Burke v. State

process Const.,9 prohibit execution issuing.10

from BURKE, Gary Wayne Appellant, Oklahoma, Appellee. STATE No. F-87-975. Appeals Criminal of Oklahoma. Court of 1, 1991. Nov. Rehearing Dec. Denied Pybas, Appellate Asst. Public

Jamie D. Defender, Norman, appellant. supra note authorities cited pertinent Okl. 10 See the terms Art. 9. For Const., supra see note 2. Gen., Henry, Atty. Robert H. Sandra D. The State’s next witness was Andrea Howard, Gen., Atty. City, Key, physician Hospital Asst. Oklahoma at Children’s City. Oklahoma appellee. Key Ms. testified that she

came into contact with D.L. and her mother they hospital. when came to Key Ms. OPINION explained performed physical that she JOHNSON, Judge: examination on D.L. Key Ms. then testi- BURKE, appellant, GARY WAYNE was fied as to what both D.L. and her mother by jury tried Degree the crime of First told her concerning the Key incident. Ms. Rape in O.S.Supp.1984, violation of 21 related that utilizing when D.L. was ana- 1114, tomically and No. CRF-87-548 correct dolls to Case show what had §§ her, in the District County. happened “opened Court of Oklahoma she the dolls’ Appellant represented pants, was penis placed counsel. took the male doll’s jury guilty vagina.” returned a verdict of it into the female Key doll’s Ms. punishment (13) set stated years appellant at thirteen im- that D.L. identified as the perpetrator. prisonment. The ap- trial court sentenced

pellant in jury’s accordancé with the ver- The State’s final witness Timothy Judgment Sentence, dict. From this Brown, City police an Oklahoma officer. appellant appeals. Officer Brown January testified that on responded he trial, to a call and

At came into Susan Little testified that contact with Susan Little. Officer January around the end of Brown she was then related his conversation with required Susan hospital to enter the for three concerning Little the incident. Officer days. hospital, While she was in the she Brown also testified concerning what D.L. children, had her sister watch her three told him about the incident. Officer R.P., Brown thirteen, C.L., age age nine, D.L., him, stated that D.L. told Gary “... Uncle age Appellant seven. was Susan’s sister’s top climbed on humping and started boyfriend. [me] Susan testified that after she on ... ... stuck his babbo inside [me] hospital was released from picked she of [me].” up the children and returned home. While they home, were at Susan noticed D.L. After Mr. testimony, Brown’s acting day, unusual. The next giving while videotape was allowed to view filmed bath, D.L. a Susan noticed that D.L. was trial, prior to describing D.L. the same holding private her saying area and that it incident City to Oklahoma Police Detective hurt, burned and itched. D.L. then told her Daniel Garcia. D.L. also used anatomically appellant mother that had hurt her. As during correct dolls the interview. The inspected, Susan she noticed that D.L.’s videotape also included another interview vagina open looked irritated and “was more conducted Detective Garcia of C.L. than what it should be.” Susan further While the record does not indicate whether son, C.L., testified her told her that he the trial court determined that the time and up night woke one while at his aunt’s content and circumstances of the statement appellant top house and observed sufficiently (22 on of were O.S.Supp. reliable B(l)), D.L. appellant object did not § playing video, fact, and in D.L. then testified. On the witness stipulated requirements that all of 22 stand, reluctantly D.L. described the inci- O.S.Supp.1986, had been met. After appellant dent and perpe- identified as the tape played jury, had been for the anatomically trator. D.L. also utilized cor- State rested. explain rect dolls happened what had her. During defense, D.L. was cross-examined. appellant testified raped that he never or touched D.L. presented

The State next C.L. C.L. testi- waking night fied as to up one at appeal, appellant while his On contends that seeing appellant aunt’s house and top on is unconstitutional D.L., “humping her.” because it violates a defendant’s Sixth as defined When the child is unavailable right to confronta- face-to-face Amendment witness, recording object 22 as a such appellant Since did in Title tion. trial, only only will statutory procedure may we be admitted there is corrobo- error. for fundamental of act. review rative evidence the statute, “Admis- challenged entitled The Initially, we note that the issue before us 12 of child sibility recorded statement admissibility only a record- concerns the as fol- age younger,” provides years of or videotaped statement of a child taken ed lows: trial. We also find a review before only apply to a highlight

A. This section shall jurisdictions from other will cases prosecution an of- in the proceeding deficiencies we find in the constitutional committed alleged to have been fense O.S.Supp.1986, 752. § (12) years age against twelve a child apply only to the younger, shall or I. other witness. of that child or statement A. recording of statement B. The an oral proceedings child made before Johnson, In 240 Kan. State if: begin into evidence is admissible (1986), the of Kansas P.2d 1169 State time, 1. The court determines that videotaped testimony presented the of a of the state- content and circumstances pursuant sexually child to abused provide ment sufficient indicia reliabil- 22-3433, a Supp. statute con- K.S.A.1985 ity; cerning prior videotaped the admission of a any party present is attorney 2. No alleged made a to be the statement child made; is when the statement among various victim of a crime. Included recording is both visual and aur- 3. The admissibility of the requirements for the videotape recorded on film or or al and is requires recording, Kansas statute means; by other electronic testify child to and that a be available capable recording is equipment 4. The under the recording is admitted evidence making recording, op- an accurate statute, any party proceeding may to the competent equipment is erator testify call the child and be cross-exam- recording is accurate and has not 3433(9)(b). Supp. ined. K.S.A.1985 22— altered; been statute, Beginning its review of not made re- 5. The statement is Supreme Court found that video- Kansas sponse questioning to lead calculated hearsay. taped constituted particular statement the child make Johnson, 729 P.2d at 1173. likewise We clearly or is shown be child’s state- videotaped testimony taken find that the solely result of a ment and made pursuant § suggestive question; leading or hearsay, as it is an out-of- manufactured court statement recording is Every voice on the iden- prove offered to the truth tified; O.S.1981, of the matter asserted. See person conducting 7. The the interview 2801(3). Supreme Kansas recording present at of the child in the admitting then noted that a declarant’s out- testify proceeding available where the of-court statements situations by any party; or be cross-examined testify does not declarant is available to party proceeding is af- Each the confrontation clause. Kan- violate opportunity to view the record- forded Supreme it critical that sas Court found (10) trial, days ing at least ten before provided for the admission statute unless such time is shortened leave of videotaped testimony only where the child shown; good the court for cause testify cross-exam- was available 9. The child either: pursuant or to another ined either court proceedings, or a. testifies at court de- statutory procedure and trial time, content and circum- 22 termined that b. is unavailable as defined Title provided suffi- of the statement as a witness. stances served, Johnson, reliability. may indicia of the trial cient court not even be Thus, implicated Supreme tape at 1174. Kansas in the recorded interview Court found their statute to be constitu- session. Id.

tional.

C.

B. Long, Since the Texas Court of Criminal Appeals State, held in Briggs v. 789 S.W.2d (Tex. In S.W.2d 302 Long (Tex.Cr.App.1990), 38.071, that Article Cr.App.1987), videotaped interview of a applied can be in a constitutional man- child, sexually abused conducted ner, Long and to the provi- extent held the Rape assistant director of the Dallas Crisis face, sion unconstitutional its on it was Center, during was admitted into evidence Briggs overruled. The court in found that State’s The child did the case-in-chief. not statutory since a requirement for the ad- testify case-in-chief; however, during the missibility videotape of a of a child victim is proceed during she called rebuttal and the testify, that child be to available it is to relate the essentially ed same facts that not violative of the confrontation clause on videotape had been the recorded on and acknowledged its face. The ap- court that previously played jury. The Texas plication may deprive of the statute well an Appeals Criminal found that the accused of his confrontation a vid- significant Texas statute authorized a de eotape admitted, though full and effec- parture procedure from trial established tive cross-examination the child should dispensing requirement with the that the prove Briggs, unattainable at trial. prosecution develop case-in-chief in its the at 922. S.W.2d courtroom, in presence judge, of the jury, and the Long, defendant. 742 S.W.2d Finally, acknowledged the court that may while statute allow State to essentially present principal its witness The court also found the elimination of twice, the not invariably oper- statute will any opportunity contemporaneous ate to allow the bolster its State to version cross-examination of the witness to be a facts. The court found Id. that the fatal problem. Long, constitutional during State could choose to call the child at 319. further S.W.2d The court held that case-in-chief, preliminary its ask a few noncontemporaneous cross-examination questions regard making with to of the properly preserve does videotape, and then tender the witness to confrontation, delay as time largely such a the defendant for cross-examination. The right. of the eliminates benefit scenario, found court that under that contempora- court found that the denial of duplicate State would neither its case nor neous tainted cross-examination the relia- stigma force the endure the defendant to bility finding process of the gave truth calling the child to stand himself. advantage. the State an unfair Id. The Id. court also found that since the child’s testi- mony during simply repe- rebuttal was II. statement, of her videotaped titious it was improper bolstering unimpeached above, of an wit- After a the cases review of Long, Finally, ness. 742 S.W.2d at 322. in we find one of the fatal flaws of 22 concurring opinion, Judge Teague found be that if the child videotaped unavailable, that interview violated the is declared the defendant will process any opportunity due clause of Fourteenth forever be denied example, Amendment of the United States Constitu- cross-examination. For Section tion, because did the trial court not have an differs from Kansas statute re opportunity to determine the competency viewed Johnson in that it does not re prior testimony the child quire testify the child to be available the testimony subject because was not under oath. cross-examination before the fact, Judge Teague tape at 328. In Id. as can ob- be admitted. the confrontation clause central concern of of the share the concerns

We also ensure the expressed Constitution Appeals the U.S. of Criminal Texas Court reliability presented against con lack of of the evidence Briggs about the Long by subjecting with such such evidence temporaneous cross-examination a defendant the ef rigorous testing Even when the context videotaped statements. the most child can be proceeding on a a trier of adversary fect of confrontation before child accurately predicted to the extent the stated that such fact. Justice O’Connor unavailable, is still it personal classed exami- testing only could be includes not recorded necessary nation, also, his giving state- but a witness necessary reliability. carry indicia oath, being sub- the witness ments under And, only be achieved believe this can cross-examination, we permitting ject to giving opportunity for the accused jury to observe the demeanor of cross-examination. statements, aid- making thus witness credibility. assessing See ing the by the fact are further troubled We -, -, Craig, 497 U.S. Maryland cases, through the in some 3157, 3163, 111 L.Ed.2d videotape, would be able use (1990). present principal its witness essentially at bar. happened the case twice. Such 752, 22 O.S.Supp.1988, does § Title testify and cross-exam While D.L. did was Craig. The not meet the test of statute ined, testimony impeached. her was never (1) oath, (2) to require the witness fails to produced an find that this scenario We (3) the subject cross-examination and be to bolstering case and improper State’s jury of the to observe the witness State, Long error. v. 742 S.W.2d See credibility and determine the demeanor 302, (Tex.Cr.App.1987). 322 statute, face, is same. The on its unconsti expresses This also concern about tutional. State, 22 possibility of the under reasons, foregoing is For this case 752, having only O.S.Supp.1986, § new REVERSED and REMANDED a damaging present its most witness trial. through a statement. We jury fairly prosecution that find it obvious LANE, Presiding Judge, dissenting: presenting have a far easier time of would years a child tender testimony analysis of the majority, The without as setting similar we had this under scope or limitation of the Confrontation It with Detective Garcia. would case of either the Oklahoma or federal testimony far easier to elicit favorable O.S.1981, constitution, 22 752 declares detective, only a social from a child with deprives it unconstitutional for defen- type questioner or other of skilled worker opportunity for cross-examina- dant of the questions any con- propounding without Cross-examination, majority tells tion. frontation or cross-examination. We must us, only way testimony to ensure protect rights of a defendant to have necessary reliability. In case indicia of this complete ability and full cross-exami- videotaped statement is not has the nation and ensure majori- of this case the and the context ability responses and the to observe the ty’s plainly declaration contra state bold of a witness. We should not demeanor jurisprudence. federal Jones v. and See present tape made with allow the State State, (Okl.Cr.1989); P.2d 781 326 Matter by expert question- questions, one-sided (Okl.1985); W.D., Mary- P.2d 1037 709 of land coach, er, gain who could lead -, Craig, 497 U.S. required result the defendant hav- without (1990). If we were 111 L.Ed.2d ing right of confron- his Sixth Amendment adopt position, this all tation. provisions Evidence Code of the Oklahoma O’Connor, unconstitutional well. Day in a recent would become Justice Sandra case, required Confron- the This result is not Supreme Court indicated that U.S. Clause, reliability indeed this does not ed hearing tation case and the re quirement invoke the Confrontation Clause. testify that the child or be de clared unavailable. Jones v. witness, D.L., complaining testified (Okl.Cr.1989). The Oklahoma Su fully and was cross-examined. Subse- preme Court likewise found Section 2803.1 by stipulation parties quently, constitutional for the same reasons. Mat of reliability the indicia set forth in Section W.D., (Okl.1985). ter 709 P.2d 1037 video-taped interview conducted recognize correctly These cases investigating police officer was admit- right to confrontation is not absolute. See appellant ted into evidence. The was not Maryland Craig, also supra; Coy v. denied his of cross-examination of the Iowa, 487 U.S. 108 S.Ct. witness, any objection and he waived (1988); L.Ed.2d 857 Mattox v. United tape. majori- introduction of the video States, 156 U.S. 15 S.Ct. ty’s concerns 39 L.Ed. about cross-examination are (1895). hypothetical certainly presented all However, here. if ap- we are to abandon very Section 752 is similar to Section issue, pellate restraint and I address this provides 2803.1. It a recorded statement is would find Section 752 is not unconstitu- time, admissible the court determines the face, subject tional on its but to limita- content and circumstances of the statement tions of the Oklahoma Evidence Code as provide sufficient reliability, indicia of regarding well as case law the admission of testifies, the child ifor the child is unavail- evidence. able there is also corroborative evidence. may perhaps Section 752 be most effec- goes 752. Section 752 tively light O.S.Supp. examined in of 12 beyond in Section 2803.1 that it sets forth 1990, 2803.1. provides Section 2803.1 for reliability six indicia of which must be fol- the admission of by a statement made recording admissible, for lowed the to be (12) years age younger child twelve or many go reliability which of the any which describes act of sexual abuse recording process itself. Since Section against allowing the child. Before the contemplate 2803.1 does not of itself the statement into evidence the trial court statement used to in the form of an must presence first determine outside the recording, provisions electronic these were jury time, of the that the content and cir- incorporated guarantee reliability cumstances of provide the statement suffi- recording process itself. reliability. cient indicia of In order for the I find no reason whatsoever make a statement to be admissible the child must constitutional distinction between the ad- testify, or if is the child is unavailable missibility relayed by of statements a wit- defined in Title there must be corrobo- ness as allowed Section 2803.1 and those rative evidence of the act. A witness is tape. same statements recorded video exempt ground unavailable he is on the Certainly powerful video is a medium privilege, persists refusing testify, which can both create and solve certain memory, testifies to a lack of has died or is presents evils. one very On hand it physically infirm, mentally or or if his at- danger manipulated real evidence will be procured. tendance cannot be The unavail- disguise and manufactured to the truth. ability must not be due to an act of the hand, gives On other it

proponent purpose of the statement for the opportunity judge to see the declarant preventing attending the witness from credibility. first hand the declarant’s O.S.1981, testifying. or 2803.1 very evidence, Section has withstood the any Like admission of a record- challenge constitutional now aimed at Sec- ed statement under Section would be tion 752. This subject Court has determined Sec- to other limitations of the Evidence tion 2803.1 does not violate a criminal de- Code. The mere fact it satisfies the re- right confrontation, fendant’s quirements guaran- for the of Section 752 does not relevant, trustworthiness of the protect- statement is tee admission. It must be and it manufacturing hearsay testimo- cedure or offered for not be cumulative must which ny of confrontation without improper purpose. If afforded Section 753. Section present appellant In the case the scrutiny it constitutional could withstand by failing error all but fundamental waived potentially protections would subvert lodge contemporaneous objection, applied Ship- provided in 753 as Section admissibility of stipulating to the in fact parte an ex It would in effect be man. videotape under Section Review- persons deposition deny could which only, I ing error would for fundamental confron- charged a crime the with videotaped inter- find the admission of of their accusers. tation tape, reversible error. was not view hearsay” I use the term “manufactured fact, by stipulation and satisfies forth in Section procedure set because admissibility conforming to threshold of totally foreign to the historical foun- 752 is reliability required by Section the indicia recognized exceptions to dations videotape largely cumu- 752. While Therefore, must review hearsay rule. we testimony, its admission lative of D.L.’s allowing ad- underlying basis was, most, harmless error. into evidence missibility what otherwise judgment affirm the and sentence. I would or it whether not violates evidence and or Federal Confrontation LUMPKIN, Presiding Judge, Vice Constitutions. Oklahoma specially concurs: dispositive Supreme U.S. Court by the I in the reached concur results analysis Wright, on this issue Idaho v. case, however, agree I in this do U.S.-, 110 S.Ct. 111 L.Ed.2d legal supporting the deci- analysis with (1990). At was whether a child issue sion. victim’s statement admitted under Idaho’s agree Mary- I the decision While exemption de- violated a residual -, Craig, 497 U.S. land v. In rights.1 fendant’s Confrontation Clause (1990), provides in- 111 L.Ed.2d 666 finding rights had the defendant’s questions sight legal presented, into the violated, analyzed the been the Court substantially in is differ- the issue this case determining in factors to be considered at ent. Three Oklahoma statutes are issue hearsay admissibility of evi- whether the 753; 22 O.S.Supp.1984, in this case: 22 § violate the Confrontation Clause. dence will 752; O.S.Supp. O.S.Supp.1986, and 12 § Citing Maryland Craig v. the Court 1986, 2803.1. § recognized that “the [Confrontation] interpreted 22 recently has This Court permits, necessary, where the ad- Clause 753, conjunction O.S.Supp.1984, in with § hearsay mission of certain statements Maryland Craig forth in v. the criteria set against despite the a defendant defendant’s 753 is and determined that Section constitu- at inability to confront declarant trial”. Shipman 816 tional on its face. However, excep- these 110 S.Ct. at 3146. (Okl.Cr.1991). At the same 574 Craig Maryland limited. Both tions are time, “adopt[ed] procedural require- we to the U.S. Su- Wright and Idaho v. cite Craig in toCoy set forth and ensure ments pe- preme early Court’s discussion of the provisions ap- 753 are that the of section in right of the of confrontation rimeters in a constitutional man- plied consistent States, Mattox v. United U.S. ner”. Id. (1894). In S.Ct. 39 L.Ed. 409 Mattox the Court stated: requires the issue in this case The O.S.Supp.1986, primary object of the constitution- 752 and to review prevent question al in was to provision 2803.1. Section 2803.1 is affidavits, depositions parte or ex such specialized hearsay of ex- the enactment in civil ception the Oklahoma Evidence as were sometimes admitted within effect, cases, against prisoner pro- being used enacts a Code. Section O.S.1981, 2803(24). substantially is the same as 1. The Idaho statute personal exceptions examination and cross- nized there were of lieu of a witness, of the in which the confrontation. examination only opportunity, has an of accused analysis This continued Califor- sifting testing the recollection and Green, nia v. U.S. 90 S.Ct. witness, compel- of the of conscience but (1970). 26 L.Ed.2d 489 again Once ling him to stand face to with the face admissibility preliminary issue was of the him, jury they may in order that at look hearing testimony of one of the State’s upon the judge his demeanor pursuant witnesses to a revised of section gives stand and the manner in which he the California Evidence Code which testimony worthy whether he of his is adopted minority regarding view the ad- There is belief. doubtless reason missibility hearsay statements. The saying that the accused should never lose Supreme U.S. Court stated: any safeguards the benefit these The issue before us is the considerable witness; even death of the narrower one of whether a defendant’s that, permit- if notes his are constitutional “to be confronted read, deprived ted to he be against with the witnesses him” neces- advantage personal presence of that sarily inconsistent with a State’s decision the witness before the which law change hearsay its rules to reflect the designed protection. has for his But minority view described above. While it general kind, rules of this be- however may readily hearsay be conceded that operation neficent their valuable rules and Confrontation are accused, occasionally give must generally designed protect similar val- way public policy considerations ues, quite sug- it is thing different say necessities of the To case. gest overlap complete criminal, having that a after once been nothing that the Confrontation Clause is by the testimony convicted of a certain more than a or less codification witness, go simply should scot free be- rules of and their exceptions as cause death closed the mouth they historically existed at common law. witness, carrying would be his constitu- Our decisions have never established protection tional to an unwarrantable ex- congruence; indeed, such a we have tent. law its wisdom declares once found a con- more than violation of rights public that the shall not be though values even state- frontation wholly sacrificed in order inciden- that an ments in issue were admitted under an may preserved tal benefit ac- recognized exception. arguably 242-243, cused. Id. at 339- omitted) (Cites equally The converse is merely true: because evidence is admit- long-established ted in of a violation in recognized Mattox that the Court hearsay rule does not lead auto- right of confrontation under the Federal matic that conclusion confrontation Subsequent- is not Constitution absolute. rights have been denied. Texas, 403, 400, ly, Pointer v. 380 U.S. 85 1065, 1067, (1965) 923, 13 similarity pro- S.Ct. L.Ed.2d 926 of Given the the values right tected, however, held that the “Sixth Amendment’s of of the modification a to hearsay an accused confront the ex- witnesses State’s rules to create new against right ceptions him likewise a fundamental the admission of evidence obligatory by defendant, against and is made on the States the raise a will often questions compatibility Fourteenth Amendment”. de- defen- The Court of with the right in that case that error termined it was to dant’s constitutional to confronta- transcript questions of require utilize a a witnesses tion. to Such attention for, of, hearing scope from a where the defendant was the and the reasons basic by represented attorney protections by not an and afford- offered the the Confronta- 155-156, complete adequate opportunity ed a to tion Clause. Id. 399 at U.S. 90 cross-examine; however, recog- again it S.Ct. at 1933-1934. use statement it wishes to recognize the clarant whose on to “that went

The Court omitted) (Cites impetus against to gave the defendant. particular vice practice try- of claim was the confrontation aspect operates once a wit- The second consist- ing on ‘evidence’which defendants Reflect- ness is shown to be unavailable. deposi- solely parte of affidavits or ed ex augment underlying purpose to ing its magis- examining secured tions fact-finding process accuracy in the trates, denying op- thus the defendant ensuring an effective the defendant challenge in a face- portunity to his accuser evidence, the to test adverse means in front of trier of encounter to-face only hearsay Clause countenances It Id. at 1934. was fact”. at marked with such trustworthiness statute was not that the revised determined departure from the “there is no material the Sixth Amend- invalid on its face and (Cites general omit- reason of the rule”. pre- the admission of ment did not bar ted) 2538- at 100 S.Ct. at U.S. However, liminary hearing testimony. court for was remanded to the State case Supreme Court enunciated The U.S. previously questions of not ad- review “primary object Mattox the [Con- dressed. prevent deposi- frontation was to Clause] in-depth analysis regarding the ad- An being parte tions or ex affidavits” from missibility hearsay a defen- evidence and person charged with a against used a right Confrontation dant’s under effect, crime. Section creates Roberts, Clause was rendered in Ohio v. parte procedure “deposition to or ex take 2531, 65 448 U.S. 100 S.Ct. L.Ed.2d against to be used accused. affidavit” (1980). Court, cases, in a series of “This This procedure runs contra the basic sought compet- to accommodate these has of the Confrontation Clause foundations ing [public policy v. of con- interests type state- discussed Mattox. True to the common-lawtradi- frontation]. taken, sought is hear- ment to be while it gradual, tion, process building has been say, type not the can which decisions, drawing experi- past on on new exception qualify as ence, responding changing condi- light analyzed confrontation when sought ‘map tions. The for the historical foundation established theory out a Confrontation hearsay. exemption types of certain validity of all that would determine the ... Therefore, section 752 violates Confron- “exceptions”.’ v. California the Sixth tation Clause of Amendment Green, 90 S.Ct. at U.S. on its face re- the U.S. Constitution when general approach 489. But a L.Ed.2d set in accordance with the criteria viewed problem 448 U.S. at discernible.” States, v. forth in Mattox v. United Ohio 64-65, 100 S.Ct. at 2538-2539. Roberts, Wright. v. Idaho analysis Our of Section 752 must include Legislature has created The Oklahoma Roberts, criteria established Ohio v. separate exception Hearsay Rule in De (adopted Vooght this Court years younger statements children 12 or State, (Okl.Cr.1986); New (Okl.Cr.1985)) describing physical acts of abuse or sexual 695 P.2d 531 bury O.S.Supp.1990, 2803.1. Wright: contact. See applied in Idaho v. specifi Section 2803.1 was enacted operates The Confrontation cally extrajudicial to admit statements separate ways range to restrict the two exception as an children First, hearsay. of admissible in conform- W.D., rule. In the Matter See preference ance with the Framers’ (Okl.1985); (Whin Okla.Evid. accusation, the Amend- face-to-face Sixth ery) Supp.1991, Supreme 168. The U.S. necessity. In ment establishes rule Court in v. determined (including Green the usual case cases where California adoption minority occurred), legislative of a prior that a cross-examination exception Hearsay did not prosecution view Rule produce, must either or of, rights unavailability Amendment on its face. the de- violate Sixth demonstrate styled legislated exceptions hereby deal above and numbered cause is Each of these comport with the WITHDRAWN. statements which with hearsay, view of admissible i.e. traditional IT IS SO ORDERED. made in the normal course of statements /s/ James F. Lane procedure part not a of a events and JAMES F. LANE preserve the statement for use at trial. Presiding Judge opportunity an Section 2803.1 affords Gary Lumpkin /s/ admission of true statements GARY LUMPKIN addition, years younger. In children or Presiding Judge Vice applied in accord- /s/ Tom Brett Shipman, our affords ance with decision TOM BRETT opportunity protect a child witness Judge facing from the trauma of a defendant at /&/ Ed Parks already Ship- trial. We have determined PARKS, ED 753 is valid on its fact. man that Section Judge facially Section 2803.1 is also valid. /&/ A. Charles Johnson JOHNSON,

CHARLES A. Judge PROBST, Appellant, Franklin William Roy Judy PROCTOR and Oklahoma, Appellee. STATE Proctor, Appellants,

No. F-89-987. CAUDILL, Individually, Tom Appeals Court of Criminal of Oklahoma. Dale L. Frederick, Individually, and Precision Nov. 1991. Manufacturing Company, Machine and Corporation, Appellees. an Oklahoma ORDER GRANTING PETITION FOR REHEARING No. 75803.

The State of Oklahoma has filed a Peti- Rehearing asking tion for that the Court Oklahoma, Appeals Court of clarify language certain set forth in the 3. Division No. opinion September handed herein on down 9,1991. November, day Now on this 1st May 1991. 1991, having examined the Petition for Re- Rehearing July Denied

hearing filed the State of Oklahoma in Certiorari Denied Dec. styled cause, the above and numbered being fully premesis, advised in the this finds that clarification of certain lan-

guage concerning statutory construction is be,

necessary petition and that the should hereby GRANTED. required The clarification does not change disposition the ultimate of the case.

However, unnecessary to avoid confusion original opinion handed down

Case Details

Case Name: Burke v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Nov 1, 1991

Citation: 820 P.2d 1344

Docket Number: F-87-975

Court Abbreviation: Okla. Crim. App.