Britt v. State
721 P.2d 812
Okla. Crim. App.
1986
Check Treatment

*1 Abrams, F.Supp. Latzer (S.D.N.Y.1985)discussing limits of the BRITT, Jr., Henry Appellant, John corpus provi- the the writ of habeas under the Court sions 28 U.S.C. §§ Oklahoma, Appellee. The STATE of LaVallee, cited Carafas 239, 88 No. F-83-611. holding may, that a court Appeals Criminal of Oklahoma. example, grant petitioner relief to a who custody fully has been released from after June serving illegal on an conviction. a sentence parole The main distinction between probation lies in the source of

grant. authority is found in the Probation court, parole is trial whereas

power grace provided the Governor.

Admittedly, appeal in the event the is af

firmed, parole, one is when the court is authority parolee

without to order the back

into when confinement. Nonetheless an results, parolee

affirmance remains un Department

der control of constructive resulting judicial Corrections from a or parole

der. In the event the conditions are

violated, is return parolee token, By ap it

confinement.

pears fundamentally require unfair

one to under the continue blanket if

felony conviction exists conviction voidable, void,

under a That conviction. judgment only

condition of the can be de

termined by the consideration of convic

tion on the merits of the As case. Baier,

Kansas Supreme Court stated

“Although parolee physically con bars’,

fined ‘behind nevertheless lacks activity freedom of movement and en

joyed by generally.” public THEREFORE, after

NOW con

sidering the Motion to and the Dismiss

response herein, being fully filed ad premises,

vised this Court finds that granted. motion should not be hold,

further granting parole by that the does Governor not create waiver of

appeal pending before this Court. The

cases in conflict herewith are overruled.

IT IS SO ORDERED.

PARKS, P.J., BRETT, J., concur.

shot, dying he made a declaration to inves- tigators that two black men who had been in day the store earlier that had returned attempted and him. rob Mr. Carr stated Phillips that his friend was in the store there, earlier when the two men were and Phillips that knew one the men as Phillips “John”. police later told that one of the men he saw in day the store that appellant. was the In addition to this the State produced trial, also evidence at that one of appellant’s fingerprints was found in the pawn shop. A expert ballistics also testi- fied .38 caliber bullet which killed Mr. could Carr have been fired from the .38 pistol caliber found in appellant’s by closet police.

I. his assignment error, first appellant right claims his to confrontation guaranteed by as the Sixth Amendment to Constitution, abridged the Ü.S. was when Gigger, City, Nathan J. Oklahoma for permitted court the reading trial appellant. Phillips’ statement in lieu Gen., at trial. Turpén, Atty. Michael We dis C. Tomilou agree. Gentry Liddell, Gen., Atty. Asst. Lana Cohlmia, Intern, Legal City, Oklahoma 6,May preliminary On 1982 a hearing on

appellee. this case was held before Honorable Geb, Special Judge.

Leonard Ap- District pellant by counsel, OPINION represented was David Shapard City. C. During Oklahoma PARKS, Judge: Presiding hearing, the Phillips course of Jr., Henry appellant John Britt here- to testify. was called He was sworn as a in, by jury was convicted in District witness, reported and his testimony was County, Court Oklahoma Case No. CRF- Robertson, C.S.R., Marilyn J. an official 82-1811, for the offense of Murder stenographic Phillips reporter. court testi- Degree, First and was to life sentenced pawn shop fied that he had entered the imprisonment. Judgment and sentence in question in order pay afternoon imposed jury’s was in accord with the ver- arrived, on a loan. he interest When dict, and we affirm. appellant saw the and another man inside 3, 1981, acquainted shop. Phillips On November Urser was Carr was with the during robbery attempt Phillips shot and killed appellant. ap- Mr. Carr testified Jewelry City Shop peared appellant’s pres- and Pawn on Northwest nervous because of fact, City. ence; Street in Appellant’s Phillips 28rd Oklahoma Mr. Carr showed pistol kept arrest for this Phillips crime based on state- behind the counter. Wesley spoke briefly appellant, appel- ments the victim John Phil- and friend, lips, appellant Shortly victim’s lant left with the other man. thereafter, day Phillips shop. another man were seen the store left Phillips subjected of the murder. after Mr. Soon Carr record reflects that lengthy probing public cross-examination policy to a and the necessities of the by attorney Shapard. case.” Mattox v. United 237, 243, 39 L.Ed. 409 again called At the State also, Roberts, supra, occasion, however, Phil- a witness. On 448 U.S. at (“every 100 S.Ct. at 2538 testify, basing lips refused to his refusal on jurisdiction strong has a interest in effec- *3 Fourteenth the First and Amendments to enforcement, tive law develop- and in the the Federal Constitution.1 After precise ment and formulation of rules of repeatedly testify, refused to the trial court applicable proceed- evidence in prosecution Phillips’ allowed the to use criminal ings”). preliminary hearing, statement at as con- This Court has accordingly held transcript, in an court tained official in lieu that preclude Constitution “does not of his live at trial. the use of preliminary hearing ... testimo- ny, proper in circumstances.” In Re provides Our 12 Evidence Code at O.S. 768, Bishop, (Okl.Cr.1968) 772 1981, 2804(B)(1) “[t]estimony given that § added). (Emphasis Accord v. as a witness at another of the California Green, 149, 1930, 399 U.S. 90 S.Ct. 26 proceeding” ... is “not excluded (1970). L.Ed.2d 489 hearsay rule if the declarant is una- 2804(A)(2) as vailable a Section witness[.]” In order “proper to determine these cir- instructs that a witness is if unavailable cumstances”, or, Supreme as the Court has “[p]ersists refusing testify or she in to stated, to “accomodate competing in- [the] concerning matter of his state- terests”, “general approach” has been despite ment an order of the court to do formulated Supreme U.S. Court to section, Clearly, Phillips’ under this so[.]” deal with the issue: statements at were ad- The operates Confrontation Clause missible as a substitute to live testimo- separate two ways to range restrict the ny However, at trial. the issue this case First, hearsay. admissible in conform- admissibility is not the of this evidence ance with the preference Framers’ Code; question under the Evidence accusation, face-to-face the Sixth Amend- Phillips’ whether admission of ment establishes a necessity. rule of In hearing testimony violated the Confronta- the usual case (including cases where tion Clause of the Sixth Amendment. occurred), cross-examination has provides The Sixth Amendment an ac- prosecution produce, must either right cused with the to “be confronted with of, unavailability demonstrate the the de- against the witnesses him.” The United clarant whose statement it wishes to use Supreme States emphasized Court has against the defendant. See Mancusi v. provision Founding reflects the Fa- Stubbs, 204, 2308, 408 U.S. 92 S.Ct. 33 thers, “preference for face-to-face confron- (1972); L.Ed.2d 293 Barber v. Page, 390 tation at ‘primary and that a interest 719, 1318, U.S. 88 S.Ct. provision] secured by right is the [the ” See also v. Motes United Roberts, cross-examination.’ Ohio v. 448 178 U.S. 20 44 S.Ct. L.Ed. 1150 56, 63,100 2531, 2537, S.Ct. 65 L.Ed.2d (1900); Green, U.S., 399 at California Alabama, 597 quoting, Douglas v. 161-162, 165, 167, S.Ct., n. at 1074, 1076, 380 U.S. 1936-1937, 1938, 1939, n. 16. (1965). However, right L.Ed.2d 934 to absolute; aspect The second instead, operates confrontation is once a wit- Supreme ness is “general Court has stated shown to be unavailable. Reflect- [i.e., right ing law of this kind underlying purpose augment to con- its frontation], op- accuracy factfinding however beneficent in their process by accused, eration and ensuring valuable to the must the defendant an effective occasionally give way considerations means to test adverse Muslim, Phillips, religious principles testify Black claimed it would violate his at trial. only hearsay only adequate if it countenances bears Clause ‘indicia of relia- bility.’ with such trustworthiness can Reliability marked be inferred with- departure is no material from the ‘there out more in a case where the evidence general Snyder rule.’ firmly falls reason within a rooted hearsay ex- Massachusetts, [97] at ception. In other cases, [330], at 333 L.Ed. excluded, must be [78 674]. least absent a show- recently formulated in principle ing particularized guarantees of trust- Mancusi v. Stubbs: worthiness. ‘The focus of the Court’s concern has Roberts, supra, 448 U.S. at to insure that there “are indicia been added). (Emphasis S.Ct. at 2538-2539. widely have been application our of these two factors of whether viewed determinative bar, the case Supreme we find the may placed before statement Green, Court’s decision in California *4 though no jury there is confrontation Green, supra, particularly instructive. In declarant,” Evans, the of Dutton v. the defendant selling was accused of mari- 89, at supra, U.S. 91 S.Ct. [400 74] juana boy to a sixteen-year-old named Por- [210], at 220 L.Ed.2d and to [27 213] by ter. When an arrested undercover nar- satisfactory “afford the trier fact a selling marijuana, cotics officer for Porter evaluating for the truth of the basis supplied claimed he was the marijuana statement,” Green, prior v. California preliminary Green. At the hearing in 161, S.Ct., supra, U.S., 90 399 at at case, Porter, extensively Green’s who was It is clear from these state- counsel, again cross-examined defense ments, prior and from numerous deci- supplier. However, named Green as his at Court, though sions this even evasive, Porter became claimed the witness be unavailable his “high” had been on LSD at the time of his testimony must some of ’ bear these arrest, and did not know who sold him the U.S., reliability.” “indicia of 408 at marijuana. cross-examination, On the 213, S.Ct., 92 at 2313. to prosecution permitted introduce the applied The Court this has ‘indicia of preliminary hearing statement reliability’ requirement principally by truth of had In what Porter said. concluding hearsay excep- that certain opinion, Supreme course of its upon rest tions such solid foundations prosecution determined that had suffi- virtually any that admission of ciently necessity, unavailability met the or them with comports within the ‘sub- 166, factor. 399 at 90 Id. U.S. S.Ct. at protection.’ of the stance constitutional issue, discussing 1939. In this the Court 156

Mattox United U.S. [237] stated: 244, [377], at 15 S.Ct. at 340 L.Ed. [39 Porter then testified in a man- [w]hether This truism that reflects the ‘hear- 409]. ner his preliminary consistent with hear- say and the Confrontation Clause ing a loss of testimony, memory, claimed protect generally designed are similar against privilege compulsory claimed his values,’ Green, U.S., 399 at California self-incrimination, simply or 155, S.Ct., 1933, and ‘stem from the refused answer, nothing in the Confrontation roots,’ Evans, Dutton v. prohibited Clause the State also from 218, 91 S.Ct. relying prior testimony prove on his responds It also to the need for against its case Green. certainty workaday world of con- ducting criminal trials. (Emphasis at 1940 Id. added). sum, language, we hold hearsay Based when a declarant is “unavailable”, present that witness for cross-examination at tri- al, using thus a existed for normally necessity re- Confrontation Clause quires showing is statements as evidence that he unavailable. then, against appellant. Even his statement is admissible crime, Phillips’ every also is clear to this Court that each and material It element adequate supported by prior testimony bore an “indicia must be the evidence ...” inculpating admissible. and that “the evidence reliability” the de- First, Roberts, degree supra. hearsay fendant should do so to a of certain- ty transcending probability strong the statements ad- mere rule under which were suspicion.” Accordingly, mitted rests on a solid foundation. See Id. at 259. 204, 213-16, conviction, Stubbs, 408 U.S. murder even if based on Mancusi v. circum- 2308, 2313-14, 33 L.Ed.2d 293 stantial will not be disturbed “if (cross-examined (1972) prior-trial there substantial evidence ... from hearsay exceptions logical com- rests on which which a reasonable and inference of State, ports guilt arises.” substance Sixth Stidham v. Second, (Okl.Cr.1973). case, protection). Amendment the man- In this declaration, previous testimony dying Phillips’ ner in Carr’s testimo- sufficiently ny, expert testimony regarding taken insured Green, appellant’s gun fingerprint, produced the evidence. As in California guilt, substantial evidence of and we will not reverse the conviction on this basis. statement at the [witness’] already given had under been closely approximating circumstances III. typical those that surround the trial. assignments error, In his next two oath; was under de- [The witness] [the *5 appellant challenges the trial court’s deci- ...; represented by was counsel fendant] appellant’s sion to admit of prior evidence every opportunity had [the defendant] value, impeachment convictions for cross-examine as to his [the witness] photographs physical various evidence statement; proceedings and the were gathered by police. tribunal, judicial conducted before a equipped provide judicial record of It is sufficient to note that 12 O.S. hearings. 1981, 2609(A)allows a witness to be im § Id. 399 at 1938. The peached through proof prior of criminal only distinguishing factor is that different case, convictions. In this each of the represented appellant prelimi- counsel alleged imprison convictions However, nary hearing and at trial. there year. ment for more than one 12 O.S. is no indication in the record that counsel at 1981, 2609(A)(2). prosecutor did not § incompetent, so as go into the details of the convictions as to effect the State, forbidden Little v. Okl.Cr. hearing. assignment adduced at that This say 154 P.2d 772 We cannot of error is merit. without allowing trial court abused its discretion admission of this evidence.

II. Appellant’s assignment second Furthermore, regarding the other error sufficiency attacks the of the evi admitted, previously we have held dence. He claims the evidence in this case rulings regarding relevance and mate circumstantial, wholly did not “exclude riality of evidence are within the trial every hypothesis reasonable other than State, court’s discretion. See Owens guilt” that of and did not “amount to more (Okl.Cr.1983). P.2d 832 This evidence—the suspicion.” Appellant, than mere Brief pistol body, found underneath the victim’s p. State, citing Williams closet, pistol appellant’s found in (Okl.Cr.1970). disagree. photographs depicting various the inside State, pawnship In Ritter v. 84 Okl.Cr. 183 the had some relevance and —all (1947), P.2d 257 by appellant, unlawfully prejudicial a case cited were not to the ac this Court noted sustain a conviction cused. “[t]o assignment of error is without mer-

This

it.

BUSSEY, J., concurs.

BRETT, J., specially. concurs

BRETT, Judge, specially concurring. opinion point

I concur in this but I out adopted new test for

challenging sufficiency the evidence State,

in Spuehler v. 709 P.2d 202 requires reviewing court to deter- “whether, reviewing

mine after evi- light

dence in the most to the favorable

prosecution, any rational trier fact could

have found the essential elements charged beyond

crime a reasonable doubt.” Gen., Turpén,

Michael C. Atty. Mary F. Williams, Gen., Atty. Asst. City, Oklahoma for appellee. O’Neal, Johnie Asst. Appellant Public McGUIRE, Appellant,

Tracie Lenise Defender, Tulsa, appellant. *6 OPINION Oklahoma, Appellee. STATE of PARKS, Presiding Judge: No. 0-84-606. McGuire, appellant, The Tracie Lenise Appeals Court of Criminal of Oklahoma. pled guilty in the District Court of Tulsa CRM-83-1125, County, Case No. to four July counts of Possession Stolen Credit Cards Uttering Forged and one count of Instru- judge punishment five, set ment. The (2) concurrently, two year sentences to run suspended with all five sentences subject to probation. Ap- and conditions An plication Suspended to Revoke Sentence appellant’s on basis filed alleged commission the offense of Larce- ny of Merchandise from a Retailer. The suspend- appellant’s trial court revoked ed sentence. affirm. shopping, along appellant was local,

companion, clothing store retail 24,1983. Tulsa, August A- clerk sales pointed at the out several dresses store