# Burke v. State > Court of Criminal Appeals of Oklahoma · November 1, 1991 · 62 O.B.A.J. 3443 URL: https://www.frixlaw.com/law-library/cases/9613432 ## Case - **Full name:** Gary Wayne BURKE, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** November 1, 1991 - **Citations:** 62 O.B.A.J. 3443; 820 P.2d 1344; 1991 OK CR 116; 1991 Okla. Crim. App. LEXIS 123; 1991 WL 226518 - **Precedential status:** Published - **Opinion:** Dissent by Lane - **Judges:** Johnson, Lane, Lumpkin - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9613432 ## How later opinions describe it (automated extraction) - stating that “[i]t would be far easier to elicit favorable testimony from a child with only a detective, social worker or other type of skilled questioner propounding questions without any confrontation or cross- examination” and that “[w]e should not allow the State to presen… ## Opinion text LANE, Presiding Judge, dissenting: The majority, without analysis of the scope or limitation of the Confrontation Clause of either the Oklahoma or federal constitution, declares 22 O.S.1981, § 752 unconstitutional for it deprives the defendant of the opportunity for cross-examination. Cross-examination, the majority tells us, is the only way to ensure testimony has necessary indicia of reliability. In this case the videotaped statement is not testimony and in the context of this case the majority’s bold declaration is plainly contra state and federal jurisprudence. See Jones v. State, 781 P.2d 326 (Okl.Cr.1989); Matter of W.D., 709 P.2d 1037 (Okl.1985); Maryland v. Craig, 497 U.S. -, 110 S.Ct. 3157 , 111 L.Ed.2d 666 (1990). If we were to adopt this position, all of the hearsay provisions of the Oklahoma Evidence Code would become unconstitutional as well. This result is not required by the Confron *1349 tation Clause, and indeed this case does not invoke the Confrontation Clause. The complaining witness, D.L., testified and was fully cross-examined. Subsequently, and by stipulation of the parties to the indicia of reliability set forth in Section 752, a video-taped interview conducted by the investigating police officer was admitted into evidence. The appellant was not denied his right of cross-examination of the witness, and he waived any objection to introduction of the video tape. The majority’s concerns about cross-examination are all hypothetical and certainly not presented here. However, if we are to abandon appellate restraint and address this issue, I would find Section 752 is not unconstitutional on its face, but is subject to limitations of the Oklahoma Evidence Code as well as case law regarding the admission of evidence. Section 752 may perhaps be most effectively examined in light of 12 O.S.Supp. 1990, § 2803.1. Section 2803.1 provides for the admission of a statement made by a child twelve (12) years of age or younger which describes any act of sexual abuse against the child. Before allowing the statement into evidence the trial court must first determine outside the presence of the jury that the time, content and circumstances of the statement provide sufficient indicia of reliability. In order for the statement to be admissible the child must testify, or if is the child is unavailable as defined in Title 12, there must be corroborative evidence of the act. A witness is unavailable if he is exempt on the ground of privilege, persists in refusing to testify, testifies to a lack of memory, has died or is physically or mentally infirm, or if his attendance cannot be procured. The unavailability must not be due to an act of the proponent of the statement for the purpose of preventing the witness from attending or testifying. 12 O.S.1981, § 2804. Section 2803.1 has withstood the very constitutional challenge now aimed at Section 752. This Court has determined Section 2803.1 does not violate a criminal defendant’s right to confrontation, for the trustworthiness of the statement is protected by the reliability hearing and the requirement that the child testify or be declared unavailable. Jones v. State, 781 P.2d 326 (Okl.Cr.1989). The Oklahoma Supreme Court likewise found Section 2803.1 constitutional for the same reasons. Matter of W.D., 709 P.2d 1037 (Okl.1985). These cases recognize correctly that the right to confrontation is not absolute. See also Maryland v. Craig, supra; Coy v. Iowa, 487 U.S. 1012 , 108 S.Ct. 2798 , 101 L.Ed.2d 857 (1988); Mattox v. United States, 156 U.S. 237 , 15 S.Ct. 337 , 39 L.Ed. 409 (1895). Section 752 is very similar to Section 2803.1. It provides a recorded statement is admissible if the court determines the time, content and circumstances of the statement provide sufficient indicia of reliability, and the child testifies, or if the child is unavailable there is also corroborative evidence. 22 O.S.Supp.1986, § 752. Section 752 goes beyond Section 2803.1 in that it sets forth six indicia of reliability which must be followed for the recording to be admissible, many of which go to the reliability of the recording process itself. Since Section 2803.1 does not of itself contemplate the statement used to be in the form of an electronic recording, these provisions were incorporated to guarantee the reliability of the recording process itself. I find no reason whatsoever to make a constitutional distinction between the admissibility of statements relayed by a witness as allowed by Section 2803.1 and those same statements recorded by video tape. Certainly video is a powerful medium which can both create and solve certain evils. On one hand it presents the very real danger evidence will be manipulated and manufactured to disguise the truth. On the other hand, it gives the jury the opportunity to see the declarant and judge first hand the declarant’s credibility. Like any evidence, admission of a recorded statement under Section 752 would be subject to other limitations of the Evidence Code. The mere fact it satisfies the requirements of Section 752 does not guarantee admission. It must be relevant, and it *1350 must not be cumulative or offered for an improper purpose. In the present case the appellant has waived all but fundamental error by failing to lodge a contemporaneous objection, and in fact stipulating to the admissibility of the videotape under Section 752. Reviewing for fundamental error only, I would find the admission of the videotaped interview was not reversible error. The tape, by stipulation and in fact, satisfies the threshold of admissibility by conforming to the indicia of reliability required by Section 752. While the videotape is largely cumulative of D.L.’s testimony, its admission into evidence was, at most, harmless error. I would affirm the judgment and sentence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9613432. Public record. Not legal advice.