Phillips v. State, F-86-514

• Decision Date: 18 May 1988
• Docket Number: No. F-86-514,F-86-514
• Citation: 756 P.2d 604
• Parties: Reginald L. PHILLIPS, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 604

756 P.2d 604

Reginald L. PHILLIPS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-514.

Court of Criminal Appeals of Oklahoma.

May 18, 1988.

Rehearing Denied June 24, 1988.

An appeal from the District Court of Tulsa County; Jay D. Dalton, District Judge.

Reginald L. Phillips, appellant, was convicted of First Degree Rape, First Degree Burglary, two counts of Forcible Sodomy, Assault and Battery with a Dangerous Weapon, and Feloniously Pointing a Weapon, in the District Court of Tulsa County, Case No. CRF-85-3055, sentenced respectively to imprisonment for twenty-five (25) years, ten (10) years, thirteen (13) years, thirteen (13) years, ten (10) years, and ten (10) years, and appeals. REVERSED in part and AFFIRMED in part.

Thomas Dee Frasier, Everett R. Bennett, Jr., Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Reginald L. Phillips, appellant, was tried by jury and convicted of First Degree Rape (21 O.S.1981, § 1114), First Degree Burglary (21 O.S.1981, § 1431), two counts of Forcible Sodomy (21 O.S.1981, § 888), Assault and Battery With a Dangerous Weapon (21 O.S.1981, § 645), and Feloniously Pointing a Weapon (21 O.S.1981, § 1287), in Case No. CRF-85-3055, in the District Court of Tulsa County, the Honorable Jay D. Dalton, District Judge, presiding. The jury assessed punishment respectively at imprisonment for twenty-five (25) years, ten (10) years, thirteen (13) years, thirteen (13) years, ten (10) years, and ten (10) years. Judgments and sentences were imposed in accordance with the jury's verdict, the sentences to run consecutively. We reverse in part and affirm in part.

Just before 5:00 a.m. on August 5, 1985, C.B. awoke to find a man in her bed and a knife at her throat. C.B. grabbed the blade of the knife and, in the resulting struggle, the blade snapped, severely cutting her hand. C.B. escaped from her bed and tried to break through the pane of her bedroom window. The attacker grabbed her, and C.B. clearly saw his face by the light streaming through the bedroom window. The attacker was clad only in shorts. Turning around, C.B. saw her gun, which she kept under a pillow, exposed on the bed. C.B. dove for the gun, whirled around, and placing it under the attacker's chin, pulled the trigger three times. When C.B.'s husband originally gave her the gun, she unloaded it and reloaded it with only one cartridge, which she placed directly under the hammer; therefore, the hammer had to strike five empty cylinders before the gun would fire.

The attacker wrestled the gun from C.B., forced her to undress, and, holding the cocked gun to the back of her head, forced her to perform fellatio, raped her, and bit her on the vagina. C.B. fled to a bathroom and braced the door closed with her feet. She heard the kitchen window open. Later, C.B. discovered the attacker had entered her home by tearing off a screen and forcing open the window in her daughter's bedroom and exited by the kitchen window.

After determining that her attacker had fled, C.B. called a friend, who called the police. The police took C.B. to the hospital, where the cuts on her hand were sutured, her other cuts and abrasions were treated, and a rape kit prepared. While C.B. was in the hospital, the police canvassed the neighboring homes. After C.B. was released from the hospital, a next door neighbor's son told her later that morning that her attacker might be the man visiting them. C.B. called the police, who interviewed the appellant. The police interviewed appellant in a patrol car, rather than in the house, because of a report that C.B.'s missing gun might be in the house. C.B. stood in her front yard, and when the police escorted appellant to the police car for questioning, C.B. said, "Oh, my God, that is him." The next door neighbor gave to the police appellant's shorts, which had blood on them, and a cartridge found on the floor by the couch where appellant was sleeping, which was the same caliber and brand of cartridge as originally loaded in the gun stolen from C.B. The gun itself was never recovered.

For his first assignment of error, appellant asserts the trial court erred by excluding on cross-examination an exculpatory statement offered in his favor concerning the origin of cuts on his hands. After appellant's arrest, a police officer questioned appellant about the cuts on both of his palms and on the finger of his left hand. Appellant denied attacking C.B. When appellant tried to cross-examine the police officer to elicit from him appellant's explanation for the cuts on his hands, the State objected on hearsay grounds. Appellant made an offer of proof outside the hearing of the jury that he told the officer he cut his right palm at work, his left palm on his car hood, and his finger on a fishing net. The court, relying on Williams v. State, 542 P.2d 554 (Okla.Crim.App.1975), excluded the out-of-court statement as a self-serving exculpatory statement. In Williams the out-of-court statement excluded from evidence was a self-serving videotape in which the defendant named his co-defendant as the triggerman in a murder. Here, appellant sought to elicit the self-serving statement on cross-examination of the police officer who interviewed him at the police station.

We observe initially that an out-of-court statement offered against a party opponent is not hearsay under 12 O.S. 1981, § 2801(4)(b)(1), and is admissible, not because of any guarantee of trustworthiness of the out-of-court statement but as an accommodation to the adversary system. McCormick on Evidence § 262 (E. Cleary, 3rd ed. 1984). See also 1 L. Whinery, Guide to the Oklahoma Evidence Code 274 (1985).

An out-of-court self-serving exculpatory statement, on the other hand, when offered in favor of a party opponent in a civil or criminal trial, is hearsay, and to be admissible must either fall within a firmly rooted hearsay exception or the declarant must take the stand and be available for cross-examination. 29 Am.Jur.2d Evidence §§ 622, 623 (1967). See also 2 Wharton's Criminal Evidence § 294 (C. Torcia, 14th ed. 1986). Self-serving declarations are untrustworthy and permitting their introduction under Section 2801(4)(b)(1) could open the door to fraud and perjury and possibly lead to the introduction of manufactured evidence. 29 Am.Jur.2d at 675; 2 Wharton's at 286.

Appellant argues the statement was admissible because it was not offered to prove the truth of the matter asserted. We disagree. Appellant offered this out-of-court statement to prove he did not receive the injuries during the attack on C.B., but rather at work and on other occasions. Thus, the statement was offered to prove the truth of the matter asserted and constituted hearsay.

Appellant next argues the statement was admissible as an exception to the hearsay rule as a statement concerning "then existing mental, emotional, or physical condition," relying on 12 O.S.1981, § 2803(3). We disagree. Declarations of present physical condition are limited and do not include descriptions of past pain or symptoms "as well as accounts of the events furnishing the cause of the condition." McCormick on Evidence 838-39 (E. Cleary, 3rd ed. 1984) (footnote omitted). Section 2803(3) is a specialized application of the broader rule embodied in Section 2803(1) recognizing a hearsay exception for statements describing a present sense impression, the cornerstone of which is spontaneity. Id. at 839. The foundation ordinarily required for admission under Section 2803(3) "is a showing of a statement describing a then existing bodily condition of the declarant, reserving to the judge, however, discretion to exclude if circumstances disclose clearly that the statement was made with a view to manufacturing evidence." Id. (footnote omitted). "If circumstances clearly indicate a lack of spontaneity, e.g. an intention to manufacture evidence, exclusion should follow." Id. (footnote omitted).

In the instant case, the statement made by appellant to the police officer several hours after the attack on C.B. lacks the requisite spontaneity for admission under Section 2803(3), relates an account of the cause of the physical condition, and, in the trial court's opinion, was made with a view to manufacture evidence. We find no abuse of discretion in excluding the statement as hearsay. Similarly, appellant's arguments that the statement was admissible to prove intent, that the statement constituted a verbal act rather than a verbal statement, and that exclusion of the evidence denied him of his constitutional right to confrontation and cross-examination are without merit. Appellant has failed to prove he was prejudiced by the trial court's refusal to permit the officer to answer the questions propounded. Hall v. State, 698 P.2d 33, 36 (Okla.Crim.App.1985); Reagor v. State, 51 Okl.Cr. 66, 299 P. 516, 518 (1931).

For his second assignment of error, appellant asserts the State withheld an exculpatory statement in the prosecutor's possession that C.B. described her attacker as being in excess of 6' tall and weighing between 210 and 220 lbs. Appellant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and Collins v. State, 561 P.2d 1373 (Okla.Crim.App.1977), cert. denied, 434 U.S. 906, 98 S.Ct. 306, 54 L.Ed.2d 193 (1977).

Appellant, without objection by the State, introduced into evidence, as Defense Exhibit No. 7, a copy of the Rape Examination Report in which the examining physician reported "[t]he patient further describes the assailant as a thirty to thirty-five-year old black male with mustache and beard, approximately 6'2"' or maybe greater and approximately 200 to 220 lbs." Thus, the jury was fully informed that the victim had previously identified her assailant as taller and heavier than appellant. Moreover, the State submitted, at appellant's request, copies of all interviews with the...