State of Arkansas v. Myrickki McClendon

Little Rock, Arkansas defendant charged with child sex abuse exonerated.



Myrickki McClendon, age 32, was charged with raping a child less than fourteen years old.





Myrickki McClendon was tried by a jury and found guilty of the offense of rape involving a child less than fourteen years of age. His victim, S.S., was eight at the time of the rape and ten at the time of trial. McClendon was sentenced to twenty-five years in the Arkansas Department of Correction, with 540 days' jail credit.





McClendon was living in the victim's home in 2009 and claimed that he had sex with her after she touched his penis while trying to get him out of bed to make her breakfast.



The child testified against at trial but made statements outside the court room that she had lied at the at the urging of unidentified adults.





There were bench proceedings concerning the first point of appeal, which can be summarized as follows: during the trial, it was brought to the trial court's attention that bystanders in the hallway outside the courtroom had overheard S.S. say some things when she exited the courtroom after testifying; the bystanders felt obligated to report to court officials, who then brought the situation to the court's attention; the trial court held a hearing outside the presence of the jury to try to resolve the matter. In short, and paraphrasing the testimony of two disinterested witnesses, S.S. came out of the courtroom saying: "I did it. I did it. I lied about something in there. I said what y'all told me to say." One of the witnesses put an approximate fifteen-minute time lag between S.S. saying, "I did it," and then saying, "I lied about something in there." S.S. also testified briefly, and confined her words to the effect, "I did it. I did it; I did it." The trial court ruled that defense counsel could recall S.S. to pursue the matter, but severely limited the manner in which counsel could question her. The trial court further stated that if, after asking S.S. the limited question, she responded "no," then that would "be the end of it." The court then allowed defense counsel to question other witnesses who had also overheard S.S. in the hallway and to proffer their testimony. The jury trial resumed the next day, and the details of S.S.'s further testimony at that point will be discussed in more detail later in this opinion.





Here, on the day following the extensive hearing concerning this issue outside the jury's presence, S.S. was recalled to the stand, in front of the jury, by defense counsel. However, defense counsel was limited by the trial court's very specific instructions, which were to merely ask S.S. if she had said anything when she left the courtroom the day before. Defense counsel was not allowed to ask her about her specific alleged statements. In response to the question that was asked, S.S. said, "I remember saying something to Ms. Christie after I left court yesterday. We were talking about seahorses and flowers. I don't know what all I said. I don't remember what I said. I didn't say anything else after court yesterday. I didn't say anything the rest of the afternoon. ... I didn't say anything when I left the courtroom yesterday." The State was offered the opportunity to cross-examine S.S., but declined to do so.



At that point before the jury, S.S. had made a statement on the witness stand that was inconsistent with the statements she reportedly made the day before when she left the courtroom, as attributed to her by the bystanders. When a witness is asked about the prior statement and either denies making it or fails to remember making it, extrinsic evidence of the prior statement is admissible. Scamardo v. State, 2012 Ark. App. 392. Extrinsic evidence of S.S.'s prior inconsistent statements existed in the form of witness testimony. Specifically, at least two disinterested persons reported to the court that S.S. had said she "lied about something in there" as she was leaving the courtroom after testifying; yet, S.S., when recalled to the stand, denied saying anything when she left the courtroom after first testifying. Pursuant to Rule 613(b), the trial court should have allowed defense counsel to introduce that extrinsic evidence so that the jury could weigh it against S.S.'s testimony in judging her credibility.



"The evidence of rape in this case rested primarily upon S.S.'s testimony. The jury's assessment of her credibility was crucial to the outcome of the case. Consequently, we cannot conclude that the evidence in this case was so overwhelming and the error so slight as to make it harmless."

Defendant was found guilty in April 2011.



The Defendant was granted a new trial



The second trial resulted in a mistrial as a result of prosecutor misconduct.



Forensic examination of fluids found at the crime scene failed to contact Defendant to the crime.