Summary
holding that, even if hearsay evidence is erroneously admitted, reversal is not required if the hearsay evidence is cumulative to other evidence admitted without objection
Summary of this case from Wells v. StateOpinion
CA CR 10-1133
Opinion Delivered April 27, 2011
Appeal from the Crawford County Circuit Court, [No. CR 2009-354 (II)], Honorable Michael Medlock, Judge, Affirmed.
Appellant, Jason Wayne Goss, appeals from his conviction on two counts of rape and one count of second-degree sexual assault of the victim, his stepdaughter. First, Goss argues that the circuit court erred in overruling two hearsay objections he made during the State's direct examination of the victim when the State offered into evidence notes written by her. Second, he argues that the court erred in denying his motion for a mistrial when the State referred to Goss's counsel as the "public defender." We affirm.
Analysis of the first point requires a brief recitation of the State's evidence. At trial, the victim described acts that Goss had committed upon her from the age of eight to twelve. She testified that during the first incident, Goss pinned her on her mother's bed and got on top of her. She described other occasions, as many as fifty, where appellant, while driving her from her father's home, put his hands up her shirt and down her pants, putting his finger inside of her. She further testified that Goss penetrated her with his penis on three or four occasions. She described an incident, the night her half-sister was born, where Goss pushed her onto her bed, removed her pants, and penetrated her with his penis. And on another occasion, Goss "got on" her, she screamed, and Goss covered her mouth.
During her testimony, the State asked the victim about a note she had written to a friend, which was subsequently discovered by the victim's half-sister and presented to the victim's mother, thus precipitating the criminal investigation of appellant. At the State's request, the victim read the entirety of the note to the jury. When the State sought to admit the note into evidence, appellant's counsel objected, noting that it was hearsay. The court overruled the objection and allowed the note to be introduced into evidence.
The victim also testified that during the investigation, she spoke to a member of the Arkansas State Police. She testified that she read to him notes she had made "to help tell my parents everything that happened." The State sought to introduce the notes into evidence, and appellant's counsel again objected on hearsay grounds. The court overruled the objection and allowed the notes to be introduced into evidence. The victim then read the notes to the jury.
On appeal, appellant argues that the court erred in admitting the notes into evidence. Appellant observes in his brief that the first admitted note did "not specify exactly what Goss allegedly did to the alleged victim, but makes accusations that Goss regularly engaged in a practice that hurt the alleged victim." As for the second set of notes, in his brief Goss describes the notes as "detailed descriptions of the alleged illegal activity" and observes that the notes "accuse Goss of pinning the alleged victim down and covering her mouth, putting his hands up her shirt and down her pants on car rides, and also alleges rape by force on the night her sister was born."
We hold that the circuit court's admission of the notes into evidence over Goss's hearsay objection does not warrant reversal. Before Goss objected to the first note's admission, it had already been read into the record without objection. Furthermore, as evidenced by the victim's testimony cited above and appellant's description in his brief of the contents of the notes, the notes were merely cumulative of the victim's testimony, which was admitted without objection. As the Arkansas Supreme Court has held, even if hearsay evidence is erroneously admitted, reversal is not required if the hearsay evidence is cumulative to other evidence admitted without objection. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996) (holding that the introduction of a written statement prepared by a child-victim at the request of a counselor over a hearsay objection was harmless because the written statement was merely cumulative to the child-victim's testimony). Accordingly, we find no reversible error.
For his second point on appeal, Goss notes that on the day of trial, his counsel stated, "Judge, I'd like to try something a little different today. We would just appreciate it if the court would not refer to us as the public defender's office and simply refer to us as defense counsel." The trial judge replied, "All right." During the State's direct examination of its first witness, the victim, the State's counsel showed the victim an exhibit, further stating, "This was given to me by the defense — by the public defender's office and —" At a sidebar, Goss's counsel moved for a mistrial, arguing that he had "requested at the start of this trial that we just be referred to as defense counsel, not the public defender's office. I mean that particular motivation for doing that was to avoid some type of stigma." The trial judge replied,
Mr. [deputy prosecutor], don't do that again! You can say Mr. [defense counsel]. Listen to me! . . . You can say Mr. [defense counsel], but don't refer to the public defender's office. He asked for that, I granted it, I'm trying to avoid it. So, if you want to say Mr. [defense counsel] or the defense counsel that's fine. I'm not going to bring any more attention to it at this time. . . . But I understand his reasoning for it. I'm going to allow that rule so let's kind of abide by it.
The State's counsel replied, "Yes, sir. I slipped, I'm sorry."
On appeal, Goss argues that the circuit court erred in not granting a mistrial because the State's counsel referred to the defense counsel as the public defender. He asserts that, instead of abiding by the ruling, the State's counsel "blatantly disregarded it and unfairly prejudiced the jury against" him. He further asserts that an admonition to disregard the remark would not have cured the error and would have brought the matter to the jury's attention.
We note, however, that prior to trial, Goss's counsel asked only that the trial judge — not the deputy prosecutor — refrain from referring to him as the public defender's office. Further, the court never ruled on his mistrial motion. Nevertheless, we hold that any resulting prejudice was not so great as to warrant a mistrial. Landreth v. State, 331 Ark. 12, 960 S.W .2d 434 (1998) (holding that any prejudice caused by the prosecutor's reference to defense counsel as "public defenders" was not so great as to warrant a mistrial).
Affirmed.
GRUBER and MARTIN, JJ., agree.