*1 P.J., J., LANE, PARKS, (Tr. 47) cross-examination, and concur. time”. On and objection over the appellant, Mr. LUMPKIN, V.P.J., JOHNSON, J., days Bradford was asked whether six after concur in results. involving incident appellant, LUMPKIN, Judge, Presiding Vice police had his raided house and arrested concurring in results: him, wife, his and another for traf- woman by I concur in the results reached ficking maintaining in drugs and a house However, in case. Judge this as where drugs kept. Mr. Bradford re- pointed out, Johnson has issue in this plied (Tr. 61) that was that correct. case is impeachment for untruthfulness un- holds, limitations, The majority with that O.S.1981, 2608(B)(1), der 12 rather than evidence of рrior a defense witness’ arrest presents analy- bias. The Court artful an be admissible to show bias. prior sis of bias evidence as it relates to case, in present I prosecu- that arrests but must not we be distracted from question tor’s on cross-examination con- provisions the faсts of the case and the cerned credibility. Mr. Bradford’s On di- Oklahoma Evidence Code. witness examination, rect Mr. Bradford had stated previously regarding had testified not that he did not want drugs around his house, therefore, wanting drugs around his fact, however, house. he and his wife impeach- the subsequеnt arrest was valid had been six days arrested later for traf- ques- ment evidence. The State asked ficking drugs maintaining in dwelling regarding prior tion arrest wit- drugs house kept. where are such ness it. admitted Extrinsic evidence was probative evidence was of Mr. Bradford’s complied involved the State with O.S.1981, character for untruthfulness. I Section therefore 2608. concur 2608(B)(1). results reached Court. JOHNSON, Judge, concurring in result: examination,
During direct Don Bradford appellant’s
testified previously car had pulled
broken down and it had into
yard so that he could fix Mr. it. Bradford day question,
testified on the appellant stopped by had his house. Short- Raymond KENNEDY, Appellant, Max ly arrived, appellаnt after the a little guy, Brian, think “... I his name is he right came [appellant] over also after Oklahoma, Appellee. STATE of dope he had thing some a little white No. F-90-306. it,
he to sell trying you was know. That corrupt. They whole street was trying was Appeals Court of Criminal of Oklahoma. (Tr. up to sell it strеet”. all down the 43) When asked whether Brian had tried Oct. 1992. him, dope
to sell Mr. some Bradford
replied, “[n]o, my he didn’t because kids standing
was there and we didn’t want that around, (Tr. 44) hanging you
stuff know”.
Later, asked he when knew of
anybody neighborhood who had com-
plained drugs Brian selling about
area, stated, I Mr. Bradford think “[o]nce.
I in jail Finally, ...” when asked wife,
about his common-law Mr. Bradford
replied, up jail here. She’s “[s]he’s
me, got also. We trouble same
Barry Derryberry, Asst. Public Defend- er, Tulsa, appellant. Gen., Henry, Atty. H. Steven S.
Robert Kerr, Gen., Atty. City, Asst. appellee.
OPINION
JOHNSON, Judge:
Raymond Kennedy, appellant, was
Max
by jury
tried
for the crime of Lewd Moles-
CRF-89-2574, in
No.
tation
Case
child,
County. Appеllant
pubertal
District
Tulsa
a measurement of five to six
represented by
jury
normal, but,
re- millimeters
counsel.
would be
he
opined,
guilty
punish-
turned a verdict of
and set
of eight
measurement
or nine
imprisonment.
years
ment at ten
The millimeters is definitely
scope.
outside that
appellant accordingly. Finally,
trial court sentenced
Block claimed that he had
*3
Sentence,
Judgment
rolled,
appel-
hymenal
From this
and
seen
thickened
tissue in
appeals.
involving
lant
children in cases
sexual abuse.
conclusion,
Dr. Block stated that it was his
during
The facts at trial revealеd that
based on the history given
S.K. and his
1988, appellant
the fall of
molested his
examination,
physical
that S.K. had been
three-year-old
trial,
daughter, S.K. At
S.K.
sexually molested.
testified that
appel-
when she would visit
apartment,
lant at his
he would stick a
The State’s next witness was Diane Rob-
erts,
my pee pee,”
“stick in
and
put
that he
a
S.K.’s mother. Ms. Roberts testified
my
“stick in
bottom too.” S.K. further
that she noticed a scratch on S.K.’s face in
testified that the stick looked
appel- February
inquired
like
to
hap-
as what had
penis.
lant’s
pened.
replied
S.K.
her daddy
had
grabbed
scratchеd her
pee
face and
her
presented
The State next
the testimony
pee.
inquired
When Ms. Roberts
further
Block,
of
Dr.
Robert W.
M.D.
Block was
the
day,
responded
next
S.K.
that her dad-
employed
pediatrician by
as a
the Okla-
dy
put
“in
finger
had
her hole.” Ms.
Medicine, Tulsa,
College
homa
Okla-
topic
Roberts stated that
dropped
was
homa. Dr. Block
that on
testified
Novem-
until
night
August
one
while she was
2, 1988, he examined S.K. in his
ber
office.
putting S.K. to
As
bed.
Ms. Roberts
Dr. Block averred that he examined her
leaned
good night,
over to kiss S.K.
S.K.
Department
after the
of Human Services
tongue
hеr
stuck
in her mother’s mouth
requested a second medical evaluation to
and moved it around. As Ms. Roberts
findings.
further delineate medical
Dr.
her
pushed
away and asked what she was
part
Block testified
first
that the
of his
stated,
doing,
that,
me
S.K.
“kiss
like
mom-
obtaining
evaluation involved
a medical his-
my.” Whеn Ms. Roberts asked S.K. who
tory through an interview of S.K. Dr.
that,
replied,
kissed her like
“Daddy.”
S.K.
Block
purpose
obtaining
stated that the
2, 1988,
Finally, on October
after S.K. had
one,
a
history
medical
is two-fold:
obtain
brought
by appellant,
home
S.K.
information
concerning
develop-
child’s
crying
started
and tоld her mother that her
two,
stage,
mental
obtain informa-
pee
pee
why
hurt,
hurt. When asked
it
tion concerning
history
the medical
replied,
my Daddy
S.K.
“because
stick a
interview,
has
During
occurred.
S.K.
my pee pee.”
stick in
Ms. Roberts testified
daddy, referring
told Dr. Block that her
that she did not want to bеlieve what S.K.
appellant,
my
stick in
put
had
“a
hole.”
her,
had told
but
thing
after
same
him
Block testified
S.K. told
that it
happened
weekend,
the next
she decided to
times,
hurt,
happened
had
that it
many
report it to
Department
of Human Ser-
point stated,
at one
stuff
“that white
vices
police.
come
Dr. Block
out of the stick.”
claimed
interview,
that during
Ward,
that when S.K.
The
Amy
State’s final witness was
“stick,”
used the term
he was unable
social
Department
worker with the
referring
discern whether she was
to an Human Services. Ms. Ward testified that
penis.
male
object
inanimate
or a
оn October
she conducted an in-
terview
S.K. Ms. Ward stated that as
proceed-
Dr. Block
he then
testified that
soon as S.K. sat
down
interview
ed
physical
During
with the
examination.
room,
said,
she
“Daddy puts a stick in me.”
examination,
physical
Dr. Block ob-
questions
After
concerning
further
who
things
one,
served two
of concern:
“Daddy” was,
“Daddy”
S.K. indicated
edges
hymenal
appeared
of S.K.’s
tissue
appellant.
over,
secondly,
thickened and rolled
error,
the opening
vagina
assignment
of her
measured
In his
appel-
some-
first
eight
where
nine
preliminary hearing
around
millimeters.
lant claims that
magistrate
Dr. Block
in cases
pre-
stated that
of a
bound him over to the district
give
patients
seek and
will
improper and insuffi- doctors will
court on the basis
necessary
reliable information to further
evidence.
cient
Thus,
treatment.
671 Johnson, supra, In present case, Block, we find no reason to con- Diane Rob- any hearing preliminary duct 2803.1 erts Amy Ward were allowed to testify Indeed, hearing stage. reliability or concerning at trial the statements made to unreliability any goes evidence toward them by The appellant S.K. reminds this establishing failing probable to establish Court that at the preliminary hearing, the cause. testimony of Diane Amy Roberts and Ward had been magistrate stricken because the Thus, on all we that based found no reliability. indications of record, in the was com evidence there appellant failing claims that in to hold the petent magistrate, from evidence which the hearing, mandated fact, trier court reasonably as could con trial commit- ted probable cluded that there was cause reversible error. committed,
believe a crime had been State, In Spears v. P.2d appellant that the it. committed (Okl.Cr.1991), this Court discussed the fact that the trial court must a hearing conduct error, assignment his second outside the presence jury to deter- appellant trial contends that court time, mine erred content and circum- when it admitted into evidence cer tain stances of hearsay provide statеments made S.K. with the statement sufficient out holding hearing by 12 reliability 2803.1(A)(1). mandated indicia of under We *5 O.S.Supp.1984, appel 2803.1. When § for hearing need such a to be requested the hearing, lant the trial court imperative in case a such as us before now. finding overruled the motion that the evi preliminary hearing magistrate The exception dence fit the hearsay “an found some the testimony lacking to be (Tr. 20) rule.” any indications of reliability. Clearly, the hearing any mandated for O.S.Supp.1984, pro- Title 12 2803.1 statements made vides, by a years child of age twelve or younger describing any аct of sexual con- by A. A statement made child under (12) years performed tact age younger, twelve or with or by on child any another, which describes act of sexual contact would have any either resolved performed by with or on the child anoth- doubts or concerns abоut testimony or er, juvenile is in admissible criminal unreliability. confirmed its we find proceedings in the courts in this state if: failing the trial court erred in to con- finds, hearing 1. The court conduct- hearing duct 2803.1(A)(1). by mandated presence ed jury, outside the of the Furthermore, after a of the review rec- time, сontent and circumstances of ord, we are not convinced that the error provide the statement sufficient indicia testimony Such harmless. could well reliability; jury’s influenced the decision. We 2. The child either: therefore REVERSE this for a case new proceedings, a. testifies at thе or trial. b. is unavailable as defined Title as a witness LUMPKIN, Vice-Presiding Judge: When is the child as defined unavailable concur in results. witness, in Title 12 aas such statement I by concur in the results reached may be admitted if there is corrobo- case, however, join this I cannot rative of the evidence act. parts analysis provided. of the B. A statement not admitted Initially, reliability the Court finds a de- proponent under this section unless the 12 O.S.Supp.1984, termination of 2803.1 of the statement makes known to the required evidence is admissibility not at party adverse to offer intention preliminary hearing. reading A of the particulars statement and the plain language Section 2803.1 reveals (10) days statement at least ten in ad- type statements of identified proceedings provide vance of the are “admissible statute ju- criminal and party opportunity pre- adverse with an pare proceedings venile in the answer statement. Courts this forth in the statute the criteria set state if’ reliability deter- met, this includes are Therefore, added) (emphasis
mination. admissibility, weight and
the issue is
credibility. adoption of a agree the Court’s
I determining prof- if the
two-part test for reasonably pertinent
fered statements were However, it diagnosis or treatment. the “statements
must be remembered treat- diagnosis or purposes of medical in Section exception contained
ment” children twelve
2803(4) is not restricted as are the
(12) years age younger 2803.1 evidence. The
provisions of Section tailored to the facts analysis, while
Court’s case, impression limit- gives the it is
of this Practitioners and trial
ed to those facts. application of the ensure the
judges must 2803.1 and applicable to Section Sec-
rules 2803(4) are not skewed or
tion evidence admissibility predicates
confused. requirements for use
are different by predicate provided
are dictated
the evidence. *6 Wever, individ-
Earl and Flossie WEVER Wayne
ually kin of Fred and as next of
Wever, Deceased, Appellants, Oklahoma, DEPART- ex rel.
STATE of SERVICES, ENID MENT OF HUMAN SCHOOL, Defendant,
STATE Cooperative Exchange, Equity an
Union Appellee. Corporation,
Oklahoma
No. 71926. Elder, Rodney Ramsey,
A.T. Jr. and C. City, appellants. Oklahoma Oklahoma, Appeals Court Welch, City, Mi- Mort G. 1. Division No. Smith, Enid, appellee. chael E. May 1990. Rehearing July Denied 1990. MEMORANDUM OPINION 1, 1992. Certiorari Denied Oct. HUNTER, Judge:
Upon consideration briefs matter, above-styled record in the finds: