Hendrickson v. State

David Newbern, Justice,

concurring. The majority opinion justifies the decision of the trial court to permit cross-examination of Dr. Stevens using Mrs. Hendrickson’s clearly inadmissible statement upon Walder v. United States, 347 U.S. 62 (1954). I do not believe the majority’s reliance on that case in these circumstances is correct.

If the appellant had chosen to testify and had denied participating in the crime or had denied making any statement to the police about it, I believe Walder v. United States, supra, would have permitted cross-examination based upon her statement. We have adopted its “fight fire with fire” rationale, and I believe appropriately so. McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); Wilburn v. State, 289 Ark. 224, 711 S.W.2d 760 (1986); Pursley v. Price, 283 Ark. 33, 670 S.W.2d 448 (1984). However, this case presents a different situation. Dr. Stevens’ testimony was about his opinion as to the appellant’s guilty knowledge, or lack of it, at the time he examined her. The appellant’s condition in that respect when she was examined in 1985 by Dr. Stevens may have been different from her condition in 1983 when she was first charged with the offense after having made her inculpatory statement. Rather than fighting fire with fire, as is permitted in our decisions following Walder v. United States, supra, allowing cross-examination of Dr. Stevens on the basis of the appellant’s statement would be more like fighting a lighted match with a conflagration.

We need not reach any such conclusion, for the decision requiring the withdrawal of Dr. Stevens’ testimony, particularly after it had been heard by the jury, was not an error of such magnitude as to require reversal in the face of overwhelming evidence of the appellant’s guilt. Thomas v. State, 289 Ark. 72, 709 S.W.2d 83 (1986). I, therefore, concur in the result reached by the majority opinion.