Opinion

Pennington v. State

  • 24 Ark. App. 70
  • 749 S.W.2d 680
  • 1988 Ark. App. LEXIS 196
Court
Court of Appeals of Arkansas
Filed
Apr 27, 1988
Status
Published
Author
Corbin
On the bench
Cracraft, Corbin
Cited by
10 cases

stating that the admissibility of an excited utterance “is not to be measured by any precise number of minutes, hours, or days, but requires that the declarant is still under the stress and excitement caused by the traumatic occurrence.”

How later courts described this case

  • stating that the admissibility of an excited utterance “is not to be measured by any precise number of minutes, hours, or days, but requires that the declarant is still under the stress and excitement caused by the traumatic occurrence.”

Written by the judges who cited it.

The opinion

Donald L. Corbin, Chief Judge, dissenting. I agree with the majority that the statements were inadmissible as prior inconsistent statements. However, I do not believe that their admission prejudicially affected a substantial right of the appellant under the facts and circumstances of this case.

Underlying this dissent is my basic belief that prosecution for child abuse deserves a different approach and treatment legally than do the other criminal offenses. Reported cases of child abuse increased 223% nationally since 1976 and child abuse related deaths have increased 23% between 1985 and 1986. Many states have enacted legislation to protect children and provide for this differential treatment. Arkansas, to a limited extent, did so when it enacted Act 405 of 1985. The act added to the list of hearsay exceptions a statement made by a child under 10 years of age concerning an act or offense against the child involving sexual offenses if the court finds that the statement offered possesses a reasonable likelihood of trustworthiness. Arkansas Rules of Evidence Rule 803(25)(A) recognizes the need for allowing hearsay statements of children to be admitted under certain circumstances. It acknowledges the need to put all of the evidence before the jury and let them determine what credit the child’s testimony is to be given.

Although the procedural requirements of 803(25)(A) were not met, cross-examination about the prior hearsay statement provided adequate safeguards of the defendant’s rights in this particular case. The underlying reason for excluding hearsay is inability to confront the declarant, and such reasoning fails here. Had the judge, after a hearing conducted outside of the jury’s presence, admitted the statements under 803(25)(A), it would have been extremely difficult for the majority to find that the trial judge abused his discretion.

I fail to see how a substantial right of the appellant’s was prejudiced by admission of the statement under one exception when the same statement was admissible, in the judge’s discretion, under another exception.

For this reason I believe the statements made to the foster mother and counselor were properly admitted. In cases of sexual abuse of children, because of fear, embarrassment, punishment etc., the child may avoid naming the perpetrator or give inconsistent accounts. Because of the sensitive nature of these cases, the jury should be allowed to hear all evidence probative of the truth and be allowed to decide for themselves, as they did in this case,,if the child’s testimony is credible. The legislature mandated such special treatment by addition of the hearsay exception, and such treatment is appropriate here. We must strive to protect the interest of our children.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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