Harris v. State, CR
| Decision Date | 09 May 1988 |
| Docket Number | No. CR,CR |
| Parties | Gratton HARRIS, Appellant, v. STATE of Arkansas, Appellee. 88-33. |
| Court | Arkansas Supreme Court |
Kyle D. Parker, Fort Smith, for appellant.
Joseph V. Svoboda, Asst. Atty. Gen., Little Rock, for appellee.
Appellant appeals from his conviction of second degree battery which resulted from a jury finding that he intentionally or knowingly, without justification, caused injury to Anthony Ward, the six-year-old son of appellant's girlfriend. Appellant raises five points for reversal, four of which involve either the constitutionality, construction or application of A.R.E. Rule 803(25). His remaining point involves the trial court's denial of appellant's mistrial motion regarding certain remarks made by the prosecutor in his opening argument. We affirm the trial court's ruling on all points.
Because the state intended to offer witnesses who would testify concerning statements made by Anthony about the origin and nature of his injuries, the trial judge conducted a pretrial hearing to determine the admissibility of such hearsay testimony under the requirements of A.R.E. Rule 803(25). We first note that appellant's objection at the pretrial hearing was based on appellant's claim that the hearsay testimony to be given by the state's witnesses would be cumulative and its probative value would be outweighed by the prejudice it would cause. On appeal, the appellant, by different counsel, argues for the first time on appeal that Rule 803(25) violates the Confrontation Clause of the sixth and fourteenth amendments; and citing Ricarte v State, 290 Ark. 100, 717 S.W.2d 488 (1986), he further argues the rule was illegally enacted by the Arkansas General Assembly, instead of being properly adopted by this court under its rule-making power. We have long held that a party cannot change the grounds for an objection on appeal, Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (Supplemental Opinion) (1986). Therefore, we do not address appellant's two issues that pertain to the validity and constitutionality of Rule 803(25).
We may, however, consider appellant's contention that the hearsay statements, heard and considered by the trial court at the 803(25) hearing, should have been excluded at trial as cumulative and prejudicial. Appellant does not question the relevancy of such testimonial evidence. Our court has held that the mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). The question of weighing the prejudicial effect of cumulative evidence against its probative value is a matter of balancing which is primarily the function of the trial judge in the exercise of his discretion and which should not be interfered with on appeal in the absence of manifest abuse. Id.
Here, Anthony testified at trial that the appellant "whipped me because I had an accident in my britches." Anthony claimed the appellant kicked him, beat him with a belt and fly swatter wire, held his head under the water in the bath tub, ran hot water on his feet and put feces in his mouth. Appellant categorically denied such allegations, claiming he had not even seen Anthony on the evening the bruises and injuries appeared on Anthony's face and body. Appellant's testimony conflicted in meaningful respects with that offered by state witnesses, who gave a different account than appellant's concerning his whereabouts on the night Anthony sustained his injuries. In terms of A.R.E. Rule 403, we cannot say the "probative value" of the testimony presented by the state "was substantially outweighed by the danger of unfair prejudice." Accordingly, we hold the trial judge did not abuse his discretion in admitting the testimony offered by the state under Rule 803(25).
Appellant also argues that the trial court erred in failing to admonish (instruct) the jury, as directed under Rule 803(25)(A)(3), after each state witness testifying as to Anthony's out-of-court statements. The record shows that the trial judge, at the appellant's request, did instruct the jury after each witness until the appellant specifically withdrew that request. He asked the trial judge to terminate such limiting instruction before the state had called all of its witnesses--three had not yet testified. The easy answer to appellant's argument here is that he cannot now complain of error that he was responsible for inviting. Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976). 1
Finally, appellant contends that the trial court erred in failing to grant a mistrial because of the prosecutor's opening remarks that the state's expert witness, Dr. Tom C. Jefferson, would testify that this case involved the severest case of child abuse that he had ever seen. Appellant apparently interposed an objection to this effect during opening argument since such an objection has been abstracted even though the prosecutor's...
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