concurring. I concur with the result reached by the majority but respectfully disagree with its reasoning. The majority has affirmed the trial court’s decision to admit the former testimony of Stephanie Ruffin under the Ark. R. Evid. 804(b)(1) exception to hearsay. To be admissible under Rule 804(b)(1), the “party against whom the testimony is now offered” must have had “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” Bertrand did not have a similar motive to develop Ruffin’s testimony at the suppression hearing, so Rule 804(b)(1) is inapplicable.
Proctor v. Arkansas, 349 Ark. 648, 79 S.W.3d 370 (2002), explained the “similar motive” requirement of Rule 804(b)(1) as follows:
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 cross-examination 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.
Proctor, 349 Ark. at 667 (quoting United States v. DiNapoli, 8 F.3d 909, 910 (2d Cir.1993).
In Proctor, this court held that a police officer’s prior testimony regarding Proctor’s confession at a bond-revocation hearing was inadmissible. In reaching its decision, our court said, “It is therefore clear that what is at stake in a bond-revocation hearing is substantially different from what is at stake in a full-fledged hearing at trial.” Proctor, 349 Ark. at 667. Like Proctor, the proceedings in this case are substantially different. In short, the stakes at the suppression hearing were different from those at a full trial, and the burdens of proof were different as well.
The majority relies on Scroggins v. State, 312 Ark. 106, 848 S.W.2d 400 (1993). In Scroggins, this Court recognized that a similar motive for cross-examination could be had at both a suppression hearing and at trial, but the facts there were significantly different requiring a different result. The Scroggins opinion emphasized that the former testimony was well developed because counsel for the defense was able to cross-examine the witness thoroughly and was not limited to the purpose of the hearing. In Scroggins, the purpose and issue at the suppression hearing was to determine whether taped phone conversations between Cains, a confidential informant, and Scroggins should have been suppressed; Scroggins went far beyond the taped-conversations-issue in his cross examination. There, Scroggins’s primary purpose in cross-examination was to impeach Cains, and he did so, covering eight full pages of hearing transcript. Scroggins, 312 Ark. at 112.
In the present case, unlike Scroggins, the prior testimony at the suppression hearing cannot be characterized as “well developed.” Flere, the issues raised at the two proceedings were completely different. At the suppression hearing, the state offered evidence to present testimony identifying Bertrand and placing him at the crime scene. Bertrand asked only six questions of Ruffin, limiting his inquiry solely to the identity issue; at trial, however, his defenses were mens rea and self defense.
It can be inferred that Bertrand’s strategy at the suppression hearing was to limit his questioning regarding the two defenses he intended to raise at trial. Accordingly, Bertrand asked just six questions of Ruffin, all relating to the identity issue. The following questions serve as examples of what could have been asked of Ruffin if Bertrand had confronted the evidence bearing on the self defense and mens rea issues:
• Did she witness any quarrel between Bertrand and the victim, Antonio Alford?
• Did she know Alford’s reputation in the community?
• How was Alford behaving during the time leading up to his murder?
• How did Alford act after smoking sherm?
• Was he combative or antagonistic?
• Did he have a propensity to carry a gun?
• Why did they decide to leave the apartment?
• Were they asked to leave?
Because Ruffin was absent from trial, Bertrand had no opportunity to ask these or other relevant questions bearing on his two defenses. Again, given the circumstances, it was proper strategy for Bertrand to limit his questioning of the witnesses to the identity issue at the suppression hearing.
Overall, given the nature of the prior suppression proceeding and the under-developed cross-examination, it is unreasonable to conclude that Bertrand had a similar motive to develop Ruffin’s prior testimony. Thus, I disagree with the majority’s decision to admit Ruffin’s testimony under Ark. R. Evid. 804(b)(1), but concur with the majority’s decision because the trial court’s error was harmless to the outcome of the case.
An error in the admission of hearsay evidence does not automatically result in a reversal if the error was harmless. Jones v. State, 326 Ark. 61, 931 S.W.2d 83 (1996). Where evidence of guilt is overwhelming and the error slight, we can declare the error harmless and affirm. Bledsoe v. State, 344 Ark. 86, 39 S.W.3d 760 (2001). As the majority notes, Ms. Ruffin’s testimony in placing Bertrand at the crime scene was cumulative to the testimony of witnesses Ron Blackmon and Michael Jones. No prejudice results where the evidence erroneously admitted was merely cumulative and we do not reverse for harmless error in the admission of evidence. Gaines v. State, 340 Ark. 99, 8 S.W.3d 547 (2000). The jury had overwhelming evidence upon which to convict Bertrand and the trial court’s error in no way prejudiced Bertrand. For this reason, Bertrand’s conviction should be affirmed.