Beasley v. State

258 S.W.3d 728, 370 Ark. 238, 2007 Ark. LEXIS 375
CourtSupreme Court of Arkansas
DecidedJune 14, 2007
DocketCR 06-1400
StatusPublished
Cited by5 cases

This text of 258 S.W.3d 728 (Beasley v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beasley v. State, 258 S.W.3d 728, 370 Ark. 238, 2007 Ark. LEXIS 375 (Ark. 2007).

Opinions

Jim Hannah, Chief Justice.

Appellant Kelvin Beasley was convicted by a Pulaski County jury of capital murder in the shooting death of Jermaine Jacko and sentenced to life in prison without parole. For reversal, Beasley argues that the circuit court abused its discretion in allowing the State to introduce into evidence an absent witness’s testimony from a bond-reduction hearing under the hearsay exception stated in Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence. He also argues that the circuit court abused its discretion in allowing a certified transcript of a witness’s testimony to be read to the jury in place of playing the court reporter’s audio recording of the witness’s statement. As this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 — 2(a)(2). We reverse and remand to the circuit court.

On July 10, 2005, Jermaine Jacko was shot and killed while at the Woodbridge Apartments on John Barrow Road in Little Rock. Lakisha Smith and Lashay Elmore were at the apartment complex when the shooting occurred, and both gave statements to the police shortly after the murder. Lakisha told police that she saw Beasley and two other individuals with the victim immediately prior to the shooting. She also identified Beasley as the shooter and stated that at the time of the shooting, Beasley was wearing a red t-shirt.

At the bond-reduction hearing, Beasley challenged the evidence arrayed against him. While Lakisha affirmed, under oath at the hearing, Beasley’s presence at the scene and how he was dressed, she said the statement she had previously made identifying him as the shooter was “a lie” and that she had only repeated to police what her friend Lashay told her to say. Lakisha now claimed at the bond-reduction hearing that she never saw who shot the victim. On cross-examination, the State impeached Lakisha with the prior inconsistent statement she gave to the police. Beasley’s counsel did not conduct a redirect examination of Lakisha.

Prior to trial, Beasley filed a motion in limine to prevent the State from introducing into evidence Lakisha’s testimony from the bond-reduction hearing. The State wanted to call Lakisha to testify at trial; however, attempts to locate and subpoena her were unsuccessful. Accordingly, the State moved to have Lakisha’s former testimony admitted pursuant to Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence. Beasley contended that Lakisha’s testimony was hearsay and that the admission of the testimony would violate his Sixth Amendment right to confront the witnesses against him, in violation of the United States Constitution and the Arkansas Constitution. The circuit court concluded that Lakisha was an unavailable witness and that the testimony was admissible through the introduction of the certified transcript.

Beasley objected, contending that the audiotape used by the court reporter to prepare the certified transcription of Lakisha’s testimony was the “best evidence” and should be played in court. The circuit court considered Beasley’s argument, but learned that the audiotape was in the possession of a former court reporter, who lived approximately 45 miles from Little Rock. Noting that there was no issue as to the authenticity of the transcript, which was certified, the circuit court proceeded with the admission of the transcript and allowed a deputy prosecuting attorney to read Lakisha’s testimony into the record. Beasley now brings this appeal.

Pursuant to Crawford v. Washington, 541 U.S. 36 (2004), “[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” Id. at 68. “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” Id. at 68-69. Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence deal with similar subject matter and contain, in pertinent part, the following language:

Hearsay exceptions — Declarant unavailable.
(a) Definition of Unavailability. “Unavailability as a witness” includes situations in which the declarant:
■ (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding,... if the party against whom the testimony is now offered, . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

In this case, there is no dispute that Lakisha’s testimony at the bond-reduction hearing is testimonial evidence, nor is there any dispute that Lakisha’s testimony is hearsay. As the proponent of former-testimony hearsay, the State was required to satisfy the requirements of Rules 804(a) and (b).

We begin with Beasley’s argument that the State failed to prove that Lakisha was an unavailable witness. The party offering the testimony has the burden of proving the witness unavailable. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good-faith effort has been made to procure the attendance of the missing witness. Vick, supra; Register, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).

To show that Lakisha was unavailable, the prosecutor called investigator Mike Ricard, who was assigned to locate and serve Lakisha with a subpoena for trial. Ricard testified that he received a subpoena for Lakisha on January 23, 2006, and began his attempts to locate her. Ricard recounted his search, starting with Lakisha’s last known address at the apartment on John Barrow Road in Little Rock, where the shooting had occurred. He learned from the apartment manager that Lakisha had moved out. Ricard testified that he ran Lakisha’s identifying information in both the NCIC and ACIC databases and learned that she had warrants out of the Faulkner County Sheriff s Department, as well as the North Little Rock Police Department and the Sherwood Police Department. Ricard stated that he placed Lakisha’s name on a jail watch list in the event she was arrested on any of the warrants, and, as a result he would receive notification of her whereabouts.

Ricard also testified that he checked the Little Rock Police Department records and found an address that was current in October 2005.

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Related

Dennis v. State
2016 Ark. 395 (Supreme Court of Arkansas, 2016)
United States v. Jermaine Roy
781 F.3d 416 (Eighth Circuit, 2015)
Dirickson v. State
291 S.W.3d 198 (Court of Appeals of Arkansas, 2009)
Beasley v. State
258 S.W.3d 728 (Supreme Court of Arkansas, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
258 S.W.3d 728, 370 Ark. 238, 2007 Ark. LEXIS 375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beasley-v-state-ark-2007.