Dodd v. State

LUMPKIN, Vice-Presiding Judge:

concurs in partydissents in part.

¶ 1 The facts of this case present two main issues which require adjudication by this Court in determining the merits of this appeal.

¶ 2 Initially, the case presents the question of whether the disclosure of impeachment evidence is encompassed within the provisions of the Oklahoma Criminal Discovery Code, 22 O.S.Supp.1994, § 2001 et seq. An analysis of this issue begins with the recognition both in the Code of Civil Procedure and the Code of Criminal Procedure the common law is abrogated through statutes enacted by the Oklahoma Legislature. See 22 O.S.1991, § 9; 12 O.S.1991, § 2. In applying this principle to the Oklahoma Evidence Code, Professor Whinery recognized:

It is a well-established principle that ‘general and comprehensive legislation, prescribing minutely a course of conduct to be pursued and the parties and things affected, and specifically describing limitations and exceptions, is indicative of a legislative intent that the statute should totally supersede and replace the common law dealing with the subject matter.’

See 2 L. Whinery, Oklahoma Evidence: Commentary on the Law of Evidence, § 2.12 (citation omitted). This principle of law *786 means this Court is not writing on a clean slate, but is restricted by interpretation and application of the Discovery Code. Analyzing the issue presented within the context of this Court’s scope of review, the Court must decide whether the disclosure of impeachment evidence is encompassed within the context of the Oklahoma Criminal Discovery Code. The plain language of both Section 2002(A)(1)(a) and Section 2002(B)(1) arguably only includes witnesses a party may plan to call in their case in chief. If that is the case, then the trial court discovery order was not violated.

¶ 3 The evidence the trial court denied consisted of two letters written by the witness, Kenneth Bryant. These letters, marked as Defendant’s Exhibits 21 and 22, could be viewed as either impeachment evidence or evidence of bias. See e.g. Beck v. State, 824 P.2d 385 (Okl.Cr.1991). In Beck , this Court recognized certain types of evidence were not included in the provisions of the Oklahoma Evidence Code. Id. at 388 . In those circumstances, common law principles would apply to its admissibility. Because the provisions of the Oklahoma Criminal Discovery Code are not specific, and lend credence to the interpretation impeachment evidence is not included as a part of the Code, I agree the trial court’s denial of the admissibility of Defendant’s Exhibit 21 and 22 was error.

¶ 4 The determination that the trial court’s denial of these exhibits was error does not answer the ultimate question in this particular case as to its effect on the trial proceedings. Just as this Court is bound to apply the provisions of the Oklahoma Evidence Code and the Oklahoma Criminal Discovery Code, it is also bound to apply the provisions of 20 O.S.1991, § 3001.1, which prohibits the reversal of a case unless “the error complained of has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right.” See also 12 O.S.1991, § 2104.

¶5 A review of Bryant’s two letters, together with his testimony which encompassed fifty-nine (59) pages of direct examination and ninety-four (94) pages of cross-examination, reveals almost all of the contents of these two exhibits were presented during the examination of Mr. Bryant. The defense very effectively painted for the jury a picture of Mr. Bryant as a long-term jailhouse informant and, to a great deal, impeached his testimony in this trial. At most, the admission of Defendant’s Exhibits 21 and 22 would have constituted cumulative evidence. This Court has long held it is not reversible error for a trial judge to deny admission of cumulative evidence. See Zackery v. State, 572 P.2d 580, 586 (Okl.Cr.1977). See also Spuehler v. State, 709 P.2d 202, 205 (Okl.Cr.1985); Stoner v. State, 568 P.2d 298, 301 (Okl.Cr.1977); 12 O.S.1991, § 2403.

¶ 6 This Court has recognized the special scrutiny with which jurors should view the testimony of jailhouse informants. Indeed, this Court has provided that special jury instructions should be used whenever a jailhouse informant takes the stand as a witness in a criminal proceeding and testifies. See OUJI-CR (2nd) 9-43. Regardless of how distasteful one might find the use of an informant, whether it be a jailhouse informant or an accessory to a crime who turns State’s evidence, it is widely recognized the use of such witnesses has taken place from the common law forward and “[tjhis engrained practice of granting lenience in exchange for testimony has created a vested sovereign prerogative in the government.” See United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir.1999), cert. denied, — U.S. —, 119 S.Ct. 2371 , 144 L.Ed.2d 775 (1999).

¶ 7 It is well within this Court’s prerogative to require jury instructions which place this type of testimony in its proper perspective for the trier of fact. See 12 O.S.1991, § 577.1. For that reason, I agree with the Court’s amendment of OUJI-CR (2nd) 9-43. However, I find the Court disregards the provisions of the Oklahoma Criminal Discovery Code in sua sponte creating the Court-generated rule on witness discovery in regards to a jailhouse informant.

¶ 8 The provisions of 22 O.S.Supp.1994, § 2002(A) set forth the procedures for the disclosure of evidence by the State. Once the Legislature has enacted statutes to cover that procedure, absent a finding of a constitutional requirement, the Court should apply *787 those statutory procedures. Those procedures, set forth in Section 2002, in no way deny a defendant the opportunity to obtain the very evidence which the Court seeks to mandate in the majority opinion. In fact, in the present case, defense counsel, armed with the ammunition they obtained through discovery, performed in an outstanding manner in attacking and testing Bryant’s veracity and motivation for testifying. The statutory process worked, and the trier of fact was fully informed. A review of the evidence reveals that the two letters which were not entered into evidence were merely cumulative of the testimony given by Bryant.at trial, and revealed nothing more on the issue of Bryant’s bias or prejudice. Because of that fact, I do not find the denial of the admission of this cumulative evidence was an error which “probably resulted in a miscarriage of justice, or constitutes a substantial violation of the constitutional or statutory right.” 20 O.S.1991, § 3001.1.

¶ 9 Therefore, I dissent to the Court’s disregard of the provisions and procedures of the Oklahoma Criminal Discovery Code by sua sponte implementing the automatic disclosure requirement regarding a particular class of witnesses. That procedure is not necessary, is outside the scope of the issues raised in this appeal, is not shown by the evidence in this case to be a needed procedure, and is already well encompassed within the current Discovery Code provisions. Likewise, I dissent to the Court’s decision to reverse the judgment and sentence in this matter due to the fact the failure to admit cumulative evidence did not violate the provisions of 20 O.S.1991, § 3001.1.