{ "id": 5567589, "name": "Kelvin BEASLEY v. STATE of Arkansas", "name_abbreviation": "Beasley v. State", "decision_date": "2007-06-14", "docket_number": "CR 06-1400", "first_page": "238", "last_page": "250", "citations": [ { "type": "official", "cite": "370 Ark. 238" }, { "type": "parallel", "cite": "258 S.W.3d 728" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "272 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174943 ], "weight": 2, "year": 1981, "opinion_index": 0, "case_paths": [ "/ark/272/0088-01" ] }, { "cite": "317 Ark. 198", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1443784 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/317/0198-01" ] }, { "cite": "312 Ark. 106", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935064 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0106-01" ] }, { "cite": "8 F.3d 909", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513705 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "914-15" }, { "page": "914-15" } ], "opinion_index": 0, "case_paths": [ "/f3d/8/0909-01" ] }, { "cite": "349 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513776 ], "weight": 8, "year": 2002, "pin_cites": [ { "page": "667-68" }, { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/ark/349/0648-01" ] }, { "cite": "363 Ark. 422", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3557111 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "425-26" }, { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ark/363/0422-01" ] }, { "cite": "309 Ark. 124", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1906009 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/309/0124-01" ] }, { "cite": "300 Ark. 174", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1886800 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark/300/0174-01" ] }, { "cite": "313 Ark. 426", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914584 ], "weight": 3, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0426-01" ] }, { "cite": "314 Ark. 618", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912767 ], "weight": 4, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/314/0618-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "68-69" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] }, { "cite": "272 Ark. 88", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1174943 ], "weight": 2, "year": 1981, "opinion_index": 1, "case_paths": [ "/ark/272/0088-01" ] }, { "cite": "8 F.3d 909", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 10513705 ], "year": 1993, "opinion_index": 1, "case_paths": [ "/f3d/8/0909-01" ] }, { "cite": "349 Ark. 648", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513776 ], "weight": 2, "year": 2002, "opinion_index": 1, "case_paths": [ "/ark/349/0648-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "year": 2004, "opinion_index": 1, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 994, "char_count": 27244, "ocr_confidence": 0.751, "pagerank": { "raw": 9.180282789146976e-08, "percentile": 0.5091876012848625 }, "sha256": "6f0ffe703a400ca38e6a1ea9b4daacb50e1d7a9ef17e1a58cb16b3f0b04ba1dd", "simhash": "1:4a4e4536ce29cb62", "word_count": 4469 }, "last_updated": "2023-07-14T22:32:56.927728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Brown, J., dissents." ], "parties": [ "Kelvin BEASLEY v. STATE of Arkansas" ], "opinions": [ { "text": "Jim Hannah, Chief Justice.\nAppellant Kelvin Beasley was convicted by a Pulaski County jury of capital murder in the shooting death of Jermaine Jacko and sentenced to life in prison without parole. For reversal, Beasley argues that the circuit court abused its discretion in allowing the State to introduce into evidence an absent witness\u2019s testimony from a bond-reduction hearing under the hearsay exception stated in Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence. He also argues that the circuit court abused its discretion in allowing a certified transcript of a witness\u2019s testimony to be read to the jury in place of playing the court reporter\u2019s audio recording of the witness\u2019s statement. As this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup. Ct. R. 1 \u2014 2(a)(2). We reverse and remand to the circuit court.\nOn July 10, 2005, Jermaine Jacko was shot and killed while at the Woodbridge Apartments on John Barrow Road in Little Rock. Lakisha Smith and Lashay Elmore were at the apartment complex when the shooting occurred, and both gave statements to the police shortly after the murder. Lakisha told police that she saw Beasley and two other individuals with the victim immediately prior to the shooting. She also identified Beasley as the shooter and stated that at the time of the shooting, Beasley was wearing a red t-shirt.\nAt the bond-reduction hearing, Beasley challenged the evidence arrayed against him. While Lakisha affirmed, under oath at the hearing, Beasley\u2019s presence at the scene and how he was dressed, she said the statement she had previously made identifying him as the shooter was \u201ca lie\u201d and that she had only repeated to police what her friend Lashay told her to say. Lakisha now claimed at the bond-reduction hearing that she never saw who shot the victim. On cross-examination, the State impeached Lakisha with the prior inconsistent statement she gave to the police. Beasley\u2019s counsel did not conduct a redirect examination of Lakisha.\nPrior to trial, Beasley filed a motion in limine to prevent the State from introducing into evidence Lakisha\u2019s testimony from the bond-reduction hearing. The State wanted to call Lakisha to testify at trial; however, attempts to locate and subpoena her were unsuccessful. Accordingly, the State moved to have Lakisha\u2019s former testimony admitted pursuant to Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence. Beasley contended that Lakisha\u2019s testimony was hearsay and that the admission of the testimony would violate his Sixth Amendment right to confront the witnesses against him, in violation of the United States Constitution and the Arkansas Constitution. The circuit court concluded that Lakisha was an unavailable witness and that the testimony was admissible through the introduction of the certified transcript.\nBeasley objected, contending that the audiotape used by the court reporter to prepare the certified transcription of Lakisha\u2019s testimony was the \u201cbest evidence\u201d and should be played in court. The circuit court considered Beasley\u2019s argument, but learned that the audiotape was in the possession of a former court reporter, who lived approximately 45 miles from Little Rock. Noting that there was no issue as to the authenticity of the transcript, which was certified, the circuit court proceeded with the admission of the transcript and allowed a deputy prosecuting attorney to read Lakisha\u2019s testimony into the record. Beasley now brings this appeal.\nPursuant to Crawford v. Washington, 541 U.S. 36 (2004), \u201c[w]here testimonial evidence is at issue ... the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.\u201d Id. at 68. \u201cWhere testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.\u201d Id. at 68-69. Rules 804(a)(5) and (b)(1) of the Arkansas Rules of Evidence deal with similar subject matter and contain, in pertinent part, the following language:\nHearsay exceptions \u2014 Declarant unavailable.\n(a) Definition of Unavailability. \u201cUnavailability as a witness\u201d includes situations in which the declarant:\n\u25a0 (5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), his attendance or testimony) by process or other reasonable means.\n(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness.\n(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding,... if the party against whom the testimony is now offered, . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.\nIn this case, there is no dispute that Lakisha\u2019s testimony at the bond-reduction hearing is testimonial evidence, nor is there any dispute that Lakisha\u2019s testimony is hearsay. As the proponent of former-testimony hearsay, the State was required to satisfy the requirements of Rules 804(a) and (b).\nWe begin with Beasley\u2019s argument that the State failed to prove that Lakisha was an unavailable witness. The party offering the testimony has the burden of proving the witness unavailable. Vick v. State, 314 Ark. 618, 863 S.W.2d 820 (1993); Register v. State, 313 Ark. 426, 855 S.W.2d 320 (1993); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). Also, the party seeking to introduce the prior testimony of an unavailable witness must show that a good-faith effort has been made to procure the attendance of the missing witness. Vick, supra; Register, supra; Meine v. State, 309 Ark. 124, 827 S.W.2d 151 (1992).\nTo show that Lakisha was unavailable, the prosecutor called investigator Mike Ricard, who was assigned to locate and serve Lakisha with a subpoena for trial. Ricard testified that he received a subpoena for Lakisha on January 23, 2006, and began his attempts to locate her. Ricard recounted his search, starting with Lakisha\u2019s last known address at the apartment on John Barrow Road in Little Rock, where the shooting had occurred. He learned from the apartment manager that Lakisha had moved out. Ricard testified that he ran Lakisha\u2019s identifying information in both the NCIC and ACIC databases and learned that she had warrants out of the Faulkner County Sheriff s Department, as well as the North Little Rock Police Department and the Sherwood Police Department. Ricard stated that he placed Lakisha\u2019s name on a jail watch list in the event she was arrested on any of the warrants, and, as a result he would receive notification of her whereabouts.\nRicard also testified that he checked the Little Rock Police Department records and found an address that was current in October 2005. He verified the location and the resident who lived there as Fayrene Ellison. Ricard said that he also learned that it was a possibility that Lakisha was staying with her aunt, Trena Hunt, who was listed at the address of 7900 Woodhaven, Little Rock.\nWhen Ricard checked the Woodhaven address, he left a card and a copy of the subpoena at that location. However, when he returned to the location a week later, the house appeared to be vacant, and the telephone had been disconnected.\nRicard testified that he was able to obtain the name and address of Lakisha\u2019s mother, Tracy Smith, who lived at 4 Clifton Drive, in Little Rock. When he went to the residence, he made contact with a woman who identified herself as \u201cMrs. Rogers.\u201d The woman said that Tracy Smith did not live there and that she continued to receive mail in Tracy\u2019s name.\nEventually, Ricard located Fayrene Ellison, who had been Lakisha\u2019s roommate at the time of the murder. It was Ellison\u2019s opinion that Lakisha was staying with her grandmother somewhere in southwest Little Rock, so Ricard attempted to verify that information. In doing so, he subsequently made contact with Lakisha\u2019s aunt, Rhonda Smith. Rhonda said that she had not had any contact with Lakisha because she stole from her. She did, however, give Ricard the name of Lakisha\u2019s grandmother, Emma Hunt. Ricard had several old addresses for Hunt, but nothing current, until he located a vehicle-accident report that listed Hunt\u2019s address as 7909 Burnelle in Little Rock. On his first visit to that address, he found no one home. He subsequently canvassed the neighborhood and spoke to one of Hunt\u2019s neighbors,- who indicated that she had spoken to Lakisha once while she was at the residence. Ricard returned to the address a second time, but did not find anyone home. He testified that he left his card and a copy of the subpoena.\nRicard further testified that, following these attempts to locate Lakisha, he received subpoenas on March 13, 2006, for the May trial date. He transmitted a copy of the subpoena to the southwest precinct of the Little Rock Police Department, who agreed to assist him in locating and serving Lakisha. On March 28, Ricard received information that the Little Rock Police Department had made contact with Trena Hunt at the 7909 Burnelle address. Ricard testified that, when officers inquired as to the whereabouts of Lakisha, Trena Hunt told them, \u201cI ain\u2019t telling you shit.\u201d Picard said that the police continued to be on the lookout for Lakisha and that he went back to 7909 Burnelle, where he talked to Trena Hunt himself. He said that Hunt denied that Lakisha had ever stayed there and said that she did not know where Lakisha was. Throughout this time, Ricard said that he maintained a current jail-watch notification and returned to 7909 Burnelle at regular intervals, but was unable to locate and serve Lakisha with a subpoena.\nBeasley states that, although Ricard made an effort to find Lakisha before trial, he did not begin to try to subpoena her until about a month before the first trial setting. Beasley contends that this delay in trying to subpoena Lakisha was not reasonable and did not meet the standards of good faith that are required. We disagree. Ricard\u2019s testimony shows that the State made a good-faith effort to procure the attendance of Lakisha at trial. Accordingly, we hold that the circuit court did not abuse its discretion in finding that Lakisha was unavailable pursuant to Ark. R. Evid. 804(a)(5).\nNext, we consider whether, pursuant to Ark. R. Evid. 804(b)(1), Beasley had an opportunity and similar motive to develop Lakisha\u2019s testimony at the bond-reduction hearing. At the hearing, Beasley elicited testimony from Lakisha that she had lied to police when she previously identified Beasley as the shooter. Lakisha testified that, although Beasley was at the scene, she picked him out of a police lineup as being the shooter because her friend, Lashay Elmore, told her to, not because she saw Beasley shoot Jacko. Lakisha stated that she did not actually see who shot the victim because she was not outside when the shooting occurred. When the State cross-examined Lakisha, she stated that Beasley was at the scene before the crime, but he left just prior to the shooting. Lakisha acknowledged that her testimony at the hearing was inconsistent with the statement that she had given police; however, she stated that she initially lied to police because her friend Lashay had threatened her and she was afraid for her life. After the State concluded its cross-examination, defense counsel was given the opportunity to ask more questions; however, he declined to conduct a redirect examination of Lakisha. Beasley contends that the circuit court erred in admitting Lakisha\u2019s testimony from the bond-reduction hearing at trial because he did not have a similar motive to develop Lakisha\u2019s testimony at that hearing.\nWe initially consider what is meant by a similar motive in the two proceedings at issue. Recently, in Bertrand v. State, 363 Ark. 422, 425-26, 214 S.W.3d 822, 824 (2005), the court stated:\nIn Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002), this court retraced its jurisprudence regarding Rule 804(b)(1). We observed that the admission of prior testimony requires both the opportunity to cross-examine the witness and a similar motive to develop his or her testimony. We further noted that we have consistently held that (1) where the prior testimony was at a full-fledged proceeding, (2) where the motive to cross-examine was similar, and (3) where the witness was unavailable, the testimony was admissible under Rule 804(b)(1). See Proctor v. State, supra. In United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993), a decision which this court quoted in Proctor, the Second Circuit Court of Appeals set out its approach for determining similarity of motive:\nThe proper approach, therefore, in assessing similarity of motive under Rule 804(b)(1) must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue. The nature of the two proceedings\u2014 both what is at stake and the applicable burden of proof \u2014 and, to a lesser extent, the cross-examination at the prior proceeding \u2014 both what was undertaken and what was available but forgone \u2014 will be relevant though not conclusive on the ultimate issue of similarity of motive.\n8 F.3d at 914-15. In addition, Jack Weinstein in his celebrated treatise on evidence comments that \u201c[bjecause similar motive does not mean identical motive, the similar-motive inquiry is inherently factual,\u201d and is \u201cnarrowly concerned with ensuring the reliability of the evidence admitted at trial.\u201d 5 Jack B. Weinstein & Margaret A. Berger, Weinstein\u2019s Federal Evidence \u00a7 804.04[5] (2d ed. 1997).\nThis court has not previously addressed the issue of whether a similar motive for cross-examination, or as in this case, redirect examination could be had at both a bond-reduction hearing and a trial. We have recognized a similar motive for cross-examination in cases involving suppression hearings. See, e.g., Bertrand, supra; Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). We have also concluded that the motive to develop testimony at a federal habeas corpus hearing was sufficient for admission of the testimony at trial, see Vick, supra, and that first-trial testimony was admissible in the second trial where the exact issue and motive to cross-examine existed. See Espinosa v. State, 317 Ark. 198, 876 S.W.2d 569 (1994). On the other hand, this court found no similar motive to develop testimony at a preliminary hearing and trial, see Scott v. State, 272 Ark. 88, 612 S.W.2d 110 (1981), and no similar motive to develop testimony at a bond-revocation proceeding and trial, see Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002).\nCiting Proctor, supra, Beasley contends that a bond-reduction hearing does not involve the same liberty interest as a trial because the standard of proof involved in the hearing is very different, and therefore a bond-reduction hearing is not a \u201cfull-fledged\u201d hearing. He argues that, because the bond-reduction hearing was limited, rather than \u201cfull-fledged,\u201d his counsel did not have a similar motive to develop Lakisha\u2019s testimony as he would have at trial. The State contends that Beasley\u2019s reliance on Proctor is misplaced because the focus of a bond-revocation hearing, which was at issue in Proctor, is different from the focus of a bond-reduction hearing, which is at issue in the instant case. In Proctor, we stated that \u201c[t]he sole purpose of the [bond-revocation] hearing is for the examining court to determine whether there is reasonable cause to believe that the defendant has committed a felony while out on bail on another charge.\u201d 349 Ark. at 667-68, 79 S.W.3d at 382. We agree with the State that the proceeding at issue in Proctor is different from the proceeding at issue in the instant case. We now turn to the State\u2019s contention that Rule 8.5 of the Arkansas Rules of Criminal Procedure makes it clear that a bond-reduction hearing is an attack on the State\u2019s proof; therefore, Beasley had both the opportunity and a similar motive to attack the State\u2019s evidence.\nRule 8.5 provides:\nPretrial release inquiry; when conducted; nature of.\n(a) A pretrial release inquiry shall be conducted by the judicial officer prior to or at the first appearance of the defendant.\n(b) The inquiry should take the form of an assessment of factors relevant to the pretrial release decision, such as:\n(i) the defendant\u2019s employment status, history and financial condition;\n(ii) the nature and extent of his family relationships;\n(iii) his past and present residence;\n(iv) his character and reputation;\n(v) persons who agree to assist him in attending court at the proper times;\n(vi) the nature of the current charge and any mitigating or aggravating factors that may bear on the likelihood of conviction and the possible penalty;\n(vii) the defendant\u2019s prior criminal record, if any, and, if he previously has been released pending trial, whether he appeared as required;\n(viii) any facts indicating the possibility of violations of law if the defendant is released without restrictions; and\n(ix) any other facts tending to indicate that the defendant has strong ties to the community and is not likely to flee the jurisdiction.\nAs provided in the rule, the purpose of a bond-reduction hearing is for a judicial officer to conduct an inquiry in the form of an assessment of factors to determine whether the amount of a criminal defendant\u2019s bond should be lowered in order to allow a pretrial release. See Ark. R. Crim. P. 8.5. We believe that the purpose of the proceeding reveals that a bond-reduction hearing is a limited hearing rather than a \u201cfull-fledged\u201d hearing. Contrary to the State\u2019s assertion, the purpose of the rule is not solely to attack the State\u2019s proof; rather, the judicial officer\u2019s inquiry also includes an assessment of the defendant\u2019s connection to the community, familial relationships, and history of appearing in court after a pretrial release. See id.\nBeasley\u2019s motive at the bond-reduction hearing was to obtain a pretrial release from jail. While he may have attempted to obtain release by casting doubt on the strength of the State\u2019s case, we cannot say that Beasley had \u201can interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue.\u201d See DiNapoli, 8 F.3d at 914-15. The applicable burden of proof at the hearing, i.e, \u201cthe likelihood of conviction,\u201d see Ark. R. Crim. P. 8.5(vi), and \u201cfacts tending to indicate\u201d that the defendant is not a flight risk, see Ark. R. Crim. P. 8.5(ix), is far different from Beasley\u2019s interest at trial to secure an absolute acquittal. In other words, at trial Beasley had an interest in eliminating any likelihood of conviction; whereas, at the bond-reduction hearing, his interest would have been to obtain a pretrial release from jail by showing a remote likelihood of conviction. While Beasley had the opportunity to further develop Lakisha\u2019s testimony, it is clear to us that he did not have a similar motive to develop her testimony.\nOur conclusion that Beasley did not have a similar motive to develop Lakisha\u2019s testimony is bolstered by the fact that there was conflicting testimony regarding what the shooter was wearing. The record reflects that, both in her statement to the police and her testimony at the bond-reduction hearing, Lakisha maintained that the shooter was wearing red. On the other hand, in her statement to the police, Lashay said that the shooter was wearing a white t-shirt; whereas, at trial, she testified that the shooter was wearing a red t-shirt over a white t-shirt. Beasley contends that when Lashay changed her description regarding what the shooter was wearing, it was only then that his decision not to examine Lakisha on redirect at the hearing became important. Beasley states that at the time of the hearing, he could not foretell that Lashay would change her description of what the shooter was wearing or that Lakisha would not be present at the trial to testify. Thus, he argues that he did not have a similar motive to examine Lakisha on redirect as to what Beasley was wearing as he would have after Lashay testified at trial. Beasley\u2019s argument is well taken. Based on the foregoing, we hold that the circuit court abused its discretion in admitting into evidence Lakisha\u2019s testimony from the bond-reduction hearing. Beasley\u2019s second point on appeal regarding the best-evidence rule need not be addressed because Lakisha\u2019s prior testimony, either through the certified transcript or the tape-recorded statement, will not be admissible at Beasley\u2019s new trial.\nReversed and remanded.\nBrown, J., dissents.\nThe trial was originally set for February 22,2006; however, it was later continued until May 2,2006.\nWhile the cited cases involved the issue of whether there was a similar motive for cross-examination, Rule 804(b)(1) applies equally to direct examination, cross-examination, and redirect examination.", "type": "majority", "author": "Jim Hannah, Chief Justice." }, { "text": "Robert L. Brown, Justice,\ndissenting. The majority opinion unduly restricts prosecutors on what previous testimony of an unavailable witness can be introduced at trial. For that reason, I respectfully dissent.\nAt issue here is the testimony of Lakisha Smith, who was either present when the murder of Jermaine Jacko occurred or in the vicinity, depending on which version of her story you believe. Prior to trial, defense counsel called her as his witness at a bond-reduction hearing to determine, in effect, whether defendant Kelvin Beasley was the shooter. The reason for this is that her testimony would impact whether the bond would be reduced and whether Beasley could be released from jail, pending trial. Lakisha Smith had previously told police officers that Beasley was the shooter. However, when called by Beasley\u2019s attorney as a witness, she testified that she had lied and that Beasley was not the shooter. She added that he left the scene before the murder. The prosecutor then cross-examined Smith and emphasized that she had changed her story.\nThere are several reasons why this testimony, because Smith was unavailable at the time of the trial, was admissible at trial. First, defense counsel clearly had an opportunity to examine Lakisha Smith prior to trial. See Crawford v. State, 541 U.S. 36 (2004). In fact, Smith was defense counsel\u2019s witness at the bond-reduction hearing and was called to testify that she could not identify Beasley as the shooter.\nSecondly, defense counsel had a \u201csimilar motive to develop the testimony.\u201d Ark. R. Evid. 804(b)(1) (2007). Rule 804(b)(1) reads in full:\n(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition, taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.\nThus, the previous testimony might be by deposition in another proceeding or part of a hearing in a different proceeding under the rule. It need not have occurred in a previous trial. The key point, however, is that there be a similar motive to develop the issue at the prior hearing.\nJack Weinstein makes the point in his treatise, as the majority correctly underscores, that similar motive does not mean identical motive but rather the inquiry should be directed to the \u201creliability\u201d of the evidence admitted. Jack B. Weinstein & Margaret A. Berger, Weinstein\u2019s Federal Evidence \u00a7 804.04[5] (2d ed. 1997). Here, defense counsel called Lakisha Smith as his witness to testify about whether she saw Beasley kill Jacko, and the prosecutor cross-examined her on the credibility of her testimony. The test for reliability was clearly met.\nThe majority\u2019s discussion of a \u201cfull-fledged\u201d hearing versus a limited hearing is also off center. A \u201cfull-fledged\u201d hearing was first referenced by this court in Scott v. State, 272 Ark. 88, 612 S.W.2d 110 (1981), where we held that a preliminary hearing on probable cause to arrest could not be considered full fledged, when defense counsel, at times, opts not to cross-examine a state witness at these hearings as a matter of strategy. We next discussed a variety of situations where a similar motive to develop testimony did not exist in the case of Proctor v. State, 349 Ark. 648, 79 S.W.3d 370 (2002). Proctor involved a bond-revocation hearing, which, we pointed out, is not an adversarial hearing under our rules and a hearing where defense counsel need not even appear. We pointed out in Proctor, that grand-jury proceedings are not full hearings.\nThose situations are markedly different from the facts of this case where defense counsel is the attorney who called Lakisha Smith as his witness to testify that she had misidentified Beasley to police officers as the shooter. The direct and cross-examination of this witness on that point took up eighteen pages of the abstract of testimony. This was not a limited hearing. The emphasis was on whether Lakisha Smith saw the killer \u2014 not whether Beasley was a flight risk \u2014 and the issue of whether she saw Beasley shoot Jacko was fully developed.\nThe majority also questions whether defense counsel had an interest of substantially similar intensity to prove (or disprove) the same side of a substantially similar issue and cites United States v. DiNapoli, 8 F.3d 909 (2d Cir. 1993), as authority. Certainly, a hearing on whether a bond should be reduced so one can get out of jail is not the same thing as a trial for murder. But in both proceedings, the issue of whether Lakisha Smith identified Beasley as the murderer was critically important and it was developed with intensity at the bond-reduction hearing. The majority falls into the trap of focusing on whether the two proceedings are similar rather than on the similar motive to develop the issue at both proceedings.\nAs a final point, the majority contends that testimony at trial of another witness regarding what Beasley was wearing at the shooting made defense counsel\u2019s decision not to do a redirect examination at the prior hearing extremely important. That reasoning is hard to follow. Is what happens at trial the test for deciding whether counsel had a similar motive to develop testimony at a prior hearing? Surely not. If that were the test for \u201csimilar motive,\u201d prior testimony would rarely, if ever, be admissible at trial. This holding by the majority, should it stand, is unduly strict and will act to hamper all parties in the future wishing to introduce testimony of unavailable witnesses.\nI would not disallow Lakisha Smith\u2019s testimony for the reasons adduced by the majority.", "type": "dissent", "author": "Robert L. Brown, Justice," } ], "attorneys": [ "Bill Luppen, for appellant.", "Dustin McDaniel, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Kelvin BEASLEY v. STATE of Arkansas\nCR 06-1400\n258 S.W.3d 728\nSupreme Court of Arkansas\nOpinion delivered June 14, 2007\n[Rehearing denied September 6, 2007.]\nBill Luppen, for appellant.\nDustin McDaniel, Att\u2019y Gen., by: Kent G. Holt, Ass\u2019t Att\u2019y Gen., for appellee.\nBrown, J., would grant rehearing." }, "file_name": "0238-01", "first_page_order": 262, "last_page_order": 274 }