failing to show that any prejudice resulted when witness should have been excluded from the courtroom during trial
How later courts described this case
- failing to show that any prejudice resulted when witness should have been excluded from the courtroom during trial
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, dissenting. I join Justice Dudley’s dissent on the issue of error in permitting Donna McKuen to give hearsay testimony of what the ten-year-old victim told her. The reason I join is that the testimony of Ms. McKuen went beyond the testimony of the young victim. Accordingly, it could not be deemed merely cumulative and, therefore, harmless error. See, e.g., Caldwell v. State, 319 Ark. 243 , 891 S.W.2d 42 (1995). Moreover, this is not a case comparable to Gatlin v. State, 320 Ark. 120 , 895 S.W.2d 526 (1995), where we concluded that the hearsay testimony of two family members was harmless error because the victim took the stand and was subject to cross-examination by the defendant. In the instant case, the Gatlin doctrine would require defense counsel to cross-examine the victims on matters to which only Ms. McKuen testified. To require the defendant to cross-examine a 10-year-old victim on Ms. McKuen’s testimony places the defense in an untenable situation. This was reversible error.
I do not agree with Justice Dudley’s dissent, however, that allowing Ms. McKuen to sit at the counsel table with the young victim while the victim testified was reversible error. After the victim testified, the trial was adjourned until the following day. Nothing in the record suggests that either the victim or Ms. McKuen was present in the courtroom after the victim’s testimony.
Allowing Ms. McKuen to sit with the 10-year-old girl during her testimony was a matter- of discretion for the trial court. I cannot say that the trial court abused its discretion by allowing this to occur when the victim was of tender years and obviously intimidated and frightened by the criminal process.