*1 SUMMARY OMALZA, Floyd, Alfredo Ronnie Lee today’s pronouncement I would confine Flippo, Appellants, David Lee (a) declaring presently that Cox has a effec- (b) office;
tive claim to the Dawson is sans Oklahoma, (c) Appellee. STATE of colorable title and Cox must be allowed to participate proceedings. in Commission I F-93-141, F-93-336, Nos. and F-93-65. not, today, would as the court does settle the Appeals Court Criminal of Oklahoma. controversy length over Cox’s term of Dec. 1995. presently justicia- office. That issue is not ble,25 Rehearing Denied Feb. 1996.
SIMMS, Justice, dissenting: agree original jurisdiction
I should be assumed, however, grant I would the re-
quested quo relief in the nature of warranto. O.S.1991, 1,§ in question, The statute plain unambiguous on its face. The ma- jority ambiguous, seems to find it not be- says, it
cause of what but because of what it effect, say. majority indulges doesn’t judicial legislation by supplying language just to the statute which isn’t there. § plain reading gives A Mining Commissioner, Cox, year Bennie a two term appointment of office. Because his was ef- 1, 1994, January expired fective his term 1, 1996, January vacancy at which time the subject being by gubernato- became filled appointment rial with the advice and consent O.S.1991, 1(B). § of the Senate. See 45 If otherwise, Legislature intends it is free § to amend 1. Const., By reason of Art Okla. permitted Petitioner Cox should be to contin- perform ue to the duties of his office until his duly qualified. successor is respectfully I must dissent. I am authorized to state Justice Lav- joins expressed ender with me in the views herein. 25. Application Dept, Transp., State ex rel. 609; Hendrick, supra note 20 at note 20 at supra
291
OPINION
*8 PER CURIAM: Omalza, Appellants, Alfredo Ronnie Lee sep- Floyd Flippo, were tried and David Lee arately by jury Court of Okla- in the District County, No. before homa Case CRF-89-4717 Blevins, B. District the Honorable James Shores, Gary Devinney, William Oklahoma counts Judge.1 was convicted two Omalza City, appeal. at trial and on for Omalza (21 O.S.Supp. degree of Murder in the first 1982, 701.7(A)) Conspira- § one count of and Wallace, Berry, Sherry T. Okla- James (21 421).2 O.S.1981, § cy to Murder Commit Floyd City, homa for at trial. for counts jury The recommended death both murder, finding after the existence of malice Anderson, Autry, Richard David Oklahoma circumstances,3 one aggravating five and City, Flippo on brief. for at trial and (100) years imprisonment con- for hundred court spiracy. sentenced Smith, Stensaas, Fern Sandra Oklahoma Floyd was of two accordingly. convicted City, trial. for State at (21 degree in the first counts of Murder Berry, City, Floyd 701.7(A)).4 for on rec- § James Oklahoma O.S.Supp.1982, malice death for both counts of ommended appeal. finding four murder after the existence of Loving, Attorney Brimer General Susan aggravating The trial court circumstances.5 Oklahoma, Blalock, A. Assistant Attor- Diane Floyd Flippo accordingly. was sentenced General, ney City, appellee on Oklahoma two in the first convicted of counts Murder 701.7(A)) (21 O.S.Supp.1982, § and degree6 appeal. 1. jointly filed on tive filed his brief The trial in chief with this Court and counts of of one count of Oral court severed the Kidnapping and both alternative counts. September October State filed 12, 1994. 1994 and 1994 and the State 1994. Omalza, First brief one held Felony argument along Flippo’s reply brief was filed on October Degree September count of January in chief with this Court was court Flippo Kidnapping, Conspiracy to Commit its Murder, with Patricia Beth Jones. The trial Conspiracy Commit 1994. No originally answer brief Malice Murder was held chief sustained 1994. Conspiracy to cases for trial. Omalza filed two counts 1995. filed filed its answer brief on Floyd on Floyd’s 1994 and oral charged reply brief July his demurrer to 24,May its Court on June or in the alterna- answer brief on Commit reply with of Felony Murder September on charged filed 1995. Kidnapping, Kidnapping two August was brief argument his brief Murder. counts Floyd filed. both con- 4. The trial court sustained his of First spectively. threat to imprisonment tive threat to prosecution; pose mitted murder el; risk of death ty and one count of one count counts of (4), (5) of violence that would constitute [1] that the defendant [3] both Felony of the defendant and the murder avoiding was Degree was alternative society. society; Kidnapping, (7), respectively. Murder, especially person 701.12(2), (4), originally charged with and Conspiracy to more than one on conviction of Malice or Conspiracy to Commit Murder. [4] See 21 preventing was Felony while would commit criminal acts knowingly two counts of both counts heinous, [5] Murder or existence committed O.S.1981, 701.12(2), the murder was serving a Murder counts. (5), Commit demurrer to both a lawful arrest or atrocious, created (6) person; felony. of a Kidnapping, for Kidnapping sentence of a two counts Conspiracy continuing probabili- alterna- (7), or See 21 [2] com great pur- cru- re 3. [1] pose murder risk prosecution; violence el; [3] the of the defendant death more than one avoiding was defendant would commit criminal that would constitute murder was committed for especially [4] the existence preventing a knowingly created a heinous, atrocious, of a person; lawful probability continuing arrest or or [2] acts of great pur cru 6. Flippo The trial tive of First counts of one count and and one count of both Felony Degree was alternative Kidnapping, both counts court sustained his Murder, Conspiracy originally charged with Malice Murder Conspiracy to Commit Murder. Felony two to Commit counts Murder demurrer to both or in of counts. Kidnapping, Kidnapping two counts Conspiracy alterna murders, Flippo sentenced two consecutive sentences and and that none of parole. Judg- of life without From these alleged conspirators testified at trial. Sentences, they appeal. pur- ments and For appeals, expeditious
poses of these we find it II. VENUE on own to consolidate these eases our motion Appellants each raise venue two issues for for review since common errors necessitate our 3.3, consideration: did [1] that not Rule Rules reversal. the Court carry prove its proper burden venue was Appeals, O.S.Supp.1993, Criminal Ch. County ease; in Oklahoma in and [2] each App. that the contested issue of venue should have I. FACTS in been submitted to the each instance. preserved by These issues were the defense 9-10, On March the bodies of Kim attorneys’ demurrer to venue at the close of Gaylene Grant and Harrell “Rob” Robinson by requests the State’s case and their for grave were found in shallow in a ravine appropriate instructions. Stanley Draper near Lake in Cleveland County. had sustained two Robinson fatal grants an Oklahoma Constitution ac- and head wounds a fatal stab wound that right county cused be in in tried pierced his aorta. Robinson had sus- charged which the crime was committed. post-mortem tained numerous and stab incise prosecutions In all criminal the accused head, throat, neck, shoulder, wounds to his right speedy public shall have the to a and right arms and left hand. Robinson’s hand impartial jury county trial an in amputated been laying had and found which the shall crime have been committed chest. Grant had sustained two fatal stab or, uncertainty where as exists to the coun- through passed body pierc- wounds that her ty committed, in which the crime was ing lungs. her and heart The uncontrovert- may any county accused be tried ed evidence established were killed which the evidence indicates the crime burial at the site. might have been committed. The State theorized Patricia Beth Jones 2, § Okla. Const. art. 20.8 conspired Omalza, boy- her incarcerated friend, to kill Grant not testify so Grant could The nature of this constitutional against pending drug their Jones case.7 right best through can be discerned the mo telephoned Floyd Flippo Omalza then saic of ease developed law which has around told them to lure Grant and Robinson to differently it. Venue treated from other pretext selling some location on the them rights constitutional right waiver of this drugs. Floyd Flippo Omalza ordered to may be found from a silent See record. Robinson, kidnap Grant and take them to Poston, Application 281 P.2d Floyd’s father’s house and scare them. If (Okl.Cr.1955). And while the State bears the preliminary Grant refused recant her venue, prove burden to proof the standard of hearing testimony Jones, incriminating crime, is not the same elements Flippo were to kill them and make it i.e., doubt, beyond a merely reasonable but is look like a suicide. preponderance of the evidence. Rawl attempted prove 159 (Okl.Cr.1987). ings
The State at boyfriend, Robinson, Grant and her kid- Evidence sufficient to establish venue napped, Floyd’s Id.; held at house and murdered direct circumstantial. Morris v. by Floyd being dumped (Okl.Cr.1961). before Ven *9 Draper impeded ue, The OMahoma, Lake. State’s case was in is not of an element the by State, the facts that the murder was (citing Kilpatrick site never crime. Id. v. 90 found, 276, (1950)). 278, 584, no forensic evidence connected 213 Okl.Cr. P.2d 585 Jones, charged analyze and solely 7. Grant Deborah Ross were grounds 8. We issue on state provision venue attempting smuggle the in the federal with to heroin into constitution Mabel jurisdiction refers of the federal district court. Bassett Correctional Center. Const., See U.S. amend. VI.
295 by may inary hearing quash a motion to which jurisdiction: venue the It is not same See, waived, may granted. ruling This later with- jurisdiction but not. was was State, e.g., v. 554 P.2d 854-55 Smith and At each trial when the drawn reversed. State, (Okl.Cr.1976) (venue); Snodgrass v. rested, its chal- the defense renewed (Okl.Cr.1970) (venue); 478 967 P.2d by lenge of venue demurrer. The trial court (venue); Morris, v. 363 at 379 Munson P.2d the of the demurrer. At close the denied State, (Okl.Cr.), de 758 P.2d 332 cert. trial, stage the first of each defense asked nied, U.S. 109 S.Ct. put jury the of to the issue venue be (1988) (jurisdiction); Guthrey v. L.Ed.2d 809 using requested a instruction. The trial (Okl.Cr.1962) State, (juris P.2d in requested denied the instruction court diction). Appellants argue each trial. the trial court thereby committed reversible error. Looking sup first at evidence to the County, in find the port venue Oklahoma we Having not an found venue is element of in of these following evidence the records crime, in rather an the the but is element approximate The cases. victims were found ability of the trial determination court’s ly County line one block from the Oklahoma case, solely venue is for the hear we find County. in Robinson’s ear was Cleveland present In court to determine. trial nearby, county line in found across Okla properly cases the trial court denied the County, on a dead-end dirt trail which homa request to submit issue defense part system a of trails at of off-road any language jury. expressly We overrule not Draper Lake. and Robinson were Grant prior in contrary which be found County they killed in Cleveland where cases.10 murders, Jones, of found. At the time Floyd, Flippo and Robinson were residents OMALZA III. ALFREDO of, County. staying in Oklahoma so location of the bodies near A. HEARSAY line, the of County location Robin- Oklahoma County, system in of son’s ear Oklahoma error, assignment In his of Omalza first County leading from Oklahoma dirt trails trial he denied a fair because the claims was site, Jones, Floyd, grave of the residence admitted, objection, many court over trial Robinson, any and and the absence to his detri- forms inadmissible beyond other evidence the burial site agree. We ment. prove by preponder- venue sufficient to is might that the murders ance of the evidence specifically argues the tri County.9 in Oklahoma have been committed admitting inadmissible hear al court erred thus satisfies the Oklahoma evidence coconspirator say under the ex prove and burden to Constitution the State’s 2801(4)(b)(5). O.S.1981, § A clusion. See preponderance evidence. venue against party is offered statement which coconspirator Appellants’ argu next examine conspiracy furtherance of their jury Appel course question. ment is a that venue hearsay. is following prelim- not O.S. challenged venue is admissible lants each County, Shepherd Burns District Court Oklahoma Lisa testified she v. 9. The Court is aware (Okl.Cr.1959) lying up plastic tied is not in saw a man a woman 929-30 Floyd’s home in Okla- opinion on the floor Ronnie In Bums direct conflict with our herein. County. court, evidence is not considered homa here This to the trial the Court directed issue but saw did know when she them for she unartfully approved motion for the use Flip- Flippo’s who were. trial she stated challenge Wooldridge directed verdict to venue. identify po present, failed him at but (Okl.Cr. 1983), on the P.2d hearing, identify Harjo him trial. did not hand, implies the submission venue other (Okl.Cr.1990). Harjo Fur- allegation proven to be as a material ther, Flippo improperly barred court proper procedure. beyond a reasonable doubt impeachment Shepherd her own state- It is not. she she not know if what remem- ments that did C, fantasy. V bered was fact or See infra. *10 296 2801(4)(b)(5).11 1981, (1995). § Armstrong See also improper This will the Court review (Okl.Cr.1991). State, 593, ly hearsay
v. P.2d 597 weigh 811 admitted evidence its However, alleged coconspirator against state- properly before effect the admitted evidence defendant, against ments can be admitted a guilt. appropriate Id. find it to We cate required the trial is to an in court hold gorize according the statements time and hearing camera to determine a con- whether challenged content. We first review the State, spiracy Harjo v. existed. 797 P.2d they if statements to determine were made (Okl.Cr.1990). 338, conspiracy so, 345 The must during conspiracy. the course the If proven by preponderance a of evidence we must then review the statements to deter alleged and the court trial consider the conspiracy. ifmine furthered the camera erly existence of conclusion of leged coeonspirator where the trial court requirements existed; Id. A hearsay conspiracy. non-hearsay [4] the statements furthered the conspiracy; found coconspirator’s hearing in statements in [2] that a both the defendant and the al- trial the duration of the conspiracy by reliability Id. substantive evidence court [3] the statements were declarant were Omalza’s trial. At the State finds: reaching properly and are admissible a preponderance had [1] a its decision. proved held the in court conspiracy; conspiracy satisfy parties goals prop the murder and include concealment of evi dence, alteration of the crime scene and dis when State, v. nates when murder er, (holding conspiracy to commit murder termi tween two or plus an conspiracy, ment. 21 overt cause 1981, § State, a murder its act 738 P.2d agreement overt act 423. objective following a A O.S.1981, §§ conspiracy begins more Generally, conspiracy conspiracy 525, in is alone does not people furtherance of the accomplished). accomplished. agreement. (Okl.Cr.1987); is an 421 and 423. Be can extend to commit conspiracy agreement with the first (Okl.Cr.1984) create Jones v. a Howev 21 O.S. beyond agree crime, Kelly ends be a party evidence that Omalza was a posal weapons and other evidence. Mann However, sought to it.12 State when the (Okl.Cr.), cert. trial, co-conspirator admit the statements at denied, 488 U.S. 109 S.Ct. apply the trial the limits of court failed to (1988). L.Ed.2d 163 imposed time and content section agreed alleged help 2801(4)(b)(5). disregarded The trial court its by arranging Jones kidnapped have Grant finding conspiracy earlier that existed in early murdered 1988. The first and/or February through from March and admitted agreement overt act in furtherance of the any any anyone statement made at time to telephone Floyd was Omalza’s call to by any coconspirator. Consequently, many Floyd’s he which enlisted assistance elimi- hearsay statements were admit inadmissible nating Although specific Grant. no date was objection. ted over strenuous call, telephone established for this the record must now determine if the telephone indicates the call occurred some- hearsay January admission of the inadmissible re early February, time late 1988. quires beyond harmless rea telephone Floyd reversal is a With Omalza’s call Mayes sonable conspiracy doubt. P.2d was born. At trial the State did (Okl.Cr.1994), denied, cert. not elicit conspir- evidence extend the — U.S. -, beyond acy discovery 115 S.Ct. L.Ed.2d of the bodies as O.S.1981, 2801(4)(b)(5) (and provides: Flippo) 11. Tide 12 did include and that conspiracy February A is not if: existed from against However, party through b. the statement is offered March as noted (5) by coconspirator party a statement infra, support no evidence exists to the trial during the course and in furtherance of the finding conspiracy beyond court's lasted conspiracy. discovery of the bodies which occurred on March 9-10, 1988. specifically 12. The trial court found Omalza, conspiracy members Jones *11 Jones any alleged Linda Martindale testified was no evidence that there evidence, her she Grant not to come back told that told coeonspirators concealed altered preliminary and Grant’s weapons to court after Jones’ disposed or and the crime scene drug smuggling in the Bassett hearing Mabel after the murders.13 There- other evidence accompa fore, testified she coeonspirator to be case. Martindale also statements ad- 2801(4)(b)(5), Triple X they nied to a house on Road Jones missible under section go they to late Jones said needed after tele- 1987. must have been made Omalza’s they move of “Pine so could some before the bodies house phone call to and 9-10,1988. to Mar- apple’s stuff.”16 Jones’ statements on March were discovered any agreement prior to tindale were made challenged nowWe examine the Therefore, Omalza. between Jones and determine which of the state statements to to Martindale cannot be Jones’ statements during ments the duration occurred coconspirator under the exclusion admitted exten conspiracy. Patricia Arnold testified exception rule. other sively five when made about occasions Jones Only one Lancaster testified Jones incriminating to her. Roberta Angela offered Hickson two hundred during was course her the occasions ($250.00) fifty hostage hold dollars Grant conspiracy.14 The other four occasions were Therefore, “turning evidence” because Grant was State’s after the bodies were discovered. against could not remem incriminating Jones Jones. Lancaster statements made occurred, 10, 1988, but es answering ber when this conversation on March on Arnold’s January discovery timated it occurred sometime machine after about the to Lan February 1988. find Jones’ offer statements to Arnold We the bodies Jones’ 17,1988,15 hostage hold 12,16 satisfy caster and Hickson to Grant March do not 2801(4)(b)(5) during conspiracy, made but requirement time of section was not agreement with prior under the Omalza. not have been admitted and should unlikely find it Jones would solicit others coconspirator exclusion. agreed to do eliminate Grant after Omalza However, the statement Jones so. answering machine on made on Arnold’s incident in Lancaster also related an “Kim was dead” and March telephone al heard on the urging her was not offered which she Jones Arnold contact legedly speaking was talk to Omalza. Jones prove was dead but was offered to Grant birthday that had ing picking up a cake knew been discov about show Jones the bodies had Therefore, pharmacy. Jones also been ordered from a nervous. this state ered and was during Allen told Omalza the conversation hearsay and was admissible. ment was not Draper killed Lake. Beard next to be Jones on was personal Arnold’s observations of about the time frame established Ar were also admissible. March it birthday was oc picked cake conversation she drove to motel nold testified being found. Be buy prior to the bodies whereupon curred up Jones went impossible from this They to conclude went to a cause it is newspaper map. also were before record if these statements post in Moore where Jones retrieved office occurred, cannot had we personal or after the murders observations letter. While Arnold’s concerning the birth admissible, incriminating find Jones’ statements state Jones day and Allen Beard occurred cake not. ments were recordings of these state- 15. includes the could not con- This the medical examiner 13. Because (cid:127) long had been in the ravine 82A and 107. elude the bodies State’s Exhibits how ments. See opined they probably there had been about but discovery days, we shall bodies two use known the nickname event which establishes the on March 9-10 “Pineapple.” conspiracy. termination February around 14. Jones told Arnold sometime get court date that she had to her yet. dead continued because Grant *12 However, conspiracy. certainly testify personal
the time of the the Hill could to her birthday knowledge about the Allen pistols statements cake and that Jones stored at her prove However, to truth pis- Beard not offered of home. Jones’ statement asserted, belonged hearsay but to the matter show Jones’ tols to Omalza was Therefore, knowledge conspiracy. coconspira- of the could not be admitted under the hearsay. are tor exclusion because no time frame was established. Nor could the statement be ad- Lancaster testified said a also Jones any hearsay exception. under other mitted week or so after the bodies were discovered snitching got “the bitch had what she had Shepherd Floyd Lisa testified worry coming to her” and she did not have to her told sometime after the murders she was anymore. about the “bitch” Because there is going to be his alibi witness. The State conspiracy beyond no to evidence extend failed to show statement made was dur bodies, discovery of the Jones’ statements to ing the time of the conspiracy. frame How Lancaster after the bodies were discovered ever, prove the statement was not offered to co-conspirator cannot admitted under the be witness, Floyd’s Shepherd would be alibi but exception exclusion other to the hear Floyd’s prove explain to of mind to state say rule. why Shepherd Floyd’s went to never back Therefore, house. is not statement hear Hull, expert a handwriting Michael say. City Department, with Oklahoma Police piece a notebook with paper identified a Jones, Gary husband Patricia heading peo list names under the “no Jones, Beth testified Jones him to told come ple” being written Jones. Grant’s police home because heard she about the name was last on the list followed finding body. Gary Jones told Grant’s promise notation “for sure. Please P.A. me attorney go Jones her advised her to to living I make her life a hell. That want police so the pick up hotel would not her you just Love, to do for me. Pat.” The questioning until after the weekend. piece paper date the notation at Clearly, these statements were made after “Gayle says living the bottom which Barrett conspiracy the bodies were found and the you at Della’s 2-1-88 owes Hull’s $350.” Accordingly, ended. these statements can identity concerning the the au conclusion co-conspirator not be admitted under the ex pursuant thor admissible to 12 clusion. hearsay statement but of Jones Lastly, Gayla Flippo Hood testified was not. We cannot conclude Jones’ written her told he his wife married so she could not living to make Grant’s life a hell testify against him. Hood also testified dur during conspira course ing that same conversation told her cy. No facts were established to allow such “they” “he” had taken care two snitch Therefore, a finding. the statement cannot Hood es. could not recall when the conver coconspirator under exclu admitted place attempts took sation to refresh her sion. memory proved Flippo’s unsuccessful. state Hill Pam testified Jones came her ment itself shows the murders had been ac Floyd help house and asked her retrieve complished. Consequently, find we and sell some of Hill also Omalza’s cars. statements made during were not the course pistols said Jones some her “store[d]” Therefore, conspiracy. of the Flippo’s state belonged home which Jones claimed to Omal- ments cannot be admitted under the cocon- asking Floyd za. for as Jones’ spirator exclusion. prove sistance were not offered Jones help retrieving selling danger admitting needed Omalza’s such hear cars, say were offered show met inability but Jones statements lies the accused’s before Mayes, several weeks the murder. cross-examine declarant. gave including 17. See This ad- State’s Exhibit 67. exhibit was testified she the entire notebook mitted of Pam who Exhibit Detective Hill State’s 67 to Mullenix. Yet, long produce evidence from which admitted State shall P.2d at 1307. courts have ruling can on the exceptions to the the trial court make evidence under certain objectives conspiracy. duration and hearsay under “[a]dmission rule because all The trial court should consider the evi- firmly exception satisfies the rooted reliability presented dence determine the duration requirement of be- constitutional *13 objectives conspiracy the and limit weight longstanding and of of the accorded cause prior in which to the judicial legislative experience and itself to events occurred assess- types completion conspiracy’s principal the aim. ing the of certain of trustworthiness At the the trial Wright, Idaho v. conclusion the out-of-court statements.” 3147, 817, 3139, ruling 805, court shall 110 111 shall announce its which 497 U.S. S.Ct. (1990). parties conspiracy, the include the L.Ed.2d 653 The Confrontation the permits certain dates or events which establish duration the admission of hear- Clause finding conspiracy say against despite and its of which statements defendant inability conspiracy are confront the de- further the and the defendant’s to statements long is an admissible under section clarant at as there ade- therefore trial 2801(4)(b)(5). reliability binding particularized ruling This shall be on quate indicia of or Wright, parties throughout 497 the the trial. The trial guarantees of trustworthiness. 814-15, judge diligent and at 110 at 111 should be consistent U.S. S.Ct. ruling. enforcement of the L.Ed.2d at 651-52. case, In the instant Omalza’s Con B. IMPEACHMENT rights not satisfied. frontation Clause were error, proposition his second Omalza However, error does not necessitate re the argues allowed the to the trial court State improper if the versal this is satisfied Court impeach hear- its witnesses with inadmissible hearsay did not admission the statements say improperly the and instructed Chapman v. the verdict. Cali contribute to impeachment the use evidence. 18, 23-24,
fornia, 386 87 S.Ct. 827- U.S. (1967). 705, 710 First, 17 L.Ed.2d We cannot argues the Omalza State beyond a find the in this case harmless impeach error allowed to its own witnesses18 conclusively The hearsay. Throughout reasonable doubt. State the trial inadmissible proved and were mur that Grant Robinson impeached the its witnesses with each State dispute was issue in who dered. The made prior witness’ inconsistent statements hearsay trials, state during prior killed them. The inadmissible Flippo’s and their Jones’ connecting significant were Omalza prelimi ments at inconsistent statements made the Jones, making the prior and nary hearing in this matter and their theory We cannot police. understandable. State’s statements made inconsistent say incriminating impeach state also Don State was allowed the verdict. Ac ments did not contribute to statements he Cargle nie with inconsistent cordingly, be find this ease must reversed deposition.”19 we a “sworn remanded for new trial. may disputed that the It be State cannot courts, or impeach his her credi- expedite trial call "witness
To
review and assist
State,
bility. Kinsey
P.2d
633
be observed
following procedures shall
State,
(Okl.Cr.1990);
Smith v.
P.2d
eo-eonspir-
seeks to introduce
when
State
O.S.1981,
(Okl.Cr.1988);
§ 2607.
The trial court
hearsay statements.
ator
However,
must
whether
Harjo hearing
which the
we
determine
shall conduct a
impeached its
properly
witnesses
from whom it State
shall
each witness
call
must
if
coconspirator
also determine
statements.
case.
intends to elicit
instances,
Cargle’s sworn state-
citing any specific
19. The State referred to
Without
District
impeach
ment Detective Mullenix
Assistant
challenges
Linda
statements used to
However,
Martindale,
Lancaster,
deposition.
Flippo,
Attorney Fern Smith as a
B.J.
Pam
Roberta
Liebman,
Hill,
Hood,
procedures
were not
Shep-
deposing
a witness
Gayla
Bobby
Lisa
nothing
deposition
herd,
Ross, George
this so-called
is
followed and
Loveland
Donnie
Debbie
more
a sworn statement.
Cargle.
than
impeachment
prior
questioning
evidence
be
their
could
used as
contents disclosed
Further,
guilt.
substantive
about
evidence
witness
the statements.
prior
extrinsic
inconsistent state-
evidence
Prior to the enactment of
Oklahoma
ments
a witness
admissible if the
Code, prior
Evidence
inconsistent statements
opportunity
explain
witness
afforded an
is
previ
to show a
had
admissible
witness
deny
opposing
and the
ously made statements inconsistent with his/
party
opportunity
given
interrogate
party offering
if
her trial
witness about
statements.
surprised
prejudiced by
testimony. Pettigrew
witness’
changed
Code
the rules
(Okl.Cr.1959);
Akins v.
P.2d
concerning
prior
the use of
inconsistent
47, 51,
Okl.Cr.
572-73
statements.
Title
*14
(1950).
inconsistent statements were
These
2801(4)(a)(l)
§
provided:
purpose
to be considered
for the
of
hearsay
4. A statement
is not
if: a. the
impeachment
explain
calling
and to
the
of
hearing
declarant testifies at the trial or
witness,
such
not as substantive evidence
subject
and is
to cross-examination con-
tending
prove
the truth
the facts
of
stated.
statement,
cerning
the
the
Id.
(1)
is
inconsistent with
declarant’s
the
tes-
1978,
Legislature
In
the
enacted the Okla-
timony,
given
subject
and was
oath
under
Code,
O.S.Supp.1978,
homa Evidence
trial,
penalty
perjury
of
at
(hereinafter Code)
§
seq.,
develop
et.
proceeding,
deposition....
or other
or in a
the
truth
law of evidence so that the
could be
justly
proceedings
ascertained and
deter- The
made
Code
inconsistent
statements
§
O.S.Supp.1978,
mined.
2102. The
requirements
See
which
the
meet
of section
Legislature
2801(4)(a)(l)
expressly made the rules enunci-
non
and admissible.
applicable
pro-
ated in
in criminal
the Code
Although
specifically
we have never
ad-
§
ceedings.
O.S.Supp.1978,
2103. In en- dressed
of
the substantive use
inconsistent
acting
Legislature
the
the Code
several
statements,
2801(4)(a)(l)
we find section
changes
existing
Specifically,
law.
the
places significant safeguards on the admis-
changed
Legislature
concerning
rules
prior
sion of
inconsistent statements such
impeach
prior
who could
and how
witness
that there is little reason to exclude them as
inconsistent
be used.
statements could
See
Therefore,
substantive evidence.
we hold
2801(4)(a)(l).
§§
12 O.S.Supp.1978,
2607 and
which
inconsistent statements
meet the
changed
As
have not
these rules
been
since
2801(4)(a)(l)
requirements of
may
section
be
Code,
we must
enactment
now considered as substantive evidence.
provisions
applicable
examine the
at issue in
argues
Flip-
the admission of B.J.
this case.
Hood’s, Liebman’s,
po’s, Hill’s,
Shepherd’s,
provides
Title 12
the Ross’,
Cargle’s
Loveland’s and
inconsistent
credibility
of a witness
attacked
trial, Flippo’s
from
Jones’
any party,
including
party calling
him.
joint preliminary hearing
and their
denied
departure
complete
Section 2607 marked a
him
right
against
to confront witnesses
permit
from existing law which did not
him. He further claims these inconsistent
party
impeach
his own witness absent
not be
statements could
used
substantive
proof
prejudice.
surprise
of
or
The subcom-
guilt against
evidence of
him. He bases his
mittee noted that it abandoned the tradition-
claim
fact
on the
that most of these wit-
premis-
al rule
false
because it was based on
nesses, although present
testifying,
agreed
es. We
upheld
this construction
claimed no
nonetheless
recollection of either
Smith,
of section
at
1008-09.
underlying
pri-
events
described
their
Kinsey,
See also
rejected
same
Owens,
U.S.
108 S.Ct.
States
Owens,
Supreme
interpreted
Court
(1988).20
held
The Court
303 instruction followed can tell which may impeachment evidence consider this you jury? only determine it If the court did not harmonize the extent that witness, believability given, if at it be of the instructions how can ex- affects the pected jury all.22 could or would do so? that sufficiency juries pass upon If are provided: No. 18 Instruction instructions, they judges then are not the you may that consider You are instructed as well as the facts? Instruc- law any prior inconsistent statement clear, explicit, and tions should be free in this a witness as substantive evidence contradictions; ambiguities from oth- case.23 they confuse and mislead the erwise are these instructions State concedes jury- Judge contradictory argues but “the effect State, 9,1, v. also Anderson Okl.Cr. contradictory instructions to See Blevins’ (1949). 721, 725 jury’s discretion how treat leave many prior statements of the inconsistent duty While it is the trier of fact’s that the witnesses.”24 The State maintains weight give determine what credit jury [sic] determiner “was best testimony, particular always has it witness’ credibility.” witnesses’ trial court’s and will continue to been consistently jury held We have duty to instruct the trier of fact on law. are a matter committed to instructions (Okl.Cr. State, Crawford 1992). court, of the trial whose sound discretion concerning law This includes the long judgment as the will be disturbed impeachment find un evidence. We use instructions, whole, fairly taken as argument jury tenable State’s applicable law. accurately state the Walker concerning choose what law follow could State, (Okl.Cr.1994), P.2d cert. impeachment evidence. We fur its use — denied, -, 166, 133 U.S. 116 S.Ct. jury way find in which the could have ther no (1995); P.2d L.Ed.2d Sadler v. As dis these two instructions. harmonized (Okl.Cr.1993); Fritz v. above those inconsistent state cussed (Okl.Cr.1991). implicit It is P.2d trial, Flippo’s trial and the ments from Jones’ jury to accu- instructions order be used as sub preliminary could rately provide the the law must state guilt, while the inconsis evidence stantive ample understanding of the issues police could not. Because tent statements *17 applied. presented and standards to be or not the used not know whether we do self-contradictory on instructions are When any impeachment all evidence of harmonized, material issues and cannot be guilt, further review evidence of substantive State, 45 Okl. plain error occurs. Thomas v. case futile.25 of this is (1930); 425-26, P. 1037-38 Cr. State, 32, 36, 274 Jay v. P. Okl.Cr. IV. RONNIE LEE FLOYD (1929). adminis- In instant case the trial court A. HEARSAY contradictory completely instruc- tered two impeachment on the use of evidence. Floyd challenges tions the testi Appellant reviewing (7) witnesses, claiming contradic- As this Court said when mony of seven tory hearsay. Specifi in Price Okl.Cr. testimony instructions inadmissible was (1908): 358, 388-89, P. testimony our cally, he directs attention Lancaster, Arnold, by Patty Roberta given are self-contradic- instructions which Can Shepherd Boyette, Cargle, Lisa Donald Rick tory and sufficient? Who be harmonious of the could used 25. Because some statements atO.R. 3363. 22. Omalza not, ap some could evidence and as substantive fashioned propriate should be instructions at 23. Omalza O.R. 3364. types comport of with the different retrial statements. at 24. 24. State’s Brief Omalza Gayla hearsay. We have reviewed Hood.26 and therefore was not 2801(3) testimony in Floyd’s allegations and the (testimony by a witness at trial question this case from and find suffers concerning personal that witness’ observa- hearsay problems same found in trial of made tions outside the courtroom is not hear- co-defendant Omalza. say). Floyd’s Patty Arnold testified tri Roberta Lancaster testified that by al incriminating statements made Patri had asked Jones Lancaster and her sister testimony cia Jones. was introduced This hostage hold Kim Grant so that Grant could conspiracy kill State as evidence testify against Jones. This not made Jones victims. Statements during conspiracy was not made and was describing killings Arnold and that improperly therefore admitted at trial. See Floyd, Flippo Omalza out had carried A, supra. III day the murders were made the after the bodies were found. These Lancaster testified also that after accomplishment therefore after the “snitching the murders Jones said the had objective conspiracy’s deaths of —the got they son a bitches what deserved.” Grant im and Robinson —and as such were Assuming this statement was introduced A, properly at supra. trial. See III admitted made, it hearsay. to show was it is not Tes timony which is to show offered that a state
Testimony by prison guard Rick prove was ment made and not to is its truth Boyette was also introduced as evidence in hearsay. Washington not conspiracy. Boyette furtherance testi of the (Okl.Cr.1977). However, 308-09 if the phone fied to a between call Omalza and prove statement was offered to the truth of concerning discovery woman of bodies asserted, the matter got victims wherein told the woman to wor “not death, meaning what deserved is ry.” then it phone place call took This March exception for which no discovery exists. The after the bodies. As it purpose introducing for this statement is not not made duration from the improperly clear record. conspiracy, it admitted Floyd’s trial. However, situation, in this it is not neces- sary purpose to determine the
Gayla testified the state- Hood she observed a Floyd’s pass ment as the statement van similar at the does the test home Chuck Noland, relevancy. coming that she heard voice from threshold determination statement, admissibility inside the van which she believed to be of this as with all evidence, Floyd’s, “bloody and that she is whether it observed wa is relevant. Relevant ter” running out the back of having the van. This evidence defined as evidence personal tendency own was her observations to make the existence of a fact that brief, challenges appellate longer was a book notation that Jones would no *18 victim, testimony concerning drugs Hill from Pam a sell Kim Grant. No contem- by poraneous objection testimony, Patricia Jones for Pam Hill "not to was raised to this plead her The record shows this testimony case out." properly therefore is considered testimony given by Deborah and not was Ross Id. admitted. objection Pam Hill. was raised to this testi- brief, No supplemental Floyd In a asserts the State Ross, mony prop- of therefore we it Deborah find attempted prejudicial hearsay to introduce evi State, 806, erly admitted. v. 554 P.2d 809 Wilson testimony Gary dence of Jones and (OkI.Cr.1976) (when alleged hearsay admitted Raising propositions Otto Hembre. new of error objection, without the statements be consid- supplemental strictly prohibited. ain brief is 22 admissible). though ered as are See also O.S.1991, 18, App., Ch. Rules the Court Mann, 749 1158-59. P.2d at 3.4(F). Appeals, Propositions Criminal Rule supplemental raised for Floyd testimony by error the first time in a our also directs attention to Hull, be J. Michael brief shall deemed forfeited for a forensic document examiner consideration. State, 56, (Okl.Cr.), City Department. with the Police See Brown 68 Oklahoma - denied, -, Hull testified State’s 67 and cert. U.S. 115 that Exhibits Nos. S.Ct. 130 (1994); a 423 notebook attributed to Jones and known L.Ed.2d Castro v. (Okl.Cr.1987), denied, sample handwriting, respectively, of Jones’ were cert. 485 U.S. by (1988). both written Contained the note- Jones. 108 S.Ct. L.Ed.2d Flippo’s At that testimony of the from trial. trial consequence the determination is of Floyd Shepherd than it testified she lived with dur- probable probable action more less O.S.1981, 1988; early part ing that would the evidence. would be without often, Floyd specifically during March § is not rele- visit find this statement We 1988; Floyd’s day Floyd told tendency make that one in March her vant has no as it back for a more or less to leave the house and not to come participation in the murders while; evening that probable. the statement that when she returned Therefore whether up exception man and tied hearsay is not a factor she saw a a woman falls under a admissibility. plastic Floyd explained Its that it lying of its in the determination only get pay at the two to precludes admission was a scare tactic to lack of relevance its debt; Floyd, Flippo and Patricia Jones that trial. who present and that the woman were Cargle, with Donald incarcerated Kim; and, that up was referred to as tied from Omalza at McLeod Correctional Center days Floyd that her after told some few January testified to certain to March going she was people had been murdered and concerning he had Omalza conversations previ- her After to be his witness. Cargle admitted testi Patricia Jones. When testimony, Shepherd still ous stated she did occasion, previous fying differently on a testimony, giving but she not remember transcript allowed to read from the State was accuracy transcript. of the did not contest transcript and the of Car- “deposition”27 of a from a find these sworn statements given Flip- at gle’s testimony co-defendant prior previous properly admissible as po’s trial. pursuant O.S. inconsistent statements 2801(4)(a)(l) Flip- § could be consid- sworn statement and which jury trial, by as evidence. Cargle had ered substantive po’s testified that Omalza IIIB, supra. plan kidnap Grant and See told him of the sale; drug by luring them awith Robinson Floyd to take the victims to B. INSTRUCTIONS house, them and threaten and scare father’s given contradictory instructions The same lake;” work, “take if that them to did prior inconsistent on the use of Omalza Floyd told the victims had purposes for im- substantive Cargle’s testimony from had killed. been peachment purposes given in this case. properly under Flippo’s trial was admissible inadequate prop- instructions were These 2801(4)(a)(l) prior inconsis jury applicable law. erly inform the by could be considered tent statements which B, supra. III See However, as substantive evidence. used police his statement to could LEE FLIPPO V. DAVID B, purposes. III su impeachment See
pra.
A. HEARSAY
Throughout Flippo’s trial the defense ob
challenges the admission
jected
Shepherd
vigorously to the admission
Shepherd.
Lisa
evidence,
the trial
and was overruled
initially pled the Fifth Amendment
However,
alleged
fully
are thus
These
errors
Floyd.
court.
inquiries about
State’s
appellate
See Plantz
preserved for
review.
had ever
differ
when
if she
testified
asked
cert,
(Okl.Cr.1994),
P.2d
remem
ently,
replied that she could not
she
*19
—
denied,
-,
U.S.
116 S.Ct.
Shepherd’s
then read Ms.
ber. The State
However,
taking
statement,
previously
the
of
in the
as
determined
which is referred to
27. This
meet
deposition, but which does not
fall within the
as a
not
record
the
this sworn
does
deposition, is the
statutory
of
definition
a
proceedings" as used in 12
definition of "other
O.S.1981, 2801(4)(a)(l)
Footnotes 19
addressed in
same sworn statement
§
not be
and could
used
taking
was
and
specifically
of this sworn statement
20. The
application
purposes. This
substantive
O.S.1981,
by
§ 749
authorized
749(B)
in Section
with the restraints
consistent
offense
an element of the
and therefore satisfies
of
use of sworn statements.
on the
O.S.1981, § 491.
perjury pursuant
to 21
(1995).
parties agree
Separate
Both
distinct
L.Ed.2d 1091
and
from cocon-
by eoconspirators,
spirator hearsay,
hearsay
made
inadmissible
from
some statements
coconspirator
a
not a
declarant who was
which would otherwise
inadmissible hear
say,
investigator
also
at trial when
authority
under the
admitted
Mike
are admissible
2801(4)(b)(5).
Flip-
Burke testified
Noland told him
Sharp disagree
Chuck
po was involved in the murders.
proper
ment
as to
parties
divides the
application
of this section
trial testimo
urges
The State
evi
admissible
ny-
guilt beyond
dence is sufficient to show
a
doubt,
reasonable
and the admission of this
trial,
in
the trial court
As
the Omalza
held
hearsay should be found
harmless.
order
an in
and
a
camera
determined
con-
harmless,
hearsay
to find the admission of
spiracy
part
defendant was
existed and the
such
evidence must be
that the Court can
trial,
Also,
it.
Omalza
when
as
beyond
find
doubt that
reasonable
the inad
coeonspirator
sought
to admit
state-
hearsay
missible
not
did
contribute to the
trial,
apply
did
ments at
the court
conviction.
Booker
required by
limits of time and content
Sec-
(Okl.Cr.1993);
Chapman,
McCarty v. attempted every thwart defense ecution to .Cr.1988). Donnelly v. See also DeChristofo place jury to before the the fact effort ro, 637, 647, 416 U.S. 94 S.Ct. years off Cargle received two his sentence Pate, (1974); L.Ed.2d 438-39 Miller assisting prosecution. in This is er- 1, 7, L.Ed.2d 386 U.S. 87 S.Ct. requiring purpose the State ror. (1967). prove ap To claim divulge this information is allow the appellant to estab peal the bears burden credibility. to test the witness’ Id. (2) (1) testimony misleading, certain was lish prosecution knowingly used the testimo DENIAL CONFRONTATION C. OF (3) testimony ny material was testified, Shepherd After she Lisa McCarty, P.2d at guilt or innocence. county from contacted defense counsel testimony. jail asking to her She discuss undeniably im- credibility Dixon’s was and stated she met with defense counsel represented He he was peached. testified testimony. to withdraw her Counsel wanted his professor Harvard law when fact deputy tape conversation and recorded the jail-house lawyer. was As the “counsel” it. At an in Hatfield witnessed Rochelle testimony Robinson’s medical established repre hearing Shepherd, who was camera death, testi- throat was slit after his Dixon’s counsel, attempt denounced the sented Flippo’s that he mony regarding testimony, and she her stated withdraw the throat a “snitch” when the “snitch” slit testimony.” on her former would “stand it escape impeached. In context tried hearing the de- Following the in camera impossible know whether stand, statement, and she Shepherd Dixon called or whether fense the untrue questions posed to her. up. to answer the impeachment case refused made it either pros- Hatfield. The the testi- The defense then called significantly weakened force of an However, sup- objected, the defense made nothing on mony. the record ecution ensuing knew, proof. camera finding prior to In the prosecution offer ports a Shep- she heard testimony, testimony would Hatfield testified that Dixon’s say right know she “what’s misleading. prong the second herd did As satisfied, “fact wrong” her McCarty appellant or whether test is not fantasy.” Hat- charge. Shep- The trial court disallowed met has not his burden testimony, impeached. agreeing with the State How- field’s credibility was also herd’s *21 308 hearsay. Nancy be inadmissible This Huffines of the Tennessee
that it would
Department
Health
to intro
was error.
was called
psychiatric
Shep
duce the
records of Lisa
Shepherd
by
When
became unavailable
re-
Following
herd.
an in camera
2804(B)(3)
fusing
testify,
Section
of the
objection
trial court sustained the State’s
Evidence Code allowed admission of Hat-
Flippo argues
this
this denied him
witness.
2804(B)(3)
testimony.
pro-
field’s
Section
right
present
and
his
to confront witnesses
vides:
privileged
defense.
records are
These
and
following
by
are not excluded
subject
Shep
not
admission
absent
at trial
hearsay rule if the declarant is unavailable
O.S.1981, §
12
Shep
herd’s consent.
2503.
as a witness:
her
and
privilege,
herd did not waive
the trial
prohibited
properly
court
use
the records.
A
which ... at the time of
3.
Farrow,
Citing
Hampshire
New
v.
116
subject
making ...
its
tended to
declar-
[a
(1976)
N.H.
A.2d 1177
and
366
State v.
liability-
to ... criminal
ant]
D’Ambrosia,
212 Conn.
A.2d
cert.
561
2804(B)(3).
having
After
denied,
493 U.S.
110 S.Ct.
Shepherd
sworn
the truth
nullified
to tell
her
(1990), Flippo argues
L.Ed.2d 963
further
by stating
know
oath
she did not
what was
Shepherd’s
that under
the circumstances
exposed
true
not. This
and what was
her to
give
privilege
way
right to
must
to his
cross-
charge
possible
perjury.
argument
persua
examine
This
not
her.
is
sive
Shep
for the defense cross-examined
the exclusion of this evi
Whether
extensively regarding
drug usage,
herd
her
depends
be
dence
found harmless
on
problems,
mental
and confinement
a men
(1)
importance
five
of the
factors:
testi
hospital. Flippo
right
tal
was not denied his
(3)
(2)
eumulativeness,
mony,
presence
its
to confront
witness.
contradicting
absence
corroborative
evidence, (4) the extent of cross-examination
argument
appellant
his next
con
(5)
allowed,
strength
the overall
of the
position
cedes
he should have been
State,
P.2d
State’s case. Beck v.
present
allowed to
evidence that “Rob” Rob
(Okl.Cr.1991).
inson had
to be
reason
afraid
others be
test,
Shepherd’s eye-
Applying this
we find
against
Flippo
holding
sides
Wood
testimony
important
very
witness
(Okl.Cr.),
hibiting testimony of Rochelle Hatfield.28 D. PROSECUTORIAL MISCONDUCT Flippo goes argue on to that because Don- Cargle nie Shepherd Flippo argues and Lisa recanted pros- their numerous instances of testimony subsequent at the trials of ecutorial misconduct warrant new trial. Floyd, testimony Flippo’s their points case first instances voir perjured. This dire. evidence is before us We have reviewed the statements and record, on ruling any and we no it. find the make trial court cured error sus- Shepherd testimony spirator, If the this trial were would from Hatfield subsequent subsequent to be used in the cocon- admissible in the trial.
309
many
in union with
other trial errors
objection,
the
the
taining
defense
require
complained
not error.
reversal.
of were
challenges
opening
the
Flippo next
E.
INSTRUCTION
JURY
prosecutor stated Pat
statement. The
Jones’
testify regarding
attorney
the advice
would
DEMURRER AND MOTION FOR
defense,
gave
regard
in
to her
and
he
her
DIRECTED VERDICT
testify
he ad
Flippo’s
wife would
in
participating
mitted
the murders. This
jury
challenge
The second
instruction
introduced at
The
not
trial.
evidence was
question
relationship
on
the
focuses
the
improper.
therefore
opening
statement
between a demurrer to the evidence and a
(Okl.
State,
1101,
492 P.2d
1103
McGaha v.
verdict,
as
motion for directed
as well
the
State,
Cr.1971);
331,
395
338
Haruell v.
P.2d
duty
jury
of the
to instruct
the
trial court
(Okl.Cr.1964),
other grounds,
overruled on
granted.
either
the
when
is
When
(Okl.Cr.1990).
State,
Buis v.
this
would not be introduced
evidence
State,
Relying
666 P.2d
Murphy
on
v.
236
pressed
imagine
trial.
is hard
The Court
State,
(OW.Cr.1983)
v.
79
and Smith
Okl.Cr.
good
be
in
how
could made
these statements
(1944),
argues
Flippo
jury
acquit
jury
the defendant. But the
expressly
ous cases is
overruled.29
advice,
are not
bound
nor can the
court,
cause,
prevent
jury
for
from
present
granted
In the
case
court
giving a verdict.
Flippo’s demurrer to four counts at the close
of the State’s case.
Since
demurrer was
Murphy
§
22
850. The
Court
sustained,
properly
these counts
were not
opined the demurrer had indeed been re-
given
jury.
At the close of rebuttal
placed by the motion for directed verdict.
the defense moved for directed verdict on the
proper practice
[T]he
to attack the suffi-
counts,
properly
murder
and this motion
ciency of the evidence is a motion for
denied. The trial court committed no error.
O.S.1971, 850,
directed verdict under
Flippo’s
challenge
jury
final
instructions
and a demurrer to the evidence should be
argues
jury
addresses venue. He
venue is a
treated as motion to direct a verdict....
question
by denying
and the trial court erred
However,
Murphy,
3H ther, brings such evidence be relevant for dif- sharp into focus the need for the trial objections relevancy ferent reasons. If arise bench to review their instructions hand, retrial, parties should state on the context of the trial at being record the reasons the evidence is Finding requires
offered. error which rever- sal, these cases are and RE- REVERSED
MANDED for new trial.
JOHNSON, P.J., and LUMPKIN and STRUBHAR, JJ., concur. CHAPEL, Y.P.J., LANE, J., concur in OKLAHOMA, N.A., BANK formerly OF results. *24 Oklahoma, City, Bank of Oklahoma LANE, Judge, concurring in results. N.A., formerly Fidelity Bank, N.A., separately: Two issues cause me to write Housing Trustee for the Oklahoma Fi evidence, the admission of irrelevant and the Agency, Appellee/Counter-Appel nance conflict between the instructions on the use lant, prior inconsistent statements. very significant hearsay problems in BRISCOE, Appellant/Counter- James E. tendency this case have created toward Appellee. tunnel vision. That certain evidence is not prohibited hearsay only begins analy- No. 83778. question admissibility. sis of the We must not, also ask —is it relevant? If it is it should not be admitted at trial. Oklahoma, Appeals Court of On the relevancy basis of I would exclude Division No. 2. (1) following from Omalza’s trial: Jones’ Dec. dead”; to Arnold that “Kim was (2) Jones’ statements to Omalza about a 20, 1996. As Corrected Feb.
birthday cake that had been ordered from pharmacy plan and the kill Allen Beard; (3) (4) people”; Jones list of “no pistols
Hill’s that Jones stored her home. These statements do not make guilt
Omalza’s or innocence more or less probable. they That are not does relevant, change the fact are not
and not admissible. plain judge
It is to me that the trial cor- rectly decided to instruct on the two uses of
prior impeach- inconsistent statements: as only, ment and as substantive evidence of guilt. judge The trial could have avoided the fatal conflict the two in- between had he given
structed the that those statements prior hearing subject under oath in a trial or penalty perjury to cross-examination and substantively could be considered and those which were not could be considered for im-
peachment only, the irreconcilable conflict between the instructions could have been difficulty presented
avoided. The here