short pants,” and I asked her if that was all he took off and she said “My panties.” She told me that he took off his clothes, his pants, and his underwear, and her exact words were, “He stuck his penis in me.” She did say the word “penis.” I asked where did he put his penis and she said “inside me.” I asked her what his penis looked like and she wouldn’t tell me at this point. She told me later. I asked her where this happened and she said Postelle. She said Postelle was close to Marvell. I asked her were they in a house or what and she said “a car.” I asked where did you go after he did this and she said to his house. I asked who all was there and she said his wife and his kids and that she said that she did tell his wife and his wife made no comment about it. I asked her why she went to the hospital. She was taken to the hospital in Helena. I asked her why and she said “Because I was bleeding.” I asked her who transported her to the —

MR. HALBERT: Your Honor, note my continuing objection to all this.

THE COURT: The Court notes it as continuing.

WITNESS: I asked her who had transported her to the doctor and she said his wife and my dad and that’s all. When I asked her if he had ever done this to her before, she stated he did it before. No. She said on the sand row. I asked her where the sand rows were located and she said Holly Grove. I asked her if she could remember how many times this had occurred and she said four. She said that she had never told anyone. She said it happened two times in Postelle and in Marvell and on the sand road. She said his penis was brown and hard. She said that while he was doing this to her she told him to quit and he kept on. I then changed the subject and started talking. I provided all these things to her counselor.

The hearsay testimony of Ms. McKuen contains critical testimony that was not given by the victim at trial. Ms. McKuen additionally testified about her training and that she was interested in the case because she did not want this crime to reoccur. Ms. McKuen told the jury that the victim told her that “he stuck his penis in me” and that his penis was brown and hard. The victim told the jury that defendant put “his private in my private,” but did not attempt to describe the color or rigidity of the defendant’s penis or other details of the crime. Ms. McKuen testified that the victim told her “she told him to quit and he kept on.” The victim testified that she “told him to stop.” Ms. McKuen testified that the victim told her the defendant committed the crime of rape against her on four occasions and gave a location for each of the four crimes. The victim testified, “My dad has never done this to me before.”

Carol Crider, another social worker, gave the hearsay testimony that a “physician said that there looked like there may have been a sexual assault and asked me to go in and talk to the child and see if I could get any history from her about how she had been hurt.” She testified that the victim told her that the defendant “put his private in the place where she pees.” Ms. Crider testified that she then showed the victim an anatomically detailed doll and after she asked additional questions, the victim pointed to the doll’s penis and said it was the doll’s “private.”

The State claimed that the hearsay testimony was a medical record, and the trial court apparently allowed it into evidence on that basis. The majority opinion adequately deals with the error in the ruling. The only question is whether it was harmless error. It appears that the errors in admitting the foregoing hearsay evidence were most likely prejudicial to the defendant. However, any question about prejudice is answered by the compounding error in the ruling on Ark. R. Evid. 615.

Defendant moved for the rule when the trial commenced. The State responded that Ms. KcKuen was not subject to the rule on the ground that the victim trusted her. The majority opinion holds that the trial court erred in excluding Ms. McKuen from Rule 615. I agree. However, the trial court exacerbated the error by allowing Ms. McKuen to sit at the counsel table after she had completed her testimony. Ms. McKuen was never required to join the other witnesses in the witness room. The effect surely was for the trial court to convey to the jurors an imprimatur of approval of Ms. McKuen. The ultimate result most likely was that the jurors gave most favorable consideration to Ms. McKuen’s hearsay testimony. That hearsay testimony was neither inconsequential nor cumulative: it was significant. Consequently, I cannot agree that the trial court’s errors were harmless.