Preserving and Proving Evidentiary Error on Appeal: Prejudice, Record-Building Under Rule 612, and Cumulative-Error Preservation in Arkansas

I. Introduction

Kevasia Tate v. State of Arkansas arises from a late-night shooting in Conway following an argument at a house gathering. After Tate allegedly threatened to return and “air this bitch out,” he and Tyrius Harris returned minutes later armed; a gunfight occurred outside the residence. David Hood was fatally shot. During the exchange, Antonio Smith arrived with his two-year-old child, and Smith’s vehicle was struck multiple times by gunfire.

Tate did not challenge the sufficiency of the evidence on appeal. Instead, he challenged six evidentiary rulings, focusing primarily on alleged hearsay and the trial court’s handling of a witness’s use of a document. He also argued cumulative prejudice from the claimed errors. The Supreme Court of Arkansas affirmed, emphasizing both the substantive evidentiary standards and the procedural burdens an appellant must satisfy to obtain reversal.

II. Summary of the Opinion

The court held that none of the challenged evidentiary rulings warranted reversal. For the hearsay-related issues, the majority concluded either that the testimony fit within recognized non-hearsay uses (course of conduct/basis of action) or fell within a hearsay exception (excited utterance). The court also rejected a challenge to expert firearms testimony where the appellant offered no authority or developed argument. On the Rule 612 issue (witness reference to a “piece of paper”), the court found no demonstrable error because the record did not show how the paper was used and Tate did not request production of it. Finally, the court declined to consider cumulative error because Tate did not preserve the issue with a cumulative-error objection and ruling under Arkansas law.

A concurring opinion would have resolved the principal hearsay issues more simply by concluding the challenged statements were not hearsay under Ark. R. Evid. 801(c), and it questioned the majority’s preservation approach to cumulative error.

III. Analysis

A. Precedents Cited (and Their Influence)

1. Standard of review, legal error, and prejudice

• Beard v. State, 2020 Ark. 62, 594 S.W.3d 29: Supplies the governing standard—evidentiary rulings are reviewed for abuse of discretion and will not be reversed absent prejudice. The majority repeatedly returns to this prejudice requirement as an independent barrier to reversal.
• Lowery v. State, 2019 Ark. 332, 586 S.W.3d 644; McClanahan v. State, 2010 Ark. 39, 358 S.W.3d 900; Reeves v. State, 374 Ark. 415, 288 S.W.3d 577 (2008): These cases are used to clarify that “abuse of discretion” is met when a trial court misinterprets or misapplies the law—important because Tate framed several objections as categorical legal misapplications (hearsay exceptions; Rule 612).
• Taffner v. State, 2018 Ark. 99, 541S.W.3d 430: Reinforces that prejudice is not presumed. The majority uses this to dispose of arguments where Tate asserted prejudice only in general terms (notably the “give me a gun” testimony, where the fact that Hood was armed was undisputed and self-defense was raised).

2. Defining hearsay and distinguishing non-hearsay uses

• Clemons v. State, 2010 Ark. 337, 369 S.W.3d 710; Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995): Provide the baseline definition of hearsay (out-of-court statement offered for truth). The majority uses these to suggest some challenged testimony may not have been offered for truth at all.
• Bliss v. State, 282 Ark. 315, 668 S.W.2d 936 (1984); Jackson v. State, 274 Ark. 317, 624 S.W.2d 437 (1981): Support admitting statements offered to show “course of conduct” or “basis of action” rather than truth. The majority uses this framework to uphold admission of Hood’s request for a gun—framing it as explaining Hood’s subsequent conduct (arming himself) rather than proving a factual assertion.
• United States v. Thomas, 451 F.3d 543, 548 (8th Cir. 2006): The majority addresses this case primarily to rebut reliance on it by the concurrence. The majority characterizes the relevant “questions and commands” language in Thomas as dicta and emphasizes it is not Arkansas Supreme Court authority (merely persuasive at best). This portion of the opinion operates less as a holding and more as a methodological warning: Arkansas hearsay analysis should not be shortened by importing federal dicta without care.

3. Hearsay exceptions: excited utterance

• Moore v. State, 317 Ark. 630, 882 S.W.2d 667 (1994): Governs the excited-utterance exception and anchors the majority’s resolution of statements attributed to Shamika Little—both as relayed by Angela Marshall (“everybody get out of the house”) and by Officer Whitley (“there was a gunshot victim in the back seat”). The majority applies Moore to find: (i) a startling event, (ii) continuing stress/excitement, and (iii) a statement relating to the event.

4. Expert testimony: inadequate briefing as an appellate barrier

• Hollis v. State, 346 Ark. 175, 55 S.W.3d 756 (2001); Dougan v. State, 330 Ark. 827, 957 S.W.2d 182 (1997); Williams v. State, 325 Ark. 432, 930 S.W.2d 297 (1996); Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977): These decisions collectively stand for the proposition that an appellate court will not develop arguments for the appellant; absent supporting authority or a convincing argument, the point may be summarily rejected. The majority uses this line to affirm the admission of Detective Gibbons’s firearms opinion because Tate did not supply authority or a developed theory explaining why reliance on video timing and casing counts was improper under Ark. R. Evid. 703.

5. Rule 612, record burden, and permissible use of writings

• Dillon v. State, 317 Ark. 384, 392, 877 S.W.2d 915, 919 (1994): Invoked by Tate for the proposition that testimony must be the evidence, not the writing. The majority treats the quoted language as dicta and limits its utility.
• Sweat v. State, 307 Ark. 406, 408, 820 S.W.2d 459,461 (1991): The controlling authority for the majority’s Rule 612 discussion. Sweat recognizes that witnesses may refer to writings before or while testifying and that trial courts have discretion to allow consultation even during testimony, especially with lengthy detail.
• Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985); Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982): Cited through Sweat to show Arkansas’s established practice allowing law-enforcement witnesses to use notes or statements to refresh recollection.
• Barker v. State, 2014 Ark. 467, 448 S.W.3d 197: Provides the “record demonstrating error” principle. The majority uses it to reject Tate’s “mystery document” argument because the record did not show whether the paper refreshed recollection, what it contained, or whether it was read from.

6. Cumulative error preservation

• Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998): The majority treats Munson as binding law requiring: (i) individual objections, plus (ii) a cumulative-error objection to the trial court and an obtained ruling. Tate’s failure to lodge and obtain a ruling on cumulative error barred review, regardless of the number of discrete evidentiary objections.

7. Concurrence’s federal authorities and harmonization with broader evidentiary practice

• Proctor v. State, 349 Ark. 648, 666, 79 S.W.3d 370, 382 (2002): Cited by the concurrence for the policy that Arkansas evidentiary rules should be interpreted consistently with other states and the Federal Rules of Evidence.
• The concurrence cites a multi-circuit set of federal decisions—United States v. Love, United States v. Wright, United States v. Lewis, United States v. Deritis, Lexington Ins. Co. v. Western Pennsylvania Hosp., United States v. Oguns, United States v. Vest, United States v. Rivera, United States v. Jackson, United States v. Torres, and United States v. Long—to support the categorical point that requests/commands typically are not “assertions” and therefore are not hearsay under rules modeled on Fed. R. Evid. 801. Although not adopted by the majority as a basis for decision, these citations underscore an interpretive fault line the case exposes: resolving hearsay objections via “not hearsay” logic (801(c)) versus via exceptions (803) and harmlessness.

B. Legal Reasoning

1. The majority’s structure: discretion + correct doctrine + prejudice

The majority’s approach is doctrinally layered. It first frames the appellate posture (abuse of discretion; no reversal without prejudice). It then addresses each category of evidence: (i) whether it is hearsay at all, (ii) if hearsay, whether an exception applies, and (iii) whether any arguable error was prejudicial. Even where the trial court’s stated rationale is questionable (e.g., calling Hood’s request a “present-sense impression”), the Supreme Court is willing to affirm if the result is correct under other evidentiary doctrines and the appellant fails to show prejudice.

2. Hearsay issues: course-of-conduct and excited utterance

For Hood’s request—“hey, man, give me a gun”—the majority rejects the “present-sense impression” label but affirms admission because the statement explained Hood’s responsive conduct (arming himself) and was not shown to be prejudicial in context (Hood’s being armed was undisputed and relevant to Tate’s self-defense theory).

For Shamika Little’s statements as reported by Marshall and Whitley, the majority relies on the excited-utterance exception. It emphasizes the immediacy and stress: the threat, the subsequent shooting, and in Whitley’s testimony, the added shock of a crash while transporting a gunshot victim.

3. Expert testimony: video-based inference and the appellate briefing threshold

The court did not meaningfully re-litigate the reliability of the “switch” inference (rate-of-fire compared to elapsed time on video; number of recovered casings). Instead, it treated the claim as inadequately supported on appeal: without authority or a developed argument, there was nothing for the court to resolve. Practically, this is a reminder that Ark. R. Evid. 703 arguments often turn on the “reasonable reliance” foundation, but that foundation must be attacked with specific legal and factual reasoning on appeal.

4. Rule 612: the appellant must make the record and request the remedy

Tate argued that Officer Joseph’s testimony was “tainted” because he brought a paper to the stand. The majority treated this as failing in two ways: (i) procedurally—Tate did not request production of the writing under Rule 612 and did not establish that the witness was refreshing recollection with it; and (ii) substantively—Arkansas precedent permits witnesses to consult writings, including during testimony, in the trial judge’s discretion.

5. Cumulative error: preservation as a gating rule

The cumulative error claim was rejected entirely on preservation grounds under Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998). For the majority, it is not enough that multiple objections were made; the defendant must also present the cumulative-error theory to the trial court and obtain a ruling. The concurrence signaled disagreement with that preservation rule, but the majority reaffirmed that Munson remains binding “until it is overruled.”

C. Impact

• Appellate practice impact: The decision reinforces that evidentiary appeals in Arkansas are won or lost on (i) making a precise objection, (ii) building a record showing the challenged mechanism (e.g., whether a witness actually refreshed recollection), and (iii) articulating concrete prejudice. Generalized claims that the jury’s “perception” was affected will rarely suffice under Beard v. State and Taffner v. State.
• Trial practice impact (Rule 612): Counsel who suspects a witness is testifying from a document must do more than object. This opinion signals the need to (a) ask whether the witness is refreshing recollection, (b) request production/inspection under Rule 612, and (c) ensure the record reflects the court’s ruling and how the document was used.
• Hearsay doctrine impact: The split in reasoning (majority vs. concurrence) highlights two viable analytic pathways that future litigants will likely exploit: defendants may press the “not hearsay” route under Ark. R. Evid. 801(c) (especially for commands/requests), while the State may continue to rely on exceptions like excited utterance under Moore v. State. The majority’s explicit critique of overreading United States v. Thomas suggests Arkansas courts may be cautious about importing broad federal formulations where Arkansas precedent provides narrower grounds.
• Cumulative error: The case strengthens the practical force of Munson v. State as a preservation trap: even when multiple errors are alleged, an appellant must have asked the trial court to evaluate them cumulatively.

IV. Complex Concepts Simplified

• Hearsay (Ark. R. Evid. 801(c)): An out-of-court statement offered to prove the truth of what it asserts. If a statement is offered for another purpose (e.g., to explain why an officer acted), it may be non-hearsay.
• Present-sense impression (Ark. R. Evid. 803(1)): A statement describing an event made while perceiving it or immediately after. The majority agreed Hood’s “give me a gun” did not fit this label.
• Excited utterance (Ark. R. Evid. 803(2)): A statement relating to a startling event made while under the stress of excitement. The majority used this to admit Little’s frantic statements during and immediately after the shooting/accident.
• Course of conduct / basis of action: Statements can be admitted not for their truth but to show why someone acted (e.g., why a person armed themselves or why an officer looked in a particular place).
• Abuse of discretion: A high standard—reversal requires more than a close call; it often requires a legal misapplication or an unreasonable decision.
• Prejudice requirement: Even if evidence was admitted in error, the conviction stands unless the appellant shows the error likely mattered to the outcome.
• Rule 612 (refreshing recollection): If a witness uses a writing to refresh memory, the opposing party is generally entitled to inspect it. But the opponent must request that relief and create a record showing the writing was used in that way.
• Cumulative error: A doctrine allowing multiple harmless-seeming errors to combine into an unfair trial. In Arkansas, Munson requires raising this specifically at trial and obtaining a ruling.

V. Conclusion

Kevasia Tate v. State of Arkansas is less about creating new evidentiary doctrine than about reinforcing appellate and trial discipline: evidentiary objections must be accompanied by a developed record, a developed argument, and a concrete showing of prejudice. The opinion also reaffirms that cumulative-error review is not automatic in Arkansas—Munson v. State, 331 Ark. 41, 959 S.W.2d 391 (1998) requires a specific cumulative-error objection and ruling. Finally, the majority-concurrence divide illustrates an important practical lesson for future litigants: many “hearsay” fights can be won at the threshold by identifying whether a statement is an assertion offered for its truth, rather than racing to (or resisting) hearsay exceptions.