Vasquez v. State, CR

• Decision Date: 03 February 1986
• Docket Number: No. CR,CR
• Citation: Vasquez v. State, 287 Ark. 468, 702 S.W.2d 411 (Ark. 1986)
• Parties: Miguel Angel VASQUEZ, Appellant, v. STATE of Arkansas, Appellee. 85-107.
• Court: Arkansas Supreme Court

Page 411

702 S.W.2d 411

287 Ark. 468

Miguel Angel VASQUEZ, Appellant, v. STATE of Arkansas, Appellee.

No. CR 85-107.

Supreme Court of Arkansas.

Feb. 3, 1986.

[287 Ark. 473-A] SUPPLEMENTAL OPINION ON DENIAL OF REHEARING.

HOLT, Chief Justice.

The appellant filed a petition for rehearing contending that the opinion failed to address the question of whether Debra Corley's testimony that the deceased had received a phone call at work the Friday before her death, after which she appeared to be afraid, was hearsay. 287 Ark. 468, 701 S.W.2d 357.

In the opinion, we recounted Ms. Corley's testimony and stated that the State's action in calling Ms. Corley as a witness did not prejudice the appellant. We do not reverse for nonprejudicial [287 Ark. 473-B] error.

As to the substance of her testimony, however, Ms. Corley's statement that the deceased appeared to be afraid falls within an exception to the hearsay rule for then existing mental, emotional, or physical condition. Unif.R.Evid. 803(3). That rule provides that "a statement of the declarant's then existing state of mind, emotion, [or] sensation, ... such as mental feeling" is not excluded by the hearsay rule. We have specifically held that "evidence of the state of mind of the victim, prior to a murder, was admissible." Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).

Appellant's argument that the testimony was hearsay is based on a discussion in McCormick on Evidence § 296 p. 853-54 (3d ed. 1984). That section reads as follows:

A recurring problem arises in connection with the admissibility of accusatory statements made before the act by the victims of homicide. If the statement is merely an expression of fear, i.e. "I am afraid of D," no hearsay problem is involved since the statement falls within the hearsay exception for statements of mental or emotional condition. This does not, however, resolve the question of admissibility. Since nothing indicates that the victim's emotional state is in issue in the case, the purpose of the offer of the statement must be to suggest the additional step of inferring some further fact from the existence of the emotional state. The obvious inference from the existence of fear is that some conduct of D, probably mistreatment or threats, occurred to cause the fear. The possibility of overpersuasion, the prejudicial character of the evidence, and the relative weakness and speculative nature of the inference, all argue against admissibility as a matter of...