LITTLE ROCK — The state Court of Appeals Thursday overturned a Fort Smith man’s sexual assault conviction because of errors that occurred at his trial.
The appeals court said Joseph Anthony Scamardo Jr. is entitled to a new trial because the judge who presided over his trial in Sebastian County Circuit Court excluded testimony that should not have been excluded and admitted testimony that should not have been admitted.
Scamardo, now 39, was convicted of second-degree sexual assault and sentenced to 12 years in prison. Prosecutors said Scamardo molested a juvenile female over the Labor Day weekend in 2008.
On appeal, Scamardo argued that the girl’s aunt should have been allowed to testify at the trial that the girl told her, “They are making me lie.”
Circuit Judge Stephen Tabor did not allow the testimony, ruling that it was inadmissible hearsay.
Independent reporting for Pine Bluff & Jefferson County since 1879.
In its opinion Wednesday, a three-judge panel of the Court of Appeals said that evidence of a prior inconsistent statement which a witness has not admitted making is admissible to impeach the witness’ credibility, provided the witness and the opposing side have the opportunity to deny or explain the statement and the opposing side has the opportunity to interrogate the witness about the statement.
All of those conditions existed at Scamardo’s trial, the appeals court said, noting that the girl took the stand at the trial and testified during cross-examination that she did not make the statement — though her aunt was not allowed to testify about the statement.
Scamardo also argued that Tabor should not have allowed the girl’s father to testify about what the girl told him about the incident about a month after it allegedly occurred.
The appeals court said a statement made by a victim of a sex offense shortly after the offense, while still under the stress and excitement caused by the traumatic event, can be admissible. A statement made a month later under routine circumstances, however, is not admissible, the court said.
“Based on the facts of this case, we hold that the month-long temporal gap between the event and the statement was too great to qualify as an excited utterance,” Judge Larry Vaught wrote in the court’s opinion.