# Payne v. State > Court of Criminal Appeals of Oklahoma · October 5, 1987 · 744 P.2d 196 URL: https://www.frixlaw.com/law-library/cases/9618425 ## Case - **Full name:** Robert PAYNE, Jerry Payne, and Jeff Payne, Appellants, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** October 5, 1987 - **Citations:** 744 P.2d 196; 1987 OK CR 214; 1987 Okla. Crim. App. LEXIS 494 - **Precedential status:** Published - **Opinion:** Dissent by Parks - **Judges:** Bussey, Brett, Parks - **Cited by:** 3 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/9618425 ## Opinion text PARKS, Judge, dissenting: I respectfully disagree with the majority’s opinion that the comments of the prosecutor regarding Hudson’s alleged testimony were not prejudicial to the appellant. Before the trial started, an in camera hearing was held regarding Hudson’s possible testimony. The witness admitted that he waived extradition from Arkansas, but said he did so only to avoid the authorities later claiming that he was uncooperative. During this hearing, he specifically stated on two occasions that he refused to testify. Despite this announcement, the prosecutor called him as a witness, and he immediately claimed his Fifth Amendment right against self-incrimination. A second hearing was then held out of the jury’s presence. Hudson reiterated his intention not to testify, despite assurances of immunity, and was cited for contempt. Certainly, the prosecutor thought Hudson’s refusal to testify would help the State’s case; otherwise, he would not have called a witness that he knew would refuse to answer his questions. But, as the majority correctly holds, that alone does not warrant reversal. Namet v. United States, 373 U.S. 179,186-187 , 83 S.Ct. 1151, 1155-56 , 10 L.Ed.2d 278 (1963). However, the prosecutor did not let it rest there. After Hudson refused to testify, the prosecutor called Gene Drake, a criminal investigator, for the sole purpose of asking him if he had obtained a confession from Hudson regarding the cattle theft — a charge, incidentally, for which appellants were not being tried. After Drake was not allowed to answer the question, the remainder of Drake’s testimony consisted of answering questions concerning the interview of Hudson about the theft of various other items. Later in the trial, during cross-examination of one of the appellants, the following dialogue took place: Q. ... You hauled these calves to Iowa and you sold them. Now, Danny Hudson denies selling these calves to you — (Objections were made and denied) Q. If this man right here denies selling these calves to you, would he be telling the truth? A. No, sir. Q. If he says these calves came from the University of Arkansas and that you, Bob Payne and Jeff Payne participated, is he not telling the truth? A. No, sir. Statements made by Hudson were also put before the jury later in the same testimony: Q. If Danny Hudson has said that he didn’t own these calves, didn’t sell them to you, would he be telling the truth? A. No, sir. *204 Q. If Danny Hudson tells us that you, Jerry Payne, Bob Payne and himself took these cattle from the University of Arkansas, he would be telling the truth, wouldn’t he? A. No, sir. In essence, the hypothetical questions posed by the prosecutor affirmatively placed before the jury the alleged testimony of Hudson, a witness who refused to testify. This conduct can be interpreted only as blatant attempts by the prosecutor to get to the jury testimony from a witness who on three occasions, in two separate hearings, refused to testify. This Court cannot tolerate such flagrant violations of Section 3-5.7(e) of The ABA Standards for Criminal Justice, The Prosecution Function, (1980), which reads: (c) A prosecutor should not call a witness who the prosecutor knows will claim a valid privilege not to testify for the purpose of impressing upon the jury the fact of the claim of privilege. In some instances, as defined in codes of professional responsibility, doing so will constitute unprofessional conduct. It is improper for the prosecutor to build his case through the use of innuendo derived from a valid claim of privilege. As demonstrated by the record in the present case, that was exactly the strategy used by the prosecutor when he continued to insert “hypotheticals” as to what the witness Hudson would have testified. The tactics used here distinguish this case from Namet . In Namet , there was no evidence the government attempted to make a “conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” Namet, supra, at 186 , 83 S.Ct. at 1154-1155 . Nor was there present the situation where the prosecutor knew or should have known the witness would refuse to testify. The hypotheticals posed by the prosecutor amounted to his own testimony being put before the jury, as he based his questions on facts not proven by evidence. The duty of the prosecutor was aptly stated in Daney v. State, 370 P.2d 44, 45 (Okla.Crim.App.1962): It is a grave breach of duty for a prosecuting attorney to seek by innuendo or artifice to procure a conviction by injecting into the case facts or conclusions not based upon the evidence adduced at trial. Such presentation is especially prejudicial in light of the fact that it arose out of a claim of the witness’s constitutional privilege against self-incrimination. As such, the appellants were denied the right of effective cross-examination and were left powerless to combat the inferences raised. For these reasons, I would reverse. I also disagree with the majority’s use of Illinois v. Gates, 462 U.S. 213 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983), in determining the validity of a search warrant. The appellant challenges the validity of the warrant on both state and federal constitutional grounds. While this Court has agreed to apply the Gates test to federal constitutional challenges, the “totality of the circumstances” test has not yet been adopted as the applicable standard for a state constitutional claim. See Tosh v. State, 736 P.2d 527 (Okla.Crim.App.1987) (Brett, J., and Parks, J., both concurring in result); Foster v. State, 742 P.2d 1131 (Okla.Crim.App.1987). For this reason, I would continue to apply the standards we have imposed in the past with regards to state constitutional challenges. See McGee v. State, 645 P.2d 529, 530 (Okla.Crim.App.1982); Luker v. State, 504 P.2d 1238, 1240 (Okla.Crim.App.1973). Under the present standards followed by this Court, the warrant was minimally sufficient. See McGee, supra, 645 P.2d at 530-531 . For the above stated reasons, I would uphold the validity of the search warrant. However, in my opinion, the undue prejudice caused by the prosecutor’s conduct deprived the appellant of a fair trial. On the basis of the foregoing, I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9618425. Public record. Not legal advice.