Dunham v. State, 762 P.2d 969

Dunham v. State

762 P.2d 969

Okla. Crim. App.

1988

Check Treatment

*1 (Okla. State, 681 P.2d Freeman v. appel

Crim.App.1984). reference falls within escape by Officer Evans lant’s all, characteristics of an many, if not evidentiary harpoon as set forth Bruner (Okla.Crim. P.2d App.1980). improper Because this testimo jury in their

ny may have influenced the punishment, taking into assessment of appellant’s prior felony con account seven victions, modify I would his sentence (60) years.

sixty DUNHAM, Appellant, James T. Oklahoma, Appellee. STATE of No. F-85-798. Appeals Court of Criminal of Oklahoma. Sept. 1988. Rehearing Denied Oct. *2 Barrett, Sp. Counsel, Appellate

Mark Office, Norman, ap- Public Defender’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pellant. Gen., Henry, Atty.

Robert H. M. Caroline *3 Emerson, Gen., Atty. Asst. City, Oklahoma appellee. for

OPINION

BUSSEY, Judge: Dunham, appellant, James T. in the convicted District Court of Pottawa- CRF-85-74, County, tomie Case No. Sodomy, Against three сounts of Crime Nature, Attempted and one count of Sod- Against Nature, omy, Crime all After For- mer Conviction of Two or More Felonies. He was imprisonment sentenced to for to- years tal consecutive terms of 100 brings appeal. this The facts disclosed the record reveal charges, four-year- that the victim of the a boy, sucking boy’s old was seen another penis by day care workers. When asked way, he had learned to act that how responded, “Daddy my pee-pee, sucks Daddy says alright it’s and not to tell Mom- my.” picked up by

The child social work- County er and a Pottawatomie Juvenile Officer, who discussed the incident with taped the child and took a video statement. placed The child was thеn a foster home. parents both was on a super- Visitation only. vised basis later, two months the child was About go parents’ house to cele- allowed to to his birthday. After he returned to brate his home, his foster mother noticed foster experiencing that he was discomfort. wrong, she asked what was he told When daddy attempted copula- her that his had per anus with him. The foster mother assigned worker to the contacted the social contacted, police a second taken, ap- taped video an information proximately one week later charging misconduct by jury, 886 was filed. After conviction appeal perfected. error, appel- assignment of As his first dis- instructions to lant seeks reversal with remaining issue is testi- as above discussed. grounds that the child’s miss on the distinguish could truth only incriminating evidence whether this child mony was the Although competent. was not from fiction. he showed some trial, assignment, appellant during first confusion the child in this support of points affirmatively recognized no oath was out that administered case making up he took at the time the stand stories. punished would be response not that responses judge trial. The State’s satisfied the The child’s Rather, the State administered. oath was that the was reliable. Determi- sequence questions asked competency relies on nation a witness’ already court after child had trial judge, a matter for the trial of discretion testimony in the casе in given his State’s determination will be dis- *4 chief. party asserting turbed unless the error shows a abuse of discretion. Lancas- clear regarding requirement The law State, (Okl.Cr.1975). ter v. P.2d 1343 541 gener testify under is that a witness oath Appellant make such has failed to a show- applicable in this State. The ally very clear by ing, and to abide the trial we are bound 2603, states, is 12 O.S.1981 which statute § judge’s decision. required “Every shall be to declare witness truth testifying that will Appellant that er- next asserts reversible before added). ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍However, (emphasis it fully, ...” testimony ror occurred when certain was may settled that defendant First, also well received in evidence. ob- right his to have the witness sworn waive jected a line of cross-examination objection thе defendant raised no where past of concerning State homo- knowledge irregularity, despite trial sexual conduct court appeared the witness as a de and where objection did overruled the but not state State, Keeney v. 53 Okl.Cr. fense witness. any Appellant argues reasons. that 1, (1932). 6 P.2d 833 remarks not admissible under 12 were O.S. 1981, asserts 2404. The State that the § in this ini- Althоugh the child case was questions merely line of used to im- were witness, appellant tially called as a State’s peach credibility of the during his in chief recalled the case under 12 were therefore admissible O.S. objection concerning the fail- and raised no argument 2609. Neither is well § an oath the child. ure to administer made. this, hold that From we right and cannоt assert it

waived his now First, recognized it must be Furthermore, as for reversal. grounds rulings of evidence are to be on admission having found waiver of oath and find- resolved in the sound discretion the trial appellant did actually confront prejudice court. or breach de Absent witness, appellant’s assignment related rights, fendant's fundamental this Court his alleging violation оf Sixth Amendment ruling. Cooper will not disturb the v. rights basis. is without State, 671 1168 P.2d Code, Appellant further to the Evidence Title O.S.1981 objects may grounds 2104.A.1, error on the that the states that not be child’s § incompetent testify. predicated on the admission evidence child was Under persons right party unless a as presumed all are substantial O.S.1981 § serting testify. error has been affected a time cоmpetent to Hicks v. grounds (Okl.Cr.1986), ly objection stating specific ap held this Court record, pears specific grounds on competent child’s but that a they apparent need not if are it ascertained that she could be stated where was fiction, oath, Objection from from the was raised in distinguish truth took an context. grounds personal that she had but the stated. and demonstrated ques grounds apparent are from the knowledge of the crime. There is no Unless the context, predicated case had no error on whether personal knowledge. The oath was waived admission evidence question consistently. The context of the not tell a lie This was all to 2104.A.1. evidence, bolster the child’s which had pоssibilities of other crime raises evidence, attacked of been defense. general character evidence habit, evidence, hearsay oth- and host of Appellant argues just prosecu- aas conference, an off-the-record ers. After guilt tor’s comments or innocence is objection generally overruled. No error, fundamental Cobbs v. objections further were raised on this line (Okl.Cr.1981), P.2d 368 a State’s witness’ questions. opinion of the child’s truthfulness in this should as case be viewed fundamental er- this Court cannot ascertain Because argument support ror. The is without grounds objection, for the it will not be assignment without merit. This does not error addressed unless fundamental reversal. warrant Appellant asserts that under shown. Davis Appellant next asserts that testi fundamental error occurred because the mony concerning was taken his exercise of proof it had State insinuated that extra privileges. correctly Fifth Amendment showing neous activities without Ohio, states Doyle that under 426 U.S. believing that there a sound basis for (1976), 96 S.Ct. 49 L.Ed.2d 91 *5 case, the to be true. that post-arrest silence not im be used to however, there error occurred because was peach However, testimony. defendant’s prosecutor’s implications proof no of clear nothing suggests there is in this case that conduct, prosecutor re appellant that was under arrest. Even if accept to the defendant’s denials of fused were, the error was waived when no conduct. In this an inference of such objection raised. was Boomershine v. illegal conduct came from the fact that the (Okl.Cr.1981). State, 634 P.2d 1318 proba questions concerned information in a complains Appellant that the report. Appellant tion admitted on the prosecutor attempted to assassinate the probation the stand that officer had inter A character of defense witnesses. jail. appellant him in viewed When denied any may be cross-examined as to matter ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍making the statements contained in the tending prejudice to show bias or or cir report, prosecutor the clarified what exact one cumstances under which would be ly being dropped and mat was denied the tempted falsely. to swear Pannell v. Thus, proof ter. there was at least some (Okl.Cr.1982). State, 640 P.2d 568 Further conduct and there was miscon the no more, scope limit of cross-exami the on the by prosecutor. duct the Because of the judge’s the trial nation is a matter for Davis, distinctions this case and between disсretion, granted and reversal will be and because cites no other au showing only on a of clear abuse discre error, thority point on to show fundamental prejudice to the defend tion and manifest assignment this Court will not review this (Okl.Cr. State, ant. v. Hall appeal. on 1985). In this the State was allowed defense witnesses had Appellant asserts also that use оf to show that some opinions concerning investigated by Department several witnesses’ been truancy problems with child’s truthfulness reversal. Human Services for warrants children, improper that it for a their and those defense witnesses While it is true long friends of We give opinion witness to on whether a were time innocent, allowing guilty or no clear of discretion defendant is Daniels v. see abuse State, (Okl.Cr.1976), nothing more than testimony. this is not It did against the and in fa such a case. The witnesses in this case did establish bias State they appellant. Cross-examination also give any opinions not as to whether vor of thought appellant guilty. They merely brought out that and his wife was This, too, spouses. es impressions of the child’s were common law related their bias, question testimony and the manner of expert truthfulness. Other was tablished pre- four-year-olds generally go beyond did not the bounds elicited that could 974 memory, Further of his in 12 2611. cause lack not because

scribed § more, prior objection no raised he remembered his statement and there was might prior prop- it. appellant, any еrror that have refuted The and erly O.S.Supp.1984, 672 12 waived. v. introduced under occurred was Hill 2803.1, denied, having 465 the court determined P.2d 308 cert. reliability indicia of and S.Ct. 80 L.Ed.2d it carried sufficient U.S. having testified at the trial. Appellant also attacks the verdict testimony When child’s at trial failed insuffi II of the Information for on Count statement, prior the most that reaffirm If, reviewing ciency of thе evidence. after ques- happened could have create a light in the most favorable to the evidence concerning credibility. the child’s tion any prosecution, rational trier fact testimony of other State’s witnesses was have elements of could found essential jury, jury’s determina- before beyond charged crime a reasonablе the witnesses doubt, then this Court will not disturb the v. should be disturbed. Rice insufficiency. Virgi verdict Jackson (Okl.Cr.1983). P.2d 233 Under the Jackson nia, 443 U.S. 99 S.Ct. 61 L.Ed.2d cases, Spuehler this court declines to (1979); P.2d 202 Spuehler reverse conviction on Count II. charge count anus, attempting copulation per Appellant asserts that reversible attempt which such defeated in the of testimo error occurred admission stepfather. inability penetrate child’s ny prior others of the child’s state supporting The evidence conviction includ ments. reasons statement, video-taped ed the child’s time that was rendered inadmissible at the people of two who had gave testimony inconsistent with *6 through learned the conduct child. point again first those statemеnts. We out when, trial, problem The arose at accuracy of that the child did not refute the he could testified that not remember that prior simply his He had a statements. happened. Appellant the event had ever memory lapse trial. under strain of relies on 446 P.2d 64 Weaver incomplete, The not incon proposition prior for the sistent. inconsistent statements a witness cannot a It has been noted children have as evidence. He be considered substantive generally poor sense of time and often memories_ further reasons that since the child was the poor charac- have These at only present witness the time in especially problematic teristics are alleged acts, trial was his experi- light children’s limited most only competent to convict. evidence understanding things as ence and of such subject- When a child is sexual assault. might appellant's argument While and stress of physical ed to emotional persuasive appropriate in an we do be investigatory proce- the usual and trial Weaver, not believe that this is one. dures, problems in child tes- inherent prior testimony of the wit inconsistent timony are intensified. In a stressful conviction, ness was essential for and the situation, regress to a a also objected prior to use state defense state, increasing thus his less mature ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍any purpose impeach for ments other than inability effectively to communicаte requested ment and instruction it. events. acknowledged having made Meiring, in prior Maye Child specifically statement de Witness Prosecutions, 56 untrue. In this the Abuse O.B.A.J. clared that it was (1985). support knowledge testimony to unexplained child had of unnat Other prior improp- not the child’s ural and sexual conduct. had competent erly perfectly It consistently related that he had learned of admitted. memory, gaps fill in of the child’s experienced it. When at to it because he had a trial was be- failed under the stress of again, trial he failed to it which stepfather. Even if it felony convict his own crime is a misdemeanor or a competent, the error was waived Oklahoma law. not appellant’s timely objec fаilure to raise a Therefore, counts, having all been de- (Okl. tion. Bristow v. nominated as crimes “After Former Con- Cr.1982). Felonies,” viction of Two or More will be reversal, grounds appellant

As a final for reduced to crimes “After Former Convic- grounds seeks a new trial on the that he Felony.” Furthermore, the sen- competent representation by did receive imposed tences therefore will be reduced as Supreme I, counsel. The Court Strickland follows: Sodomy, Against Count Crime Nature, Washington, 466 U.S. S.Ct. sentence reduced years from 25 (1984) 10; II, 80 L.Ed.2d 674 set forth a Count Attempted Sodomy, two Crime Nature, Against pronged years years; test to determine whether coun- from 20 First, III, performance requires Sodomy, Against Nature, Count sel’s reversal. Crimе years IV, from 25 years; to 10 per- must show that counsel’s Count Second, Sodomy, Against Nature, formance Crime from 30 was deficient. years years. to 10 probability must show reasonable deficiency, for but the result of the judgment of the trial court as MOD- proceedings would have been different. IFIED is AFFIRMED. Appellant raises several instances which object, he claims counsel failed to or failed BRETT, P.J., concurs in results. arguments. to make certain After a re- PARKS, J., dissents. record, view of the some of these instances PARKS, Judge, dissenting: occur, others, simply did not if all, respectfully deficiencies at I majority’s were not such as would dissent to the disposition appellant’s probability assign- show a reasonable of a differ- second ent rеsult. This ment of error. It was reversible error Court has said that trial testimony regarding the trial court to allow strategy counsel’s conduct and should not appellant’s past sexual guessed behavior under 12 be second with the benefit of hind- O.S.1981, 2609. sight. Johnson v. nothing We find in counsel’s Section 2609 of the Evidence Code allows conduct strong which would overcome the impeached by for a witness to intro- *7 presumption provided that counsel reason- past duction of criminal In convictions. assistance, professional Strickland, able present appel- as to

supra, granted and reversal will not be possible homosexuality lant’s was not even assignment. remotely any past connected to conviction objеcted Defense counsel Appellant seeks a reduction of his questions regarding appellant’s the line of jury sentence improperly because the possible homosexuality, but was overruled. allowed to consider a former conviction for Neither was such evidence admissible un- punishment. argues enhancement of 2608(B). 2608(B) der Section Whilе Section tampering that a conviction for with a mo specific allows for cross-examination into Rev.Stat.Mo., vehicle under tor 560.161 conduct, questioned instances of con- (1969)was a misdemeanor under Oklahoma probative duct must of the witness’ ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍comparing After law. elements of the Appel- truthfulness or untruthfulness. against Missouri offense possible homоsexuality lant’s has no bear- required by 1787 and 1788 as Fischer v. §§ or on his for truthfulness we find untruthfulness. merit, argument to have and modifica Furthermore, tion of highly the sentences warranted. The such argument felony light State’s that it was a prejudicial appellant especially length charged. without merit because the This the crime with which he was Court, imposed sentence under Missouri law is not 688 P.2d Tobler proper determining (Okla.Crim.App.1984), the defend- basis for whether a reversed mis- prosecutorial conviction due to ant’s made prosecutor re-

conduct wherein the possi- peated references to the defendant’s homosexuality. addressing these ble comments, we stated:

However, we find not a semblance The con- relevance to tha.t discussion ... appel- is clear that clusion probative no homosexuality served lant’s whatever, only served purpose jury. inflame the In the instant such evidence served passions purpose no but to inflame the jury. Accordingly, I would reverse remand case for a new trial. BEIHL, George Appellant,

Fredrick Oklahoma, Appellee. STATE No. C-86-832. Appeals Court of Criminal of Oklahoma. Sept.