734 P.2d 815 (Okla.Crim.App. 1987), F-84-20, Funkhouser v. State
| Citation | 734 P.2d 815 |
| Docket Number | F-84-20. |
| Date | 11 March 1987 |
| Parties | Kenneth Lynn FUNKHOUSER, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
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Johnie O'Neil, Asst. Appellant Public Defender, Tulsa, for appellant.
Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Judge:
The appellant, Kenneth Lynn Funkhouser, was charged in the District Court of Tulsa County, Case No. CRF-83-133, for the offense of Murder in the First Degree, three counts of Robbery with Firearms, and Attempted Robbery with a Firearm. A demurrer was sustained as to the allegation of Attempted Robbery, but appellant was convicted by a jury on the other four counts. Pursuant to an agreement with the State, appellant waived his right to jury sentencing and agreed to a sentence of life imprisonment on the murder conviction and sentences of 50 years each on the robbery conviction, all running consecutively. Judgment and sentence was imposed in accordance with this agreement. Appellant's co-defendant, Garland Funkhouser, was acquitted by the jury. We affirm.
On January 1, 1983, an adult bookstore in Tulsa, Oklahoma was robbed by two gunmen wearing ski masks. In the course of the robbery, the store cashier, Dennis Padilla, was shot and killed. Three customers were assaulted and robbed by the gunmen. None of the victims were able to identify either the appellant or his co-defendant as the robbers. 1 However, the appellant was convicted based on incriminating admissions he made to several acquaintances in the days following the crime. These statements to Larry Rollins, Shellie Rollins, and Randall Keith Royal were all corroborated by physical evidence at the scene, on appellant's body, and by the medical examiner's testimony.
I.
In his first assignment of error, the appellant complains that the trial court erred in permitting the reading of witness Rollins' testimony at preliminary hearing in lieu of his testimony at trial. Appellant claims this procedure violated his right "to be confronted with the witnesses against him" under the Sixth Amendment to the Federal Constitution. We disagree.
The facts relating to this issue reveal that on February 23, 24, 25, and 28, 1983, a preliminary hearing was had before the Hon. Robert S. Farris, Tulsa County Special District Judge, and reported by Colleen Hedges, CSR, RPR-CP, an Official Court Reporter. Rollins was sworn as a witness, and gave detailed testimony. He was subjected to a rather lengthy and thorough cross-examination and recross-examination by counsel for the appellant, Mr. Frank McCarthy, Deputy Public Defender. He also was cross-examined by the attorney for his co-defendant, Mr. Leslie Earl. At trial, Rollins was again called as a witness, and he refused to testify, based on his Fifth Amendment right against self-incrimination. The trial court immediately appointed counsel to consult with Mr. Rollins, and, when he continued to invoke his Fifth Amendment right, he was excused from testifying. The trial court then allowed the preliminary hearing testimony, both direct and cross-examination, to be read to the jury. Trial counsel preserved this alleged error with timely, proper objections.
We first note that this procedure was proper under our Evidence Code. Title 12 O.S.1981, § 2804(B)(1) provides that
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"[t]estimony given as a witness at another hearing of the same ... proceeding" is "not excluded by the hearsay rule if the declarant is unavailable as a witness[.] " Section 2804(A)(1) declares that a witness is rendered "unavailable" if he is "exempt by ruling of the court on the ground of privilege from testifying concerning the subject matter or his statement[.] " Rollins was exempted from testifying after he asserted his constitutional privilege against self-incrimination. Clearly, the procedure employed herein was proper under the Evidence Code.
Nor can we say that this procedure violated appellant's rights under the Confrontation Clause. The argument that cross-examination at preliminary hearing can never satisfy the confrontation requirement has been rejected by the United States Supreme Court. See Ohio v. Roberts, 448 U.S. 56, 72, 100 S.Ct. 2531, 2542, 65 L.Ed.2d 597 (1980). The question regarding admissibility is determined on a case by case basis and hinges on consideration of two factors: (1) whether the witness was unavailable at the time of trial, and, (2) whether the prior testimony bears an adequate indicia of reliability. Britt v. State, 721 P.2d 812 (Okl.Cr.1986). As a matter of constitutional law, the Supreme Court has stated that a properly invoked claim of privilege may render a witness unavailable to testify at trial. See California v. Green, 399 U.S. 149, 167-68, 90 S.Ct. 1930, 1940, 26 L.Ed.2d 489 (1970). Therefore, Rollins was unavailable to testify, under Sixth Amendment analysis. And, we believe a sufficient indicia of reliability has been demonstrated, inasmuch as the cross-examination herein was the "equivalent of significant cross-examination" at trial. Ohio v. Roberts, supra, 448 U.S. at 70-71, 100 S.Ct. at 2541-2542. The witness herein gave his preliminary hearing testimony under oath, the testimony was recorded by a licensed court reporter, the accused was represented by highly competent counsel, and the inquiry was made before a judicial tribunal. Furthermore, counsel in this case impeached the witness through the use of prior felony convictions, questioned the witness' sincerity and motive for testifying, and challenged the accuracy of perception, memory and narration, all of which comported with the principle purpose of cross-examination. Therefore, this assignment of error is without merit.
II.
Appellant's next two assignments of error will be considered together. Appellant first claims that the defense of his co-defendant, Garland Funkhouser, was inconsistent from his own and, therefore, he was prejudiced by their joint trial. He thus contends the trial court erred in overruling his pre-trial motion for a severance. He further argues that the trial court compounded its error by refusing each defendant nine peremptory challenges.
A.
Title 22 O.S.1981, § 439 provides, in pertinent part, that:
If it appears that a defendant ... is prejudiced by joinder ... defendants in an indictment or information or by such joinder for trial together, the court shall ... grant a severance of defendants, or provide whatever other relief justice requires.
At a pre-trial hearing on the motion to sever, counsel for appellant's co-defendant outlined his client's theory of defense, as follows:
MR. EARL: What I advised the Court during our conversation...
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