{ "id": 6140788, "name": "Cathy LEWIS v. Rebecca GUBANSKI, Rodney Wyatt, and Werner Enterprises, Inc.", "name_abbreviation": "Lewis v. Gubanski", "decision_date": "1995-09-13", "docket_number": "CA 94-164", "first_page": "255", "last_page": "270", "citations": [ { "type": "official", "cite": "50 Ark. App. 255" }, { "type": "parallel", "cite": "905 S.W.2d 847" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "464 N.E.2d 159", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "165" } ], "opinion_index": 0 }, { "cite": "464 U.S. 814", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6236229, 6235046, 6236872, 6235346, 6234389, 6234710, 6234070, 6237564, 6237210, 6237980, 6235646, 6235967 ], "opinion_index": 0, "case_paths": [ "/us/464/0814-08", "/us/464/0814-04", "/us/464/0814-09", "/us/464/0814-05", "/us/464/0814-02", "/us/464/0814-03", "/us/464/0814-01", "/us/464/0814-11", "/us/464/0814-10", "/us/464/0814-12", "/us/464/0814-06", "/us/464/0814-07" ] }, { "cite": "683 F.2d 1342", "category": "reporters:federal", "reporter": "F.2d", "year": 1982, "opinion_index": 0 }, { "cite": "489 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 0 }, { "cite": "858 F.2d 986", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10532717 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/f2d/858/0986-01" ] }, { "cite": "903 F.2d 321", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10534731 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "328" } ], "opinion_index": 0, "case_paths": [ "/f2d/903/0321-01" ] }, { "cite": "39 L.Ed.2d 885", "category": "reporters:federal", "reporter": "L. Ed. 2d", "weight": 3, "year": 1974, "pin_cites": [ { "page": "949" }, { "page": "997", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "94 S.Ct. 1586", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "415 U.S. 989", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6348610, 6349132, 6349741, 6348913, 6349555, 6349947, 6348764 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/us/415/0989-01", "/us/415/0989-04", "/us/415/0989-06", "/us/415/0989-03", "/us/415/0989-05", "/us/415/0989-07", "/us/415/0989-02" ] }, { "cite": "485 F.2d 941", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 669993, 3592867 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/f2d/485/0941-01", "/us-app-dc/158/0162-01" ] }, { "cite": "792 F.2d 994", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1583271 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/f2d/792/0994-01" ] }, { "cite": "276 Ark. 203", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1751554 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "210" }, { "page": "111" } ], "opinion_index": 0, "case_paths": [ "/ark/276/0203-01" ] }, { "cite": "290 Ark. 100", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1873793 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ark/290/0100-01" ] }, { "cite": "317 Ark. 346", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443743 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "348", "parenthetical": "\"[P]roffer is not necessary when the substance of the offer is apparent.\"" }, { "page": "914", "parenthetical": "\"[P]roffer is not necessary when the substance of the offer is apparent.\"" } ], "opinion_index": 0, "case_paths": [ "/ark/317/0346-01" ] }, { "cite": "315 Ark. 555", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1910541 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "559" }, { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/ark/315/0555-01" ] }, { "cite": "291 Ark. 325", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1872597 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ark/291/0325-01" ] }, { "cite": "6 Ark. App. 286", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141737 ], "weight": 3, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/6/0286-01" ] }, { "cite": "302 Ark. 532", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884276 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "537" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/ark/302/0532-01" ] }, { "cite": "318 Ark. 358", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1455797 ], "weight": 2, "year": 1994, "opinion_index": 1, "case_paths": [ "/ark/318/0358-01" ] } ], "analysis": { "cardinality": 1070, "char_count": 32964, "ocr_confidence": 0.885, "pagerank": { "raw": 6.041502013137156e-08, "percentile": 0.3740360924517221 }, "sha256": "9db59dc4914c9dd9b3a00870568b02024ee42c14575ba8c812d082ca38885096", "simhash": "1:226aafa408655392", "word_count": 5553 }, "last_updated": "2023-07-14T21:44:23.701832+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Bullion and Digby, Special Judges, agree.", "Cooper, J., concurs.", "Jennings, C.J., and Robbins, J\u201e dissent.", "Pittman and Rogers, JJ., not participating." ], "parties": [ "Cathy LEWIS v. Rebecca GUBANSKI, Rodney Wyatt, and Werner Enterprises, Inc." ], "opinions": [ { "text": "Melvin Mayfield, Judge.\nThis is an appeal from a judgment entered on a jury verdict against the appellant Cathy Lewis and in favor of the appellees. The lawsuit was filed as a result of an accident involving three vehicles. Although the cause of action is a tort, the appeal is in this court because it does not present \u201ca question\u201d about the law of torts as required by Arkansas Supreme Court and Court of Appeals Rule l-2(a)(16). The only issues presented involve questions about the admissibility of evidence.\nAppellant\u2019s first point on appeal states that \u201cthe trial court made a reversible error in admitting the out-of-court statement of Earl Medley into evidence as an adoptive admission.\u201d\nThe accident occurred in September 1991, and the case was tried in August of 1993. At the time of the accident the appellant was driving one of the vehicles, and her husband, Earl Medley, was a passenger in that vehicle. The appellee Rebecca Guban-ski was driving another vehicle, and the suit was filed by her against the appellant and the driver and the owner of the third vehicle. The jury found for Gubanski against the appellant but not against the driver or owner of the third vehicle. At the time of the trial the appellant and her husband were divorced, and he was living in another state and was not present at the trial. The appellees, however, offered the testimony of John Goodsell, a truck driver who was present at the scene of the accident. They sought to elicit from Goodsell testimony that shortly after the accident he talked with Earl Medley in the appellant\u2019s presence, and that Medley said the accident was the appellant\u2019s fault. This testimony was offered as an adoptive admission under Arkansas Rule of Evidence 801(d)(2)(ii).\nThe court heard Goodsell\u2019s testimony in chambers to determine if a sufficient foundation had been laid. Goodsell testified:\nAfter the accident we parked [at a] wide place and came back down to where it was all at. I walked around and talked to people after the accident. I talked to Ms. Lewis\u2019 husband. When I had the conversation with him Ms. Lewis was standing there. We were all standing there just at the Jeep, all together there. The tone or loudness of the conversation in my opinion Ms. Lewis would\u2019ve heard what was said. He said she was nervous and [he] told her to go ahead and that she had all kind of room to make it and that it was her fault when it was all over with. Ms. Lewis didn\u2019t say nothing.\nI don\u2019t know whether or not this lady heard the conversation. If she didn\u2019t, she needs a hearing aid.\nThe trial court ruled that a sufficient foundation had been laid and allowed this testimony. We do not think the court erred in this ruling. Rule 801(d)(2)(h) provides that a statement offered against the party \u201cof which he has manifested his adoption or belief in its truth\u201d is not hearsay. Such a statement is called \u201can adoptive admission.\u201d See Morris v. State, 302 Ark. 532, 792 S.W.2d 288 (1990). In Wilson v. City of Pine Bluff, 6 Ark. App. 286, 641 S.W.2d 33 (1982), it was pointed out that prior to the adoption of our Rules of Evidence we recognized what the Rules now refer to as an adoptive admission as a \u201ctacit admission\u201d and allowed it in evidence as an exception to the hearsay rule. The admissibility of such evidence is tested by whether a reasonable person, under the circumstances, would have been expected to deny the statements if they were in fact untrue. Morris said a trial court must find that sufficient foundational facts have been introduced so the jury can reasonably infer that the accused heard and understood the statement and the statement was such that, under the circumstances, if the accused did not concur in the statement he would normally respond. Once such a foundation has been established, the question is left to the jury to determine whether the accused acquiesced in the statement. 302 Ark. at 537, 792 S.W.2d at 291.\nPreliminary questions concerning the admissibility of evidence, such as whether a proper foundation has been laid, are determined by the trial court. See Ark. R. Evid. 104(a). The trial court\u2019s determination in this regard is reversed only if there is an abuse of discretion. Marx v. State, 291 Ark. 325, 724 S.W.2d 456 (1987). Under the circumstances in the instant case we think the trial court could have properly found that an adequate foundation for admissibility had been laid. The evidence was such that the jury could reasonably infer that the appellant heard Medley\u2019s statement, and the jury could find that she acquiesced in it.\nThe appellant also argues that the statement of Medley should have been excluded under Ark. R. Evid. 403 which provides that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice or other considerations mentioned in the rale. The only consideration argued by appellant here is unfair prejudice. In Weger v. State, 315 Ark. 555, 559, 869 S.W.2d 688, 690 (1994), our supreme court said, \u201cWe have repeatedly held that the balancing of probative value against prejudice is a matter left to the sound discretion of the trial judge, and a trial judge\u2019s ruling on this issue will not be disturbed absent a showing of manifest abuse.\u201d We cannot say the trial judge abused his discretion in allowing this evidence in this case, especially in light of our holding on the next point argued by the appellant.\nAppellant\u2019s next point is that \u201cthe trial court committed reversible error in refusing to admit, as rebuttal evidence, the statement given by Earl Medley to the insurance investigator....\u201d\nThe appellees\u2019 first response to this point is that there was not an adequate proffer of this statement. We do not agree. Arkansas Rules of Evidence 103(a)(2) provides that no offer of proof is required if the substance of the evidence sought to be introduced is \u201capparent from the context within which questions were asked.\u201d See also Billett v. State, 317 Ark. 346, 348, 877 S.W.2d 913, 914 (1994) (\u201c[P]roffer is not necessary when the substance of the offer is apparent.\u201d).\nHere, the appellant\u2019s abstract shows that after an attorney for Mr. Wyatt (the driver of the third vehicle), who is one of the appellees, had elicited from the witness John Goodsell his testimony of what the appellant\u2019s husband said in the appellant\u2019s presence about the automobile accident being her fault, the appellant testified in rebuttal that her husband \u201cdid not say anything remotely resembling\u201d what Goodsell testified her husband said. Appellant then stated, \u201cHe provided a statement to the investigators for Mr. Wyatt within a few days after the accident.\u201d At this point Mr. Wyatt\u2019s attorney objected and appellant\u2019s attorney told the trial judge that the statement referred to was taken by Mr. Wyatt\u2019s insurance company and \u201cis inconsistent to what Mr. Goodsell has said here.\u201d Appellant\u2019s attorney then explained that he was being put in a position where the jury was going to be able to rely on Goodsell\u2019s testimony about what appellant\u2019s husband said, and \u201cyet, I am not allowed to even bring up the fact that he [meaning the appellant\u2019s husband] obviously had a prior inconsistent to that.\u201d\nThe court then ruled on the objection by Mr. Wyatt\u2019s attorney by stating that the appellant could deny that the statement (which Goodsell said appellant\u2019s husband had said) was ever made in the appellant\u2019s presence, \u201cbut to allow her to start testifying to what a non-party said in a statement is improper.\u201d\nAs we have pointed out, previous to this ruling the trial judge had heard testimony in chambers and had ruled that Mr. Goodsell\u2019s testimony about what appellant\u2019s husband had said in the appellant\u2019s presence would be admissible under Arkansas Evidence Rule 801(d)(2) as \u201ca statement in which one party has manifested a belief in its truth.\u201d Therefore, taking into consideration all the above circumstances, we cannot agree that the substance of the evidence that appellant\u2019s attorney wanted to introduce was not known to the trial judge. He clearly knew that the appellant was going to testify about the statement that her husband had given to the insurance investigator, and her attorney told the judge that it was inconsistent with what Goodsell had testified the husband had said shortly after the accident.\nWe now turn to a discussion of the trial court\u2019s ruling that to allow appellant \u201cto start testifying about what a non-party said in a statement is improper.\u201d We first call attention to the fact that the Publisher\u2019s Notes, following Ark. R. Evid. 101, state that the Arkansas Rules of Evidence started with the adoption of the Uniform Rules of Evidence at an invalid session of the legislature and were then adopted under the statutory and rule-making authority of the Arkansas Supreme Court. See Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986). Previous to Ricarte, the court said in Rhodes v. State, 276 Ark. 203, 210, 634 S.W.2d 107, 111 (1982), that \u201cwe desire to maintain an interpretation of the Uniform Rules that is reasonably consistent with other states as well as with the Federal Rules of Evidence.\u201d\nTherefore, we start with a comparison of Arkansas Rule of Evidence 801(d)(2) and Federal Rule of Evidence 801(d)(2). Arkansas Rule 801(d)(2) provides that a statement is not hearsay if:\nThe statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity, (ii) a statement of which he has manifested his adoption or belief in its truth, (iii) a statement by a person authorized by him to make a statement concerning the subject, (iv) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (v) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.\nAnd Federal Rule 801(d)(2) provides that a statement is not hearsay if:\nThe statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.\nIt is obvious that the only difference between these two rules is that the Arkansas rule uses (i), (ii), (iii), (iv), and (v) to designate its categorical references, and the Federal rule uses (A), (B), (C), (D), and (E).\nNext, Arkansas Rule of Evidence 806 provides:\nIf a hearsay statement, or a statement defined in Rule 801 [d] (2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.\nAnd the Federal Rule of Evidence 806 provides:\nWhen a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his hearsay statement, is not subject to any requirement that he may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement had been admitted calls the declarant as a witness, the party is entitled to examine him on the statement as if under cross-examination.\nAgain, it is obvious that the only difference between these two rules is the method used to designate categorical references.\nNow it is true that the Arkansas Rule 806 provides that \u201cIf a hearsay statement or a statement defined in Rule 801[d](2) (iii), (iv), or (v), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.\u201d This, of course, leaves out [d](2)(i) (a party\u2019s own statement, in either his individual or representative capacity) and [d](2)(ii) (a statement of which he has manifested his adoption or belief in its truth). We are here concerned with (ii), the \u201cadoptive admission\u201d provision, which would seem to be excluded from the provisions of Rule 806 which permit an attack on the declarant\u2019s credibility.\nLet us examine, however, what that would mean in the instant case. It would mean that a bystander could testify that the appellant\u2019s husband made a statement that appellant was at fault, and that the appellant did not deny the statement or object to it; however, if her husband had made a statement to someone else that he did not say what the bystander said the husband said \u2014 the appellant could not show that her husband had made the inconsistent statement. In other words, she is tarred with the \u201chearsay\u201d statement of what her husband said because the rules of evidence will not let her use a \u201chearsay\u201d statement of what her husband said in her favor to rebut the one used against her. Surely this is not what is contemplated when Arkansas and Federal Evidence Rule 102 both provide that: \u201cThese rules shall be constructed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence, to the end that the truth may be ascertained and proceedings justly determined.\u201d\nA close examination of the matter reveals that the above scenario is not what was contemplated by the rules. In the treatise on evidence, 2 McCormick on Evidence \u00a7 324.2 at 370-71 (1992), there is a discussion under the heading of \u201cImpeachment of Hearsay Declarant.\u201d Federal Rule 806 is quoted \u2014 and we need to notice that the Rule begins \u2014 \u201cWhen a hearsay statement, or a statement defined in Rule 801(d)(2), (C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked,...\u201d Also we need to remember that the categories set out in Rule 801(d)(2) are defined as \u201cnot hearsay.\u201d However, the inclusive language at the beginning of Rule 806 means that rule would also apply to a hearsay statement even if it was not a statement defined in Rule 801(d)(2). The discussion in McCormick begins as follows: \u201cWhen a hearsay statement is introduced, often the declarant does not testify. It is, however, ultimately the declar-ant\u2019s credibility that determines the value that should be accorded to the statement. How should that credibility be attacked, or where appropriate, supported?\u201d Federal Rule 806 is then quoted, and the answer to the above question is stated: \u201cThe rule treats the hearsay declarant as effectively as a witness for impeachment purposes.\u201d\nThe discussion in McCormick then continues with this statement: \u201cThe rule covers both statements admitted under hearsay exceptions and admissions, but does not apply to statements that are nonhearsay and not admitted for their truth.\u201d The first half of that statement is footnoted as follows:\nLiterally the rule appears to cover only representative admissions under subparagraphs (C) and (D) of Rule 801(d)(2) and co-conspirator statements under subpara-graph (E). However, the legislative history makes clear that there was no intention to prohibit impeachment of declar-ants making admissions under subparagraphs (A) and (B). The Senate Judiciary Committee believed that it was \u201cunnecessary to include[] statements contained in rule 801(d)(2)(A) and (B) \u2014 the statement by the party-opponent himself or the statement of which he has manifested his adoption \u2014 because the credibility of the party opponent is always subject to attack on his credibility.\u201d Senate Comm, on Judiciary, S.Rep. No. 1277, 93d Cong., 2d Sess. 22 n 1 (1974), reprinted in 1974 U.S. Code Cong. & Admin. News 7051, 7068 n. 1.\nWe need to note again at this point that 801(d)(2)(A) and (B) read the same as Arkansas Rule of Evidence 801(d)(i) and (ii). Thus, under the intent of Congress, and according to McCormick, these two categories \u2014 (A) and (B) in the Federal Rule and (i) and (ii) in the Arkansas Rule \u2014 are not meant to be exceptions to the situation under Rule 806 which allows \u201cthe credibility of the declarant\u201d to be attacked. This would solve the question involved in this case because the application of Rule 806 allows \u2014 as the rule states and McCormick notes \u2014 that \u201cthe credibility of the declarant may be attacked, and if attacked it may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.\u201d So after John Goodsell testified to what the appellant\u2019s husband said \u2014 if this makes her the declarant of that statement because she adopted it \u2014 the rule would allow her to support her credibility by putting into evidence the statement made by her husband to the insurance investigator which is inconsistent with what Goodsell testified the husband said but which is consistent with what the appellant testified the husband said. However, a more comprehensive answer to the issue now under discussion is found in McCormick\u2019s statement, supra, that \u201cthe rule treats the hearsay declarant as effectively as a witness for impeachment purposes.\u201d\nThe case of United States v. Price, 792 F.2d 994 (11th Cir. 1986), cited in a footnote to the above discussion in McCormick, supports McCormick\u2019s statement. In that case, the appellant Price was convicted of illegal distribution of a controlled substance. He had delivered hashish oil to Jimmy Carbone, a confidential informant, to be delivered to Carbone\u2019s narcotics connections for money. Carbone died before the trial, but tape recordings of telephone conversations between Price and Carbone were introduced into evidence. Price\u2019s conviction was affirmed and that part of the opinion applicable to the instant case is as follows:\nThe defense argues that, according to United States v. Lemonakis, 485 F.2d 941 (D.C. Cir. 1973), cert. denied, 415 U.S. 989, 94 S.Ct. 1586, 39 L.Ed.2d 885 (1974), if Price adopted the statements of Carbone such that they are admitted as adoptive admissions, then Carbone may be impeached under FRE 806. In the Lemonakis case, a confidential informer similarly died before trial, and the taped recordings between him and the defendants were offered, as here, to put into context the statements of the defendant. The statements were also offered as adoptive admissions by the defendant of the statements made by the confidential informant. As to those statements, the court said: \u201c(t)he only incriminating statements of the informant to be taken as trae are those which, in the judgment of the jury, were adopted by appellant, and while that does make the informant\u2019s statements hearsay evidence, their adoption by appellant brings them within a long-recognized hearsay exception.\u201d Id. at 949. Though this case is not controlling, it is persuasive for the proposition that the utterer of words which have been adopted as an admission by the defendant, is subject to impeachment under FRE 806.\nIn the present case however, the statements of Car-bone were not admitted as adoptive admissions of the defendant Price. The single purpose of admitting the Carbone statements was to make understandable to the jury the statements made by Price himself. The statements are not hearsay, as they were not offered for the truth of the matter asserted, and were not what is defined as not hearsay within the meaning of FRE 801(d)(2)(C), (D) or (E). Therefore, the appellant\u2019s Sixth Amendment right of confrontation and to present a defense was not violated by the introduction of the tapes into evidence.\nId. at 997 (emphasis added).\nIn regard to the instant case, the pivotal language in the Price opinion states that the Lemonakis case is \u201cpersuasive for the proposition that the utterer of words which have been adopted as an admission by the defendant, is subject to impeachment under FRE 806.\u201d That, of course, is the issue now under discussion. And while it may be arguable that this language in Price is dictum, it is nevertheless instructive on the point here involved.\nWithout going too far astray, the question naturally comes to mind as to why the statements of Carbone, which the appellate court in Price said were not admitted as adoptive statements, would not be subject to impeachment even though they were not offered for the truth of the matter asserted. The answer given in 3 Saltzburg, Martin and Capra, Federal Rules of Evidence Manual Rule 806, at 1674 (6th ed. 1994), is as follows:\nIf a hearsay statement is introduced into evidence because it qualifies as an exception to the hearsay rule, it is being introduced for its truth. This makes the credibility of the hearsay declarant important. Thus, Rule 806 provides that the credibility of the declarant can be attacked and supported just as if the declarant is on the stand testifying. In other words, the ways in which a witness can be impeached and rehabilitated are also the ways in which a hearsay declarant can be impeached and rehabilitated.\nIf a declarant\u2019s statement is not being offered for its truth, then it is not hearsay, and impeachment of the declar-ant is not permitted under Rule 806. This makes sense, because if the statement is not being offered for its truth, then there is no concern about the credibility of the declar-ant, and there is no need for evidence on that subject.\nOf course, there is no question here as to the purpose of the introduction by the appellees of Goodsell\u2019s testimony about the statement that he said the appellant\u2019s husband made regarding the accident being the appellant\u2019s fault. It was obviously introduced for the truth of the statement made by the husband. It was offered and allowed as an adoptive admission of the appellant. As we have already noted, before the adoption of our Rules of Evidence we recognized that a \u201ctacit admission\u201d was admitted for the truth of the matter asserted as an exception to the hearsay rule. Wilson v. City of Pine Bluff, supra. And now, under our Evidence Rule 801(d)(2)(h), this statement is admitted for the truth of the matter asserted under the rule which provides that it is not hearsay. Therefore, it seems clear that, as the opinion in Price states, \u201cthe utterer\u201d of words which have been adopted as an admission by the [appellant here] is subject to impeachment under Rule 806. See also the \u201cNotes of Advisory Committee on Proposed Rules\u201d following Fed. R. Evid. 806 (West Publishing Company) which state:\nThe declarant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified.\nCompare 4 Weinstein and Berger, Weinstein's Evidence \u00a7 806[0l], at 806-6 (1994) where it is stated:\nRule 806 proceeds on the theory that triers of fact will be most likely to reach a just determination if all pertinent evidence is made available to them. Confronted with a choice of limiting the impeachment of declarants in a variety of situations, the Advisory Committee chose to eliminate all foundation requirements, stating that \u201c[t]he declar-ant of a hearsay statement which is admitted in evidence is in effect a witness. His credibility should in fairness be subject to impeachment and support as though he had in fact testified.\u201d\nIn United States v. Moody, 903 F.2d 321 (5th Cir. 1990), the appellant Moody was charged and convicted of mail and wire fraud as a result of using his influence to siphon, for his personal benefit, a large sum of money from a charitable trust. His conviction was reversed because the trial court would not allow him to introduce evidence designed to impeach the reputations for veracity of two co-conspirators who had \u201cfled the jurisdiction and remained at large during the trial\u201d but who had effectively \u201ctestified\u201d by means of hearsay declarations. The appellate court said the trial court \u201charbored the misconception, reinforced by the government, that hearsay declarants cannot be impeached if they fail to testify at trial.\u201d The appellate court said \u201cthis belief is squarely contradicted by Fed. R. Evid. 806\u201d and concluded by saying that \u201ca hearsay declarant is deemed to be a witness whose credibility is subject, in fairness, to impeachment.\u201d (Emphasis added.) Id. at 328. The case of United States v. Graham, 858 F.2d 986 (5th Cir. 1988) cert. denied, 489 U.S. 963, is cited in support of this statement. We should note that we think the reference in Moody to \u201chearsay declarant\u201d simply means a witness who gives evidence that is hearsay but which is admissible under some exception to the hearsay rule. In Moody that exception came under Federal Rule of Evidence 801(d)(2)(E) which pertains to a statement made by a co-conspirator.\nSo we are told by the notes of the Advisory Committee on the proposed Federal Rules of Evidence that the declarant of the hearsay statement \u201cshould in fairness be subject to impeachment.\u201d The commentary in Weinstein\u2019s Evidence and the cases of United States v. Moody and United States v. Graham, supra, agree. In the case now before us, the declarant of the hearsay statement was the appellant\u2019s husband; therefore, in fairness, the evidence which would show that he had made a statement that was inconsistent with the one Goodsell said he made should have been admitted.\nMoreover, in United States v. Wuagneux, 683 F.2d 1342 (11th Cir. 1982), cert. denied, 464 U.S. 814, the appellant was convicted on several charges, one of which was tax evasion. At trial he wanted to introduce a statement, allegedly made by his accountant to another accountant, that the failure of appellant to report income from some leases was the accountant\u2019s fault. However, the accountant who made the statement was under grand jury investigation and claimed his privilege against self-incrimination to any questions about his work for the appellant. Accordingly he was declared unavailable and the appellant introduced his statement through the other accountant under Fed. R. Evid. 804(b)(3) (statement against interest; declarant unavailable). On rebuttal the government put an IRS agent on the stand, and he testified that the appellant\u2019s accountant had told the agent that before the tax returns in question were filed the appellant had disavowed any interest in the leases in question. As to the appellant\u2019s argument that this was error, the appellate court said this testimony was \u201cplainly admissible, as an inconsistent statement of a declar-ant, to impeach [the credibility of the appellant\u2019s accountant] under Federal Rule of Evidence 806.\u201d Id. at 1357.\nAnd in State v. Kline, 464 N.E.2d 159 (Ohio App. 1983), the Wuagneux case was said to have been persuasive in the interpretation of an Ohio Rule of Evidence which was said to be identical to Fed. R. Evid. 806. In Kline the appellant was convicted of felonious assault upon Doug Emmons who was unavailable as a witness at the time of trial. A statement by Emmons that the appellant \u201ctried to kill me \u2014 call the cops,\u201d made as he wrested a gun from the appellant in a crowded bar, was testified to by Kelly Taylor who was in the bar at the time. Her testimony was allowed under Ohio Rule of Evidence 803(2) (excited utterance). The appellate court said this testimony was properly admitted as an exception to he hearsay rule; however, it said the trial court erred in not allowing in evidence written statements given by Emmons to the police in which he said the appellant \u201cpulled a gun on me. I took it away, and the cops came.\u201d In its opinion the court said the subsequent written statements, by omitting a material fact, contradicted the prior excited utterance to which Taylor testified. The court concluded as follows:\nAccordingly, the trial court erred in excluding Emmons\u2019 written statements as \u201chearsay\u201d and in not allowing cross-examination by defense counsel into those statements. Inasmuch as the trial court received in evidence Emmons\u2019 hearsay statement through Taylor\u2019s testimony, it committed error prejudicial to appellant by excluding Emmons\u2019 inconsistent written statements offered to impeach him. Reversal is therefore required. Appellant\u2019s first assignment of error is well-taken.\nId. at 165.\nIn summary, we are convinced, from our study of the material which we have discussed, that as applied to the facts and circumstances of this case Ark. R. Evid. 806 allows the appellant to put into evidence the inconsistent statement that she said her husband gave to the insurance investigator. Although no case has been found which has specifically adjudicated the issue either way, the language in the Price case, supra, is certainly supportive of our view. In addition, from the other authority we have cited, we think it is clear that the language in Rule 806 does not limit its application to attacking or supporting only the statements defined as not hearsay in Rule 801(d)(2). To the contrary, the Rule 806 phrase \u201ca hearsay statement or a statement defined in Rule 801(d)(2)(iii), (iv), or (v)\u201d has been held to include excited utterances and statements against interest, each of which is a so-called hearsay statement that is not mentioned in Rule 801(d)(2) (iii), (iv), or (v). It is also clear that the word \u201cdeclarant\u201d as used in Rule 806 is \u201cdeemed to be a witness whose credibility is subject, in fairness, to impeachment.\u201d Obviously, in this case, this would be the appellant\u2019s husband. However, Rule 806 specifically states that a declarant\u2019s credibility may be attacked or supported', therefore, even if the declarant here is the appellant, she should be allowed under Rule 806 to support her credibility by putting into evidence the statement made by her husband to the insurance investigator as that statement was consistent with her own testimony.\nReversed and remanded.\nBullion and Digby, Special Judges, agree.\nCooper, J., concurs.\nJennings, C.J., and Robbins, J\u201e dissent.\nPittman and Rogers, JJ., not participating.", "type": "majority", "author": "Melvin Mayfield, Judge." }, { "text": "John E. Jennings, Chief Judge,\ndissenting. While I agree with the majority\u2019s holding that the trial judge did not err in admitting the adoptive admission, I cannot agree that the trial court erred in refusing to admit a statement made to insurance investigators. In my view the judgment of the circuit court should be affirmed.\nAs a threshold matter, the majority holds that no proffer of the evidence was necessary because its substance is apparent. I cannot agree.\nThe only clue to be found in the record as to the nature of the evidence is the statement of counsel that it is somehow \u201cinconsistent.\u201d We cannot tell from the record whether the inconsistency, if any, was material. We cannot even tell whether the statement referred to was made by Mr. Medley or Mr. Goodsell. I cannot agree that under the circumstances presented, the proffer required by Rule 103 was unnecessary. Compare Patterson v. State, 318 Ark. 358, 885 S.W.2d 667 (1994).\nEven if no proffer was necessary I am still not persuaded that the trial court erred. As the majority concedes, Rule 806 of the Arkansas Rules of Evidence pointedly excludes from its purview statements admitted as adoptive admissions. The majority says that this omission is because of the recognition that the credibility of a party opponent is always subject to attack. In this case, however, counsel was seeking to attack the credibility of either Mr. Goodsell or Mr. Medley, not the testimony of her party-opponent.\nWithout knowing more about the statement and who made it, I cannot say the trial judge erred in refusing to admit it. I am authorized to state that Judge Robbins joins in this dissent.", "type": "dissent", "author": "John E. Jennings, Chief Judge," } ], "attorneys": [ "Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Mun-son and Valerie Denton, for appellant.", "Gary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellee Rebecca L. Gubanski.", "Laser, Sharp, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellees Rodney Wyatt and Werner Enterprises, Inc." ], "corrections": "", "head_matter": "Cathy LEWIS v. Rebecca GUBANSKI, Rodney Wyatt, and Werner Enterprises, Inc.\nCA 94-164\n905 S.W.2d 847\nCourt of Appeals of Arkansas En Banc\nOpinion delivered September 13, 1995\n[Rehearing denied October 18, 1995.]\nHuckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Mun-son and Valerie Denton, for appellant.\nGary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellee Rebecca L. Gubanski.\nLaser, Sharp, Wilson, Bufford & Watts, P.A., by: Richard N. Watts and Brian A. Brown, for appellees Rodney Wyatt and Werner Enterprises, Inc.\nJennings, C.J., and Robbins, J., would grant." }, "file_name": "0255-01", "first_page_order": 279, "last_page_order": 294 }