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Court orders new trial in Fort Smith fraud case Thursday, Mar 13, 2008 By John Lyon Arkansas News Bureau LITTLE ROCK - A former Fort Smith transport company driver deserves a new trial on a fraud charge because a judge improperly allowed testimony about the statements of a witnesses who died before the case went to trial, the state Court of Appeals Court ruled Wednesday. Allowing the testimony violated Emmanuel Joseph Lee's constitutional right to face his accuser, the appeals court said. Lee was sentenced to three years in prison after his conviction last year for fraudulent use of a credit card. Prosecutors said he pumped $150 worth of gas into his pickup at a convenience store in Van Buren and tried to pay for the gas with a credit card that was issued to him by his employer, Border Express. The store's owner contacted police after the card was declined. At his trial in Crawford County Circuit Court, Lee testified that Border Express gave him permission to use the card, to pay him for a recent delivery trip. Van Buren police officer Mark McGraw testified Don Jordan, owner of Border Express, told him Lee was not authorized to use the card to put gas in his personal vehicle. Lee, 34, argued on appeal that Circuit Judge Gary Cottrell should not have allowed McGraw to testify about the statements of Jordan, who could not be confronted and cross-examined by the defense because he was deceased. The appeals court Wednesday rejected the state's claim the testimony was admissible because it was presented to explain why McGraw arrested Lee, not to establish the truth of what Jordan said. "The transcript demonstrates why the state offered this testimony from the first witness in its case in chief: For the truth of Don Jordan's statements that Lee used the card without authorization," Judge D.P. Marshall Jr. wrote. The court also said Cottrell erred in determining that the dead man's statements were non-testimonial, for which the right of a defendant to confront his accuser does not apply. |
