Lead Opinion
OPINION
Appellant, Lloyd Mancil Niekell, Sr., was tried by jury in the District Court of Oklahoma County, Case No. CF-90-764 for the crimes of Kidnapping for the Purposes of Extortion (21 O.S.1981, § 745), Conspiracy to Commit Robbery with a Firearm (
Silas Camacho, Appellant’s girlfriend, was a drug courier for an Oklahoma City Hispanic gang led by Carlos Rodriguez known as the “Juarritos”. Rodriguez supplied Camacho with drugs and in July 1989 Camacho overdosed on cocaine and marihuana. Following the overdose, Appellant contacted Glenn Cunniff, who introduced him to David Waller, to seek revenge against Carlos Rodriguez. Appellant, Waller, Cunniff and Camacho began to watch Carlos Rodriguez and to follow Rodriguez and other alleged members of the drug ring. Waller claimed they intended to rob Rodriguez and take any drugs and money they could find.
On Friday evening, January 26, 1990, Waller and Appellant went to Rodriguez’ house and falsely claimed they were the police. After Rodriguez opened the door, Waller and Appellant entered the house and kidnapped
Upon finding her husband gone, Mrs. Rodriguez immediately notified the police. The police placed a tap on the Rodriguez phone line. Waller and an unidentified person made calls to Rodriguez’ wife demanding money and arranging “drops” to exchange the money for Rodriguez. Rodriguez’ wife made two attempts to deliver the money, but neither were successful. The police were able to trace the telephone calls made by Waller and to link Camacho, Cunniff and Appellant to the scheme.
Rodriguez was kept locked in the closet at Appellant’s house. After Rodriguez had been in the closet for a few days, Appellant asked his neighbor if he could put something in the trunk of an abandoned car on his neighbor’s land. Appellant moved Rodriguez to the trunk of the abandoned car and left him there for approximately one and a half days. Rodriguez was then removed from the trunk and taken back to Oklahoma City. Police found Rodriguez after they arrested Camacho on February 1, 1990.
In his first assignment of error, Appellant contends the State improperly vouched for and bolstered the credibility of David Neal Waller. Waller testified he entered into a “Memorandum of Understanding” with the State of Oklahoma which outlined the terms and conditions of his plea agreement. Appellant objects to those portions of Waller’s testimony in which he read the agreement’s requirement to tell the truth (hereinafter truthfulness provisions) and explained that failure to testify truthfully renders his agreement null and void.
A.
It is error for the State to personally vouch for the credibility of its witnesses. Camron v. State,
Although Freeman did not address whether truthfulness provisions constitute impermissible vouching, the Bowie court did so and we again find its analysis correct. The Bowie court held, “[u]se of the ‘truthfulness’ portions of these [plea] agreements becomes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witness’ testimony.” Id. at 1498. There is no improper vouching if the testimony does “no more than reveal that the witnesses had an obligation to testify truthfully and explain the consequences of a breach of that obligation.” Id. at 1499.
The Fifth Circuit addressed this issue in United States v. Leslie,
In the instant case, there was no improper vouching. Waller’s testimony and the admission of the “Memorandum of Understanding” did nothing more than reveal that he had an obligation to testify truthfully and explain the consequences of a breach of that obligation. Nothing in the plea agreement nor in the record indicates the prosecutor explicitly or implicitly indicated he had means to verify that Waller was telling the truth.
B.
Appellant also claims it was error to allow Waller’s testimony and to admit the “Memorandum of Understanding” concerning his promise to testify truthfully during his direct examination. He claims such action impermissibly bolstered Waller’s credibility in violation of 12 O.S.1991 § 2608(A)(2).
Because this Court has yet to rule on this precise issue, we turn to the federal circuits for guidance. The federal circuits are divided on the admissibility of truthfulness provisions in plea agreements. The majority of circuits allow admission of the truthfulness provisions of a plea agreement prior to the witness’ credibility being attacked. See, United States v. Drews,
In United States v. Lord,
The Lord court further noted the Second Circuit has “acknowledged difficulties created by its [minority] procedure for admitting evidence concerning the provisions of an agreement.” Id. at 1030. The Second Circuit allows admission of the plea agreement provisions that impeach a witness’ credibility prior to a challenge of the witness’ credibility, but excludes the truthfulness provisions which bolster the witness’ credibility until it has been attacked. Id. The Second Circuit’s difficulty has been in “drawing fine distinctions between which provisions of an agreement are bolstering and which are impeaching.” Id. at 1031. The Second Circuit acknowledged its view was problematic stating, “[w]ere we writing on a blank slate, we might have followed the other circuits that avoid the distinctions that we have required judges and lawyers to make during the heat of trial.” Id. at 1030.
We find the majority view better comports with the purposes behind 12 O.S.1991, § 2608(A)(2) to allow jurors to better assess the credibility of the witness. Therefore, we will allow the admission of truthfulness provisions in plea agreements prior to the witness’ credibility being challenged. Consequently we find the admission of the truthfulness provisions in Waller’s plea agreement did not constitute impermissible bolstering. Accordingly, we find the trial court did not err in admitting Waller’s entire plea agreement pri- or to his credibility being challenged.
In his second proposition of error Appellant contends the trial court erred in failing to sever his case from eodefendants, Cunniff and Camacho. Appellant also argues the trial court erred in compelling him to share peremptory challenges with his co-defendants. 22 O.S.1981 § 655.
First, Appellant claims because both he and Cunniff admitted participating in the Rodriguez surveillance plan and operation, but denied kidnapping Rodriguez with Waller, their defenses were inconsistent and antagonistic. In Neill v. State,
To warrant severance a defendant must show the defenses conflict to the point of being irreconcilable and mutually exclusive. Id. at 890. A defendant “cannot rely on mere apprehensions of prejudice, but must state how the defendants would in fact be prejudiced by joint trial.” Id.
Appellant’s and Cunniffs defenses were not antagonistic. Neither Appellant nor Cunniff testified or introduced evidence that inculpated one another in the kidnapping of Rodriguez. Appellant stated he was at Silas Camacho’s house, while Cunniff testified he was at the So Fine Club on the night Rodriguez was kidnapped. Neither Appellant nor Cunniff argued or introduced evidence that the other was with Waller, each simply argued he was not the other person with Waller when he kidnapped Rodriguez. As this Court noted in Neill, defenses become antagonistic when “each Appellant [is] placed in the position of having to defend against two accusers, the State and his co-defendant.” Id. at 888-89. In the instant ease, the defenses of Appellant and Cunniff did not place either in the position of having to defend against “two accusers.”
Second, it was not error to compel Appellant and his co-defendants to share peremptory challenges. Title 22 O.S.1981 §§ 655 and 622 require defendants to share their peremptory challenges when they are jointly tried. Section 622 provides that “when several defendants are tried together they cannot sever their challenges, but must join therein.” Section 655 specifically provides an exception to the rule in § 622 when the defenses are inconsistent. Section 655 states in pertinent part that co-defendants tried jointly shall join in their challenges “provided, that when two or more defendants
In the instant ease, Appellant and his co-defendant did not have inconsistent defenses. As stated above, while Appellant and Cunniff attempted to exculpate himself, neither attempted to inculpate the other. There is nothing inconsistent about their defenses. Accordingly, we find Appellant was not entitled to separate peremptory challenges and therefore this proposition of error is without merit.
Lastly, Appellant contends that prospective juror Kelly should have been dismissed for cause pursuant to 38 O.S.1981 § 28
First, we note that Appellant failed to provide a complete record as mandated by Rule 3.2 of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.Supp.1989, Ch. 18, App. Rule 3.2 requires an appellant to file a certified copy of the original record. Appellant failed to provide a transcript of the voir dire examination for review.
In King v. State
In the instant ease, Appellant failed to provide the transcript of the voir dire examination. The trial judge attempted to make a record by stating the facts surrounding prospective juror Kelly’s voir dire examination noting that Kelly was a retired FBI agent and knew District Attorney Macy’s personal bodyguard. Further, the trial judge stated he interviewed Kelly and believed Kelly could be an impartial juror, who did not have any preconceived notions. As noted above, the record does not include a transcript of that interview, only the judge’s recollection.
In Bass v. State,
In Coats v. State,
Based on Bass and Coats, we find no error. The fact that Kelly knew District Attorney Macy’s personal bodyguard and was a retired FBI agent, does not, ipso facto, establish an implied bias. Without the transcript, the record is insufficient to show the trial court abused its discretion when it refused to excuse prospective juror Kelly for cause.
Accordingly, the judgment and sentence is AFFIRMED.
Notes
. Prior to trial, Waller pled guilty to Conspiracy to Commit Kidnapping. In exchange for his testimony against Appellant, Cunniff and Camacho, the State dismissed the remaining charges and recommended Waller receive a ten (10) year prison term with five (5) years suspended. The trial court ordered this sentence to run concurrently with any prison term Waller received as a result of pending criminal charges in Grady County.
. The Memorandum of Understanding read in pertinent part:
It is hereby agreed ...
1. Mr. David Neal Waller will cooperate fully with law enforcement and will testify truthfully when called as a witness in any proceeding relating to the kidnapping of Carlos Rodriguez.
6. Any refusal by David Neal Waller to cooperate fully with law enforcement officials in this matter shall be grounds for termination of this agreement. In the event that David Neal Waller testifies falsely under oath, this agreement shall be null and void and Mr. Waller will be prosecuted for perjury.
. Title 12 O.S.1981, § 2608(A) states:
A. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to these limitations:
1. The evidence may refer only to character for truthfulness or untruthfulness; and
2. Evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
. Fed.R.Evid. 608(a)(2) is identical to
. 38 O.S.1981 § 28(B) lists those persons who are not qualified to serve as jurors because of their profession, which includes federal law enforcement officers.
. 22 O.S.1981 § 659(1) states:
Particular causes of challenge are of two kinds: 1. ■ For such a bias as when the existence of the facts is ascertained, in judgement of law disqualifies the juror, and which is known in this chapter as implied bias.
Concurrence Opinion
specially concurring.
I join in the Court’s decision in this case and provide the following observations on the words of art “vouching” and “bolstering” which are not defined within our statutes.
As practitioners in the law, we have been somewhat spoiled since the 1978 adoption of the Oklahoma Evidence Code, 12 O.S.1991, § 2101 et seq. The codification of the rules of evidence relieved us of the case by case analysis of the evaluation of each particular evidentiary issue and provided an encapsulated compendium of the law governing evidence. However, our conditioning'to attempt to fit every evidentiary question into an answer provided by the Code often obviates our consideration of whether the Code applies in the first instance. As Professor Leo H. Whinery has noted,
the Code does not purport to deal with the entire body of law governing the impeachment and rehabilitation of witnesses. Only a few aspects of the evidentiary law governing impeachment and rehabilitation are covered in the Code. As observed by the 9th Circuit Court of Appeals in United States v. Alvarez-Lopez, ‘[t]he Evidence Code does not attempt to write a catalog of all the rules which govern evidence that can be used to impeach a witness. Rather, the code only attempts to lay down a few specific rules dealing with the situations in which impeachment upon collateral matters may be particularly subject to potential abuse, and, in those situations, to give substantial discretion to the trial court in admitting or excluding the impeaching evidence.
3 L. Whinery, Oklahoma Evidence, § 47.01, p. 370 (1994) (citing United States v. Alvarez-Lopez,
This observation can also be made as we seek to apply the concepts contained within the terms “vouching” and “bolstering”. At common law, the concept of “vouching” was inherent when a party called a witness to testify, i.e. if the party did not think the witness was truthful, the witness would not have been called to the witness stand. This led to the ancient common-law rule that one could not impeach his own witness. See Chambers v. Mississippi,
While the term “bolstering” is not specifically defined in the Evidence Code, its concept is addressed within the provisions of 12 O.S.1991, § 2608, as it relates to reputation or opinion evidence of character of a witness for truthfulness or untruthfulness. However, under the facts of this case, the Court is not presented with opinion evidence relating to a witness, but the very basis of the witnesses’ testimony. At common law, the concept of “bolstering” was addressed within the term “rehabilitation”. The reason was this type of evidence for truthfulness was generally excluded until the witnesses’ credibility was attacked. See Jackson v. State,
I submit the issues involved in the admission of a cooperative agreement do not require the “vouching” v. “bolstering” analysis. The testimony of the witness regarding his cooperation agreement does not constitute “bolstering” any more than a witness taking the oath prior to testifying or an expert witness providing his or her qualifications to testify prior to rendering an opinion as an expert.
. See Scales v. State,