State v. Bates , 1989 Okla. Civ. App. LEXIS 35 ( 1989 )

BRIGHTMIRE, Vice Chief Judge,

concurring specially.

I concur with the result reached in the principal opinion and want to stress the importance of affording the accused the Sixth Amendment protections, particularly those delineated in a case cited in the foregoing opinion—State v. Ryan, 103 Wash.2d 165, 691 P.2d 197 (1984), having to do with determining the reliability of the alleged victims' hearsay statements.

The Ryan court quoted the following from 5 J. Wigmore, Evidence 111424, at 255 (Chadboum rev. 1974) (Footnote omitted):

“The hearsay rule is merely an additional test or safeguard to be applied to testimonial evidence otherwise admissible. The admission of hearsay statements, by way of exception to the rule, therefore presupposes that the assertor possessed the qualifications of a witness ... in regard to knowledge and the like.”

The court went on to say that if “the declarant was not competent at the time of making the statements, the statements may not be introduced through hearsay repetition. 5 J. Wigmore, supra at 304.” The exceptions to this rule, continued the court, “are res gestae utterances or fresh complaints.”

Thus among the various indicia of reliability, which the trial court must consider in resolving the issue of the admissibility of an incompetent and unavailable witness’ alleged earlier statements, is the fact of whether the utterer was competent when such statements are said to have been made. And if such competency cannot be determined, the proffered “statements must be excluded as being unreliable.” Ryan, 691 P.2d at 204.