Martinez v. State , 66 O.B.A.J. 2895 ( 1995 )

LUMPKIN, Judge,

concurring in results.

I concur in the Court’s decision to reverse and remand this case for a new trial on the basis that Appellant was denied his right to cross-examine David Castillo and the opportunity to establish the foundation for the admissibility of habit or routine evidence. However, the Court’s reliance on Beck v. State, 824 P.2d 385 (OM.Cr.1991), to expand the definition of bias evidence beyond its traditional perameters is misplaced.

Beck addressed the defendant’s right to cross-examine a witness concerning any matter tending to show bias or prejudice. Here, Appellant sought to introduce evidence of prior fires to show that David Castillo set the fires in the present ease and not merely to show that Castillo was biased or prejudiced to testify in a certain manner as addressed in' Beck. In other words, Appellant wanted to present “evidence of a person’s character or a trait of his character ... for the purpose of proving action in conformity therewith on a particular occasion” which is prohibited by Section 2404 of Title 12. This is different from bias. As Professor Whinery notes at 3 OMa. Evidence (Whinery) 340, § 47.08, “[b]ias denotes a relationship between a party and a witness that may cause the witness to slant testimony, either consciously or unconsciously, either for or against a party,” citing to United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984). He further puts the issue into perspective in 1 OMa. Evidence (Whinery) 406 when he correctly states “[hjowever, in appropriate cases, the showing of bias to impeach a witness is relevant evidence under Section 2401 and admissible under Section 2402 unless its use is restricted by some other rule, such as Section 2403, or one or the other specific rules in Article VI governing the use of specific types of impeaching evidence.” Section 2404 is a specific rule which restricts use of character evidence. The evidence sought to be presented in this case, in the form and procedure utilized by trial counsel, did not provide the predicate evidence required to fit within any of the exceptions set out in Section 2404. See Vowell v. State, 728 P.2d 854, 858 (OM.Cr.1986). This does not preclude a defendant from proving another person committed the crime. It merely points out the requirement to present more than past character evidence which only creates an inference the witness acted in conformity with that past character on the date and time in question.¹

The Appellant did not submit any evidence that someone other than Appellant set the fire. Within the context of admissible Section 2404(B) evidence in a criminal proceeding, this Court has consistently required the state to first present evidence showing the crime was committed and a defendant committed the crime prior to the admissibility of the character evidence. In other words, the past character evidence is not admissible standing alone, but is admissible to explain or substantiate evidence already presented. It appears the proper characterization of the evidence Appellant sought to present at trial, and as argued by defense counsel at trial, was'habit or routine practice evidence pursuant to Section 2406. However, it was in the attempt to establish the habit as a predicate to the admissibility of the evidence that error occurred.² It was Appellant’s theory of defense that since David Castillo had a habit of setting fires in the past, even though the limited record or offer of proof do not establish he ever utilized an accelerant to start a fire, he must have set the fire the night of the homicide. Appellant did not lay the foundation for the habit evidence to prove David set the fire and the Court in its opinion states “[t]he trial court correctly found counsel’s argument, without any foundation, unpersuasive. See, 12 O.S.1981, §§ 2405; 2406.” Opinion at pg. 141. However, on appeal the Appellant seeks to refashion a remedy by asking this Court to shortcut the required evidentiary process utilizing the generalized rubric of “bias”. This is the same methodology used at trial which this Court found the trial judge did not err in denying the admissibility for lack of foundation. Id. Now, this mischaracterization of the evidentiary issue has been compounded by the Appellee’s adopting and this Court’s ruling on the question as propounded rather than determining if the characterization was correct in the first instance.

I do agree Appellant was denied his constitutional right under the Confrontation Clause to cross-examine David Castillo because he was not allowed to ask him if he had set the fire on the night of the homicide. However, the record also reflects the Appellant was denied the opportunity to establish the foundation required, if possible to establish, for the admissibility of the habit or routine evidence sought to be introduced regarding David Castillo’s habit of setting fires. The trial court’s procedure and rulings on the State’s motion in limine precluded the opportunity to attempt to meet the evidentiary requirements for admissibility of this evidence. The Court correctly states any such error must be determined to be harmless beyond a reasonable doubt for the conviction to be affirmed. Bartell v. State, 881 P.2d 92 (Okl.Cr.1994); Beck at 390; Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).

While David Castillo’s testimony was important, the State’s case did not stand or fall on that testimony. The Court incorrectly invades the province of the jury when it states no weight can be given to the testimony of Angel Castillo. Although Angel Castillo did not see Appellant throw a lighted match, he saw Appellant in the house carrying a yellow bucket — “that bucket he puts in the lawn mower” — when the fire started. While Angel’s testimony may have been impeached on cross-examination, the weight and credit to be given his testimony is solely for the jury’s determination. Yell v. State, 694 P.2d 946, 948 (Okl.Cr.1985).

Other evidence corroborated David’s testimony. The apartments where Appellant parked were in close proximity to the house where the little girls died; the front door was burned away, the hinge frozen in the open position; Appellant was seen leaving his car parked in the apartment complex, walking toward the direction of the house shortly before the fire and had been seen in the area of the house on earlier occasions; gasoline was found on a portion of the carpet submitted for analysis, indicating the presence of an accelerant; and evidence tended to show that an adult, rather than a child, poured the gasoline. The State presented a strong case against Appellant. However, because of Appellant’s inability to establish for the record the foundation required to determine if the evidence of David Castillo’s past conduct was sufficient to establish a habit or routine, and if that habit or routine was relevant to the evidence presented in this case, I must agree with the Court the error was not harmless beyond a reasonable doubt.

Further, even though the Court’s comments regarding resentencing are only dicta as applied to this case, I continue to adhere to my separate opinions in Salazar v. State, 852 P.2d 729 (Okl.Cr.1993) and Hain v. State, 852 P.2d 744 (Okl.Cr.1993), cert. denied, — U.S. -, 114 S.Ct. 1402, 128 L.Ed.2d 75 (1994).

1 . In this vein, see Fortson v. State, 269 Ind. 161, 379 N.E.2d 147, 153-54 (1978). There, an appellant contended the trial court erred in not allowing him to present evidence of an alternative theory as to who may have killed the victim. Specifically, the appellant wanted to present evidence the prosecution’s key witness had committed prior unlawful acts with others, and had been seen both before and after with those same individuals in the murder area. The Indiana court responded:

A defendant may, of course, establish his innocence by showing that some other person or persons committed the crime charged, instead of himself. But the mere possibility that some third person did the act is not enough. Evidence tending to incriminate another must be competent and confined to substantive facts which create more than a mere suspicion that such other person committed the particular offense in question.

Id. 379 N.E.2d at 153 [citations omitted]

2 . Professor Whinery discusses the distinction between character evidence and habit evidence at 2 Okla. Evidence (Whinery) 358, § 16.01. "It is often difficult to distinguish admissible habit evidence from inadmissible character evidence. However, as discussed in § 15.02, a useful starting point is that character is a generalized description of one's disposition in respect to a general trait, such as honesty, while habit is more specific and describes a regular practice of meeting a particular set of circumstances with a certain type of behavior, such as regularly failing to stop one’s vehicle at an intersection controlled by a stop sign.” Id.