Hawkins v. State
782 P.2d 139
Okla. Crim. App.
1989
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*1 HAWKINS, Appellant, Lee Daniel Oklahoma, Appellee.

STATE

No. F-87-696. Appeals

Court of Criminal of Oklahoma. 25, 1989.

Oct. Peters, Appellate

Lee Ann Jones Chief Div., County Oklahoma Public Defender’s Office, City, appellant. Oklahoma Henry, Atty. Gen. of Okla- Robert H. Gen., homa, Luker, Atty. William H. Asst. City, appellee. Oklahoma OPINION LANE, Presiding Judge: Vice was convicted of Daniel Lee Hawkins Sodomy (21 O.S.Supp.1982, Anal Forcible (21 888) Degree Rape in First 1111) O.S.Supp.1984, After Former both Felony, by jury after a trial Conviction of Court, County District Case Oklahoma sentenced to No. CRF-86-6981. He was (10) years per count the sentences ten acquitted consecutively. run He Sodomy. Anal a second count Forcible appeals. He unique This case arises from a factual background. history of the case be- M.A.Q., gan August 1985 when ease, reported to prosecutrix in the had been at her home *2 error, City. M.A.Q. Ap- propositions in south west of his of Oklahoma sub- As one sequently reported police improp- to had asserts that the trial court times, raped two on ability been more November erly present limited his 30, 1985, by 1985 and on M.A.Q. November the Spe- to the relevant man. same inquiry cifically, the court refused to allow any police the into the substance December, In early police showed compiled reported reports after the other M.A.Q. photo lineup included the M.A.Q. rapes as well as evidencé that had picture police of a man to be a believed previously identified another man as the suspect. M.A.Q. viable that man identified perpetrator Appel- rapes. first three rapist. her Charges against filed were object lant did to the admission however, suspect; dropped they the were concerning rapes the four other M.A.Q. identify failed the accused when court which the ruled were admissible and preliminary January On examination. objected to the ruling court’s the first that 18, 1986, M.A.Q. reported that she had reports three were not in to be referred to raped ultimately been a fourth time. She any Appellant’s strategy ap- manner. trial reported police occurrence a fifth peared impugning to be rape 10, 1986, focused on on June sixth rape on credibility M.A.Q. 17, 1986, September rape and a seventh on October parties appeal The to this devote much in 27, 1986, M.A.Q. respective their On December attention briefs to the made her eighth rape complaint appropriate years. in than 2 treatment of this evidence. less reported parties Both raped classify She that she had been on the lawn beside her home after a man character evidence covered her ground 2608(B). threw to the and forced her to Their reliance on this section of remove clothes. code is misplaced. We are faced any with situation here unlike that Later day, that same Appellant ap- was previously. have considered areWe prehended M.A.Q.’s several from blocks presented with prosecu- evidence that the home. He told that he had been previously trix person has accused another M.A.Q.’s given by a friend. address He rape as we were in Woods v. house, went to the talked to for a (Okl.Cr.1983) P.2d 180 or Cole v. minutes, few then if asked her she wanted Instead, (Okl.Cr.1981). pre- P.2d 1313 have sex Appellant with him. testified rape vious accusations of all are directed at that then removed her clothes and defendant. Evidence laid down in grass, they where had previous rapes was not introduced evi- sexual intercourse. Appellant denied hav- dence prose- character of either the ing engaged in sodomy. anal accused; cutrix or the instead it is trial, M.A.Q. Appellant At that testified against the case chief Appellant. been perpetrator had of all record is any explanation The barren of rapes which Although she had suffered. trial ruling court’s that evidence trial court sustained the State’s Motion concerning some of the rapes could Limine, holding that no reference be against Appellant, yet be introduced that made to the first report- three occurrences only same evidence was to subjected by M.A.Q., ed she testified numerous times limited cross-examination. We find that it Appellant that had her more than was error the trial court to allow the times. opening five The its both of testimony obviously prej- introduction so closing argument, argued statement and Appellant, udicial to M.A.Q.’s and then trial to so restrict was “vindi- the boundaries of explained cation”. State that no cross-examination that one M.A.Q.’s believed previous rape report- Appellant totally had to im- unable however, now, ings; peach -credibility she should prosecu- of either the have been believed. trix the investigating or officer. judge preclude repetitive law of this trial long It has been the harassing interrogation, unduly prior or subse that evidence of either State permitted to only is not quent the victim and cross-examiner sexual acts between story to delve into the witness’ test the evidence which falls the accused constitute *3 memory, exception general perceptions the and but an to rule witness’ into traditionally has not ad the cross-examiner been of “other crimes” will be evidence i.e., impeach, to discredit the wit- prove to that a defendant acted allowed mitted particular A attack on conformity prior propensities.1 his ness .... more with State, 126, 145 credibility by v. witness’ is Ferguson 78 Okl.Cr. P.2d the effected v. Landon (1944); 77 Okl.Cr. means cross-examination directed to- 216 biases, (1943). revealing possible preju- 190, 140 P.2d 242 ward dices, or ulterior motives of the witness that use of these The State asserts they may directly relate to issues or impeach credibility of reports to the personalities in the case at hand. The O.S.1981, necessarily by limited 12 is partiality of is subject explo- a witness to 2608(B) prior rape reports the because § trial, “always is ration and relevant as specific in- constitute extrinsic evidence of discrediting affecting the witness and the prohibited by of conduct which is stances (Citations weight testimony.” of his disagree. purpose that section. We omitted.) 2608(B) prevent to a trial from is § Woods, becoming proving with In we held that the defen cluttered germane wrongfully prevented from directly no to the case on dant was cross- issue matters, examining prosecutrix the incest trial, interjecting pros collateral in an but only impeachment purposes, previous her accusa ecution relevant Young, Barks v. against family proceedings. the 564 tions other members. We into case, (Okl.1977). In the 228 the held that was relevant and P.2d thus, sought impeach the matters to be addressed admissible to witness’s the Woods, testimony. sought In the through are cross-examination by to 12 collateral matters. testified that obtained was limited 2404(B) just it involved incidents to defendant the time because charges brought, tally the were extraneous to the crime for which the for which but eight charged. That is not the times. The State used the defendant was total rapes presented previous the the here. We are with situa fact of bolster case credibility M.A.Q. by claiming allegedly all the crimes tion where Ap participants, the the same two but have believed on all involve should been only charged with one of The details of those other inci- stands occasions. case, involving In such a subject have been to cross-ex- fense. dents should only offense is admissible not amination. the other motive, prove opportunity, plan or common State, 657 P.2d 180 (Okl.Cr. v. Woods In accused, by equally or but is scheme 1983), importance we discussed credibility of the admissible attack testing cross-examination as means of complaining witness. reliability and of a witness. We 190, In Landon v. 77 140 Davis quoted opinion, Okl.Cr. Supreme Court Alaska, 242, (1943), 244 we held: 94 S.Ct. 39 P.2d U.S. (1974), succinctly summariz rule, L.Ed.2d exception general an As right:

ing the essence of valuable permit- very have courts been liberal involving ting evidence of other offenses principle is the means Cross-examination it of the sexes where believability of a carnal intercourse by which the witness parties, whether testimony are is the same of his tested. between and truth the offense subsequent or always prior discretion of Subject broad prosecutrix prior exception sexual conduct between even in Oklahoma’s 1. This is included Statute”, O.S.1981, 750, "Rape Shield which the accused. and prohibit introduction of evidence does not implicat- information, is specific instances of conduct not charged in the reason As peculiar exception question here. to sexual crimes. This ed the evidence 612 P.2d general to the rule is founded not so held in Bruner v. (Okl.Cr.1980): upon much to show the intent desire committed, offense Court held that where the ... has [T]his upon ground but broader more charged with oth- offense is so connected showing inclination or lustful dis- sexual er as to form a “an offenses prose- position defendant toward the other of- entire transaction” evidence of making prob- cuting it more witness may fenses be admissible to show charged able that offense was com- charged.... character offense mitted. *4 “logical a connec- And where there is charged, tion” with the offense in quoted previous We our decision independent may separate of and crimes State, 359, 250 Pruett v. 35 Okl.Cr. P. (Citations omitted). be admitted. (1926) authority: as 1030 proof general rule of other of- that that We therefore find the trial court fenses is inadmissible unless a any it erred when refused to allow gestae apply offenses res does reported rapes the first three intercourse, involving illicit sexual inquiry and to the extent it limited into the other the same evidence of acts between reports. other four The course of events admissible, parties affording is as years question of the in two was used proof of a substantial offense in them- greatly by attempt the State in its to bol- selves, corroborating other evi- but Appel- of the ster witness. charged, tending dence of the act and as lant have the same should been afforded existing the relations between show credibility. opportunity to undercut her parties upon bearing probabili- note, final we point As á must out ty of the commission of the crime any previous rape that of the details charged. reports by police, told in Because errors involved were not consistent with trial, first remanded for fur we Landon prior trial would be admissible inconsist proceedings. ther As result of new O.S.1981, ent statements under 12 trial, subject again we considered the of Thus, refusal the trial court’s to allow ex admissibility sexual acts be ploration by statements made victim, tween his we held: the accused and which were memorialized upon charge In rape, proof a trial police reports was also error. may shown acts intercourse be upon foregoing, hereby Based purpose for the and as corroboration REVERSE and REMAND this case for a showing parties; the relation between the opinion. new trial consistent with on but a conviction must be based one act. P.J., PARKS, specially concurs. Landon v. 83 Okl.Cr. 174 P.2d J., BRETT, concurs. (1946),quoting Kilpatrick 266 v. 71 (1941). 129, 109 P.2d If this Okl.Cr. LUMPKIN, J., concurs result. may properly considered as PARKS, Judge, Presiding specially testimony, corroborating prosecutrix’s concurring. only logical equally is that it would be it impeach- I agree majority that the convic proper to use the evidence for prosecutrix. tion should be ment of the Because reversed the reasons However, unique allegation against Ap- ap I nature' of the stated. would also reverse case, general pellant’s prop rules con- conviction based on his first cerning admissibility of “other crimes” osition of error wherein he that the claims Likewise, prohibi- judge by reject his application. have no trial abused discretion ing jury’s request rehear inquiry appellant's 2608 of into tion request sustaining like testimony after representing a witness testimony of

rehear emphasized This prosecution. State’s case. See Giv portion of the P.2d

ens v.

(Okl.Crim.App.1985). PRICE, Dewayne Appellant,

Billy *5 Oklahoma, Appellee.

STATE F-86-319.

No. Appeals of Oklahoma.

Court of Criminal

Oct.