Workman v. State ( 1991 )

BRETT, Judge

dissenting:

I disagree with the majority that the trial court did not abuse its discretion in failing to excuse Juror Simmons for cause and would reverse and remand for a new trial. After inadvertently viewing a television report on the case, Juror Simmons reported to the trial judge that her ability to be fair and impartial had been impaired. At an in camera hearing, Juror Simmons stated that “I’m afraid it would take much more to convince me that he’s innocent. And that’s not the way it should be.” (Tr. 278). The trial judge allowed counsel to question the juror. TV. prosecutor asked her if she could forget what she saw and follow the judge’s instructions to which she responded affirmatively. However, the last question asked of her during the hearing by defense counsel was: .

MR. CASSIL: At this point do you feel like, then, that I’ve got to overcome your feelings; that my client, by proof, has to overcome your feelings of guilt? In other words, we have to prove more than that happened to you?

JUROR SIMMONS: You would have to prove that more than just the bed — falling off—

It has been long held by this Court that if a juror has prejudged the guilt of a defendant before any evidence is presented in court, then that juror is not impartial. Stevens v. State, 94 Okl.Cr. 216, 232 P.2d 949, 956 (Okl.Cr.1951). All doubts as to a juror’s impartiality must be resolved in favor of the defendant. Tibbetts v. State, 698 P.2d 942, 946 (Okl.Cr.1985). This rule applies both at the trial level and on appeal to this Court. Hawkins v. State, 717 P.2d 1156, 1158 (Okl.Cr.1986).

At the sentencing hearing, the trial judge stated: “I wished later that I had adopted the suggestion of putting one of the alternate jurors on the jury, not that that was required, but that it would have eliminated any question about it.” (Sentencing Tr. 16-17). Obviously, the trial judge had a doubt as to this juror’s impartiality, and as such abused his discretion by not excusing her for cause.

I also would like to address the admissibility of the video taped interviews of appellant by two Oklahoma City detectives. The opinion implies that appellant now complains of his statements as being inadmissible hearsay. The majority correctly states that a defendant’s own statements are not hearsay. However, that is not the argument raised by appellant in his brief. Rather, he argues that the second interview conducted on January 12, 1987, was predominantly repetitious speculation from the investigating officers as to how the child died. Appellant is correct in his assertion that the officers would not be permitted to make such statements from the witness stand and therefore should likewise not be permitted to do so through a recorded interview. I agree. However, since appellant did not object to the admissibility of the tapes on hearsay grounds at trial, reversal is only warranted on this issue if this amounts to fundamental error. While I agree that the admission of the second interview may have been error, it does not amount to fundamental error and was probably harmless.

Nevertheless, I would reverse and remand for a new trial based upon the failure of the trial court to excuse Juror Simmons for cause.