Mary Bradley v. State of Arkansas

ar03-360

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION III

CACR03-360

October 8, 2003

MARY BRADLEY

APPELLANT APPEAL FROM ARKANSAS COUNTY

CIRCUIT COURT

V. CR2002-139

STATE OF ARKANSAS HONORABLE RUSSELL ROGERS

APPELLEE REVERSED AND REMANDED

Andree Layton Roaf, Judge

Appellant, Mary Bradley, was convicted of theft of property in a bench trial. At Bradley's trial, the State introduced testimony based on the witnesses' observations of a surveillance tape that recorded the alleged shoplifting incident. Bradley objected to the testimony, arguing that the tape itself would be the best evidence and the witnesses' testimony was the equivalent of hearsay. The trial judge overruled the objections, and Bradley appeals. Bradley argues on appeal that the trial court erred in admitting testimony based on observations of the surveillance tape because the testimony violates the best evidence rule. We agree that the trial court erred, and reverse and remand.

Mary Bradley was charged with theft of property in the District Court of Stuttgart, Arkansas. The district court found Bradley guilty and sentenced her to ten days' incarceration and a fine of $600. Bradley appealed her conviction to the Circuit Court of Arkansas County.

She was again convicted of theft of property at a non-jury trial. The circuit court imposed the same sentence as the district court conviction.

The State presented two witnesses at trial. The first witness, Gloria McNealy, testified that on July 26, 2002, she was employed at an EZ Mart convenience store. She stated that Bradley and her daughter entered the store, and the daughter inquired about calling cards. McNealy had other customers and continued to wait on them. While waiting on her customers, McNealy thought she observed Bradley put something in her purse. On cross-examination, however, McNealy admitted that she "didn't really know for sure that she may have put something in her purse." McNealy tried to signal the manager, Brandy Wofford, but was unsuccessful. She also testified that when Bradley left the store, her purse was bulging.

After Bradley exited the store, McNealy went to tell her manager, Brandy Wofford, about her suspicion. McNealy testified that the two women then viewed a surveillance tape of the store. At that point, Bradley objected to any testimony about observations from the surveillance tape. Specifically, Bradley's counsel stated:

Your Honor, I am going to object to any testimony about what was observed on the tape. That would be the equivalent of hearsay. We don't have it here to see. We can't test the credibility of what she is saying about what is on the tape without the opportunity to view it here. As this Court is well aware, we had a trial in this very courtroom where an individual says they identify something going on on a tape and the jury doesn't agree with it. We are entitled to see the basis for which an identification is made and the basis for any purported theft is made.

The State responded:

I believe Mrs. McNealy can testify as to what she observed and where in the store. They immediately, after Ms. Bradley left, went to check the video. They were looking at what was recorded. I think she can tell what she saw being recording on the tape.

The court inquired about the whereabouts of the tape and McNealy responded that she did not know where the tape was because she no longer worked at the EZ Mart. Then, the trial judge stated:

That (the videotape) would certainly be the best evidence, but I guess you can say what you observed.

Bradley, for the record, made a continuing objection to the testimony, stating: "The tape itself would be the best evidence. We are not able to challenge this because we can't see it."

McNealy testified that the surveillance tape showed Bradley "putting stuff from the, uh, Little Debbie aisle" into her purse. She admitted, however, that she did not know for certain that Bradley was shoplifting until she viewed the videotape.

The State's second witness was Brandy Wofford. She too testified that she did not observe Bradley shoplifting and that her testimony was based entirely on her observations of the videotape. Bradley's counsel again objected, arguing that Ms. Wofford lacked personal knowledge about the alleged theft, and that he would not be able to cross examine her because the videotape, which is the best evidence, had not been presented at trial. He further stated that Ms. Wofford's affidavit confirms that she went back and viewed the videotape and did not personally observe Bradley's conduct. Overruling Bradley's objection, the trial court stated, "I don't think it is [much] different from her just testifying to what she saw if she had seen her do it in person as opposed to the tape. Go ahead."

Ms. Wofford testified that the tape showed Bradley enter the store with a flat bag. Bradley then went to the meat and Little Debbie aisles. The video, according to Wofford, shows Bradley putting items into her purse. Then, as Bradley exits the store, Wofford notices that her purse is bulging. Wofford testified that after she viewed the tape she went to the meat aisle and all of themeats were gone. She testified that a delivery had been made the day before, and that $60-$70 worth of meats was missing. Finally, Wofford testified that the video was on zip disc and was turned over to the police.

Bradley testified in her own defense. She denied taking anything from the EZ Mart store. She also suggested that there was another Mary Bradley with whom she had been confused.

At the conclusion of its case, the defense again objected to the witnesses' testimony about their observations from the videotape. The court instructed the State to find the tape and allow the defense to observe it. However, the trial judge made it clear that it would have no bearing on the trial, and found Bradley guilty.

Bradley argues on appeal that the trial court erred in admitting McNealy and Wofford's testimony about their observations of the videotape because the admission of their testimony contravenes the best evidence rule. The best evidence rule applies only to writings, photographs, and recordings. Ark. R. Evid. 1001(1) (2003); Gamble v. State, 351 Ark. 541, 95 S.W.3d 755 (2003). The definition of photographs includes videotapes and motion pictures. Ark. R. Evid. 1001(2) (2003). The rule states that best evidence of the content of a writing is the writing itself. Ark. R. Evid. 1002 (2003); Finn v. State, 127 Ark. 204, 191 S.W. 899 (1917). The original writing or recording is required, unless excluded by statute or rule. Ark. R. Evid. 1003 (2003). A duplicate is acceptable if the original has been lost, destroyed or is permissively unavailable. Ark. R. Evid. 1004 (2003).1 In Finn, the supreme court held that when a confession is reduced to writing, the State may not prove the contents of the confession through oral testimony of awitness who heard the confession; the written confession must be produced. Id. This remains the law in Arkansas.

In Sumlin v. State, 266 Ark. 709, 587 S.W.2d 571 (1979), the Arkansas Supreme Court affirmed the lower court's ruling, requiring the State to produce a recorded confession, rather than a transcription. Because the contents of the tape were at issue, the trial court properly determined that the tape was the best evidence. Id. In Sumlin, the court determined that the tape was the best evidence and necessary to ensure that the transcription was an accurate reproduction of the taped confession. Id. Likewise, in Hamm v. State, 296 Ark. 385, 757 S.W.2d 932 (1988), the trial court allowed the State to introduce a transcription of a taped confession because the recording had been erased. The supreme court held that the trial court erred in admitting the transcript because the recorded statement was the best evidence. Id. Without the recorded statement, there was no way to determine whether the transcript was accurate. Id. See also Smith v. State, 6 Ark. App. 228, 640 S.W.2d 805 (1982)(holding that the appellant was entitled to have a videotaped statement admitted as it was the best evidence). Clearly, the trial court in the case before us erred in admitting the testimony of the witnesses in the absence of the videotape.

Trial courts have broad discretion regarding evidentiary matters. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). This court will not reverse a lower court's decision on an evidentiary issue, unless the court's decision was clearly an abuse of discretion. Id. The appellant must also demonstrate prejudice. Id. Evidentiary error is harmless if the same or similar evidence is otherwise admitted. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998). Moreover, if evidence of guilt is overwhelming and the error is slight, the reviewing court can declare the error "harmless," and affirm the lower court's decision. Cook v. State, 350 Ark. 398, 86 S.W.3d 916 (2002).

In this regard, the State suggests that we can affirm this case based on harmless error; however, we cannot agree that the trial court's erroneous ruling was not prejudicial. Bradley is not able to determine the accuracy of the witnesses' observations and testimony concerning the contents of the videotape because it was not produced at trial. When the evidence is considered, absent the inadmissible testimony, the State is left with McNealy and Wofford's personal observations, which are: (1) Bradley came into the store; (2) McNealy had a suspicion that Bradley put something in her purse, and; (3) the store received a delivery of meats the previous day, and was out of meat after Bradley left the store. We cannot say that this evidence of guilt is so overwhelming and the error so slight in contrast such as to constitute harmless error.

Reversed and remanded.

Stroud, C.J., and Neal, J., agree.

1 In this case, the tape was not lost or destroyed; the State merely failed to have the witness bring it to court or obtain it from the police department and did not account for its absence.