 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Neal v. State9/8/1992
ORDER REVERSING AND REMANDING FOR NEW TRIAL
Jonathan Wayne Neal, appellant, was tried by jury and convicted of Driving Under the Influence of Alcohol (47 O.S. 1991 § 11-902 [47-11-902]) in Tulsa County District Court, Case No. CF-91-3086, before the Honorable William J. Mussman, District Judge. Punishment was set at thirty (30) days incarceration in the Tulsa County Jail and a five hundred dollar ($500.00) fine.
The appeal was automatically assigned to the Accelerated Docket of this Court pursuant to Rule 11.2(a)(1) of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S. 1991, Ch. 18, App. The issues in the appeal were presented to this Court in oral argument on August 13, 1992. At the conclusion of oral argument, the parties were advised of the decision of this Court.
We find merit in appellant's first proposition of error wherein he contends that his ability to impeach a state's witness was impermissibly infringed by the trial court. At preliminary hearing the arresting officer, Officer Downing, testified that he never saw appellant driving the van. (P.H. Tr. 12). At trial Officer Downing testified that he was able to get a good look at the person driving the van and identified appellant as the driver. (Tr. 32). During the cross-examination of Officer Downing, at trial, the following occurred:
Q: Do you recall me asking you whether you could see who was driving the van at that point, and you saying you could not see who was driving?
MR. HATHCOAT: Objection, your Honor.
THE COURT: Sustained. There's a proper way to do that.
Q: (By Mr. Clark) Officer, you testified about these matters earlier; correct?
Q: Are your answers today any differently (sic) than they were when you previously testified?
A: Not as best I can recollect, sir.
Q: Do you recall testifying that, as you were following the van, you couldn't see who was driving it?
MR. HATHCOAT: Objection, Your Honor.
THE COURT: Sustained. Counsel, both approach the bench.
THE COURT: I'm not going to allow him to testify unless you have that testimony and can read him the exact verbatim answers. That's the proper way to impeach earlier testimony. We're not going to play do you recall games.
MR. CLARK: I will call the court reporter —
THE COURT: She's not going to look back through it.
MR. CLARK: Note my objection.
THE COURT: Exception allowed.
(Tr. 49-50). On this record, we agree with appellant's contention that the trial court prematurely terminated his attempt at impeachment.
This Court was faced with a similar issue in State v. McBlair, 670 P.2d 606 (Okl.Cr. 1983). In McBlair, defense counsel impeached the state's witness concerning prior inconsistent statements without a transcript of the prior statements. Before this Court on a reserved question of law, the case addressed the issue of when is it error for the court to allow defense counsel to cross-examine a state's witness regarding prior inconsistent statements without a certified transcript of the prior testimony. We held that if the witness denies the making of the inconsistent statement, or fails to admit it, the cross-examiner must prove the making of the statement at the next stage of giving evidence. This may be accomplished by introducing into evidence the applicable portions of the transcript but we pointed out that this is only one available method of establishing prior inconsistent statement.
Because there are means of proving up prior inconsistent statements other than introduci
Page 1 2 3 4 5 Oklahoma DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|