Kelvin Beasley v. State of Arkansas
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SUPREME COURT OF ARKANSAS
No.
CR06-1400
Opinion Delivered June
KELVIN BEASLEY,
14, 2007
APPELLANT,
VS.
STATE OF ARKANSAS,
APPELLEE,
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. CR05-3379,
HON. MARION ANDREW HUMPHREY,
JUDGE,
REVERSED AND REMANDED.
JIM HANNAH, Chief Justice
Appellant 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’s 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’s testimony to be read to the jury in place of playing the court reporter’s audio
recording of the witness’s 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. 1-2(a)(2). We
reverse and remand to the circuit court.
On 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.
At the bond-reduction hearing, Beasley challenged the evidence arrayed against him.
While Lakisha affirmed, under oath at the hearing, Beasley’s presence at the scene and how
he was dressed, she said the statement she had previously made identifying him as the shooter
was “a lie” 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’s counsel did not conduct a redirect examination of Lakisha.
Prior to trial, Beasley filed a motion in limine to prevent the State from introducing into
evidence Lakisha’s 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’s former testimony admitted pursuant to Rules
804(a)(5) and (b)(1) of the Arkansas Rules of Evidence. Beasley contended that Lakisha’s
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
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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.
Beasley objected, contending that the audiotape used by the court reporter to prepare
the certified transcription of Lakisha’s testimony was the “best evidence” and should be played
in court. The circuit court considered Beasley’s 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’s testimony into the record. Beasley now brings this
appeal.
Pursuant to Crawford v. Washington, 541 U.S. 36 (2004), “[w]here testimonial
evidence is at issue. . .the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.” Id. at 68. “Where testimonial
statements are at issue, the only indicium of reliability sufficient to satisfy constitutional
demands is the one the Constitution actually prescribes: confrontation.” 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:
Hearsay exceptions—Declarant unavailable.
(a) Definition of Unavailability.
“Unavailability as a witness” includes
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situations in which the declarant:
(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.
(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness.
(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.
In this case, there is no dispute that Lakisha’s testimony at the bond-reduction hearing
is testimonial evidence, nor is there any dispute that Lakisha’s testimony is hearsay. As the
proponent of former-testimony hearsay, the State was required to satisfy the requirements of
Rules 804(a) and (b).
We begin with Beasley’s 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).
To show that Lakisha was unavailable, the prosecutor called investigator Mike Ricard,
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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’s 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’s
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’s 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.
Ricard 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.
When 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.
Ricard testified that he was able to obtain the name and address of Lakisha’s mother,
Tracy Smith, who lived at 4 Clifton Drive, in Little Rock. When he went to the residence, he
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made contact with a woman who identified herself as “Mrs. Rogers.” The woman said that
Tracy Smith did not live there and that she continued to receive mail in Tracy’s name.
Eventually, Ricard located Fayrene Ellison, who had been Lakisha’s roommate at the
time of the murder. It was Ellison’s 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’s 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’s grandmother, Emma Hunt. Ricard had several old addresses for
Hunt, but nothing current, until he located a vehicle-accident report that listed Hunt’s 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’s 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.
Ricard further testified that, following these attempts to locate Lakisha, he received
subpoenas on March 13, 2006, for the May trial date.1 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
1
The trial was originally set for February 22, 2006; however, it was later continued until
May 2, 2006.
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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,
“I ain’t telling you shit.” Ricard 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.
Beasley 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’s 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).
Next, we consider whether, pursuant to Ark. R. Evid. 804(b)(1), Beasley had an
opportunity and similar motive to develop Lakisha’s 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,
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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’s testimony from the bond-reduction hearing at trial because he did not have a similar
motive to develop Lakisha’s testimony at that hearing.
We 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:
In 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:
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The 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---both what is at stake and the
applicable burden of proof---and, to a lesser extent, the crossexamination at the prior proceeding---both what was undertaken
and what was available but forgone---will be relevant though not
conclusive on the ultimate issue of similarity of motive.
8 F.3d at 914-15. In addition, Jack Weinstein in his celebrated treatise on
evidence comments that “[b]ecause similar motive does not mean identical
motive, the similar-motive inquiry is inherently factual,” and is “narrowly
concerned with ensuring the reliability of the evidence admitted at trial.” 5 Jack
B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 804.04[5]
(2d ed. 1997).
This court has not previously addressed the issue of whether a similar motive for crossexamination, 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 & Johnson v. State, 272 Ark. 88, 612 S.W.2d 110
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(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).2
Citing 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 “full-fledged” hearing. He argues
that, because the bond-reduction hearing was limited, rather than “full-fledged,” his counsel
did not have a similar motive to develop Lakisha’s testimony as he would have at trial. The
State contends that Beasley’s reliance on Proctor is misplaced because the focus of a bondrevocation hearing, which was at issue in Proctor, is different from the focus of a bondreduction hearing, which is at issue in the instant case. In Proctor, we stated that “[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.” 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’s 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’s proof; therefore,
Beasley had both the opportunity and a similar motive to attack the State’s evidence.
2
While the cited cases involved the issue of whether there was a similar motive for crossexamination, Rule 804(b)(1) applies equally to direct examination, cross-examination, and redirect
examination.
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Rule 8.5 provides:
Pretrial release inquiry; when conducted; nature of.
(a) A pretrial release inquiry shall be conducted by the judicial officer prior to
or at the first appearance of the defendant.
(b) The inquiry should take the form of an assessment of factors relevant to the
pretrial release decision, such as:
(i) the defendant’s employment status, history and financial condition;
(ii) the nature and extent of his family relationships;
(iii) his past and present residence;
(iv) his character and reputation;
(v) persons who agree to assist him in attending court at the proper times;
(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;
(vii) the defendant’s prior criminal record, if any, and, if he previously has been
released pending trial, whether he appeared as required;
(viii) any facts indicating the possibility of violations of law if the defendant is
released without restrictions; and
(ix) any other facts tending to indicate that the defendant has strong ties to the
community and is not likely to flee the jurisdiction.
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As 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’s 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 “full-fledged” hearing. Contrary to the State’s
assertion, the purpose of the rule is not solely to attack the State’s proof; rather, the judicial
officer’s inquiry also includes an assessment of the defendant’s connection to the community,
familial relationships, and history of appearing in court after a pretrial release. See id.
Beasley’s 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’s
case, we cannot say that Beasley had “an interest of substantially similar intensity to prove (or
disprove) the same side of a substantially similar issue.” See DiNapoli, 8 F.3d at 914-15. The
applicable burden of proof at the hearing, i.e, “the likelihood of conviction,” see Ark. R. Crim.
P. 8.5(vi), and “facts tending to indicate” that the defendant is not a flight risk, see Ark. R.
Crim. P. 8.5(ix), is far different from Beasley’s 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’s testimony, it is clear to us that he did not have a similar motive to
develop her testimony.
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Our conclusion that Beasley did not have a similar motive to develop Lakisha’s
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’s argument is well taken. Based on the foregoing,
we hold that the circuit court abused its discretion in admitting into evidence Lakisha’s
testimony from the bond-reduction hearing. Beasley’s second point on appeal regarding the
best-evidence rule need not be addressed because Lakisha’s prior testimony, either through the
certified transcript or the tape-recorded statement, will not be admissible at Beasley’s new trial.
Reversed and remanded.
B ROWN, J., dissents.
R OBERT L. B ROWN , Justice, dissenting. The majority opinion unduly restricts prosecutors
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on what previous testimony of an unavailable witness can be introduced at trial. For that
reason, I respectfully dissent.
At 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’s 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.
There 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’s witness at the bond-reduction hearing and was called to testify
that she could not identify Beasley as the shooter.
Secondly, defense counsel had a “similar motive to develop the testimony.” Ark. R.
Evid. 804(b)(1) (2007). Rule 804(b)(1) reads in full:
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(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.
Thus, 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.
Jack 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 “reliability” of the evidence admitted. J ACK B. W EINSTEIN & M ARGARET A. B ERGER,
W EINSTEIN’S FEDERAL E VIDENCE § 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.
The majority’s discussion of a “full-fledged” hearing versus a limited hearing is also off
center. A “full-fledged” 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 crossexamine a state witness at these hearings as a matter of strategy. We next discussed a variety
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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 proceedngs
are not full hearings.
Those 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 – not whether
Beasley was a flight risk – and the issue of whether she saw Beasley shoot Jacko was fully
developed.
The 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.
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As a final point, the majority contends that testimony at trial of another witness
regarding what Beasley was wearing at the shooting made defense counsel’s 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 “similar motive,”
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.
I would not disallow Lakisha Smith’s testimony for the reasons adduced by the
majority.
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