concurring. In my view, it was error to allow Kimberly’s previously unsworn statement to be admitted into evidence, and to be used as substantive evidence supporting Michael Kennedy’s conviction.
The only permissible use of the unsworn statement was to impeach Kimberly’s credibility as a witness. Kimberly did not deny making a prior inconsistent statement, but responded to a detailed cross-examination revealing the inconsistencies between her sworn statement during trial with the notes made by Officer Dean concerning what he heard her say within a few days of the incident.
Perhaps the use of Officer Dean’s notes for purposes of cross-examination was appropriate to impeach Kimberly’s sworn testimony at trial, but such use is a far cry from allowing Officer Dean’s notes of his recollection of an earlier unsworn statement to be read to the jury and used by the prosecutor as substantive evidence of the commission of the crime.
By allowing the officer’s notes to be read to the jury as a reflection of an earlier unsworn statement by Kimberly, we are standing the prohibition against hearsay on its head, and the use of Officer Dean’s notes for that purpose was clearly an abuse of discretion. In Smith v. State, supra, the fact that a prior inconsistent statement was read in its entirety to the jury, and treated as substantive evidence in argument by trial counsel, convinced us that the statement was impermissibly used as substantive evidence and was not used merely for impeachment.
In this case, by having Officer Dean read his notes of Kimberly’s prior unsworn statement to the jury and by using it as substantive evidence in its closing argument, the State used Kimberly’s statement in precisely the manner that was proscribed by Smith v. State, supra.
In closing arguments, the State treated Kimberly’s unsworn statement as if it were substantive evidence. Specifically, the prosecutor argued:
Kimberly Kennedy gave a very detailed statement to the police on August 4, 1997, which was a week after this incident. She had seven days to calm down and think about it. She saw a knife in Michael’s right hand and in the left hand. She saw Lanny fall. She saw her husband pull Michael off of Lanny and take him back to the truck. Kim saw Michael hit Lanny first. That was her statement. The first blow Kim talked about was Michael striking Lanny in the face. That’s what she said.
The prosecutor never points out that the earlier statement on which he relies was unsworn and not admitted as substantive evidence. The prosecutor also explained to the jury that they should “believe” Kimberly’s earlier statement because, as a person with a hearing impairment, she was “more perceptive” and a better “observer.”
However, as clear as the error in using an unsworn statement for substantive proof supporting a conviction, it is regrettably equally clear that Kennedy did not request a limiting instruction to allow consideration of the prior statement only for impeachment purposes, and no objection was made to the prosecutor’s flagrant use of the unsworn statement as substantive evidence supporting a conviction during closing arguments. As the majority correctly notes, we have often held that the failure to make a timely objection, thereby allowing the trial court to rule on the issue, prevents us from reaching a point on appeal. See Pyle v. State, 340 Ark. 53, 8 S.W.3d 491 (2000). For that reason, I reluctantly concur in the result.