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Bland v. State5/16/2000
apping. In pre-trial motions, the defense moved to prohibit admission of that evidence arguing it was inflammatory and unfairly prejudicial. Defense counsel sought to limit presentation of the evidence regarding the prior homicide to a showing of the weapon used by Appellant and how the homicide was committed. The trial court overruled the motion. Appellant again raised the motion during trial, arguing he would stipulate to the basic facts of the prior homicide and kidnapping but he did not want to go into any details and retry the prior case. The trial court overruled the objection, finding the State's evidence was not a re-trial of the prior case. Now on appeal, Appellant raises four challenges to the trial court's ruling.
In presenting evidence of the prior homicide and kidnapping, the transcript of the preliminary hearing testimony given by the homicide victim's wife in 1975 was read. The witness, Mrs. Prentice, passed away prior to the 1998 trial in this case. In his first challenge to the trial court's ruling, Appellant contends Mrs. Prentice's testimony was hearsay, without an exception, and its admission deprived him of his rights of confrontation and cross-examination. This objection was not raised at trial, therefore we review only for plain error.
Appellant concedes the testimony was admitted into evidence pursuant to 12 O.S.1991, § 2804(B)(1). That section provides:
B. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
1. Testimony given as a witness at another hearing of the same or another proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered or, in a civil action or proceeding, a predecessor in interest had an opportunity and similar motive to develop the testimony by direct, cross or redirect examination; . . . (emphasis added).
Appellant now challenges the "similar motive" requirement arguing he did not have a similar motive in cross-examining Mrs. Prentice as the prior testimony was taken at a preliminary hearing where the burden of proof is substantially lower than that required at trial. Appellant directs us to Honeycutt v. State, 754 P.2d 557, 560 (Okl.Cr.1988) wherein this Court stated:
This Court has never defined the word "motive" as used in Section 2804(B)(1). However, we believe that this word should be used in its ordinary sense. That is, "motive" is the moving power which prompts a person to act in a certain way. Black's Law Dictionary 914 (5th Ed.1979). .
In Honeycutt, the defendant was charged and convicted of rape, sodomy and kidnapping. By the time of Honeycutt's trial, the victim had been murdered by co-defendant McBrain. The victim's testimony given at McBrain's preliminary hearing was read into evidence at Honeycutt's trial. On appeal, this Court found the testimony properly admitted under section 2804(B)(1) because Honeycutt had a motive similar to that of his co-defendant in cross-examining the unavailable witness. Neither Honeycutt nor McBrain argued that they did not commit the assaults upon the victim, instead, both relied on the defense of consent inasmuch as they both argued the victim had consented to the sexual activity.
Appellant directs our attention to United States v. DiNapoli, 8 F.3d 909, 912 (2nd Cir.1996) where the Second Circuit Court of Appeals interpreted the "similar motive" requirement of Federal Rules of Evidence 804(b)(1) (identical to 12 O.S.1991, § 2804(B)(1)). The court said the test in determining whether there was a similar motive must turn "not only on whether the questioner is on the sa
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