Appendix — Oklahoma v. Burke

No. , Origina

cetaeetatenanene =

Supreme Court, U.S.

91-1656 FILED

, APR 10 192

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1991

STATE OF OKLAHOMA,

Petitioner.

Vv.

GARY WAYNE BURKE,

Respondent,

APPENDIX TO PETITION FOR A

WRIT OF CERTIORARI TO THE COURT

OF CRIMINAL APPEALS

STATE OF OKLAHOMA

SUSAN BRIMER LOVING

ATTORNEY GENERAL

A. DIANE BLALOCK

ASSISTANT ATTORNEY GENERAL

SANDRA D. HOWARD*

ASSISTANT ATTORNEY GENERAL

CHIEF, CRIMINAL DIVISION

2300 N. Lincoln Blvd., Suite 112

Oklahoma City, OK 73105-4894

(405) 521-3921

March, 1992 *Counsel of Record

i

TABLE OF CONTENTS

Exhibit "A" - Opinion ........1

Exhibit "B" - Order Denying Petition for

Rehearing and Directing Issuance of

a ee ae ae oe ae er a a

GARY WAYNE BURKE, Appellant,

Vv.

STATE OF OKLAHOMA, Appellee.

No. F-87-975.

Court of Criminal Appeals of Oklahoma.

November 1, 1991.

Rehearing Denied December 9, 1991.

Defendant was convicted in the

District Court, Oklahoma County, James

L. Gullett, J., of first-degree rape.

The Court of Criminal Appeals, Johnson,

J., found statute authorizing admission

of previously videotaped statement of

child alleged to be victim of crime to

be unconstitutional.

Reversed and remanded.

Lane, Pudss filed a dissenting

opinion.

2

Lumpkin, V.P.J.-, file@ a specially

concurring opinion.

1. Criminal Law - 662.40

Statute authorizing admission of

prior videotaped statement made by child

alleged to be the victim of a crime

violated confrontation clause to the

extent that it denied a defendant an

opportunity for cross-examination if the

child was declared unavailable; statute

did not require child to be available to

testify and be subject to cross-

examination before tape could be

admitted. 22 Okla.St.Ann. § 752.

2. Criminal Law - 662.40

Defendant was entitled to opportunity

for cross-examination of child alleged

to be victim of crime when prior

videotaped statements of child were

admitted; even when effect of

confrontation on child could be

accurately predicted to extent child

could be classified as unavailable,

recorded testimony had to carry the

necessary indicia of reliability, which

could only be achieved by giving

opportunity for cross-examination. 22

Ok1.St.Ann. § 752; U.S.C.A. Const.Amend.

6.

3. Witnesses - 318

Admission of previously videotaped

statement by child alleged to be victim

of sexual abuse, when considered with

child's testimony and cross-examination

without impeachment, resulted in

improper bolstering of State's case. 22

Ok1.St.Ann. § 752; U.S.C.A. Const.Amend.

6.

4

4. Criminal Law - 438(8)

Statute governing admission of prior

videotaped statement of child under age

12 alleged to be victim of crime was

unconstitutional; statute failed to

require an oath, failed to require the

witness to be subject to cross-

examination, and did not preserve the

jury's right to observe the witness and

to determine the demeanor and

credibility of the witness. 22

ok1.St.Ann. § 752.

5

An Appeal From the District Court of

Oklahoma County; James lL. Gullett,

District Judge.

Gary Wayne Burke, appellant, was

tried by jury for the crime of First

Degree Rape in Case No. CRF-87-548 in

the District Court of Oklahoma County

before the Honorable James L. Gullett,

District Judge. The jury returned a

verdict of guilty and set punishment at

thirteen (13) years imprisonment. The

trial court sentenced appellant in

accordance with the jury's verdict.

From this Judgment and_ Sentence,

appellant appeals. This case is

REVERSED and REMANDED for a new trial.

Jamie D. Pybas, Asst. Appellate

Public Defender, Norman, for appellant.

6

Robert H. Henry, Atty. Gen., Sandra

D. Howard, Asst. Atty. Gen., Oklahoma

City, for appellee.

7

OPINION

JOHNSON, Judge:

GARY WAYNE BURKE, appellant, was

tried by jury for the crime of First

Degree Rape in violation of 21

O.S.Supp.1984, §§ 1111 and 1114, in Case

No. CRF-87-548 in the District Court of

Oklahoma County. Appellant was

represented by counsel. The jury

returned a verdict of guilty and set

punishment at thirteen (13) years

imprisonment. The trial court sentenced

appellant in accordance with the jury's

verdict. From this Judgment'= and

Sentence, appellant appeals.

At trial, Susan Little testified that

around the end of January 1987, she was

required to enter the hospital for three

days. While she was in the hospital,

she had her sister watch her three

8

children, R-P., age thirteen, C-.L., age

nine, and D.L., age seven. Appellant

was Susan's sister's boyfriend. Susan

testified that after she was released

from the hospital she picked up the

children and returned home. While they

were at home, Susan noticed D.L. acting

unusual. The next day, while giving

D.L., a bath, Susan noticed that D.L.

was holding her private area and saying

that it hurt, burned and itched. D.L.

then told her mother that appellant had

hurt her. As Susan inspected, she

noticed that D.L.'S vagina looked

irritated and “was open more than what

it should be." Susan further testified

that her son, C.L., told her that he

woke up one night while at his aunt's

house and observed appellant on top of

D.L.

oOo

9

D.L. then testified. On the witness

stand, D.L. reluctantly described the

incident and identified appellant as the

perpetrator. D.L. also utilized

anatomically correct dolls to explain

what had happened to her. D.L. was

cross-examined.

The State next presented C.L. C.L.

testified as to waking up one night

while at his aunt's house and seeing

appellant on top of D.L., “humping her."

The State's next witness was Andrea

Key, a physician at Children's Hospital

in Oklahoma City. Ms. Key testified

that she

came into contact with D.L. and her

mother when they came to the hospital.

Ms. Key explained that she performed a

physical

10

examination on D.L. Ms. Key then

testified as to what both D.L. and her

mother told her concerning the incident.

Ms. Key related that when D.L. was

utilizing anatomically correct dolls to

show what had happened to her, she

“opened the dolls' pants, took the male

doll's penis and placed it into the

female doll's vagina." Ms. Key stated

that D.L. identified appellant as the

perpetrator.

The State's final witness was Timothy

Brown, an Oklahoma City police officer.

Officer Brown testified that on January

29, 1987, he responded to a call and

came into contact with Susan Little.

officer Brown then related his

conversation with Susan Little

concerning the incident. Officer Bz own

also testified concerning what D.L. told

11

him about the incident. Officer Brown

stated that D.L. told him, "... Uncle

Gary climbed on top of [me] and started

humping on [me) ... and ... stuck his

babbo inside of [me]}."

After Mr. Brown's testimony, the jury

was allowed to view a videotape filmed

prior to trial, of D.L. describing the

same incident to Oklahoma City Police

Detective Daniel Garcia. D.L. also

used anatomically correct dolls during

the interview. The videotape also

included another interview conducted by

Detective Garcia of C.L. While the

record does not indicate whether the

trial court determined that the time and

content and circumstances of the

statement were sufficiently reliable (22

0O.S.Supp.1986, § 752 B(1)), appellant

did not object to the playing of the

12

video, and in fact, stipulated that all

requirements of 22 0.S.Supp.1986, § 752,

had been met. After the tape had been

played for the jury, the State rested.

During the defense, appellant

testified that he never raped or touched

D.L.

On appeal, appellant contends that 22

Oo.S.Supp.1986, 4 7s3, is

unconstitutional because it violates a

defendant's Sixth Amendment right to

face-to-face confrontation. Since

appellant did not object to the

statutory procedure at trial, we will

only review for fundamental error.

The challenged statute, entitled

"Admissibility of recorded statement of

child 12 years of age or younger,"

provides as follows:

A. This section shall apply

only to a proceeding in the

13

prosecution of an offense

alleged to have been

committed against a child

twelve (12) years of age or

younger, and shall apply

only to the statement of

that child or other witness.

B. The recording of an oral

statement of the child made

before the proceeding begin

is admissible into evidence

afe

ie The court determines

that the time, content and

circumstances of the

statement provide sufficient

indicia of reliability;

2. No attorney for any

party is present when the

statement is made;

3. The recording is both

visual and aural and is

recorded on film or

videotape or by other

electronic means;

4. The recording equipment

is capable of making an

accurate recording, the

operator of the equipment is

competent and the recording

is accurate and has not been

altered;

s. The statement is not

made in response to

14

questioning calculated to

lead the child to make 4a

particular statement or is

clearly shown to be the

child's statement and not

made solely as a result of

a leading oF suggestive

question;

6. Every voice on the

recording is

identified;

7. The person conducting

the interview of the child

in the recording is present

at the proceeding and is

available to testify or be

cross-examined by any party;

8. Each party to the

proceeding is afforded an

opportunity to view the

recording at least ten (10)

days before trial, unless

such time is shortened by

leave of the court for good

cause shown; and

9. The child either:

a. testifies at the

proceedings, or

b. is unavailable as

defined in Title 22 as a

witness.

When the child is

unavailable as defined in

Title 22 as a witness, such

recording may be admitted

only if there is

15

corroborative evidence of

the act.

Initially, we note that the issue

before us concerns only the

admissibility of a recorded videotaped

statement of a child taken before trial.

We also find that a review of cases from

other jurisdictions will highlight the

constitutional deficiencies we find in

22 0.S.Supp.1986, § 752.

I.

A.

In State v. Johnson, 729 P.2d 1169

(Kan.1986), the State of Kansas

presented the videotaped testimony of a

sexually abused child pursuant to K.S.A.

1985 Supp. 22-3433, a statute concerning

the adm-ssion of a prior videotaped

statement made by a child alleged to be

the victim of a crime. Included among

various requirements for the

16

admissibility of the recording, the

Kansas statute requires that the child

be available to testify and that af @

recording is admitted in evidence under

the statute, any party to the proceeding

may call the child to testify and be

cross examined. K.S.A. 1985 Supp. 22-

3433(9) (b).

Beginning its review of the statute,

the Kansas Supreme Court found that

videotaped testimony constituted

hearsay. Johnson, 729 P.2d at 1173. We

likewise find that’ the videotaped

testimony taken pursuant to 22

0.S.Supp.1986, § 752, is manufactured

hearsay, as it is an out-of-court

statement offered to prove the truth of

the matter asserted. See 12 0.S.1981,

§ 2801(3). The Kansas Supreme Court

then noted that admitting a declarant's

17

out-of-court statements in situations

where the declarant is available to

testify does not violate the

confrontation clause. The Kansas

Supreme Court found it critical that the

statute provided for the admission of

the videotaped testimony only where the

child was available to testify and be

cross-examined either in court’ or

pursuant to another statutory procedure

and the trial court determined that the

time, content and circumstances of the

statement provided sufficient indicia of

reliability. Johnson, 729 P.2d at 1174.

Thus, the Kansas Supreme Court found

their statute to be constitutional.

B.

In Long v. State, 742 S.W.2d 302

(Tex.Cr.App.1987), a videotaped

interview of a sexually abused child,

ee are er

18

conducted by the assistant director of

the Dallas Rape Crisis Center, was

admitted into evidence during the

State's case-in-chief. The child did

not testify during the case-in-chief;

however, she was called during rebuttal

and proceeded to relate essentially the

same facts that had been recorded on the

videotape and previously played to the

jury. The Texas Court of Criminal

Appeals found that the Texas statute

authorized a significant departure from

established trial procedure by

dispensing with the requirement that the

prosecution develop its case-in-chief in

the courtroom, in the presence of the

judge, jury, and the defendant. Long,

742 S.W.2d at 314.

The court also found the elimination

of any opportunity for contemporaneous

19

cross-examination of the witness to be

a fatal constitutional problem. Long,

742 S.W.2d at 319. The court further

held that non-contemporaneous’' cross-

examination does not properly preserve

the right of confrontation, as such a

time delay largely eliminates’ the

benefit of the right. The court found

that the denial of contemporaneous

cross-examination tainted the

reliability of the truth finding process

and gave the State an unfair advantage.

Id. The court also found that since the

child's testimony during rebuttal was

Simply repetitious of her videotaped

statement, it was improper bolstering of

an unimpeached witness. Long, 742

S.W.2d at 322. Finally, in a concurring

opinion, Judge Teague found that the

videotaped interview violated the due

20

process clause of the Fourteenth

Amendment of the United States

Constitution, because the trial court

did not have an opportunity to determine

the competency of the child prior to the

testimony and because the testimony was

not under oath. Id. at 328. In fact,

as Judge Teague observed, the trial

court may not even be implicated in the

tape recorded interview session. Id.

Cc.

Since Long, the Texas Court of

Criminal Appeals held in riggs Vv

State, 789 S.W.2d 918 (Tex.Cr.App.1990),

that Article 38.071, § 2, can be applied

in a constitutional manner, and to the

extent Long held the provision

unconstitutional on its face, it was

overruled. The court in Briggs found

that since a statutory requirement for

21

the admissibility of a videotape of a

child victim is that the child be

available to testify, at 28° - Rt

violative of the confrontation clause on

its face. The court acknowledged that

application of the statute may well

deprive an accused of his confrontation

right if a videotape is admitted, though

full and effective cross-examination of

the child should prove unattainable at

trial. Briggs, 789 S.W.2d at 922.

Finally, the court acknowledged that

while the statute may allow the State to

essentially present its principal

witness twice, the statute will not

invariably operate to allow the State to

bolster its version of the facts. [d.

The court found that the State could

choose to call the child during its

case-in-chief, ask a few preliminary

22

questions with regard to making of the

videotape, and then tender the witness

to the defendant for cross-examination.

The court found that under’ that

scenario, the State would neither

duplicate its case nor force the

defendant to endure the stigma of

calling the child to the stand himself.

Id.

II.

After a review of the cases above, we

find one of the fatal flaws of 22

0.S.Supp.1986, § 752, to be that if the

child is declared unavailable, the

defendant will be forever denied any

opportunity for cross-examination. For

example, Section 752 differs from the

Kansas statute reviewed in Johnson in

that it does not require the child to be

available to testify and be subject to

23

cross-examination before the tape can be

admitted.

We also share the concerns of the

Texas Court of Criminal Appeals

expressed in Long and Briggs about the

lack of contemporaneous cross-

examination with such videotaped

statements. Even when the effect of

confrontation on a child can_ be

accurately predicted to the extent the

child could be classed as unavailable,

it is still necessary that the recorded

testimony carry the necessary indicia of

reliability. And, we believed this can

only be achieved by giving the accused

opportunity for cross-examination.

We are further troubled by the fact

that in some cases, the State, through

the use of the videotape, would be able

to essentially present its principal

24

witness twice. Such happened in the

case at bar. While D.-L. aid testify and

was cross-examined, her testimony was

never impeached. We find that this

scenario produced an improper bolstering

of the State's case and was error. see

Long Vv. State, 742 S.W.2ad 302, 322

(Tex.Cr.App.1987) -

This Court also expresses concern

about the possibility of the State,

under 22 0.S.Supp.1986, §$ 752, of having

only to present its most damaging

witness to the jury through a hearsay

statement. We find it fairly obvious

that the prosecution would have a far

easier time of presenting the testimony

of a child of tender years under a

setting similar as we had in this case

with Detective senetas It would be far

easier to elicit favorable testimony

25

from a child with only a detective,

social worker or other type of skilled

questioner propounding questions without

any confrontation or cross-examination.

We must protect the rights of a

defendant to have the ability of

complete and full cross-examination and

to ensure that the jury has the ability

to observe the responses and the

demeanor of a witness. We should not

allow the State to present a tape made

with one-sided questions, by an expert

questioner, who could coach, lead and

gain the required result without the

defendant having his Sixth Amendment

right of confrontation.

Justice Sandra Day O'Conncr, in a

recent U.S. Supreme Court case,

indicated that the central concern of

the confrontation clause of the U.S.

(iii et all

26

Constitution is to ensure the

reliability of the evidence presented

against a defendant by subjecting such

evidence to the most rigorous testing in

the context of an adversary proceeding

before a trier of fact. Justice

O'Connor stated that such testing

includes not only a personal

examination, but also, a witness giving

his statements under oath, the witness

being subject to cross-examination, and

permitting the jury to observe the

demeanor of the witness in making the

statements, thus aiding the jury in

assessing credibility. See Maryland v.

Craig, 497 U.S. us 230 8.Ct. 3157,

111 L.Ed.2d 666, 678 (1999).

Title 22 0.S.Supp.1988, § 752, does

not meet the test of Craig. The statute

fails to require (1) oath, (2) the

27

witness to be subject to cross-

examination and (3) the right of the

jury to observe the witness to determine

the demeanor and credibility of same.

The statute, on its face, is

unconstitutional.

For the foregoing reasons, this case

is REVERSED and REMANDED for a new

trial.

clini aia

28

LANE, PRESIDING JUDGE: DISSENTING

The majority, without analysis ot the

scope or limitation of the Confrontation

Clause of either the Oklahoma or federal

constitution, declares 22 0.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 Vv. State, 781 P.2d 326

(Oka.Cr. 1989); Ma W.D., 709

P.2a 1037 (Ok1.1985); dv aig,

497 U.S. , 110 S.Ct. . a2

L.Ed.2a 666 (1990). If we were to adopt

—— EES

29

this position, all of the hearsay

provisions of the Oklahoma Evidence Code

would become unconstitutional as well.

This result is not required by the

Confrontation Clause, and indeed this

case does not invoke the Confrontation

Clause.

The complaining witness, D.be,

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

’

30

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

0.S.Supp.1990, § 2803.1. Section 2803.1

provides for the aamission of 4a

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

31

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 0.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

po

32

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 (Okl1.Cr.1989). The Oklahoma Supreme

Court likewise found Section 2803.1

constitutional for the same reasons.

Matter of W.D., 709 P.2ad 1037 (Okl.

1985). These cases recognize correctly

that the right to confrontation is not

absolute. See also Maryland v. Craig,

supra; Coy v wa, 487 U.S. 1012, 108

S.Ct. 2798, 101 L.Ed.2da 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

————————————eeeVOow

ee

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 0.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

34

admissibility of statements relayed by

a witness as allowed by Section 2803.1

and those same statements recorded by

video tape. Certainly video is 4a

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 must not be

35

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.

36

LUMPKIN, Vice President Judge, Specially

Concurs

I concur in the results reached by

the Court in this case, however, I do

not agree with the legal analysis

supporting the decision.

While I agree that the decision in

Maryland v. Craig, 497 U.S. , 110

$.Ct. 3157, 112 L.Ed.2d 666 (1990),

provides insight into the legal

questions presented, the issue in this

case is substantially different. Three

Oklahoma statutes are at issue in this

case: 22 O.S.Supp.1984, § 753; 22

0o.S.Supp.1986, % 752; and 12

0.S.Supp.1986, § 2803.1.

This Court has recently interpreted

22 0.S.Supp.1984, § 753, in conjunction

with the criteria set forth in Maryland

v,. Craig, and determined that Section

37

753 is constitutional on its face.

Shipman v. State, >.2d ss, - 62 OBI

2542, 2543 (Ok1.Cr.1991). At the same

time, we "“adopt({ed}) the procedural

requirements set forth in Craig and Coy

to ensure that the provisions of section

753 are applied in a_-— consistent

constitutional manner". Id.

The issue in this case requires the

Court to review 22 0.S.Supp.1986, § 752

and 12 0.S.Supp.1986, § 2803.1. Section

2803.1 is the enactment of a specialized

hearsay exception within the Oklahoma

Evidence Code. Section 752, in effect,

enacts a procedure for manufacturing

hearsay testimony without the right of

confrontation which was afforded in

Section 753. If Section 752 could

withstand constitutional scrutiny it

would potentially subvert the

38

protections provided in Section 753 as

applied in

Shipman. It would in effect be an ex

parte deposition which could deny

persons charged with a crime the right

of confrontation of their accusers.

I use the term “manufactured hearsay"

because the procedure set forth in

Section 752 is totally foreign to the

historical foundations of recognized

exceptions to the hearsay rule.

Therefore, we must review the underlying

basis for allowing the admissibility of

what is otherwise hearsay evidence and

whether or not it violates the

Confrontation Clause of the Federal or

Oklahoma Constitutions.

The dispositive U.S. Supreme Court

analysis on this issue is Jdaho_v-:

Wright, 497 U-S. , 110 S.Ct. 3139,

39

111 L.Ed.2d 638 (199C). At issue was

whether a child victim's statement

admitted under Idaho's residual hearsay

exemption violated a defendant's

Confrontation Clause rights.? Ion

finding that the defendant's rights had

been violated, the Court analyzed the

factors to be considered in determining

whether the admissibility of hearsay

evidence will violate the Confrontation

Clause. Citing to Maryland v. Craig the

Court recognized that "the

[Confrontation] Clause permits, where

necessary, the admission of certain

hearsay statements—against a defendant

despite the defendant's inability to

confront the declarant at trial". 110

S.Ct. at 3146. However, these

1 The Idaho statute is substantially

the same as 12 0.S.1981, § 2803(24).

40

exceptions are limited. Both Maryland

v. Craig and Idaho v-: Wright cite to

the U.S. Supreme Court's early

discussion of the perimeters of the

right of confrontation in Mattox Vv.

United States, 156 U.S. 237, 15 S.Ct.

337, 39 L.Ed. 409 (1894). In Mattox the

Court stated:

The primary object of the

constitutional provision in

question was to prevent

depositions or ex parte

affidavits, such as were

sometimes admitted in civil

cases, being used against

the prisoner in lieu of a

personal examination and

cross-examination of the

witness, in which the

accused has an opportunity,

not only of testing the

recollection and sifting the

conscience of the witness,

but of compelling him to

stand face to face with the

jury in order that they may

look at him, and judge by

his demeanor upon the stand

and the manner in which he

gives his testimony whether

he is worthy of belief.

There is doubtless reason

Se

41

for saying that the accused

should never lose the

benefit of any of these

safeguards even by the death

of the witness; and that, if

notes of his testimony are

permitted to be read, he is

deprived of the advantage of

that personal presence of

the witness before the jury

which the law has designed

for his protection. But

general rules of this kind,

however beneficent in their

operation and valuable to

the accused, must

occasionally give way to

considerations of public

policy and the necessities

of the case. To say that a

criminal, after having once

been convicted by the

testimony of a certain

witness, should go scot free

simply because death has

closed the mouth of that

witness, would be carrying

his constitutional

protection to an

unwarrantable extent. The

law in its wisdom declares

that the rights of the

public shall not be wholly

sacrificed in order that an

incidental benefit may be

preserved to the accused.

Id. at 242-243.

42

The Court in Mattox recognized that

the right of confrontation under the

Federal Constitution is not absolute.

Subsequently, Pointer v. Texas, 380 U.S.

400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923,

926 (1965) held that the "Sixth

Amendment's right of an accused to

confront the witnesses against him is

likewise a fundamental right and is made

obligatory on the States by the

Fourteenth Amendment". The Court

determined in that case that it was

error to utilize a transcript of 4a

witnesses testimony from a hearing where

the defendant was not represented by an

attorney and afforded a complete and

adequate opportunity to cross-examine;

however, it again recognized there were

exceptions to the right of

confrontation.

43

This analysis was continued in

California v. Green, 399 U.S. 149, 90

S.Ct. 1930, 26 L.Ed.2d 489 (1970). Once

again the issue was admissibility of the

preliminary hearing testimony of one of

the State's witnesses pursuant to a

revised section of the California

Evidence Code which adopted a minority

view regarding the admissibility of

hearsay statements. The U.S. Supreme

Court stated:

The issue before us is the

considerable narrower one of

whether a defendant's

constitutional right "to be

confronted with the

witnesses against him" is

necessarily inconsistent

with a State's decision to

change its hearsay rules to

reflect the minority view

described above. While it

may readily be conceded that

hearsay rules and the

Confrontation Clause are

generally assigned to

protect similar values, it

is quite a different thing

to suggest that the overlap

44

is complete and that the

Confrontation Clause is

nothing more or less than a

codification of the rules of

hearsay and their exceptions

as they existed historically

at common law. Our

decisions have never

established such congruence;

indeed, we have more than

once found a violation of

confrontation values even

though the statements in

issue were admitted under an

arguably recognized hearsay

exception. (Cites omitted)

The converse is equally

true: merely because

evidence is admitted in

violation of a long-

established hearsay rule

does not lead to the

automatic conclusion that

confrontation rights have

been denied.

Given the similarity of the

values protected, however,

the modification of a

State's hearsay rules to

create new exceptions for

the admission of evidence

against a defendant, will

often raise questions of

compatibility with the

defendant's constitutional

right to confrontation.

Such questions require

attention to the reasons

for, and the basic scope of,

|... eee

45

the protections offered by

the Confrontation Clause.

Id. 399 U.S. 155-156.

The Court went on to recognize "that the

particular vice that gave impetus to the

confrontation claim was the practice of

trying defendants on ‘evidence' which

consisted solely of ex parte affidavits

or depositions secured by the examining

magistrates, thus denying the defendant

the opportunity to challenge his accuser

in a face-to-face encounter in front of

the “trier of fact". Id. at 156. It

was determined that the revised statute

was not invalid on its face and the

Sixth Amendment did not bar _ the

admission of the preliminary hearing

testimony. However, the case was

remanded to the State court for review

of questions not previously addressed.

46

An in-depth analysis regarding the

admissibility of hearsay evidence and a

defendant's right under the

Confrontation Clause was rendered in

Ohio v. Roberts, 448 U.S. 56, 100 S. tt.

2531, 65 L.Ed.2da 597 (1980). "This

Court, in a series of cases, has sought

to accommodate these competing interests

[public policy Vv. right of

confrontation]. True to the common-law

tradition, the process has been gradual,

building on past decisions, drawing on

new experience, and responding to

changing conditions. The Court has not

sought to ‘map out a theory of the

Confrontation Clause that would

determine the validity of all...

hearsay “exceptions”. ' California Vv.

Green, 399 U.S. at 162, 90 S.Ct. at

1937, 26 L.Ed.2d 489. But a general

—

47

approach to the problem is discernible."

448 U.S. at 64-65.

Our analysis of Section 752 must

include the criteria established in Qhio

v. Roberts, (adopted by this Court in

Devooght v. State, 722 P.2d 705

(Ok1.Cr.1986); Newbury v. State, 695

P.2d 531 (Ok1.Cr.1985)) and applied in

Idaho v. Wright:

The Confrontation Clause

operates in two separate

ways to restrict the range

of admissible hearsay.

First, in conformance with

the Framers' preference for

face-to-face accusation, the

Sixth Amendment establishes

a rule of necessity. In the

usual case (including cases

where prior cross-

examination has occurred),

the prosecution must either

produce, or demonstrate the

unavailability of, the

declarant whose statement it

wishes to use against the

defendant. (Cites omitted)

The second aspect

operates once a witness is

shown to be unavailable.

48

Reflecting its underlying

purpose to augment accuracy

in the fact-finding process

by ensuring the defendant an

effective means to test

adverse evidence, the Clause

countenances only hearsay

marked with such.

trustworthiness that “there

is no material departure

from the reason of the

general rule". (Cites

omitted) 448 U.S. at 65.

The U.S. Supreme Court enunciated in

Mattox the "primary object of the

(Confrontation Clause} was to prevent

depositions or ex parte affidavits" from

being used against a person charged with

a crime. Section 752, in effect

creates a procedure to take a

"deposition or ex parte affidavit" to be

used against’ the accused. This

procedure runs contra to the basic

foundations of the Confrontation Clause

as discussed in Mattox. The type of

statement sought to be taken, while it

49

is hearsay, is not the type of hearsay

which can qualify as an exception to the

right of confrontation when analyzed in

the light of the historical foundation

established for the exemption of certain

types of hearsay. Therefore, section

752 violates the Confrontation Clause of

the Sixth Amendment to the U.S.

Constitution on its face when reviewed

in accordance with the criteria set

forth in Mattox v. United States, Qhio

v. Roberts, and Idaho v. Wright.

The Oklahoma Legislature has created

a separate exception to the Hearsay Rule

for statements of children 12 years or

younger describing acts of physical

abuse or sexual contact. See 12

0O.S.Supp.1990, § 2803.1. Section 2803.1

was enacted in 1984 specifically to

admit extrajudicial statements by

50

children as an exception to the hearsay

rule. See In the Matter of W.D., 709

P.2d 1037, 1041 (Ok1.1985) ; 1

Okla.Evid. (Whinery) Supp.1991, 168. The

U.S. Supreme Court in California v-.

Green determined that a legislative

adoption of a minority view exception to

the Hearsay Rule did not violate Sixth

Amendment rights on its face. Each of

these legislated exceptions deal with

statements which comport with the

traditional view of admissible hearsay,

i.e. statements made in the normal

course of events and not a part of a

procedure to preserve the statement for

use at trial. Section 2803.1 affords an

opportunity for admission of true

hearsay statements by children 12 years

or younger. In addition, 22

o.S.Supp.1984, § 753, applied in

—————————————

51

accordance with our decision in Shipman,

affords an opportunity to protect a

child witness from the trauma of facing

a defendant at trial. We have already

determined in Shipman that Section 753

is valid on its face. Section 2803.1 is

also facially valid.

52

IN THE COURT OF CRIMINAL APPEALS

OF THE STATE OF OKLAHOMA

GARY WAYNE BURKE,

Appellant,

)

)

)

)

Vv. ) No. F-87-975

)

STATE OF OKLAHOMA, )

)

)

Appellee.

ORDER DENYING PETITION FOR REHEARING

SSUANCE O A

Now on this 9th day of December,

1991, ‘having examined the appellee's

petition for rehearing in the above-

styled and numbered cause, and being

fully advised in the premises, this

Court finds that it should be, and the

same hereby is DENIED. The Clerk of

this court is directed to issue the

mandate forthwith.

———

33

IT IS SO ORDERED.

WITNESS OUR HANDS AND THE SEAL OF

THIS COURT this 9th day of December,

1991.

JAMES F. LANE, PRESIDING JUDGE

DISSENTS

GARY L. LUMPKIN, VICE PRESIDING

JUDGE - CONCUR IN PART/DISSENT

IN PART

TOM BRETT, JUDGE

ED PARKS, JUDGE

CHARLES A. JOHNSON, JUDGE

ATTEST:

CLERK

54

LUMPKIN, VICE-PRESIDING JUDGE: CONCUR

IN PART/DISSENT IN PART

I concur with the Court's denial of

rehearing as to the substantive analysis

of 22 0.S.Supp.1986, § 752. However, I

disagree with the denial of the request

for harmless error review. Under the

facts of this case, it appears the

State's argument regarding harmless

error analysis has merit. Therefore, I

would urge the Court to review for

harmless error in this case.