*1 ing. finding, was based on a nal conduct that ruling closely His occurred so in time Edwards, pursuant supra, that an eviden- the trial court would have known tiary hearing question of certifica- it at the time the certification hear- unnecessary petitioner tion was because the have would been conducted. failed to a valid reason to believe state Only those crimes which occurred have been denied. certification would the time when that certification 1966, 1, July petitioner hearing may would have been held be con age, he years sixteen of was convicted of in determining whether or sidered not the a Motor the offense of Unauthorized Use of individual would have been certified. Con Vehicle. Prior to that time he had been sequently, petition consideration training sent to a state school. The sen- subsequent conduct, er’s criminal four imposed split tence originally sen- conviction, after his months tence, years suspended, part with 2½ and as IT IS THE THEREFORE ORDER OF of plea negotiation at COURT that the trial THIS court’s order entered, guilty plea was an additional dismissing petitioner’s application charge forgery dismissed. sus- post-conviction relief in Case No. 4458 is pended portion the sentence was subse- hereby pursuant REVERSED to Edwards quently hearing after a Novem- revoked State, supra. court is district direct- 9, 1966, ber the court when found evidеntiary hearing ed to conduct an on the petitioner had committed the crimes of post-conviction application in accordance child and carrying molestation a blank .22 provisions order, this and to pistol. caliber findings enter of fact and conclusions of question petition- here whether the required O.S.1971, law as 1084. § showing made a sufficient to warrant WITNESS OUR HANDS and the Seаl of hearing. the evidentiary this day February, Court this 27th 1981. While the found that “. . . all court evi- TOM J.P. dence bearing on issue of whether certi- BUSSEY, J., fication be may would have occurred con- HEZ J. dissents. Court, sidered by including subsеquent CORNISH, TOM R. J. criminal in close activity proximity time defendant,” and prior juvenile record of the
we do agree with the court’s considera- petitioner’s subsequent tion of revocation to evidentiary determine the issue hear- ing. This not have should been considered
by the court for reason that the offense in the resulted revocation occurred in Larry GODWIN, Appellant, Paul 1966, Novеmber four months after the 1, 1966, conviction. Oklahoma, Appellee. The STATE of indicates, opinion
As the Edwards males without convicted a certification F-79-417.
hearing opportu be must now affоrded an Appeals Court of Criminal of Oklahoma. nity for the court district to determine they whether have been certified to March 1981.
stand trial for voidable conviction. The As Corrected Mаrch 1981. “subsequent criminal occurring misconduct proximity close in time”1 determining considered in whether certifi
cation would have resulted to crimi- refers
1. Edwards v. p. *2 McCarthy, H. Asst. Public Defend-
Frank Tulsa, Gen., Cartwright, Atty. Michael Jan Eric Jackson, Gen., Oklahoma, Atty. Asst. appellee. City, Oklahoma
OPINION
CORNISH, Judge: charged appellant Shooting with Intent to Kill and crime Battery with was convicted of Assault and Deadly Weapon the District Court a Oklahoma, Case CRF- County, Tulsa set at ten 78-1785. Punishment was imprisоnment. of a barroom The conviction arose out Lounge in incident at the Friends Oklahoma, appellant on wip- manager’s attention attracted everything his fingerprints learning patrоn touched. After handgun, appellant carrying a called. Carl Vance police were Officer Kime, responded Jr. the call. When himself as an officer asked identified bar, place his hands struggle front ensued. Near the door jerked away, shooting uniformed officer the chest. The vest, body protector wearing personal injury a sustaining as the red thus abrasive area tо chest.
I. error is the
Presented as the first
admitting testimony
trial court’s
upon being
indicated that
ad
have contributed to
warnings
vised
the appel
Considering
the conviction.”
the fact that
lant
remain
assertеd
silent.1
appellant Godwin testified in his own behalf
appellant:
Two
relied
cases are
having
carefully reviewed the entire
Brown v.
record, we must conclude that this is
“a
*3
State,
(Okl.
v.
the appellant’s rights constitutional protected jury and to inform the II. surrounding facts arrest. Additional error predicated is upon argues that the two cases relied the trial court’s extra-judi admission of an by distinguishable are in cial identification of the appellant by Offi that both involve the cross-examination of cer through the testimony of Officer defendants on their failure to make a state- Temple. Following incident, the barroom ment present to trial. The case con- fled the scene foot. He police cerns a testimony officer whose re- was subsequently apprehended and trans flects election to invoke the ported by Officer Temple back to the being to remain silent after read the Lounge. There Officer Kime made warnings. identification of the We agree contentiоn State, Hill v. 500 P.2d 1075 by that testimony prosecu elicited relied on rule that the testimony of tor However, we must further a third party extra-judicial to an identifica find that the error was harmless in view of tion of а by person defendant another disposition our assignments of similar inadmissible. State, error Holdge in v. (Okl. Cr.1978) Youngs v. City 563 special In a concurring opinion to Hill v. (Okl.Cr.1977). P.2d 156 In those eases this State, supra, Judge recоgnized Simms Court found the error was harmless because in minority Oklahoma was in adhering testify defendant elected to in his own State, the rule laid down in Cothrum v. behalf. 379 P.2d 860 That case held brought by prosecu
Dispоsitive assignment of this is McGaha tion in State, extra-judicial chief an (Okl.Cr.1971), 492 P.2d identifica 1101 in tion is inadmissible and we held in a situation where reversi a de ble fendant error. The reasoning failed to take the stаnd that Cothrum was Towning State, error doctrine of modified in Hill and Cali 521 fornia, 386 U.S. 87 (Okl.Cr.1974), L.Ed.2d so that an eyewit (1967), apply because there is ness no to a crime can testify now that he “reasonable possibility that extrajudicial made an identification of the Gerald, 1. The you elicited from Q. made the statement that he Temple on direct examination was rather nonchalant? (Tr. 58) Uh-huh, was: just reply rights A. in his to the waiver, anything. because I didn’t ask him Having rights mind, Waiver No. these 2— words, just In you other Q. said no? do wish talk to us? said, Right, you I A. respond “Do want to talk about Did he Q. A. to that? (Indicating), it?” negative And he went reply. like that Just a kind negative type response. What Q. do? nonchalantly A. He nodded. Temple cross-examination Officer stated: (Tr. 61) Syllabus enth to Williams v. 542 P.2d Towning indi- Hill Both defendant. (Okl.Cr.1975): cate, Washington v. as reflected in although an hearsay is where The clearest case extra- testify trial to an eyewitness can to the declarations of witness testifies identification, this can be done judicial purpose proving another witness, an not by that by the declarant. facts asserted present at the who rule, however, operate, does hearsay not exceptions, to apart from its rеnder made. every repeated by statement inadmissible It witness as another made admis- Although are convinced that we evidence offered does exclude was er- Temple’s testimony sion a statement was made prove the fact that and that should have ror had, rather than or a conversation it, *4 disregard an inordinate admonished to said. truth of was Where what Fur- prejudice result. amount made or mere fact that a statement was ther, object to the failure to independently was had is a conversation admission relevant, its or its regardless of truth apрeal. Roberts objection waiver of the is admissible as a falsity, such evidence (Okl.Cr.1977). The act. verbal in-court identification followed appellant by identification of Therefore, thе final contention Moreover, if had Kime. judgment without foundation. there sufficient properly excluded was sentence, however, will be modified from justify convic- evidence imprisonment years’ to seven ten not, therefore, tion, and will the case admitting the error in imprisonment due to reversed this account. ap- of the through the testi- pellant Officer Kime III. Temple, in all conсerns Our final consideration AS MODIFIED. respects AFFIRMED allowed improperly whether the trial court J.,P. concurs. testimony. improper the State to introduce hearsay re Specifically, argued it is BUSSEY, J., specially concurring. Hilton, sponses elicited from Mr. BUSSEY, specially concurring: Judge, manager Lounge, what did as a prosecutor asked him evidence I concur for the reason party. with result of a a third conversation overwhelming, appellant’s guilt of the implication provided is that the witness rea- beyond error third information to the from some California, doubt sonable under party, hearsay, i. e. in violation of rule 17 L.Ed.2d U.S. Washington handed down in (1967). transcript reflects that Mr: Hilton whát a prohibited testifying as to prop- him because a had said to This objection raised and sustаined. leading Mr. to be- related to facts Hilton suspicious appellant. Thereaft-
come ac- him as to his resulting tions conversation was not the third This State, it hearsay. pointed As comes rule set forth in the Sev- within the