Burke v. State

• Citation: 820 P.2d 1344,1991 OK CR 116
• Decision Date: 01 November 1991
• Docket Number: No. F-87-975,F-87-975
• Parties: Gary Wayne BURKE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1344

820 P.2d 1344

Gary Wayne BURKE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-975.

Court of Criminal Appeals of Oklahoma.

Nov. 1, 1991.

Rehearing Denied Dec. 9, 1991.

An Appeal From the District Court of Oklahoma County; James L. 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.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

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 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.

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 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 Brown also testified concerning what D.L. told 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 O.S.Supp.1986, § 752 B(1)), appellant did not object to the playing of the video, and in fact, stipulated that all requirements of 22 O.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 O.S.Supp.1986, § 752, 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 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 proceedings begin is admissible into evidence if:

1. 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;

5. The statement is not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the child's statement and not made solely as a result of a leading or 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 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 O.S.Supp.1986, § 752.

I.

A.

In State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (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 admission of a prior videotaped statement made by a child alleged to be the victim of a crime. Included among various requirements for the admissibility of the recording, the Kansas statute requires that the child be available to testify and that if a 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 O.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 O.S.1981, § 2801(3). The Kansas Supreme Court then noted that admitting a declarant's 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, 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 cross-examination of the witness to be a fatal constitutional problem. Long, 742 S.W.2d at 319. The court further held that noncontemporaneous 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 ...