Beck v. State

• Decision Date: 31 December 1991
• Docket Number: No. F-88-483,F-88-483
• Citation: 1991 OK CR 126,824 P.2d 385
• Parties: Charles Leroy BECK, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 385

824 P.2d 385

Charles Leroy BECK, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-483.

Court of Criminal Appeals of Oklahoma.

Dec. 31, 1991.

Rehearing Denied Feb. 4, 1992.

An Appeal From the District Court of Delaware County; Sam C. Fullerton, District Judge.

Charles Leroy Beck, Appellant, was tried by a jury and convicted for the crime of Sale of an Alcoholic Beverage to a Minor in violation of 37 O.S.Supp.1985, § 538(f), in the District Court of Delaware County, in Case No. CRF-85-139. Appellant was represented by counsel. The jury returned a Thomas E. Salisbury, Tulsa, for appellant.

verdict of guilty and set punishment at a fine of Two Thousand Seven Hundred Fifty Dollars ($2,750.00), and the trial court sentenced Appellant accordingly. From this judgment and sentence Appellant perfects his appeal to this Court. AFFIRMED.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Deputy Chief, Criminal Div., Lee S. McIntire, Legal Intern, Oklahoma City, for appellee.

OPINION

LUMPKIN, Vice-Presiding Judge:

Appellant Charles Leroy Beck was tried by a jury and convicted for the crime of Sale of an Alcoholic Beverage to a Minor in violation of 37 O.S.Supp.1985, § 538(F), in the District Court of Delaware County, in Case No. CRF-85-139. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at a fine of Two Thousand Seven Hundred Fifty Dollars ($2,750.00), and the trial court sentenced Appellant accordingly. From this judgment and sentence Appellant perfects his appeal to this Court.

Because of the limited scope of the alleged error, only the facts relevant to the resolution of the issue presented will be discussed.

At approximately 7:30 p.m. on November 2, 1985, eighteen (18) year old Harold L. Mann, Jr. entered the Appellant's store, Charley's Pit Stop, to purchase a bottle of liquor. Charley's Pit Stop, also called The Sportsman's Mix Mart, is a combination liquor and convenience store. After picking up a bottle of Jack Daniels Tennessee Whiskey, Mann went to the counter, paid for the purchase and left.

Stoney Lee Gooding rode to the Pit Stop with Mann that evening, but remained in the vehicle while Mann went inside to make the purchase. Gooding testified that he had no knowledge concerning the transaction taking place inside the store. After leaving the liquor store, Mann and Gooding stopped at another convenience store, Bill's Corner, to purchase a couple of Pepsi Colas.

John T. Marion, an agent with the Alcoholic Beverage Law Enforcement (ABLE) Commission, was parked across the street from Charley's Pit Stop when he observed Mann in the store purchasing a bottle of liquor. He then observed Mann and Gooding leave the premises in a white Pinto. Suspecting Mann to be under age, Marion contacted the Delaware County Sheriff's Department and requested assistance in obtaining the age of the man he had observed buying the liquor.

Shortly after receiving this call, Deputies Sloan and Davis, of the Delaware County Sheriff's Department, observed a vehicle parked at Bill's Corner convenience store which met the description given by Marion. Deputies Sloan and Davis approached the white Pinto and asked the occupant, Stoney Lee Gooding, to turn over the bottle of whiskey. As Mann approached the vehicle, Gooding produced the opened bottle and the Deputies arrested both Gooding and Mann. Gooding was arrested for public intoxication and Mann for Possession of an Alcoholic Beverage by a Minor. Subsequently, Appellant was charged with the crime of Sale of an Alcoholic Beverage to a Minor.

At trial, Mann testified that Appellant never asked him his age or requested any identification, although he had his driver's license with him at the time. Appellant, on the other hand, testified that Mann presented identification which showed his age to be 21 years. However, Deputy Sloan testified that at the time of his arrest, Mann's only identification which reflected his age was a driver's license which showed him to be under 18 years of age.

The present appeal raises one issue for our consideration. Appellant alleges that his right to confrontation was violated because the evidence he was not allowed to present to impeach a State's witness was crucial to demonstrate the various concessions or leniency granted Mann by the State. In particular, he sought to introduce evidence about Mann's prior charges which had been dismissed. He also sought to call the Court Clerk as a witness to show by extrinsic evidence that certain charges were not filed or were filed, and later dismissed against Mann. Finally, he contends that jury instruction No. 21 further compounded the error because it instructed the jury to disregard portions of Mann's testimony which were previously allowed.

At trial, Harold Lavern Mann, Jr. was cross-examined by defense counsel regarding any discussions of leniency as follows:

Mr. Oliver: Have they told you that they would show you any leniency or anything if you would testify here today?

Mann: Do what?

Mr. Oliver: Have the District Attorney, the police department, or any law enforcement officials, tell [sic] you that they would go easy on you if you would testify here today?

Mann: No.

Mr. Oliver: They haven't said that at all?

Mann: No.

Defense Counsel then attempted to question Mann regarding two felony charges which were dismissed in July of 1986. The State's objection to this line of questioning was overruled after some discussion out of the presence of the jury. Later, during the trial, the jury was admonished to disregard the testimony of the witness, Harold Lavern Mann, Jr., concerning any criminal charges that might be pending against him, any charges filed against him that were dismissed, and his conviction on the misdemeanor charge of possession of an alcoholic beverage by a minor. The judge further advised the jury that they were to disregard that testimony in evaluating the weight and credit to be given to the testimony of Mann and that they would be so instructed.

The Oklahoma Evidence Code strictly limits the type of evidence that is admissible to impeach the testimony of a witness. It particularly limits the use of specific instances of a witness's conduct for impeachment purposes. One section allows the use of a prior conviction as impeachment evidence pursuant to the criteria set forth in the statute. See 12 O.S.1981, § 2609. However, evidence of a prior arrest and dismissal of charges are not included within the definition of a prior conviction. Still another section of the code provides that specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, may not be proven by extrinsic evidence, other than by convictions of crimes as provided in Section 2609. 12 O.S.1981, § 2608(B). It should be noted, however, that this prohibition of the use of extrinsic evidence is restricted to the opinion or reputation evidence of truthfulness or untruthfulness.

Although evidence that impeaches a witness for bias is routinely admitted, it is not regulated by any provision of the Evidence Code. However, in practice, this type of evidence is permitted under common law principles. Recognizing that the principles surrounding the introduction of bias evidence derive from the right of confrontation (as found in the United States Constitution amendment VI, and the Oklahoma Constitution art. II, § 20), this Court has construed this right liberally. See, e.g., Lankister v. State, 298 P.2d 1088 (Okl.Cr.1956); Blumhoff v. State, 72 Okl.Cr. 339, 116 P.2d 212 (1941).

Unlike the strict restrictions placed on most other forms of impeachment evidence, a witness may be cross-examined about any matter tending to show his bias or prejudice. See, e.g., Dunham v. State, 762 P.2d 969, 973 (Okl.Cr.1988); Mills v. State, 733 P.2d 880, 882 (Okl.Cr.1986); Crawford v. State, 688 P.2d 357, 360 (Okl.Cr.1984). In fact, "the prohibition against extrinsic evidence of specific instances of conduct found in Section 2608(B) is inapplicable to impeachment evidence which tends to show a witness' bias ..." Fisher v. State, 761 P.2d 900, 901 (Okl.Cr.1988). Nevertheless, we have permitted the use of extrinsic evidence to demonstrate bias despite the prevailing rule against its use. See, Id. at 901; Rhodes v. State, 695 P.2d 861 (Okl.Cr.1985). Clearly bias evidence is never collateral. Thus, our previous holding in Woods v. State, 657 P.2d 180, 182 (Okl.Cr.1983), that if a witness denies the bias impeaching conduct, counsel is bound by the answer given and may not offer extrinsic evidence to contradict the witness is overruled to the extent it is in conflict with this opinion. The Court in Woods misapplied the Section 2608 procedure regarding opinion or reputation evidence of truthfulness or untruthfulness to evidence of bias.

We also recognize and adhere to the view of the United States Supreme Court that the exposure of a witness' motivation in testifying is a proper important function of the constitutionally protected right of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 683, 106 S.Ct. 1431, 1437, 89 L.Ed.2d 674 (1986); Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959). Thus, a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Delaware, 475 U.S. at 680, 106 S.Ct. at 1436. This is especially true in situations where the relations between the witness and the party to whom he serves is such that it may lead the witness to slant his testimony in favor or against a party. See Braden v. Hendricks, 695 P.2d 1343, 1348 (Okl.1985).

We have no Oklahoma cases in...