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Bland v. State5/16/2000
me side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue." In DiNapoli, the prior testimony at issue was given at a grand jury proceeding, and the court held, in part, that because of the reduced burden of proof at the grand jury proceeding, a similar motive between questioning witnesses at the grand jury level and at the actual trial might not exist.
Appellant's reliance on DiNapoli is misplaced. The federal grand jury scheme is very different from our state preliminary hearing scheme. In the federal grand jury process, facts and evidence are presented to the grand jury so that a determination might be made by the jurors as to whether the accused should be charged with a criminal offense in a criminal indictment. The accused does not have the right to counsel and there is no cross-examination of witnesses. In Oklahoma, a preliminary hearing is held after criminal charges have been filed by the district attorney. The purpose of a preliminary hearing is to establish probable cause that a crime was committed and probable cause that the defendant committed the crime. 22 O.S.Supp.1994, § 259. The defendant has the right to counsel and witnesses may be cross-examined. The difference between the federal system and our state system distinguishes DiNapoli from the present case.
While we find DiNapoli is not determinative of the case at hand, it is instructional in that the federal court has said the "similar motive" analysis must be fact specific, and that forgone opportunities for cross-examination do not demonstrate a lack of similar motive. 8 F.3d at 914-15. It is merely a factor to be weighed in assessing whether a similar motive exists. The nature of the proceedings and the cross-examination at the prior proceeding will be relevant though not conclusive on the ultimate issue of similarity of motive. Id. at 915. "A purely tactical decision not to develop particular testimony despite the same issue and level of interest at each proceeding does not constitute a lack of opportunity or dissimilar motive for purposes of Rule 804(b)(1)." United States v. Bartelho, 129 F. 3d 663, 671 n. 9 (1st Cir.1997).
Despite the difference in the burden of proof requirements in our state preliminary hearing and trial, this Court has allowed testimony from a preliminary hearing to be introduced at trial when the witness is unavailable. See Honeycutt, 754 P.2d at 560; Newstead v. State, 720 P.2d 734, 741 (Okl.Cr.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). In the present case, Appellant was represented by counsel at the prior proceeding and counsel cross-examined Mrs. Prentice. However, Appellant discounts his opportunity to confront the witness arguing that the cross-examination did not address the kidnapping and ensuing police chase, theorizing he knew he was going to be bound over on the murder charge so why spend time on the other charges at preliminary hearing, and that most of the cross-examination was irrelevant to the charges he was facing. A review of the cross-examination of Mrs. Prentice indicates counsel raised a defense of intoxication. Questions posed to the witness concerned her observation that Appellant may have been intoxicated at the time of the incident. Questions were also posed concerning the witness' knowledge of events surrounding the death of her husband when she in fact did not actually witness the events immediately preceding his death.
In cross-examining Mrs. Prentice at the preliminary hearing in 1975, Appellant was concerned with discrediting her testimony and reducing his culpability based upon his level of intoxication. Appellant did not
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