*1 appeared or waived service. In the preprinted form utilized Jimmy McCALIP, Appellant, Don legal proper stated “that service has necessary parties” been had all The STATE of appearances; then recites the the father’s name is not on the list nor does the docket sheet show that he was ever served.
recent case of
§§ proceedings
R.C.R. find the had in this
matter are for lack void of service on the judicial finding
father or a service was not
necessary.
Therefore, due to lack of service and G.J.I.,
notice on judicial the father of delinquent G.J.I. is void and
this matter is REMANDED to the District County,
Court of Tulsa Juvenile Division hearing
for a new and determination after
proper notice is issued and served on those
parties entitled statute to be served. LUMPKIN, J., V.P.J. and
PARKS, P.J., concurs in result.
BUSSEY, J., participating.
PARKS, Presiding Judge, concurring
in result: agree this case must be reversed under
R.C.R. v. however,
App.1989); issue this
dispositive, join I do not the remainder of majority opinion. *2 mother, questioning by his Jim, morning of
Ms. on the objected Defense (Tr. was not an excited utterance. ment solely 10) Relying (Okla.Crim.App.1985),the trial ground overruled the court first the child made seeing his he mother after awoke. judge ap- nor the trial Neither the State plied requirements under the foundational O.S.1981, 2803(2). The of appel- crux § argument scholarly concerns criti- lant’s 1 L. cisms of the decision. See Whinery, to the Oklahoma Evi- Guide (Supp.1988) (Newbury Code 82-83 dence questionable” “highly and “difficult termed defend.”); Maye Meiring, & The Child Prosecutions, 56 Abuse Okla. Witness (1985) (The Newbury case B.J. exception excited utterance “stretched the extreme.”); Note, logical its Crimi- beyond Barrett, Appellate De- Mark Asst. Public Excep- Law: The “Excited Utterance nal Norman, fender, appellant. for Hearsay Analysis Rule: An tion” Atty. Henry, H. and M. Ca- Robert Gen. Light Federal and Oklahoma Law Gen., Emerson, Atty. Asst. Okla- roline Newbury v. 39 Okla.L.Rev. appellee. for City, homa (1986) for “its (Newbury criticized result- cited approach....”) oriented [hereinafter OPINION Exception]. Excited Utterance PARKS, Judge: requirements must “Three foundational appellant, McCalip, was tried Jimmy Don is admissi- met before be (21 by jury convicted Child Abuse exception: utterance ble under the excited 843), O.S.Supp.1982, After Former Con- condition; (2) a (1) startling event or a (21 O.S.1981, 51), Felonies viction of Two startling relating event or County District Case in Oklahoma condition; (3) the statement must be CRF-84-5272, before the Honorable No. the declarant is under the made while Saied, Judge. jury The set District William the event or of excitement (20) twenty years imprison- punishment at Ex- condition.” was im- Judgment and sentence Whinery, at 84. See also ception, supra, accordingly. posed We reverse. theory of the The State's supra, in appellant’s first Because we find merit appellant abused be- case was that summarize assignment, unnecessary p.m. on October 7:30 and 10:00 tween presented at trial mother, Jim, Ms. ab- issue wherein pertains to the first night. slept soundly through the sent. M.J. court committed reversible claims the trial a.m. Appellant left work admitting hearsay statements error a.m., 8:30 morning. 8:00 and Between respectively to two-year-old M.J. Jim, into according M.J. came to Ms. employee, Ms. a walking too well and He “wasn’t bedroom. worker, Wise, Ms. McPher- Ms. and social well, feeling too didn’t like he was he act ren. 9-10) Ms. Jim asked either.” wrong, replied “Jimmy challenges M.J. what was Appellant first M.J.’s state- me.” “Jimmy me” was made hit hit which ment that
First, difficulty she had tried to feed him require- that acts of child abuse breakfast, meet the but he eat. Accepting case, theory State’s underlying justification for the excit- abuse, i.e. 7:30 ed exception utterance “is that sponta- 3,1984. p.m. Second, and 10:00 on October *3 of neity the in statement relation to the face, at ap- least on its MJ.’s statement exciting gives rise to trustworthi- pears causing inju- to the his relate to acts Whinery, supra, Here, ness.” at 282. However, insofar ries. as admit- MJ.'s statement was made in to during spanking ted the time he M.J. was questioning by his and not was babysitting, certainty it cannot be said with truly spontaneous. Note, See Excited Ut- directly to statement related acts Exception, supra, Further, terance at 93. opposed spanking. child abuse as inconsistencies in Ms. Jim’s testimony cast Exception, See Utterance Excited at spontaneity of the doubt statement. 95. JimMs. testified she tried to feed M.J. Third, the most difficult prior breakfast to the statement whether the statement was made while 11); that she did not have time to feed M.J. M.J. the was under stress excitement morning (Tr. 19); breakfast that that and by Admittedly, the event. fed taking she M.J. breakfast before him to “walking Ms. Jim that testified M.J. wasn’t the center. too time of well” at the suggesting that was at least Thus, we hold the trial court physically However, acts of from abuse. failing erred to sustain defense counsel’s cases, unlike our most recent here there to the admission of MJ.’s state was no that emotionally M.J. was ment as an excited utterance. Insofar as upset or at the excited time of the state Newbury is holding, inconsistent with our State, e.g., Rawlings See v. 740 hereby Further, overruled. 153, (Okla.Crim.App.1987); P.2d 163 Stauf not was admissible an as 1349, (Okla.Crim.App.1987), v. 738 P.2d 1357 fer excited and the State no made — denied, U.S. -, t. cer attempt to the unavailability demonstrate 763, (1988); 108 S.Ct. L.Ed.2d 98 779 Grif M.J., appellant also was denied his con 303, v. P.2d 734 305 fith right stitutional of confrontation. See App.1987). Keating, See also Miller v. 754 Roberts, 56, 66, U.S. Ohio 448 (3d Cir.1985). Further, F.2d 512 L.Ed.2d Rawlings hearsay the Stouffer This leads us to claim that ments were made within following minutes failing trial was ineffective to the startling and in Griffith, to object the admission of two other hear while the victim was say by statements. The first was made being personnel attended to medical at toM.J. Johnna Wise around 5:30 p.m. on shooting. contrast, scene of the (Tr. 75-76) 4. oc second MJ.’s to his statement mother was made when curred Ms. McPherren was allowed between ten and twelve hours after he was testify, apparently based alleged on M.J. what have been abused. The fact that told Ms. that Ms. Jim slept through M.J. claimed soundly night makes boyfriend, appellant, probable had hurt less that his M.J. statement next support There is no morning in the record was made while he was under foregoing two qualify of excitement of a statements could Exception, “Hearsay excited utterances. See not admis importantly, bar, provided by More sible the case at law.” 12 O.S. support record object does The failure to to such spontaneously volunteered the state- blatant is inexcusable. See Collis upon awakening seeing and first (Okla.Crim.App. prior mother. 1984). Ms. Jim testified that opportunity at the first severely made the statement testimony was
Ms. Jim’s awakening. At first she testified at trial. impeached face, but on MJ.’s she saw bruises the same situation in the cur- We have seeing injuries his other then admitted rent matter. When the mother returned taking changed his clothes before she when injury the child home on the daycare center. Ms. Jim stated him to the the child awoke the was little bit” her state that she “did lie a morning and the mother noticed his police, and did reveal ments to condition, inquired physical as to in her first “Jimmy hit me” statement that told that cause of the condition police. spank admitted She purpose it. The 2803 is Appellant did thong, leaving bruises M.J. with permit that would constitute day confronted his buttocks. When admitted if it rises to a hearsay to be 4, Ms. Jim stated care worker on October reliability. I find more certain level picked like that” when M.J. “looked *4 reliability in a statement made a two babysitter the before. up him from a year boy old who has been a victim of a evening of drinking the out Ms. Jim was crime than I do in a statement of a four 3, and, according appellant, re year old who has been a witness to a first claimed she home drunk. She turned crime, especially part of a when he is still home, returned did see M.J. when injuries. from his kissed him on the cheek then stated she but made similar statements to The child also the circum going to bed. Under before day, time more the same but at a others stances, possi a reasonable find there is he made the remote than when bility errors contributed to his mother and these statements were therefore, conviction, con we cannot thing The same received into evidence. “harmless be clude that the errors were and this court did not Chapman v. yond doubt.” a reasonable reverse, holding that the evidence of other California, 386 U.S. merely I cumulative. 17 L.Ed.2d applies that the same here. would hold and sentence Accordingly, judgment light reasoning, hereby I of the above and REMANDED is REVERSED DISSENT. NEW TRIAL. LANE, V.P.J., dissents. JJ., LUMPKIN,
BRETT and Judge, Vice
dissenting: opinion majority,
I to the dissent not overrule MATHIEUS, Appellant, In New- P.2d 531 Earl Eddie disappeared baby- babysitter bury sibling. sitting year old child and a four The STATE father returned When the child’s house the children a.m. the next girl morn- awoke Appeals of Oklahoma. Court of Criminal happened to the asked what and was babysitter replied
babysitter Aug. man. This Court af- left the T.V. with under admission of this evidence firmed the rule” of
the “excited utterance 2803(2), stating though there that even intervening time between
was an asleep and the child was
and the