Lead Opinion
Lynn Eddings, аppellant, was tried by a jury for the crime of Assault and Battery with a Dangerous Weapon in violation of 21 O.S.Supp.1982, § 645, in Case No. CRF-86-55 in the District Court of Coal County. The jury returned a verdict of guilty and assessed punishment at one (1) year imprisonment in the county jail which the trial court imposed. From this Judgment and Sentence appellant has perfected his appeal to this Court.
Around 11:00 p.m., on the evening of May 31, 1986, Brian Keith Hedgecock, the
At the time of this incident, appellant was seventeen-years-old, therefore, a certification study was apparently ordered by the district court.
In his first assignment of error, appellant argues that the prosecution made an improper comment in his opening statement. The рrosecution stated: “Barely missing this area of the head, Dr. Veintem-illa will testify, that if that blow had been within another inch or two inches lower in the temporal region of the head, we would have had us another dead child in this county.” Appellant contends that the prosecution was alluding to a highly publicized case рrosecuted in Coal County just four months prior to appellant’s trial. In that case a young man was killed by a blow to the head with a baseball bat.
The purpose of the opening statement is to apprise the jury of the evidence the attorney expects to present during the course of the trial. This Court hаs held that comparisons with other unrelated offenses is improper because such comparisons tend to unnecessarily inject fear and pаssion into the proceedings. Henderson v. State,
In the case at hand, defense counsel did make a timely objection to the statement made by the prosecution which the trial court properly sustained and also admonished the prosecution to not discuss facts outside of the case. Although the statement may have bеen improper, the reference to the other case was not as readily apparent in this case as it was in Henderson and any error was cured by the trial court sustaining the objection. Henderson v. State,
In his final assignment of error, appellant asserts that the trial court еrred in admitting statements made by him and a defense witness to police officers in violation of 10 O.S.Supp.1982, § 1109(A). After Hedgecock, the victim, reported the incidеnt to the sheriff’s office, the officers took statements from Hedgecock, Ennis, and appellant. Each of the statements were taken at the station and it appears that none of the parents of these three young men were present during the questioning. All of the statements, however, stated that appellant was not present when Hedgecock was hit in the head; even Hedgecock’s statement does not name appel
Title 10 O.S.Supp.1982, § 1109(A) reads as follows:
No information gained by questioning a child nor any evidence subsequently obtained as a result of such information shall be admissible into evidencе against the child unless the questioning about any alleged offense by any law enforcement officer ... is done in the presence of the parents, guardian, attorney, or legal custodian of the child_ (emphasis added).
The Oklahoma Supreme Court held in Matter of W.D.,
As to appellant’s statement, we agree that at the time the statement was given he was still a child in the statutory meaning of the term. He was not certified to stand trial as an adult until after the interrogation. In this situation,
However, this does not mean that the statement was not admissible under the situation presented by this case where the State did not offer the statement in its case in chief but rather used it as impeachment of appellant when he testified. The statement was inconsistent with his testimony. Title 12 O.S.1981, § 2613 permits prior inconsistent statements to be used for impeachment. We held in Boling v. State,
[Statements inadmissible against a defendant as part of the prosecution’s case in chief, because of lack of procedural safeguards, may be used for impeachment purposes to attack the defendant’s credibility. Harris v. New York,401 U.S. 222 ,91 S.Ct. 643 ,28 L.Ed.2d 1 (1971).
Therefore, we hold that the statement was admissible as impeachment evidence against appellant and this assignment fails.
Finding no reason to reverse or modify appellant’s conviction, the judgment and sentence is AFFIRMED.
Notes
. The record does not reflect a specific order by the district court for a certification study, however, a copy of the report was filed with the district court on August 18, 1986, and is part of the original rеcord in this case.
Concurrence Opinion
concurring in results:
I concur in the outcome of this case. However, I write separately because I am disturbed by the majority’s decision that the information gained from appellant may be used for impeachment purposes. The child in this case deserved the special protection affоrded by 10 O.S.Supp.1982, § 1109(A). This interpretation is directly contrary to the legislative purpose in drafting Section 1109(A). The phrase “[n]o information gained by questioning ... a child shall be admissible into evidence against the child” does not refer to statements only used in the State’s case in chief, but rather to all statements made by the child outside the presence of the parents, guardian, attorney, or legal custodian.