McIntosh v. State

1991 OK CR 49, 810 P.2d 373, 62 O.B.A.J. 1317, 1991 Okla. Crim. App. LEXIS 50, 1991 WL 62480
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 16, 1991
DocketF-89-198
StatusPublished
Cited by5 cases

This text of 1991 OK CR 49 (McIntosh v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McIntosh v. State, 1991 OK CR 49, 810 P.2d 373, 62 O.B.A.J. 1317, 1991 Okla. Crim. App. LEXIS 50, 1991 WL 62480 (Okla. Ct. App. 1991).

Opinions

OPINION

PARKS, Judge:

Robert Joseph McIntosh, appellant, was convicted of Child Beating (21 O.S.Supp. 1982, § 843) in Oklahoma County District Court Case No. CRF-88-1657. He received a sentence of seventy-two (72) years imprisonment in accordance with the jury’s recommendation. Appellant was tried jointly with Judy Carey, the mother of two (2) year old Phillip Carey. Each defendant was charged with child beating, or in the alternative, allowing child beating.

After an anonymous source reported the suspected abuse of young Phillip to child welfare authorities on March 21, 1988, Phillip was taken to Childrens Memorial Hospital by the Midwest City Police where he [375]*375was treated for several days. He reportedly had numerous bruises from head to foot, a large burn on his shoulder, a large bump on his forehead, large gouges in the tissue behind each ear and some smaller burns and scratches. A great deal of hair was missing from the top of his head, he was experiencing pain and unable to stand up straight, and he had been vomiting for several days while at home. He was pale, gaunt, and had lost several pounds since being treated for a broken leg six months earlier at the same hospital. His suffering did not appear to have been the result of infection, but rather the attending physicians diagnosed him as having been abused in an extensive, painful, and traumatic way.

Diana Coleman, a social worker with the Department of Human Services, testified that she tried to talk with Phillip about his injuries on the day he was taken to the hospital and he would not talk to anyone. The next day she again tried to communicate with him. In response to her questions as to who had caused certain of his injuries he said, “Bobby did it.”

Appellant lived with Judy and Phillip Carey. He was known as Bobby or Bobby Joe. He also was unemployed and baby sat Phillip while Judy worked. Appellant testified at trial on his own behalf and stated that Phillip received his injuries while in his care, but that the injuries all resulted from accidents Phillip occasioned. He said Phillip was clumsy and very accident prone.

Appellant objected at trial to Ms. Coleman being allowed to testify to Phillip’s statement that “Bobby did it.” As his first assignment of error, appellant claims that he was denied his Sixth Amendment right to confront the witness against him.

Before hearsay statements may be admitted at the trial of one accused of a crime, the Sixth Amendment requires that the prosecution either produce the declar-ant or demonstrate the unavailability of the declarant as a witness and also demonstrate that the statement in question bears adequate indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). “Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Idaho v. Wright, — U.S. -, 110 S.Ct. 3139, 3146, 111 L.Ed.2d 638 (1990), citing Roberts, supra. Hearsay statements which do not fall within an established hearsay exception are presumptively unreliable.

Wright also involved abuse of a two year old child. The victim made certain incriminating statements in response to suggestive questions posed by a pediatrician who examined her. She had additionally made some spontaneous remarks concerning abuse that occurred to her sister. The United States Supreme Court, after noting that the trial court had found the child was unavailable as a witness, found that there was no special reason to believe that the child’s statements concerning her own abuse were particularly trustworthy, although noting her statements about her sister’s abuse might have been sufficiently reliable. Therefore, their admission at trial violated the defendant’s right to confront the witness. Id., — U.S. at-, 110 S.Ct. at 3152.

According to Wright, reliability of statements sought to be introduced which do not fall within a well-established exception to the hearsay rule, must be shown from all of the circumstances to possess particularized guarantees of trustworthiness. The trustworthiness should be comparable to that found in established hearsay exceptions; that is, such that adversarial testing would add little to its reliability. Id., — U.S. at-, 110 S.Ct. at 3149.

The statements of Phillip which tended to incriminate appellant were made after repeated attempts by the social worker to talk to him about his injuries. However, no record was made in this case of the availability of Phillip as a witness and of all the circumstances surrounding the making of his statements. Therefore, it is impossible to review their reliability from the record.

[376]*376In Wright, the Supreme Court discredited the idea that particular procedural safeguards must accompany the professional interview of a child. There is no one aspect of the making of a statement that insures reliability. Reliability must be judged from all of the circumstances surrounding the making of the statement, and these circumstances must indicate the de-clarant is particularly worthy of belief.1 Therefore, the trial court must make determinations of the witnesses unavailability and of adequate indicia of reliability before admission into evidence of hearsay statements. In the absence of such findings, Phillip’s statements should not have been admitted at trial.

The fact that a violation of a defendant’s Sixth Amendment right to confrontation occurs during trial does not automatically dictate reversal of his or her conviction. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). Admission of the evidence may be harmless and the prejudicial effect of the inadmissible evidence is to be assessed in the context of the entire case against the defendant. Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986).

Apart from the admission of Phillip’s out-of-court statements, we find that there was sufficient independent evidence of appellant’s guilt to render the hearsay harmless beyond a reasonable doubt. Id. The fact that Phillip’s injuries occurred when appellant was taking care of him was established by both appellant’s and Judy Carey’s testimony at trial. Sherry DeWitt was a neighbor of the defendants and had visited in their apartment on each of the two days prior to the day Phillip was taken to the hospital. DeWitt testified that appellant was caring for Phillip each day and told her that Phillip got hurt accidentally in the bathroom. She noticed that Phillip was vomiting and suggested that he might have a brain concussion and should have medical treatment. Appellant did not think Phillip needed to go to the hospital and said he would discuss it with Phillip’s mother. Eventually, DeWitt reported the incident to the apartment complex manager who called the Midwest City police.

The doctors’ testimony contradicted appellant’s that Phillip’s injuries were the result of accidents. Each doctor who treated Phillip testified his injuries were inconsistent with accidental injuries and believed he had been abused extensively.

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Related

Mitchell v. State
2005 OK CR 15 (Court of Criminal Appeals of Oklahoma, 2005)
F.D.W. v. State
2003 OK CR 23 (Court of Criminal Appeals of Oklahoma, 2003)
Betzle v. State
847 P.2d 1010 (Wyoming Supreme Court, 1993)
McIntosh v. State
1991 OK CR 49 (Court of Criminal Appeals of Oklahoma, 1991)

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Bluebook (online)
1991 OK CR 49, 810 P.2d 373, 62 O.B.A.J. 1317, 1991 Okla. Crim. App. LEXIS 50, 1991 WL 62480, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcintosh-v-state-oklacrimapp-1991.