Johnson v. State

Stacey JOHNSON v. STATE of Arkansas

CR 95-427                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered October 28, 1996


1.   Evidence -- hearsay -- excited-utterance exception --
     requirements. -- The excited-utterance exception to the
     hearsay rule is defined by A.R.E. Rule 803(2) as a "statement
     relating to a startling event or condition made while the
     declarant was under the stress of excitement caused by the
     event or condition"; the basic requirements of the excited-
     utterance exception are as follows: first; there must be an
     occasion which excites the declarant; second, the statement
     must be uttered during the period of excitement and must
     express the declarant's reaction to the occasion; in practice,
     these tend to merge together; if there was a sudden event that
     startled the declarant, his ensuing utterance will be assumed
     to be his reaction to the stimulus; if the statement appears
     to be excited, it will be assumed that the occasion was
     exciting.

2.   Constitutional law -- Confrontation Clause -- two types of
     protection for criminal defendant. -- The Sixth Amendment
     right of confrontation provides two types of protection for a
     criminal defendant: the right physically to face those who
     testify against him and the opportunity to conduct effective
     cross-examination.

3.   Constitutional law -- Confrontation Clause -- restrictions on
     range of admissible hearsay. -- The Confrontation Clause
     operates in two separate ways to restrict the range of
     admissible hearsay: first, in conformance with the Framers'
     preference for face-to-face accusation, the Sixth Amendment
     establishes a rule of necessity; in the usual case, the
     prosecution must either produce, or demonstrate the
     unavailability of, the declarant whose statement it wishes to
     use against the defendant; second, once a witness is shown to
     be unavailable, his statement is admissible only if it bears
     adequate indicia of reliability; reliability can be inferred
     without more in a case where the evidence falls within a
     firmly rooted hearsay exception; in other cases, the evidence
     must be excluded, at least absent a showing of particularized
     guarantees of trustworthiness.

4.   Evidence -- hearsay -- excited-utterance exception -- request
     to identify followed by deliberate choosing from lineup does
     not qualify as excited utterance. -- The description by a
     police officer of how the victim's six-year-old daughter
     studied seven photographs and selected appellant's photograph
     twice suggested a deliberate and reflective act by the young
     girl rather than conduct associated with spontaneity,
     excitement, or impulsiveness; the evidence was a critical cog
     in the State's case, and the defense was completely thwarted
     in its ability to explore the matter through cross-examination
     of the declarant; the supreme court knew of no case in any
     jurisdiction that stands for the proposition that a request to
     identify followed by a deliberate choosing of an offender from
     a lineup qualifies as an excited utterance.

5.   Evidence -- hearsay -- officer's testimony about child's
     selection from photo lineup should have been excluded as
     unreliable hearsay and violative of confrontation right --
     case reversed and remanded for new trial. -- The supreme court
     held that the testimony by the police officer about the
     victim's daughter's selection from the photo lineup should
     have been excluded as unreliable hearsay and as running
     contrary to appellant's right to confront the witnesses
     against him; the court reversed the trial court on this point
     and remanded the case for a new trial.

6.   Evidence -- hearsay -- excited-utterance exception -- criteria
     to be weighed in considering. -- According to two reports, the
     victim's six-year-old child was hyperactive, scared, and
     excited when she told about the murder of her mother on the
     afternoon after the homicide; in considering the excited-
     utterance exception, the supreme court weighs the following
     criteria: the lapse of time between the startling event and
     the out-of-court statement, although relevant, is not
     dispositive in the application of A.R.E. Rule 803(2); nor is
     it controlling that the declarant's statement was made in
     response to an inquiry; rather, these are factors that the
     trial court must weigh in determining whether the offered
     testimony is within the exception; other factors to consider
     include the age of the declarant, the physical and mental
     condition of the declarant, the characteristics of the event,
     and the subject matter of the statements; to find that Rule
     803(2) applies, it must appear that the declarant's condition
     at the time was such that the statement was spontaneous,
     excited, or impulsive rather than the product of reflection
     and deliberation.

7.   Evidence -- hearsay -- excited-utterance exception --
     statement made by child more than nine hours after discovery
     of mother's body not inconsistent with spontaneity and
     impulsiveness of excited utterance. -- With respect to the
     excited-utterance exception, the supreme court has followed
     the trend toward expansion of the time interval after an
     exciting event, particularly when the declarant is a child; in
     that light, the court did not view the statement made by the
     victim's child more than nine hours after her mother's body
     was discovered and she was removed from the apartment as
     inconsistent with the spontaneity and impulsiveness associated
     with an excited utterance.

8.   Evidence -- hearsay -- excited-utterance exception -- child's
     description of crime other than photo-lineup identification
     admissible at retrial as excited utterance. -- The supreme
     court concluded that the trial court did not abuse its
     discretion in allowing a police officer to testify to what the
     victim's six-year-old daughter told him; accordingly, the
     supreme court held that, at the retrial of the matter, the
     child's description of the crime as related to the officer and
     an employee of the Department of Human Services, other than
     her photo-lineup identification of appellant, would be
     admissible as an excited utterance and did not violate the
     Confrontation Clause.

9.   Evidence -- other crimes, wrongs, or acts -- testimony about
     drug trafficking permissible. -- The supreme court concluded
     that, where a witness testified about the victim's refusal of
     appellant's requests to help transport cocaine and to date
     him, the evidence was permissible under the knowledge and
     motive exceptions to A.R.E. Rule 404(b); the supreme court did
     not view the evidence as unfairly prejudicial under Rule 403;
     the relevance of circumstances that tie the perpetrator to the
     victim and raise a possible motive for the killing is patently
     obvious; the fact that that knowledge came about in the
     context of an attempted drug deal should not be grounds for
     excluding testimony about the proposed transaction.

10.  Evidence -- DNA testimony -- statistical probabilities -- any
     challenge to conclusions of expert is matter for litigation
     and cross-examination -- no error in admitting evidence. --
     Any challenge to the conclusions reached by an expert
     concerning statistical probabilities with respect to PCR
     testing is a matter for litigation and cross-examination;
     there was no error in allowing DNA evidence to be presented to
     the jury.

11.  Evidence -- unduly speculative testimony properly excluded. --
     Where appellant attempted to introduce the testimony of one of
     the victim's co-workers that an African-American from out of
     town had asked the victim for a date and had spent the night
     of the murder in the city where the murder occurred, thus
     creating the inference that he could have been the murderer;
     but where the witness admitted on cross-examination that she
     did not know the victim on a personal basis and had no idea
     whether she actually dated the man in question, the supreme
     court held that the trial court properly found the testimony
     to be unduly speculative and properly excluded it; evidence
     that does no more than create an inference or conjecture of
     another's guilt is inadmissible; there was no abuse of
     discretion.

12.  Criminal law -- capital-murder and first-degree-murder
     statutes pass narrowing requirement -- death penalty limited
     to crimes involving sufficient aggravating circumstances. --
     The supreme court rejected as meritless appellant's argument
     that an unconstitutional overlapping occurs between the
     capital-murder and the first-degree-murder statutes; these
     statutes pass the narrowing requirement by limiting the death
     penalty to crimes involving sufficient aggravating
     circumstances. 

13.  Criminal law -- capital murder -- aggravating circumstance --
     "especially cruel" not vague and overbroad. -- The supreme
     court had previously rejected the argument that the
     "especially cruel" aggravating circumstance, codified at Ark.
     Code Ann.  5-4-604(8) (Repl. 1993), is vague and overbroad
     and violates the Eighth and Fourteenth Amendments to the
     United States Constitution and Article 2, section 9, of the
     Arkansas Constitution; appellant advanced no argument that
     persuaded the court to interpret the Arkansas Constitution in
     a contrary manner.

14.  Evidence -- evidence abounded that murder was perpetrated in
     especially cruel manner. -- There could be no doubt that
     evidence abounded that the murder was perpetrated in an
     especially cruel manner, given the considerable damage to the
     victim's body, the defensive wounds, the circumstantial
     evidence of rape, and the victim's bloody fingerprint found on
     a linen closet, which suggested that she did not die
     immediately.

15.  Criminal law -- aggravating circumstance -- avoiding arrest
     not overbroad. -- Appellant's overbreadth argument that the
     avoiding-arrest aggravator did not effectively narrow the
     class of persons eligible for the death penalty for the jury's
     purposes had previously been rejected by the supreme court,
     and appellant cited no authority to persuade the court to
     change its position; further, appellant's argument that the
     statute was unconstitutional because it allowed for a finding
     of aggravating circumstances at a lesser standard than "beyond
     a reasonable doubt" was belied by the plain language of Ark.
     Code Ann.  5-4-603 (Repl. 1993), which requires findings of
     aggravators beyond a reasonable doubt and by the penalty-phase
     verdict form returned by the jury in his case.

16.  Criminal law -- narrowing class -- argument not addressed --
     any error was harmless. -- The supreme court did not address
     the avoiding-arrest argument where there was no assurance that
     this particular aggravator would be submitted on retrial, and
     where, in addition, there were two other aggravating
     circumstances found by the jury that clearly outweighed the
     jury's finding of no mitigating circumstances; the error, if
     any, was harmless.

17.  Evidence -- victim-impact testimony -- no objection to or
     request for admonition regarding prosecutor's statements --
     application of victim-impact statute not ex post facto law. --
     Where appellant argued that the victim-impact statute, Ark.
     Code Ann.  5-4-602(4) (Repl. 1993), does not give sufficient
     guidance to the judge and jury as to what comprises victim-
     impact evidence and thus violates the Eighth and Fourteenth
     Amendments to United States Constitution and Article 2,
     section 9, of the Arkansas Constitution; and where he also
     attacked the relevancy of the prosecutor's "victim-impact"
     statements to the penalty phase, claiming that  5-4-602(4)
     had been impermissibly applied retroactively and thus was an
     ex post facto law, the supreme court noted that arguments of
     counsel are not evidence, and the trial court instructed the
     jury accordingly; that there was no objection or request for
     an admonition at the time the prosecutor made these
     statements; and that the court had previously held, with
     regard to the victim-impact statute, that by expanding the
     scope of permissible evidence during the penalty phase, the
     General Assembly had not expanded the scope of punishment or
     added a new aggravating circumstance and that permitting
     victim-impact testimony did not constitute an ex post facto
     law.

18.  Evidence -- victim-impact testimony -- underlying
     constitutionality previously upheld. -- The supreme court had
     previously upheld the underlying constitutionality of victim-
     impact testimony; appellant failed to set forth an argument
     that would convince the court to interpret the provisions of
     the Arkansas Constitution in a different manner.


     Appeal from Sevier Circuit Court; Ted C. Capeheart, Judge;
reversed and remanded.
     Richard Hutto and Mary Ellen Vandegrift, Arkansas Public
Defender Comm'n, by: Deborah R. Sallings, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant Stacey Johnson appeals his conviction for capital
murder and his sentence of death by lethal injection.  He raises
multiple bases for reversal, including an assertion that his
identification in a photo lineup by the victim's six-year-old
daughter was inadmissible hearsay.  We agree and reverse the
judgment of conviction and remand for a new trial.
     Carol Heath was brutally murdered in her duplex apartment in
DeQueen on either the night of April 1, 1993, or the early morning
hours of April 2, 1993.  She was beaten, strangled, and had her
throat slit while her two young children, Ashley, age six, and
Jonathan, age two, were home.  The facts regarding the murder and
its aftermath are gleaned from pretrial and trial testimony.  At
approximately 6:45 a.m. on April 2, 1993, Rose Cassidy, the
victim's sister-in-law, knocked on the victim's door but did not
receive an answer.  Because the door was unlocked, she entered and
found Carol Heath's partially nude body lying on the living room
floor in a pool of blood.  She ran across the street to call the
police and then returned to check on her niece (Ashley) and nephew
(Jonathan), whom she saw looking out the bedroom window.  Cassidy
testified that she asked Ashley what had happened.  Ashley
responded, according to Cassidy: "[S]omebody had broke in, and I
said who, and she (Ashley) said a [b]lack man."  The victim was
white.
     Sergeant Keith Tucker of the DeQueen Police Department
testified that he found Carol Heath's body nude except for a t-
shirt that had been pushed up around her neck.  He stated that her
body was located between a couch which was tilted up on its back
legs and a coffee table which had apparently been moved toward the
middle of the room.  DeQueen Chief of Police James Smith arrived at
the apartment later.  He testified that when he pulled the t-shirt
away from the victim's neck, he saw that her throat had been
slashed.
     Dr. Frank Peretti, an associate medical examiner for the State
Crime Laboratory, testified that Carol Heath's death was caused by
cutting her neck, strangulation, and blunt-force head injuries.  He
stated that her attacker left a four-inch by two-inch cut wound on
her neck that went one-quarter inch into her spine.  He observed
that she had several bruises and abrasions on her head and face,
that she had injuries on her hands and arms consistent with
defensive wounds, that she had a bite mark on the nipple of her
right breast and an abrasion on her left breast, and that there was
a one-quarter-inch contusion on her right labia minora.  Dr.
Peretti could not conclude, based on the physical evidence, that
she had been either sexually assaulted or raped.
     Officer James Behling, a criminal investigator with the
DeQueen Police Department, testified that he observed a pair of
panties next to Carol Heath's right thigh.  He noted an area of
lighter-colored liquid between and around the legs and below the
genital area of the victim.  An empty douche bottle and an empty
"Lifestyles" condom box were found in the bathroom sink.
     On April 5, 1993, Kenneth Bryan found a purse in the woods
between DeQueen and Horatio which he later realized belonged to the
victim.  He took Officer Behling to the location.  Officer Behling
examined the area and found a bloody pullover green shirt, a bloody
white t-shirt, and a bloody towel.  Lisa Sakevicius, an expert with
the State Crime Laboratory's trace evidence section, testified that
hairs microscopically similar to the victim's hair were found on
all three of these items. She further testified that hairs
retrieved from under the victim's left breast, from the floor by
the victim, and from the white t-shirt were of Negroid origin. 
Jane Parsons, a forensic serologist, testified for the State that
no semen was found in connection with the victim.  She admitted
that the finding of semen would be unlikely, if the perpetrator
used a condom and douched the victim.
     DNA evidence was introduced at trial.  Melisa Weber, a staff
molecular biologist at Cellmark Diagnostics, conducted a
Restriction Fragment Length Polymorphism [RFLP] test on the green
shirt for the State and testified that to a reasonable degree of
scientific certainty the blood matched that of Carol Heath.  She
also conducted a Polymerase Chain Reaction [PCR] test on several
items, including the white t-shirt found in the park, a cigarette
butt found in the green shirt, and hairs taken from the body of
Carol Heath and near to where the body was located.  With respect
to the white t-shirt, Weber testified that the victim could not be
excluded as the source of the blood and that the probability of
this DNA having come from another Caucasian was 1 in 12,000.  With
respect to the cigarette butt and hairs, Weber opined that Johnson
could not be excluded and that the probability that another
African-American was the donor of the DNA in question was 1 in 250.
     Officer Hayes McWhirter, an investigator with the Arkansas
State Police, talked with the victim's daughter, Ashley Heath, on
the afternoon of April 2, 1993.  Also present at the time was
Cynthia Emerson, a supervisor with the Department of Human
Services.  Officer McWhirter made the following notes from that
conversation and used these notes to refer to when he testified at
the pretrial hearings and at trial:
     Ashley stated her mother and I were on the couch when
     someone knocked on the door.  She got up and opened the
     door.  The picture No. 3, Stacey Johnson, is the one that
     came in the door.  Ashley looked at six different
     pictures of black males.  Mother likes Branson.  He
     works at In Your Ear.  The Black male asked where Branson
     was.  The black male used a girl sounding name.  He had
     on a black hat with something hanging down in the back. 
     He had on a green shirt and sweater.  When they were
     talking, the black male said he had just got out of jail. 
     The black male was mad at mother for dating Branson.  He
     had been over two other times, but it was a while or a
     long time ago.  The black male had about as much hair as
     [McWhirter.]  I saw them fighting.  Then I saw mother
     laying on the floor.  I saw the black male leave and he
     got up and he got in a brown truck, I think.  I saw a
     knife and a gun.  The brown truck was parked beside the
     house.  Mother looked out the window.  When he knocked,
     then she let him in.  While mother was laying on the
     floor, the black male walked into the bath room.  We were
     hiding in the closet.  I came out the door to the bath
     room and the black male had a knife in his hand beside
     mommy.  She was on the floor bleeding.  After he left, I
     went in and saw momma bleeding.  Jonathan looked at mommy
     twice.  She was covered in blood.  We went to bed and
     then this morning when someone knocked on the door, I was
     scared to open the door.  When Rose screamed, I knew she
     saw mommy with blood all over her.  Every time I saw the
     black male, he had clothes on.
Officer McWhirter testified that he handed Ashley a stack of seven
photographs, and she picked Johnson out of the photo lineup twice. 
Johnson was subsequently arrested in Albuquerque, New Mexico.
     Prior to trial, the trial court found Ashley incompetent to
testify due to psychological trauma and, thus, unavailable.  That
finding is not an issue in this appeal.  Johnson then moved in
limine to exclude all statements made by Ashley to Officer
McWhirter and Emerson.  Johnson argued in his brief in support of
the motion that the selection from the photo lineup was one of the
statements to be suppressed because it was the product of Ashley's
reflection and deliberation and was made in response to questions
during a time when Ashley showed no signs of excitement.  After a
hearing on whether her testimony as related by Officer McWhirter
was hearsay, the trial court determined that Ashley's statements to
the police officer and Emerson met the criteria of excited
utterances and were admissible as an exception to the hearsay rule. 
This ruling necessarily embraced Ashley's selection of Johnson from
the photo lineup on the two occasions.  The trial court also ruled
that Ashley's statement to Rose Cassidy qualified as an excited
utterance.  At the same time, the court excluded statements made by
Ashley to EMT personnel and to family even though these statements
were made on the same day and prior to her statements to Officer
McWhirter.  The trial court determined that the statements were not
reliable and did not qualify as excited utterances.
     At trial, a jury found Stacey Johnson guilty of capital
murder.  Following the penalty phase, the jury found the crime to
be aggravated by three circumstances: (1) Johnson previously
committed another felony, an element of which was the use or threat
of violence to another person or creating a substantial risk of
death or serious physical injury to another person; (2) the capital
murder was committed for the purpose of avoiding or preventing an
arrest or effecting an escape from custody; and (3) the capital
murder was committed in an especially cruel manner.  The jury
unanimously agreed that there were no mitigating circumstances and
sentenced Johnson to death by lethal injection.  
     We first address whether Ashley's selection of Johnson's
photograph from a photo lineup qualified as an excited utterance.

                         I. Photo Lineup
     At approximately 3:30 p.m. on the afternoon of April 2, 1993,
Officer McWhirter, accompanied by Cynthia Emerson, a supervisor
with the Department of Human Services, went to Ashley's
grandparents' home to visit with Ashley.  They took Ashley outside,
and she told them what happened to her mother, which was related by
Officer McWhirter at trial.  After the statement, the police
officer showed her seven photographs, one of whom was Johnson.  She
was told to look closely at the photographs.  She went through the
photographs carefully and selected Johnson's picture.  Officer
McWhirter then retrieved the photographs, shuffled them, and showed
them to Ashley a second time.  He asked her to look carefully
again.  She went back through the pictures and again she selected
Johnson as the culprit.  The trial court permitted testimony of the
selection by the police officer as an excited utterance.  We
conclude that allowing this hearsay testimony as an excited
utterance was an abuse of discretion.
     Rule 803(2) of the Arkansas Rules of Evidence defines the
"excited utterance" exception to the hearsay rule: "A statement
relating to a startling event or condition made while the declarant
was under the stress of excitement caused by the event or
condition."  This court has, on numerous occasions, applied this
exception to cases involving the testimony of young children who
may, or may not, eventually testify at trial.  The basic
requirements of the "excited utterance" exception are as follows:
     First there must be an occasion which excites the
     declarant.  Second, the [s]tatement must be uttered
     during the period of excitement and must express the
     declarant's reaction to the occasion.  In practice, these
     tend to merge together.  If there was a sudden event
     which startled the declarant, his ensuing utterance will
     be assumed to be his reaction to the stimulus; if the
     statement appears to be excited, it will be assumed the
     occasion was exciting.
Smith v. State, 303 Ark. 524, 529-30, 798 S.W.2d 94, 97 (1990)
(quoting 4 D. Louisell, Federal Evidence  439 (1980)).
     By allowing Officer McWhirter to testify about Ashley's photo
selection, Johnson contends he was denied his right to confront
Ashley as guaranteed under the Sixth Amendment.  The right of
confrontation provides two types of protection for a criminal
defendant: the right physically to face those who testify against
him and the opportunity to conduct effective cross-examination. 
Delaware v. Fensterer, 474 U.S. 15 (1985); Suggs v. State, 317 Ark.
541, 879 S.W.2d 428, reh'g denied, 317 Ark. 547-A, 879 S.W.2d 432
(1994); Bowden v. State, 301 Ark. 303, 783 S.W.2d 842 (1990). 
Johnson's counsel contends that he was foreclosed from asking
Ashley questions such as: how was she able to see Johnson, how long
did she see him, was her view blocked by furniture, were the lights
on, and so forth.
     The United States Supreme Court discussed the Confrontation
Clause and exceptions to the Hearsay Rule in Idaho v. Wright, 497 U.S. 805 (1990):
     In Ohio v. Roberts, we set forth a "general approach" for
     determining when incriminating statements admissible
     under an exception to the hearsay rule also meet the
     requirements of the Confrontation Clause.  448 U.S., at
     65.  We noted that the Confrontation Clause "operates in
     two separate ways to restrict the range of admissible
     hearsay."  Ibid.  "First, in conformance with the
     Framers' preference for face-to-face accusation, the
     Sixth Amendment establishes a rule of necessity.  In the
     usual case . . . , the prosecution must either produce,
     or demonstrate the unavailability of, the declarant whose
     statement it wishes to use against the defendant."  Ibid.
     (citations omitted).  Second, once a witness is shown to
     be unavailable, "his statement is admissible only if it
     bears adequate `indicia of reliability.'  Reliability can
     be inferred without more in a case where the evidence
     falls within a firmly rooted hearsay exception.  In other
     cases, the evidence must be excluded, at least absent a
     showing of particularized guarantees of trustworthiness." 
     Id., at 66 (footnote omitted); see also Mancusi v.
     Stubbs, 408 U.S. 204, 213 (1972).
Wright, 497 U.S.  at 814-15 (emphasis added).
     The description by Officer McWhirter of how Ashley studied the
photographs and made her two selections of Johnson's photograph
smack of a deliberate and reflective act by the young girl and not
of conduct we associate with spontaneity, excitement, or
impulsiveness.  Officer McWhirter testified at the omnibus hearing
that he handed the photographs to Ashley "like a deck of cards." 
He stated that she went through them once or twice and that he told
her to make sure "she looked at them good."  She chose Johnson's
photograph, and Officer McWhirter repeated the exercise.  The
evidence was a critical cog in the State's case, and the defense
was completely thwarted in its ability to explore the matter
through cross-examination of the declarant.  This is not a case
where a declarant is shown a picture by a family member and shrieks
an identification.  See United States v. Napier, 518 F.2d 316 (9th
Cir. 1975), cert. denied, 423 U.S. 895 (1975).  We know of no case
in any jurisdiction which stands for the proposition that a request
to identify followed by a deliberate choosing of an offender from
a lineup such as we have here qualifies as an excited utterance.
     The testimony by Officer McWhirter of Ashley's selection from
the photo lineup should have been excluded as unreliable hearsay
and as running contrary to Johnson's right to confront the
witnesses against him.  We reverse the trial court on this point
and remand for a new trial.  Because many of the points raised in
this appeal may occur again at retrial, we will address them. 
However, since we hold that the testimony of the photo lineup is
inadmissible hearsay, we need not address the issue raised
concerning the reliability of that lineup.  There is the
possibility that Ashley will be deemed competent to testify at a
retrial of this matter, which would bring the lineup's legitimacy
back into play.  Nevertheless, we view that contingency as too
speculative for us to consider the point.

                      II. Points on Retrial
a.   Ashley's Statement to Officer McWhirter.
     Though we consider the deliberate act of choosing from a photo
lineup incompatible with the impulsive excitement and spontaneity
associated with an excited utterance, we hold differently with
respect to Ashley's verbal statements.  We do so based on the
descriptions of Ashley before and during her statement as provided
by Cynthia Emerson and Officer McWhirter.
     First, there are Cynthia Emerson's revealing comments at the
competency hearing which related to Ashley's appearance and
attitude on the afternoon of April 2, 1993.  The conversation with
the young girl occurred some nine hours after Ashley had been
removed from the apartment where her mother lay covered in blood. 
After Emerson, Ashley, and Officer McWhirter went outside her
grandparents' house, Ashley jumped into Emerson's lap.  The police
officer informed the young girl that he wanted to know what had
happened to her mother, and Ashley "just started talking,"
according to Emerson.  She added: "She just rambled about -- you
know it was out of sequence a lot."
     Emerson's colloquy with the prosecutor follows:
          PROSECUTOR: Would it be fair to say that Ashley had
     control over that statement you got?
          EMERSON: Definitely, definitely.
          PROSECUTOR: You said earlier that she had somewhat
     of an obsession to tell this?
          EMERSON: Right.  It's like -- I don't know.  Like
     some kids have a -- something they want to get out.  It's
     almost like an explosion.  She just completely -- we
     didn't have any chance to really ask questions....
At the later omnibus hearing, Emerson testified that Ashley
"rattled" to the police officer when telling her story and that it
was "very fast pace[d]."  On cross-examination, Emerson stated that
Ashley became more excited as she was relating her story.  At trial
Emerson testified:
          EMERSON: You know, adults, you know, we put things
     in order.  Kids, when they're upset or nervous about
     something, they just talk and, you know, it's not in
     sequence.
          PROSECUTOR: Okay.  And you're saying that's the way
     Ashley's story was?
          EMERSON: Oh, yes.  She was very eager to tell the
     story, in my opinion.
          PROSECUTOR: Was she upset?
          EMERSON: She was very upset and hyper, but it was
     like when she was telling us the story, she was just
     focused in on what was happening.  She wasn't really
     aware that we were there.  I mean she was telling us this
     story, but it wasn't a story to her.  It was just
     something she needed to say.
     Officer McWhirter's description of Ashley followed a similar
theme.  At one of the pretrial hearings, he responded affirmatively
to the question: "She just unloaded on you?"  At trial, he
described Ashley at the time as "scared."  He asked Ashley what had
happened the previous night and then described her response:
     [T]he next thing I knew, she just started talking,
     spontaneous -- I mean she started talking.  She would go
     into one thing, she just kept talking and never stopped,
     and during the time she was talking she would ask me
     questions, which I wasn't going to answer, so we just let
     her keep talking until she finished.
     Thus, you had a six-year-old child who from two reports was
hyperactive, scared, and excited when she told about the murder of
her mother on the afternoon after the homicide.  In discussing the
criteria we weigh in considering the excited-utterance exception,
we have looked in the past to a summary set out by the Eighth
Circuit Court of Appeals in United States v. Iron Shell, 633 F.2d 77 (8th Cir. 1980):
     The lapse of time between the startling event and the
     out-of-court statement although relevant is not
     dispositive in the application of 803(2).  Nor is it
     controlling that [the declarant's] statement was made in
     response to an inquiry.  Rather, these are factors which
     the trial court must weigh in determining whether the
     offered testimony is within the 803(2) exception.  Other
     factors to consider include the age of the declarant, the
     physical and mental condition of the declarant, the
     characteristics of the event and the subject matter of
     the statements.  In order to find that 803(2) applies, it
     must appear that the declarant's condition at the time
     was such that the statement was spontaneous, excited or
     impulsive rather than the product of reflection and
     deliberation.
Id. at 86 (internal citations omitted) (quoted in Smith v. State,
303 Ark. 524, 531, 798 S.W.2d 94, 98 (1990)).
     This court further took note in the Smith case of the fact
that the trend was toward expansion of the time interval after an
exciting event and that some courts are more liberal in doing so
when the declarant is a child.  Smith v. State, 303 Ark. at 530,
798 S.W.2d  at 97 (citing D. Binder, Hearsay Handbook  2.03
(1983)).  This court has followed that trend.  See, e.g., Greenlee
v. State, 318 Ark. 191, 884 S.W.2d 947 (1994) (excited utterance
made the next morning by a six-year-old informing parent of sexual
abuse the previous night); Suggs v. State, supra (excited utterance
made by boys 24 to 30 hours after having witnessed their mother
being stabbed 144 times); Cole v. State, 307 Ark. 41, 818 S.W.2d 573 (1991) (excited utterance made the day after the rape by
twenty-three-year-old mentally retarded victim with the mental
capacity of a six-year-old); George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), reh'g denied, 306 Ark. 374-A, 818 S.W.2d 951
(1991) (excited utterance made when two-and-a-half-year-old child
awoke from a nightmare and related story of sexual abuse); Smith v.
State, supra (excited utterance made the next morning by a three-
year-old after witnessing a murder the previous afternoon).  In
light of the authority, we do not view the statement by Ashley made
more than nine hours after her mother's body was discovered and she
was removed from the apartment as inconsistent with the spontaneity
and impulsiveness associated with an excited utterance.
     The trial court also dubbed Ashley's statement to Rose Cassidy
concerning a black man as the culprit as an excited utterance.  But
the court then refused to allow various comments by Ashley made
prior to the conversation with Officer McWhirter and Cynthia
Emerson:
     --   To EMT Archie Johnson about 7:00 a.m. that Ashley
          and her mother heard something in the house and
          that her mother got up to see what it was and had
          fallen.
     --   To the victim's sister, Melissa Cassidy during a
          45-minute conversation that a black man broke in
          and killed her mother.
     --   To her grandmother, Arlene Heath, over the course
          of the day that she heard someone come in the
          apartment and saw him sit on the couch playing with
          a gun, that she hid by the television set in the
          hall and saw her mother lying in blood, that the
          man was bald but also had a black hat, that he was
          wearing blue jeans and boots, that he had on black
          pants and a green jacket and a black shirt with red
          and orange designs, that he had a gold ring with
          glass in it and wore a tie, and that he was chunky.
The trial court gave no explanation for why it found these
statements unreliable and not excited utterances.  A reasonable
explanation would be that a statement made during a 45-minute
conversation or random comments made during the course of the day
do not pass muster.  Certainly, the foundation laid by Cynthia
Emerson and Officer McWhirter regarding Ashley's excited demeanor
when telling her story was not similarly laid for the statements
made to Archie Johnson, Melissa Cassidy, and Arlene Heath.
     We conclude that the trial court did not abuse its discretion
in allowing Officer McWhirter to testify to what Ashley told him. 
Accordingly, we hold that at the retrial of this matter Ashley's
description of the crime as related to Cynthia Emerson and Officer
McWhirter, other than her identification of Johnson from the photo
lineup, is admissible as an excited utterance and does not violate
the Confrontation Clause.

b.   Testimony of Drug Trafficking and Rule 404(b).
     Johnson moved in limine to prevent the State's witnesses from
mentioning any connection between him and drug trafficking.  The
motion was denied.  Johnson raised the issue again prior to trial,
and it was again denied.  At trial, Shawnda Helms testified as part
of the State's case that Johnson approached the victim and her on
two occasions.  The first occasion was on February 1, 1993, during
a social gathering at the victim's house: "[H]e called us into the
kitchen and asked us if we knew anybody or anyway that we could
help transport some kilos because he needed to have them
transported, and then he asked me and Carol if we would go out with
him and we told him no, because we didn't date [b]lack guys." 
Helms testified that she understood "kilos" to mean "cocaine."  The
second occasion was on February 15, 1993, at an establishment named
"In Your Ear": "Stacey called us over there and asked us if we had
thought of anybody who could help him transport them (kilos) and we
told him no, [a]nd then he asked Carol again if she would go back
out with him -- if she would go out with him, and she said no." 
Helms testified that when they refused to help with the cocaine,
Johnson "looked like he was mad.  He was pretty upset with our
answer."
     Johnson's argument on appeal is twofold.  First, he contends
that the statements are inappropriate "propensity" evidence under
Ark. R. Evid. 404(b).  Secondly, he maintains that even if the
statements were relevant, their probative value is substantially
outweighed by the danger of unfair prejudice under Ark. R. Evid.
403.  He argues that the drug references did nothing but "impugn
his character and improperly sway the jury's mind against him." 
The State counters that Johnson's requests about transporting
cocaine are excepted from Rule 404(b) because they established
knowledge of the victim.  It can also be garnered from the
testimony of Shawnda Helms that refusal to transport drugs as well
as the refusal to date were motives for the slaying.
     We agree with the State that the evidence was permissible. 
Both knowledge and motive are exceptions to Rule 404(b).  Nor do we
view the evidence as unfairly prejudicial under Rule 403.  The
relevance of circumstances which tie the perpetrator to the victim
and raise a possible motive for the killing is patently obvious. 
The fact that that knowledge came about in the context of an
attempted drug deal should not be grounds for excluding testimony
about the proposed transaction.
     There is also the fact that Johnson did not request a limiting
instruction that the drug testimony not be considered for the
purpose of finding Johnson to be a bad man.  To be sure, refusal to
request such an instruction could well have been a matter of trial
strategy on defense counsel's part.  Yet, an instruction of that
kind would have directed the jury's attention away from Johnson's
character and toward the motive and knowledge exceptions.
     There was no error in allowing the drug testimony.

c.   DNA Testimony.
     The two sides waged a fierce battle over the admission of
statistical probabilities with respect to PCR testing.  Johnson
presented testimony by Dr. Mark Crew, a molecular biologist, that
the underlying databases used by Cellmark Diagnostics for PCR
testing were unreliable because they were insufficient in size.  In
his opinion, the databases were unreliable because they did not
include samples taken from the Sevier County gene pool.
     Dr. Charlotte Word, a molecular biologist with Cellmark,
admitted that the databases employed for the PCR testing took
samples from major metropolitan areas rather than from Arkansas. 
But she also stated that the databases were tested and determined
to be in Hardy-Weinberg Equilibrium, meaning that the frequency of
certain types of genes in the general population is adequately
reflected in the databases.  When this equilibrium is attained, it
is then possible to predict the frequency, in terms of the entire
population, of how common it would be to find a combination of the
different genes in one person.
     This court recently decided this issue against Johnson.  See
Moore v. State, 323 Ark. 529, 915 S.W.2d 284 (1996).  In Moore, we
stated:
     The trial court also correctly determined that any
     challenge to the conclusions reached by the state's
     expert, including the statistical probability of whether
     the test results constituted a match, would appropriately
     be made at trial, by cross-examination of the state's
     experts and presentation by the defendant of his own
     experts to express differing opinions about the results
     of the FBI tests and statistical probability of a match.
Moore, 323 Ark. at 547, 915 S.W.2d  at 294 (emphasis added). 
Furthermore, experts for both Johnson and the State agreed that
Cellmark provided "falsely conservative" statistical probabilities,
a factor that this court has afforded some weight in assessing
whether databases were in Hardy-Weinberg Equilibrium.  See Prater
v. State, 307 Ark. 180, 820 S.W.2d 429 (1991).
     Johnson all but concedes that the battle of the experts over
statistical probabilities is a matter for litigation and cross-
examination.  Nevertheless, he asks this court to revisit the issue
and consider excluding the DNA tests.  We decline to do so.  There
was no error in allowing this evidence to be presented to the jury.

d.   Intent to Date a Black Man.
     The State extracted statements from four witnesses that Carol
Heath did not date black men or entertain black men in her home. 
In response to this evidence, Johnson attempted to introduce the
testimony of Cynthia Johnson, who worked with the victim at DHS,
that Carol told her on Wednesday, March 31, 1993, that Doyle Green,
an African-American, had asked her for a date.  Green was an
auditor who lived in Little Rock but was in DeQueen apparently
doing some work for the local DHS office.  Cynthia Johnson also
testified that Green was the only one of three Little Rock auditors
who decided to spend the following night, April 1, 1993, in
DeQueen, thus creating the inference that he could have been the
murderer.  She admitted, however, on cross-examination that she did
not know Carol Heath on a personal basis and had no idea whether
she actually dated Doyle Green.
     The trial court properly found this testimony to be unduly
speculative and properly excluded it.  Evidence that does no more
than create an inference or conjecture of another's guilt is
inadmissible.  Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993)
(citing State v. Wilson, 367 S.E.2d 589 (N.C. 1988)).  There was no
abuse of discretion.

e.   Narrowing of Offenses.
     This court has laid to rest the argument that an
unconstitutional overlapping occurs between our capital murder
statute and our first-degree murder statute.  The argument put
forth by Johnson was answered recently in Nooner v. State, 322 Ark.
87, 107, 907 S.W.2d 677, 687-88 (1995):
          Nooner argues that the definition of capital murder
     does not sufficiently narrow the crime for which the
     death penalty can be imposed.  He specifically alludes to
     overlap between definitions of capital murder and first
     degree murder, which we have already discussed.  The
     United States Supreme Court has held that the required
     narrowing of crimes susceptible to the death penalty may
     occur at the penalty phase of the trial.  This court has
     previously held that our statutes pass the narrowing
     requirement by limiting the death penalty to crimes
     involving sufficient aggravating circumstances.  There is
     no merit to Nooner's contention.  (Citations omitted.)
See also Kemp v. State, 324 Ark. 178, 919 S.W.2d 943 (1996); Reams
v. State, 322 Ark. 336, 909 S.W.2d 324 (1995); Greene v. State, 317
Ark. 350, 878 S.W.2d 384 (1994); Buchanan v. State, 315 Ark. 227,
866 S.W.2d 395 (1993); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).  The same holds true in this case.  Johnson's argument
is meritless.

f.   Especially Cruel as an Aggravating Circumstance.
     Johnson contends that the "especially cruel" aggravating
circumstance, codified at Ark. Code Ann.  5-4-604(8) (Repl. 1993),
is vague and overbroad and violates the Eighth and Fourteenth
Amendments to the United States Constitution and Article 2, section
9, of the Arkansas Constitution.  We have previously decided this
"vague and overbroad" argument against an appellant, and in doing
so we stated:
     The previous "especially heinous, atrocious, or cruel"
     aggravating circumstance was declared unconstitutional by
     this court because it was so vague that it violated the
     Eighth and Fourteenth Amendments' prohibition against
     cruel and unusual punishment.  See Wilson v. State, 295
     Ark. 682, 751 S.W.2d 734 (1988).  The legislature rewrote
     the aggravating circumstance in 1991 and based the
     statutory definitions of "especially cruel manner" and
     "especially depraved manner" on the Arizona Supreme
     Court's limiting interpretation of its "especially
     heinous, cruel or depraved" aggravating circumstance that
     had been found by the United States Supreme Court to pass
     constitutional muster.
Greene v. State, 317 Ark. 350, 360-61, 878 S.W.2d 384, 390 (1994)
(citing Walton v. Arizona, 497 U.S. 639 (1990)).  See also Bowen v.
State, 322 Ark. 483, 911 S.W.2d 555 (1995); Coulter v. State, 304
Ark. 527, 804 S.W.2d 348 (1991).  Johnson has advanced no argument
that persuades us to interpret the Arkansas Constitution in a
contrary manner.
     Nor can there be any doubt that evidence abounded that the
murder was perpetrated in an especially cruel manner.  The
considerable damage to the body of the victim is testimony to that
fact.  There were, too, the defensive wounds, the circumstantial
evidence of rape, and the bloody fingerprint of the victim found on
the linen closet which suggested Carol Heath did not die
immediately.

g.   Aggravating Circumstances -- Narrowing the Class.
     Johnson contests the avoiding-arrest aggravator in this case
and urges that all murders could arguably have been committed to
avoid arrest.  As a consequence, he contends that this aggravating
circumstance did not effectively narrow the class of persons
eligible for the death penalty for the jury's purposes.
     This precise overbreadth argument has previously been rejected
by this court, and Johnson cites no authority that persuades us to
change our position.  See Coulter v. State, supra.  Johnson further
argues that the statute is unconstitutional in that it allows for
a finding of aggravating circumstances at a lesser standard than
"beyond a reasonable doubt."  This argument is belied by the plain
language of Ark. Code Ann.  5-4-603 (Repl. 1993), which requires
findings of aggravators beyond a reasonable doubt and by the
penalty-phase verdict form returned by the jury in his case.
     The State argues that the murder was committed for the purpose
of eliminating Carol Heath as a victim-witness in a battery trial
or as a prosecutrix-witness in a rape trial.  This is evidenced,
according to the State's theory, by his attempts to "clean up" the
victim and eliminate circumstantial evidence of rape, and his
immediate departure to Albuquerque, New Mexico after the crime.
     We need not address this argument.  First, there is no
assurance that this particular aggravator will be submitted on
retrial.  But, in addition, there were two other aggravating
circumstances found by the jury which clearly outweighed the jury's
finding of no mitigating circumstances.  Hence, the error, if any,
was harmless.  See Ark. Code Ann.  5-4-603(d) (Repl. 1993). 
Accord Kemp v. State, supra.

h.   Victim-Impact Testimony.
     During the prosecution's closing argument at the penalty
phase, he made several statements that Johnson classifies as
"victim impact" evidence: "I sure hope you won't forget the right
that Carol Heath had to life, the right that she had to learn and
grow and love her two children and that right they had to know and
love their mother" ... "The manner in which Carol Heath was left
with those two children justifies the death penalty" ... "Punish
the man who took away Carol Heath's rights to know and love and
watch Ashley grow up and marry....  And watch Jonathan grow up and
to struggle with Jonathan, to do things with him and see him grow
up" ... "[Carol's parents] have rights.  They've lost a precious
daughter."
     Johnson argues that the victim-impact statute, Ark. Code Ann.
 5-4-602(4) (Repl. 1993), does not give sufficient guidance to the
judge and jury as to what comprises victim-impact evidence, and as
such it violates the Eighth and Fourteenth Amendments to United
States Constitution and Article 2, section 9, of the Arkansas
Constitution.  He also attacks the relevancy of the prosecutor's
statements to the penalty phase and claims that  5-4-602(4) has
impermissibly been applied retroactively and, thus, is an ex post
facto law.  
     The simple answer to Johnson's argument is that arguments of
counsel are not evidence, and the trial court instructed the jury
accordingly.  See AMCI 2d 101(e).  Furthermore, there was no
objection or request for an admonition at the time the prosecutor
made these statements.  See Woodruff v. State, 313 Ark. 585, 856 S.W.2d 299 (1993).  But, in addition, these issues were decided in
Nooner v. State, supra, against the appellant.  In Nooner, this
court held: "[B]y expanding the scope of permissible evidence
during the penalty phase, the General Assembly has not expanded the
scope of punishment or added a new aggravating circumstance.  We
hold that permitting this testimony . . . did not constitute an ex
post facto law."  Nooner, 322 Ark. at 109, 907 S.W.2d  at 689.
     In Nooner, we also upheld the underlying constitutionality of
victim-impact testimony.  See Nooner, 322 Ark. at 322-23, 907 S.W.2d  at 688-89 (citing Payne v. Tennessee, 501 U.S. 808 (1991)). 
As was the case in Kemp v. State, supra, Johnson does not put forth
an argument that would convince this court to interpret the
provisions of the Arkansas Constitution in a different manner.
     Reversed and remanded.
     Dudley, Newbern, and Roaf, JJ., concur in part; dissent in
part.



Robert H. Dudley, Associate Justice, concurs in part and dissents
in part.
     I concur in reversing and remanding for a new trial.  The
murder victim's six-year-old daughter, Ashley, was available to
testify, but was incompetent to testify because the memory of her
mother's murder was impaired.  Even so, the trial court allowed a
police officer, Hayes McWhirter, to testify that Ashley, after
carefully studying a photo lineup, identified appellant as the
murderer.  I wholeheartedly agree with the majority opinion that
the ruling constituted prejudicial error.  The officer's testimony
about the six year old's identification of appellant was hearsay. 
Ark. R. Evid. 801.  The trial court allowed the testimony in
evidence under the excited utterance exception to the hearsay rule,
Ark. R. Evid. 803(2).  The delayed and careful selection of a
photograph simply is not an excited utterance under Rule 803(2). 
Thus, I concur in reversing and remanding the case for a new trial.
     The majority opinion goes further, however, and holds that
upon retrial, Officer Hayes McWhirter and an employee of the
Department of Human Services, Cynthia Emerson, can testify about
statements the six year old made to them.  The majority opinion
will allow the testimony at the retrial under the excited utterance
exception to the hearsay rule.  I would not allow the statements
because they do not fit within the firmly rooted holdings embracing
the excited utterance exception, and, by allowing the statements in
evidence, the majority will deny appellant the right of
confrontation.
     The facts are these.  Rose Cassidy discovered Carol Heath's
corpse in the living room of the victim's home at about 6:45 in the
morning on April 2, 1993.  Ms. Cassidy, the victim's sister-in-law,
hurriedly went to a neighbor's house and called the police.  Upon
returning to the victim's home, she saw the victim's six-year-old
daughter, Ashley, and her brother looking out the bedroom window. 
Ms. Cassidy said Ashley was scared, but not crying, and was able to
respond to questions.  Ms. Cassidy asked Ashley what had happened,
and Ashley answered that a black man had broken in.  
     By 7:00 a.m. the police and an ambulance had arrived, and the
children were taken out of the house through a window so that they
would not see their mother's corpse.  In pretrial hearings, a
medical technician, Archie Johnson, testified that Ashley was "not
emotional" and that she answered questions about her condition, but
she seemed to be in shock because she was quiet.  He said that she
helped him find her clothes.  He said that Ashley told him they
were all asleep when they heard something, and her mother got up to
see what it was.  The the next thing she knew was that her mother
had fallen.  She did not mention seeing an assailant.  The trial
court ruled that the statements given to Archie Johnson were not
admissible.  It is highly significant that the trial court found
that the statements to Rose Cassidy and Archie Johnson were not
admissible.  The import of the ruling was that Ashley's first two
statements, which did not implicate appellant, were not allowed as
excited utterances, and the State does not cross-appeal from that
ruling.
     Ashley and her brother waited in the ambulance until their
grandfather, John Heath, took them to his home.  Arlene Heath,
their grandmother, testified at a pretrial hearing that when she
got to their home, Ashley was "totally out of control."  The
grandmother indicated that Ashley "rambled on and on" about what
had happened to her mother, and it took about thirty minutes to
calm her.  During most of the remainder of the day Ashley told her
grandmother about the murder, and the details of the story varied. 
For example, Ashley told her grandmother that she saw the man when
he came in the front door (not mentioning a break-in in this
version), that she got up when he came in, and that she saw the man
sitting on a couch while playing with a pistol.  At one time she
told her grandmother that she hid by the television set in a hall
and that she saw her mother lying in blood.  Throughout the day,
Ashley's descriptions of the intruder gained in detail, but also
became more discrepant.  She said the man was bald, but also wore
a black hat.  She said he was wearing blue jeans and boots, but
later she described black pants, a green jacket, a black shirt with
red and orange designs, a gold ring, and a tie.  Just before 3:30
that afternoon she said she heard someone in the house and saw a
"bald black man" wearing a black shirt and pants, green jacket, and
red bandanna.  She said the man was "chunky."  It is again highly
significant that the trial court did not allow this hearsay into
evidence, and the State does not cross-appeal from the ruling. 
     The next person to talk to Ashley was the victim's sister,
Melissa Cassidy.  She arrived at the grandparents' home at about
8:55 a.m., but waited twenty to thirty minutes before going inside. 
At about 10:30, or almost four hours after the murder was
discovered, and presumably considerably longer since the murder
took place, Ashley sat in Melissa's lap and cried for perhaps
forty-five minutes.  During this time Ashley "blurted out" that a
black man had broken in and killed her mother.  Melissa remained at
the house most of the day.  She testified at a pretrial hearing
that many visitors arrived and left, and some visited with Ashley. 
She said that during the day Ashley had periods of calm, she even
played with her cousin for a while, but at other times she was
upset.  Again, it is significant that the trial court refused to
allow the statements made to Melissa into evidence, and the State
does not cross-appeal.
     Officer Hayes McWhirter went to the grandparents' home at 3:30
in the afternoon to question Ashley.  He asked Cynthia Emerson, an
employee of the Department of Human Services, to accompany him "to
see if Ashley could tell us anything to help with the case."  When
they arrived, Ashley was playing outside the home.  McWhirter
talked to the grandparents while Emerson made small talk with
Ashley, who was neither emotional nor crying.  McWhirter took
Ashley to the side of the house to question her.  She was timid at
first and refused to talk because he had a tape recorder.  After he
put the tape recorder away, Ashley began to ask him questions about
the murder.  McWhirter asked her to tell him what she could
remember.  Because it is critical, his testimony, as abstracted,
was: "I said we need you to tell us what you saw last night.  We
just told her that anything she could remember from last night or
who might have been in her house to do this to her mother we needed
to know.  Then I didn't say anything.  She just unloaded on me."  
In doing so, Ashley gave yet another account, the most detailed
account of the day.  She said her mother and she were sitting on a
couch (not asleep or in bed), that someone knocked, and her mother
answered and let the man in (no break-in).  She said the man asked
where Branson was; that the man had a "girl sounding" name (new
fact); that he was wearing a black hat with something hanging down
the back (new fact), a green (not black) shirt and a sweater (new
fact).  She said the man had just gotten out of jail and was mad at
her mother for dating Branson (new fact).  She said the man had
hair like McWhirter's; that she saw the man and her mother fighting
(new fact) and saw the man leave in a brown truck (new fact); that
he had a gun and a knife (new facts); and that he went to the
bathroom while her mother lay on the floor (new facts).  Ashley
said she was hiding in the closet (new fact), and that she saw the
man standing by her mother with a knife in his hand when she came
out of the closet to go to the bathroom (new facts).  After he
left, she went to bed.  McWhirter then showed Ashley a photo
lineup, and she picked the murderer out of the lineup.  McWhirter
did not testify that Ashley was emotional, crying, or distressed
while he questioned her.  He testified that she was "excited," but
admitted she was "in control."  In sum, a police officer went to
the grandparents' home to question the six-year-old witness, but
the six year old would not talk to him at first.  He put away his
tape recorder and asked the six year old to tell him what happened.
Ashley did not make a spontaneous outburst.  The officer did not
testify that Ashley was crying, emotional, or distressed when he
began to question her.  Yet, the majority opinion holds that her
answers can come in under the exited utterance exception to the
hearsay rule.
     The trial court did not find that statements made to Archie
Johnson shortly after 7:00 a.m., or immediately after an adult
discovered the murder, were excited utterances, and the State does
not cross-appeal; the trial court did not find that statements made
to Melissa Cassidy at about 10:30 that same morning were excited
utterances, and the State does not cross-appeal; the trial court
did not find that statements made to the six year old's
grandmother, Arlene Heath, during the course of the day were
excited utterances, and the State does not cross-appeal.  Yet, the
trial court held, and the majority opinion affirms, that responses
given to a policeman later in the day are admissible as an excited
utterance.  None of the cases cited in the majority opinion support
such a holding.                                    
     An excited utterance is "[a] statement relating to a startling
event or condition made while the declarant was under the stress of
excitement caused by the event or condition."  Ark. R. Evid.
803(2).  Here, under the law of the case, the declarant was not
"under the stress of excitement caused by the event" from 7:00 a.m.
until 3:00 p.m., but in some way went into the stress of excitement
in response to police questioning.  A recitation of past events
does not constitute an excited utterance.  Marx v. State, 291 Ark.
325, 724 S.W.2d 456 (1987).  The statements were not spontaneous
utterances; rather, they were a product of questions by the
officer.  Although the declarant was only six years old, she
obviously had discussed her mother's murder with others and then
added many new facts upon questioning by the officer.  This was not
a mere utterance; it was  complete statement.  The issue is not
whether the excited utterance is accurate; rather, it is whether it
is trustworthy, and trustworthiness comes from spontaneity under
stress and a lack of reflection and deliberation.  Cole v. State,
307 Ark. 41, 818 S.W.2d 573 (1991).  It was the same officer who
showed Ashley the photo lineup at the same interview.  In some way,
the majority opinion holds her response to the lineup is hearsay,
but the accompanying statements are not hearsay.  The statements do
not come within the deep-rooted guarantees of trustworthiness.  As
a result, appellant will be denied his right of confrontation.  I
would not allow the responses to Officer McWhirter's questions into
evidence upon retrial.
     Newbern and Roaf, JJ., join.