*1 373 WILSON, J., Chandler, 652, part concurs in that ALMA 716 P.2d v. supra; Woodall 15; opinion that modifies Rule (Okla.1986). 654 judg- to affirmance of trial court dissent proposition final concerns James’ the reason that it was reversible ment for No. 14 which the Requested Instruction self-serving, prejudicial error to admit This instruction reads: refused. trial court defendant into evidence. letter of that the Dec hereby instructed “You are plaintiff Understanding which of laration 2, 1984, and which is February signed on _ this case No. in
plaintiffs Exhibit recovery prevent her not bar or
does any of the defendants because
from by law from com-
plaintiff prevented
plying with it.” instruction, James authority for this As McINTOSH, Appellant, Joseph Robert O.S.Supp.1983, pre 1425 which cites 86 licensing an requirements for scribes the asserts agent in Oklahoma. She insurance Oklahoma, Appellee. of STATE agent, she had in order to be a licensed Nо. F-89-198. examination, licensing but take the state examination, she could take Appeals of Oklahoma. Court of Criminal resign job. her James fails she had to 16, April Moreover, resign. why she had to show any convincing reason she fails to assert prevented by law from com
why she was the Declaration of Under
plying with
standing. argues that she was induced She is not
by fraud to enter into it and bound authority of Blackb
by its term under Morrison, P. 402 29 Okl.
urn
(1910) and McLean v. Southwestern Casu Oklahoma, 61 Okl.
alty Ins. Co. of (1915). jury may, Be that as it
P. 660 appellee.
did not find fraud the actions pertain not to a materi
The instruction did in the Bank al issue case. See State
Parsons, Elliott, 447 P.2d Kan. v.
(Okla.1968). give court’s failure to this re-
The trial not cause a miscar-
quested instruction did verdict
riage justice, and a different given. not have resulted had it been
would jury error in the
We find no reversible given or refused.
instructions stated, judg-
For the reasons above appealed
ment from is AFFIRMED. LAVENDER,
HODGES, V.C.J., and JJ., HARGRAVE, concur.
DOOLIN J.,
SUMMERS, concurs in result. KAUGER, J.,
OPALA, C.J., concur part. dissent in part, *2 Peters, Appellate Ann Chief of
Lee Jones Werneke, (Vicki Div. Ruth Adams of coun- sel), City, appellant. for Oklahoma Gen., Henry, Atty. Diane L. Robert H. Gen., Atty. City, Slayton, Asst. Oklahoma appellee. for OPINION PARKS, Judge: McIntosh, Joseph appellant, was Robert (21 O.S.Supp. Beating of Child convicted 843) County District Oklahoma received No. CRF-88-1657. He Court Case (72) seventy-two years impris- a sentence of jury’s rec- in accordance with the onment jointly tried ommendation. (2) Judy Carey, the mother of two with year Phillip Carey. Each defendant old beating, or in the charged with child alternative, beating. allowing child reported the anonymоus an source After child young suspected abuse 21, 1988, Phil- on March welfare authorities Hospi- Memorial lip was taken to Childrens City Midwest Police where by tal (1980). “Reliability in- can be reported- He L.Ed.2d days. treated for several foot, more in а case where the ferred without from head to numerous bruises ly had firmly a hear- shoulder, bump falls within rooted large a evidence his large burn on cases, exception. In other the evidence forehead, say tissue large gouges оn *3 excluded, a must be at least absent show- smaller burns each ear and some behind guarantees ing particularized of trust- of hair was great A deal and scratches. — head, Wright, U.S. worthiness.” Idaho v. top of his he was missing from the -, 3146, 111 up L.Ed.2d 638 to stand S.Ct. pain and unable experiencing (1990), Roberts, supra. Hearsay citing vomiting for straight, and he had been do not fall within an es- pale, statements which days at home. He was while several exception presump- are hearsay pounds since tablished and had lost several gaunt, tively unreliable. leg months a broken six being treated for suffering hospital. His at the same earlier also involved abuse of a two Wright result of appear been the did not to have made certain yeаr old child. The victim infection, physi- attending the but rather response incriminating statements to having abused diagnosed him as been cians questions posed by pedia a suggestive extensive, painful, and traumatic in an her. had addi trician who examined She way. spontaneous remarks tionally made some Coleman, with the Diana a social worker concerning that occurred to her sis abuse Services, Court, Human testified Department of Supreme ter. The United States Phillip аbout his she tried to talk with that noting that the trial court had found after to the injuries day on the he was taken witness, child was unavailable as the anyone. hospital and he would not talk to special reason to found that there was no day аgain tried to communi- The next she statements concern believe that the child’s response ques- to her cate with him. In ing particularly abuse were trust her own of his as to who had caused certain tions although noting her worthy, statements said, injuriеs “Bobby did it.” might have been about her sister’s abuse Therefore, ad sufficiently reliable. their Judy Phillip and Appellant lived with violated the defendant’s mission at trial Bobby Bobby or Carey. He was known as —Id., U.S. right to confront the witness. unemployed baby He also wаs Joe. at-, 110 S.Ct. at Appellant Phillip Judy worked. sat while his own behalf and testified at trial on According reliability of state- Wright, to Phillip injuries stated that received not sought to introduced which do be ments care, injuries the all in his but that while exception to a well-established fall within Phillip occasioned. resulted from accidents rule, shown from all hearsay the must be very Phillip clumsy and acci- He said particular- possess to of the circumstances prone. dent guarantees ized of trustworthiness. comparable to should be trustworthiness Appellant objected at trial to Ms. Cole- excep- hearsay in established Phillip’s that found being testify to to man allowed is, testing tions; that adversarial that such “Bobby did it.” As his first statement that —Id., rеliability. error, little to its appellant claims that would add assignment of at-, at 3149. right 110 S.Ct. denied his Sixth Amendment U.S. he was against him. to confront witness tended to Phillip which The statements of re- made after incriminate were hearsay may Before statemеnts attempts by the social worker peated trial of one accused of a admitted at the be However, injuries. talk to him about his crime, requires Amendment that the Sixth in this case of the was made produce the declar- no record prosecution either and of all availability Phillip as a witness unavailability of the or demonstrate the ant making surrounding the the circumstances and also demon declarant as a witness Therefore, impossi- it is of his statements. question the statement in bears strate that reliability from the their to review adequate reliability. indicia of Ohio ble Roberts, 65 record. 448 U.S. 100 S.Ct. vomiting suggested might that he have Supreme discred- Wright,
In
concussion and should have medical
procedural
a brain
particular
ited the idea
did not think
profes-
treatment.
accompany the
safeguards must
go
hospital
and said he
no one needed to
a child. There is
interview of
sional
Phillip’s
discuss it with
mother.
a statement that would
aspect
mаking of
reported
incident to
Reliability
Eventually, DeWitt
reliability.
must be
insures
apartment complex manager who called
circumstances sur-
judged from all of the
City police.
statement,
the Midwest
making of the
rounding the
de-
must indicate the
these circumstances
ap-
testimony
The doctors’
contradicted
worthy of belief.1
particularly
clarant
is
pellant’s
Phillip’s injuries
were the re-
Therefore,
make deter-
the trial court must
treated
sult of accidents. Each doctor who
*4
unavailability
of the witnesses
minations
Phillip
injuries
were inconsist-
testified
reliability adequate indicia of
and of
injuries
ent with accidental
and believed
hearsay
of
state-
admission into evidence
Thus,
extensively.
the
had been abused
findings,
In thе
of such
ments.
absence
apart
Phillip’s
from
out-of-court
evidence
should not have been
Phillip’s statements
every
was sufficient to exclude
statements
admitted at trial.
appel-
hypothesis
reasonable
other than
guilt
beаting.
have
lant’s
of child
We
of a defen
The fact that a violation
involving
circumstances
found similar
right to confron
Amendment
dant’s Sixth
of a child
is in the exclusive
abuse
who
during trial does not automat
tation occurs
custody
sufficiently sup-
to
of defendant
her convic
ically dictate reversal of his or
beating.
port
Ray-
a conviction of child
427,
Florida, 405 U.S.
92
tion.
Schneble
State,
(Okl.Cr.1986);
mond v.
377
testimony by prior felony
Judgments and Sentences to
lant’s
convictions
not admit
prior felony
exemplary
Judge
convictions or other-
in an
manner.
prove the
Parr for
crimеs.
details of those
wise introduce
mulated his resolution of this evidentiary
issue without the benefit of our
decision
properly
appellant
charged
un-
Since
State,
(Okl.Cr.
Hardiman v.
lant had convictions was admissible.
Indeed, judge possible tried to minimize
prejudice appellant by limiting evidence them, only fact had allowing
and not evidence that one convic-
tion was for child abuse. Robinson v. See
State, (Okl.Cr.1987). P.2d This
assignment is without merit. AGOSTA, Jack Appellant’s assignment final of er Appellee/Cross-Appellant, ror is that the trial court should have granted his motion for continuance оf trial. representing appellant origi The counsel BREEDERS, INC., Rich SOUTHWEST nally approxi allowed withdraw Stansberry, George ard D. R. Cornelius (2V2) mately two and one-half months be Reece, Appellants/Cross-Ap and B.F. public appoint fore trial. A dеfender was pellees. (13) days ed thirteen before trial. This requested (4) attorney a continuance four No. 72849. days trial. The motion was denied appellant urges preju that he suffered dice a result. as Oklahoma, Appeals agree We do not the trial court Division No. 3. denying
abused its discretion the motion appellant prejudiced or that as a re- Feb. 1991. alleged only deficiency sult. The in coun- performance Rehearing April sel’s at trial is that she did not Denied point problem out the with staleness in the
prior convictions admitted at tri- Since, however,
al. we found that there introducing no error in evidence of the convictions,
prior assignment this must State,
also fail. Goodwin 730 P.2d
(OM.Cr.1986). foregoing,
On the basis of the we AF- appellant’s Judgment
FIRM and Sentence.
LUMPKIN, Presiding Judge, Vice
specially concurring: join
I with the Court’s decision in this agree judge
cáse and the trial ad impeachment Appel
dressed the issue of