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Wooten v. State11/9/2005
t 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. 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 cas
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