FROM THE MILLER COUNTY CIRCUIT COURT [NO. 46CR-15-281]
HONORABLE BRENT HALTOM, JUDGE
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
RAYMOND R. ABRAMSON, JUDGE
case returns to us after we remanded it on March 13, 2019. In
Jared Harper's direct appeal, we affirmed in part but
remanded for the circuit court to conduct an in camera review
of the prosecutor's notes from a March 6, 2017 interview
with the alleged victim, K.S. See Harper v. State,
2019 Ark.App. 163, 573 S.W.3d 596. Upon review, we affirm.
begin by providing the relevant facts and procedural history
to explain our current posture. After we remanded, but prior
to the issuance of the mandate, the circuit court conducted
an in camera hearing and reviewed the prosecutor's notes.
The circuit court entered an order on March 20, 2019, and
concluded that the notes were not a substantially verbatim
statement from K.S., did not contain material that required
disclosure under Brady v. Maryland, 373 U.S. 83
(1963), and any nondisclosure was harmless beyond a
reasonable doubt. See Ark. Code Ann. §
16-89-115(e)(2) (Repl. 2005). The circuit court then
reinstated Harper's convictions and placed the
prosecutor's notes under seal.
March 21, 2019, Harper filed a motion to vacate the circuit
court's March 20, 2019 order because the mandate had not
yet issued. Harper also filed a notice of appeal from that
order, and the case was assigned number CR-19-419 (the
present case). The mandate in the direct appeal (CR-18-556)
issued on May 23, 2019.
5, 2019, the circuit court granted Harper's motion and
vacated its March 20, 2019 order. That same day, the circuit
court entered another order again reinstating Harper's
convictions. Harper then filed a notice of appeal from the
June 5, 2019 order, which was pending before our court in
Harper v. State, CR-19-566.
17, 2019, prior to filing his brief, Harper filed a motion in
our court seeking access to the sealed prosecutor's
notes. We granted Harper "leave to review the portion of
the record under seal with direction to maintain the
confidentiality of the documents pursuant to Arkansas Supreme
Court Administrative Order Number 19." Harper v.
State, 2019 Ark.App. 351, at 1 (per curiam). Harper also
filed a motion to consolidate this case (CR-19-419) with
CR-19-566, and we granted his motion and consolidated the
cases on August 21, 2019. We now turn to the merits of
argues that this court should reverse his convictions based
on the disclosures in the notes, or "at the very least,
the court should remand for a factfinding hearing before a
different judge." We disagree. After conducting an in
camera review, the circuit court concluded that the
prosecutor's notes were not a statement as defined by
Arkansas Code Annotated section 16-89-115; the notes
contained no information that probably would have changed the
outcome of the trial; and the nondisclosure of the notes is
harmless beyond a reasonable doubt because the information in
the notes was readily available through other discovery
provided in the case by the State. The circuit court's
June 5, 2019 order specifically stated, "Nothing new was
in the notes that was not previously disclosed."
March 10, 2017, prior to the first trial,  Harper filed a
motion to produce, among other things, a copy of the
prosecutor's notes from a March 6, 2017 interview with
K.S. Harper, 2019 Ark.App. 163, at 9-10, 573 S.W.3d
at 602. Harper alleged that during this interview, K.S.
realleged sexual-abuse allegations against him. Id.
at 10, 573 S.W.3d at 602. Harper stated that K.S. initially
made sexual-abuse allegations against him on March 27, 2015.
Id. K.S. subsequently recanted those allegations:
(1) on June 10, 2015, to investigator Randall Harris; (2) on
June 24, 2015, to Missy Davidson at the Child Advocacy
Center; (3) on June 26, 2015, to DHS workers and/or Miller
County Sheriff's deputies; and (4) in November 2016, in a
three-page letter she wrote. Id. at 10 n.2, 573
S.W.3d at 602 n.2.
sought a copy of the prosecutor's notes from the March 6,
2017 interview to determine "[w]hat was said to make
K.S. change her story, and what K.S. said prior to changing
her story." Id. at 10, 573 S.W.3d at 602. The
circuit court conducted a hearing on Harper's motion to
produce the notes on March 13, 2017. Id. Harper
claimed that the prosecutor's notes were not work product
and explained that K.S.'s "motivat[ion] to fabricate
the allegations" was "going to be key in this
case." Id. at 10, 573 S.W.3d at 602- 03. The
prosecutor responded and explained that K.S. came to her
office on March 6, 2017, to discuss whether she wanted to
proceed with the allegations against Harper since K.S. had
previously recanted. Id. at 10, 573 S.W.3d at 603.
The prosecutor stated that, during the two-hour interview,
K.S. made no statement that would have to be disclosed to
Harper. Id. The prosecutor stated that she "did
not write down verbatim what [K.S.] said." Id.
Rather, the notes were work product because they contained
"opinions, observations of the child's behavior, and
demeanor throughout the meeting." Id.
circuit court agreed and held that the prosecutor's notes
were not subject to disclosure and that the notes were taken
in anticipation of trial. Id. at 11, 573 S.W.3d at
603. The circuit court also noted that the prosecutor had
already provided Harper the substance of K.S.'s interview
but ordered the State to disclose to Harper any new details
from K.S.'s interview that it planned on using at trial.
requested that the circuit court place the prosecutor's
notes from the interview with K.S. under seal for appellate
review. Id. Harper also asked the circuit court to
review the prosecutor's notes to determine whether they
contained material the prosecutor was obligated to disclose
under Brady. Id. The circuit court denied