State v. Gaytan , 70 O.B.A.J. 78 ( 1998 )

LUMPKIN, J.,

concur in results.

¶ 1 I concur in the results reached by the Court in this case simply because the question tendered could be answered in one short sentence, i.e. the trial court did not abuse its discretion because the question sought to be asked of the witness did not involve a question relating to character for truthfulness or untruthfulness. It appears the rest of the opinion relates dicta, which does not take into consideration.-the full analysis under the Oklahoma Evidence Code.

¶ 2 The first step in the analysis of the question presented should begin with the realization the testimony sought concerns the character of the “accused”. In this regard it should be noted that evidence of an “accused’s” character or a trait of his or her character is addressed pursuant to 12 O.S. 1991, § 2404. The provisions of 12 O.S.1991, § 2608, concern the credibility of a “witness”. While the provisions of Section 2404(A)(3) bootstrap the provisions of Section 2608 into its analysis, the issue presented in this case is directly addressed under Section 2404(A)(1).

¶ 3 The opinion fails to recognize that the provisions of Section 2608(A) address “the credibility of a witness”, not the “accused” in a criminal case. In the case before us, the credibility of a witness is not at issue, it is the credibility of the “accused” in the case. In this case, the character trait of truthfulness or untruthfulness of the witness has not been attacked. The issue was the character trait of truthfulness or untruthfulness of the “accused”. That character trait was placed into evidence by the “accused” pursuant to Section 2404(A)(1). Therefore, the prosecution has the ability to rebut that evidence of character. While an “accused” is not limited as to the type of character evidence, or trait of character which may be placed in issue under Section 2404, the credibility of a “witness” is limited to character for truthfulness or untruthfulness. Without acknowledging its applicability, the opinion seeks to restrict the application of Section 2404 by implication. That is an incorrect application of the law.

¶ 4 In 2 Whinery, Oklahoma Evidence, Commentary on the Law of Evidence, Section 15.01, pg. 308, Professor Whinery discusses' the limiting language of “accused” in the exceptions to the general rule set forth in Sections 2404(A)(1) and (2). There he sets out that the provisions of Section 2404(A) “is directed only to the circumstantial use of character in criminal cases....” At Page 309, he goes further and states “character evidence for truthfulness or untruthfulness may also be employed circumstantially in both civil and criminal cases either to attack or support the credibility of a witness pursuant to Section 2608 of the Code ” (emphasis added). Therefore, we should use the provisions of 2404 in determining the analysis and application of evidence concerning a character trait of an “accused” and the provisions of Section 2608 as it deals with a character trait of a “witness”. In this particular case, the character trait of the witness was not an issue. It was the character of the accused which was being addressed. Because of its failure to recognize the implication of both Section 2404 and 2608, together with the fact the questions sought to be asked of the witness did not implicate character of truthfulness or untruthfulness, the question should be answered simply without an analysis which complicates the application of the Oklahoma Evidence Code.