Rape conviction overturned because of hearsay testimony

BY JIM BROOKS ARKANSAS DEMOCRAT-GAZETTE

LITTLE ROCK — The state Court of Appeals overturned a Pulaski County rape conviction and ordered the case sent back to court after finding that a judge improperly allowed hearsay testimony during the July 2006 trial that ended in the conviction of John Seely.

Seely, 37, of Little Rock, was sentenced to 20 years in prison in a case involving a 3-year-old girl. The girl, 4 at the time of the trial, was not allowed to testify.

Pulaski County Circuit Judge John Langston allowed testimony from the girl’s mother and a social worker, both of whom told jurors about things the girl told them. The testimony from the mother was not hearsay, the state appeals court ruled.

But the testimony of a hospital worker was ruled to be “testimonial” and in violation of the hearsay rules.

The social worker, TrishSmith, said she was working at Arkansas Children’s Hospital on Sept. 23, 2005, when the girl was brought in.

Smith questioned the girl, who told her that Seely had touched her “booty” and told her she would be whipped if she told about it. Doctors examined the child and documented injuries to her genitals.

The girl also told her mother about it and identified Seely as the person who had touched her.

The defense appeal concentrated on the testimony of Smith.

“In Crawford v. Washington ... the [U.S.] Supreme Court held that out-of-court statements by a witness that are ‘testimonial’ are barred under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness,” Appeals Court Justice John B. Robbins wrote in his opinion.

The confrontation clauses inthe federal and state constitutions give defendants the right to confront their accusers and cross-examine them.

“It is undisputed that the appellant [Seely] was not afforded a prior opportunity to crossexamine [the child] or that the statements attributed to [the child] were hearsay,” Robbins wrote.

“We hold that the social worker’s testimony included ‘testimonial’ hearsay,” the opinion states.

Justices Robert J. Gladwin, David “Mac” Glover and Brian S. Miller agreed with Robbins. Justices Jo Hart and Karen R. Baker concurred in part but dissented in part, stating that they believed the majority had “adopted a far too restrictive view of what constitutes ‘testimonial hearsay.’”

Hart and Baker agreed that the case should be returned to Circuit Court for retrial.

At the appeals court, the case is CACR06-1318, John Leelyn Seely v. State of Arkansas.

Arkansas, Pages 12 on 09/27/2007