Neal v. State , 1992 Okla. Crim. App. LEXIS 75 ( 1992 )

ORDER REVERSING AND REMANDING FOR NEW TRIAL

Jonathan Wayne Neal, appellant, was tried by jury and convicted of Driving Under the Influence of Alcohol (47 O.S.1991, § 11-902) in Tulsa County District Court, Case No. CF-91-3086, before the Honorable William J. Mussman, District Judge. Punishment was set at thirty (30) days incarceration in the Tulsa County Jail and a five hundred dollar ($500.00) fine.

The appeal was automatically assigned to the Accelerated Docket of this Court pursuant to Rule 11.2(a)(1) of the Rules of the Oklahoma Court of Criminal Appeals, 22 O.S.1991, Ch. 18, App. The issues in the appeal were presented to this Court in oral argument on August 13, 1992. At the conclusion of oral argument, the parties were advised of the decision of this Court.

We find merit in appellant’s first proposition of error wherein he contends that his ability to impeach a state’s witness was impermissibly infringed by the trial court. At preliminary hearing¹ the arresting officer, Officer Downing, testified that he never saw appellant driving the van. (P.H. Tr. 12). At trial Officer Downing testified that he was able to get a good look at the person driving the van and identified appellant as the driver. (Tr. 32). During the cross-examination of Officer Downing, at trial, the following occurred:

Q: Do you recall me asking you whether you could see who was driving the van at that point, and you saying you could not see who was driving?

MR. HATHCOAT: Objection, your Hon- or.

THE COURT: Sustained. There’s a proper way to do that.

Q: (By Mr. Clark) Officer, you testified about these matters earlier; correct?

Q: Are your answers today any differently (sic) than they were when you previously testified?

A: Not as best I can recollect, sir.

Q: Do you recall testifying that, as you were following the van, you couldn’t see who was driving it?

MR. HATHCOAT: Objection, Your Hon- or.

THE COURT: Sustained. Counsel, both approach the bench.

THE COURT: I’m not going to allow him to testify unless you have that testimony and can read him the exact verbatim answers. That’s the proper way to impeach earlier testimony. We’re not going to play do you recall games.

MR. CLARK: I will call the court reporter—

THE COURT: She’s not going to look back through it.

MR. CLARK: Note my objection..

THE COURT: Exception allowed.

(Tr. 49-50). On this record, we agree with appellant’s contention that the trial court prematurely terminated his attempt at impeachment.

This Court was faced with a similar issue in State v. McBlair, 670 P.2d 606 (Okl.Cr.1983). In McBlair, defense counsel impeached the state’s witness concerning pri- or inconsistent statements without a transcript of the prior statements. Before this Court on a reserved question of law, the case addressed the issue of when is it error for the court to allow defense counsel to cross-examine a state’s witness regarding prior inconsistent statements without a certified transcript of the prior testimony. We held that if the witness denies the making of the inconsistent statement, or fails to admit it, the cross-examiner must prove the making of the statement at the next stage of giving evidence. This may be accomplished by introducing into evidence the applicable portions of the transcript but we pointed out that this is only one available method of establishing prior inconsistent statements.

Because there are means of proving up prior inconsistent statements other than introducing the transcript into evidence, it would be highly inconsistent to require counsel to produce the transcript during the foundation-laying stage. Accordingly, we hold that so long as the substance of the statement is accurate, paraphrasing of prior testimony is permissible.

Id. at 608.

McBlair implies that there are two stages involved in impeaching a witness with a prior inconsistent statement. Regarding the first stage, the foundation laying stage, we concluded that “the better rule is that the trial court generally should not require questions and answers to be read from the transcript of the prior hearing when counsel is laying the foundation for introducing proof of the prior inconsistent statement.” Id. at 608.

Although the decision in McBlair was based on circumstances occurring in the foundation laying stage, we commented on the second stage, the proving stage, with the following:

If the witness admits making the prior inconsistent statement, it is not necessary to introduce the portion of the transcript relating to the inconsistent statement. See Kelsey v. State, 569 P.2d 1028 (Okl.Cr.1977). If the witness denies the making of the statement, however, or fails to admit it, the cross-examiner must prove the making of the statement at the next stage of giving evidence. [United States v.] Hibler, 463 F.2d 455 [(9th Cir.1972)]. This may be accomplished by introducing into evidence the applicable portion of the transcript or by putting on the stand the court reporter or someone else who heard and recalls the statement and eliciting testimony that the witness made the statement.

McBlair, 670 P.2d at 608. We find that the error, in the instant case, occurred in the foundation laying stage; after the witness stated that he could not recall giving a prior inconsistent statement appellant was entitled, even without the transcript of the earlier testimony, to confront the witness with the substance of the inconsistent statement.

In addition to reasserting our holding in McBlair, we find it advantageous to address the methods of proving that a prior inconsistent statement was in fact made. This Court has previously recognized alternative methods of examining prior testimony. Hall v. State, 570 P.2d 955, 959 (Okl.Cr.1977). “This recognition would seem to include the use of such alternative methods and impeachment of the State’s witnesses.” Id. However, Hall required that counsel make a diligent effort to obtain the transcripts of previous testimony before alternative methods of impeachment could be used. Id. Hall cites Kirk v. State, 555 P.2d 85 (Okl.Cr.1976), as authority for the holding that counsel must first show a diligent attempt to obtain a transcript of prior testimony before alternate methods of impeachment are permitted.

In Kirk the issue presented was whether the trial court erred in refusing to grant the defendant’s motion for continuance. The motion for continuance, which was filed on the day of trial, was based on defendant’s professed inability to obtain a transcript of preliminary hearing. This Court noted that a previous motion for continuance had been granted to allow defendant time to secure the transcript and “[t]hat the record is devoid of any evidence that pursuant to the first continuance of the jury trial that defendant made a diligent effort to obtain the transcript or to notify the court he was unable to do so.” Id. at 87. The Court concluded that defendant had ample time to secure a transcript and failed to do so. Accordingly, we held that the trial court did not abuse its discretion in denying defendant’s motion for continuance.

Under the circumstances found in Kirk, the requirement that counsel make a diligent effort to obtain transcripts is sound. Kirk does not require an effort to obtain transcripts before alternate methods of impeachment are available. We find that Hall stretches the Kirk rational beyond its intended parameters. We hereby expressly overrule Hall to the extent that it prohibits the use of alternate methods of impeachment in the absence of showing diligent attempts to obtain the prior testimony. We find that the better rule is to grant counsel leniency in the choice of methods used to prove the existence of a prior inconsistent statement. This choice includes, but is not limited to, the use of prior testimony and counsel’s ability to use legitimate alternative methods shall not be contingent upon a showing the unavailability of transcripts. To hold otherwise would require counsel, in order to protect his right to impeach via a prior inconsistent statement, to obtain transcripts for all witnesses and prepare for the possibility, however remote or unforseen, that the witness will give inconsistent testimony at trial.

For the foregoing reasons, IT IS THE ORDER OF THIS COURT that this cause should be, and hereby is, REVERSED and REMANDED for NEW TRIAL.

IT IS SO ORDERED.

/s/ James F. Lane

JAMES F. LANE, Presiding Judge

/s/ Gary L. Lumpkin

GARY L. LUMPKIN, Vice Presiding Judge Concurs In Results

/s/ Tom Brett

TOM BRETT, Judge

/s/ Charles A. Johnson

CHARLES A. JOHNSON, Judge

1 . Appellant was originally charged with Assault and Battery Upon a Police Officer, a felony. Thus, he was entitled to and received a preliminary hearing.