Fritz v. State , 62 O.B.A.J. 1695 ( 1991 )

PARKS, Judge,

specially concurring:

In addressing appellant’s fourth assignment of error, the majority correctly determines that the statements made by appellant to Jailor Tenney were not part of the plea bargaining process and were, therefore, not protected under 12 O.S.1981, § 2410. However, I wish to point out that this determination does not ipso facto mean that such statements are in all cases admissible. To be admissible, evidence must be relevant. 12 O.S.1981, § 2402. Furthermore, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. 12 O.S.1981, § 2403.

In the present case, Tenney was asked about a particular conversation he had with appellant at the county jail. Tenney first related that appellant said he had been talking to the district attorney’s office about a plea agreement. He then testified that appellant, in discussing the possibility of negotiating a plea, made the following incriminating statement:

Okay. Let’s say it happened — it might— let’s see, let’s say that it might have happened this way. Maybe Ron went to the door and broke in to Carter’s apartment. And then, let’s say I went ahead and got a little. Ron got a little bit carried away and was going to teach her a lesson. She died. Let’s say it happened this way. But I didn’t see Ron kill Debbie Carter, so how can I tell the DA something I really didn’t see.

(Tr. 678) (emphasis added).

Under the circumstances of this particular case, I find that the evidence of a plea negotiation was necessary to explain the context in which the above statement was made. Furthermore, I cannot say that the danger of unfair prejudice in admitting this evidence substantially outweighed its probative value. Accordingly, I agree that the same was properly admitted.

I also wish to address appellant’s argument that the trial court erred in failing to give his requested instruction concerning the weight and credit to be given hair and body fluid evidence. I agree with the majority’s conclusion that the instructions as given were sufficient and, therefore, the trial court did not err in refusing to give the requested instruction. As such, I find it unnecessary for this Court to determine that the requested instruction “placed undue emphasis on hair and body fluid evidence to the detriment of the other evidence presented at trial.” (Majority at 1367).

On the basis of the foregoing, I concur in the affirmance of appellant’s Judgment and Sentence.