1999 OK CR 29
___ P.2d ___
ROCKY EUGENE DODD, Appellant -vs- STATE OF OKLAHOMA, Appellee
Case No. F-97-26
July 22, 1999

JOHNSON, JUDGE:

¶1 Rocky Eugene Dodd, Appellant, was tried by a jury in the District Court of Oklahoma County, Case No. CF-94-7724 before the Honorable Nancy L. Coats. Dodd was convicted of two counts of First Degree Malice Aforethought Murder. After finding the existence of three aggravating circumstances for Count I and four aggravating circumstances for Count II, the jury set punishment at death for each murder conviction.¹ The trial court sentenced Dodd accordingly. Dodd now appeals.

¶2 Dodd and the victims, Kari Sloniker and Shane McInturff, were next door neighbors in apartments located near the University of Central Oklahoma (UCO) in Edmond, Oklahoma. At approximately noon on Saturday, November 5, 1994, Dodd came to Shane's apartment and gave him a check for $70.00. Between 5:00 and 6:00 p.m. that same day, Dodd brought Shane a second check for $70.00. Brian Brown testified he saw both checks from Dodd in Shane's wallet at this time. He further testified that the checks were for the purchase of "crank," also known as methamphetamine. Brown left the apartment at approximately 6:30 p.m.

¶3 Later that evening, Brown, Lisa Eubanks, Shane and Kari went to The Pool Room in Oklahoma City to play pool. Before leaving, the group smoked marijuana and snorted and smoked crank in Kari and Shane's apartment. Eubank's testified at trial that the marijuana and crank were kept in a box which Kari and Shane usually hid under the couch in the living room. Eubanks stated that she first saw approximately one gram of crank in the box and estimated the group used approximately one-quarter gram of the substance prior to leaving to play pool. The drug box was placed back under the couch prior to the groups departure.

¶4 They arrived at The Pool Room at approximately 10:30 p.m. and left at approximately 1:30 a.m. Kari and Shane invited Eubanks to watch a movie and spend the night at their apartment. Consequently, Brian Brown dropped off the group at Kari and Shane's apartment and returned to his home. Upon entering the apartment, Shane asked Kari to roll a joint. When Kari pulled the box from under the couch, the drugs were missing. Shane became extremely angry and loud, kicking the common wall between his and Dodd's apartment. Shane was shouting and accusing Dodd of stealing the drugs. Shane eventually went next door to Dodd's apartment and an argument ensued over the missing drugs. Soon after his return to his apartment, Dodd followed and told Shane to keep the noise down because his child was trying to sleep.

¶5 After Dodd left the apartment, Shane and Kari began discussing the possibility of cashing Dodd's checks and telling Dodd's wife that he was using drugs. They believed this would cause problems for Dodd as his wife was unaware he was using drugs again. Due to the "intense" atmosphere at the apartment, Eubanks left at approximately 3:00 a.m. and returned to her dormitory room. This was the last time anyone saw Shane and Kari alive.

¶6 Dodd's trip to Shane's apartment and the harsh words exchanged between the two was also witnessed by Dennis Kersh, who lived in a nearby apartment. At approximately 2:00 a.m., Kersh was awakened by a loud noise outside. Believing someone might have hit his car, Kersh went outside to investigate. After returning to his bed, Kersh heard someone yell "fuck" from the area of Shane's apartment. Kersh, looking out his window, saw Dodd run from his apartment into Shane's apartment. As Dodd entered the apartment, he yelled "what the fuck is going on."

¶7 Later that Sunday, Brian Brown found Shane's pay check in his car. At approximately 5:00 p.m., Brown went by Shane's apartment to return the pay check. No one answered when Brown knocked on the door. Dodd was sitting outside his apartment and stated that he had not seen Shane or Kari that day. Brown drove by again at 6:30 p.m., seeing no lights he did not stop.

¶8 On Monday, November 7^th, Dodd stated he went by Shane's apartment to give him a ride to work. No one responded to his knocks and Shane did not report to work that day. Robert McInturff, Shane's father, returned home from work at approximately 5:30 p.m. and found four messages from Dodd on his answering machine. The messages were regarding Shane's failure to respond to Dodd's knocks at his apartment door that morning. Concerned, Mr. McInturff went to check on Shane. He arrived at the apartment at approximately 5:50 p.m. Mr. McInturff ran into Dodd as he reached the apartment. Dodd again stated that he had not heard from Shane or Kari that entire day. Unable to open the door to the apartment, Mr. McInturff and Dodd obtained a pass key from the landlord.

¶9 Upon entering the apartment, Mr. McInturff observed two bodies on the bedroom floor. Mr. McInturff testified that he did not turn on the bedroom light and that Dodd remained near the front door. McInturff yelled to Dodd to call 911. Both bodies were lying face down, next to each other, and there was a great deal of blood surrounding the victims. Because of the location and position of the bodies, Mr. McInturff stated that he was unable to determine the manner in which Shane and Kari were killed. He further noted that Shane's wallet was lying open in the living room.

¶10 Keith Randolph, a City of Edmond fireman, was the first of the emergency personnel to reach the scene. Randolph was unable to tell how the victims died because of the position of the bodies. However, he told EMSA emergency technicians that he believed the victims were killed by gunshots to the head. James Towers, an EMSA technician, was also unable to tell the manner in which the victims were killed. When Edmond Police Officer Lindell McLemore arrived at the scene, he was told that it appeared the victims had been shot. Similarly, when Steve Slater, an investigator with the Medical Examiner's Office, arrived at the scene at approximately 10:30 p.m., he was unable to tell the manner of death until he rolled the bodies over for further examination. At this time, it became apparent the victims' throats had been slashed. Conversely, Rocky Yardley, a technical investigator with the Edmond Police Department, examined the bodies without moving them at approximately 9:25 p.m., and found that Shane's throat had been cut.

¶11 The earliest that any of the emergency personnel, police, or technical investigators at the scene were able to tell the manner in which the victims had been killed was 9:25 p.m. In a key piece of evidence, Dodd spoke with his supervisor at Jetta Products at 6:41 p.m. and informed him that Shane and his wife had been murdered and that their throats had been cut. Additionally, on the same day the bodies were discovered, Dodd had returned a hunting knife he had borrowed from a co-worker. The medical examiner testified at trial that the victims' wounds were caused by a weapon with a thick, heavy blade.

¶12 Further investigation of the crime scene revealed the trace presence of blood in and around the sink in the victims' bathroom, as if someone had cleaned their hands in the sink. Moreover, a towel appeared to be missing from the bathroom. The missing towel was found in the dumpster located in the apartment complex. A hair found on the towel was consistent with Dodd's hair. DNA testing was also conducted on a blood stain found on the towel.² Both victims could not be excluded as possible contributors of the DNA on the towel stain.

¶13 When questioned about the two $70.00 checks Dodd had given Shane, Dodd claimed he had loaned Shane the money to buy a car from Shane's uncle. Dodd stated that Shane had returned the checks to him on Saturday afternoon, sometime between 3:00 p.m. and 5:00 p.m., because the uncle was selling the car to someone else. Dodd said he had torn the checks into four or five pieces and placed them in the trash. No checks or check remnants were found. Furthermore, Robert McInturff testified he had made arrangements with Shane to loan Shane money to buy a car from his brother in Arkansas.

¶14 While incarcerated in the Oklahoma County Jail awaiting trial, Dodd spoke with another inmate, Kenneth Bryant. Bryant testified that while watching the O.J. Simpson trial on television in the jail common area, Dodd appeared interested in the DNA portion of the trial and asked Bryant if he thought police could obtain DNA evidence if blood got on a nugget ring or the velcro portion of a watch band. Bryant testified he asked Dodd if he committed the murders to which Dodd replied, "Yes . . . but proving it will be a different thing." Dodd allegedly told Bryant that he had gone to the victims' apartment to retrieve the checks he had given Shane and to take whatever drugs were there and that things "went wrong." Dodd explained that he did not want his wife to find out about the checks. He was worried she would find out he was using drugs. Bryant further testified that Dodd stated he figured his co-worker, who had loaned him the hunting knife, would know that he had the murder weapon.

¶15 On appeal, Dodd raises eighteen propositions of error. However, finding error requiring reversal, we need only address Proposition IV(E) which deals specifically with informant Bryant's testimony. After Dodd's preliminary hearing, Bryant recanted his testimony that Dodd had admitted killing the victims. The recantation occurred during an interview with investigators for another capital murder case. Bryant later reasserted the truthfulness of his original testimony. Bryant testified at trial about his recantation and the circumstances surrounding the recantation. Bryant explained that he told the investigator "what she wanted to hear" in hope that she would arrange for him to get an OR bond so he could get out of jail and return to his dying wife.

¶16 Proposition IV(E) deals specifically with two letters written by Bryant regarding his recantations. Defendant's Exhibit 20 is a letter dated August 29, 1995, written to Stephanie Brown, an investigator involved with the Carter murder case. In this letter Bryant expresses his belief that regardless of his recantations, he will still receive favorable treatment from the District Attorney's Office in exchange for his testimony in the Dodd and Carter capital murder cases. Defendant's Exhibit 21 is a letter also dated August 29, 1995, written to an assistant in the District Attorney's Office regarding the Carter murder case. Bryant discusses in this letter his long history of testifying in first degree murder trials in Oklahoma County. He states he is no longer "afraid . . . and no longer [has] to lie . . . for anyone in this world - especially the OK County D.A.'s Office." He further states, "The testimony from me in this case about a confession that you both asked & wanted from me - you'll not get - because as you very well know - there wasn't one."

¶17 During the trial, the State objected to the admission of these letters and the court sustained the objection finding the letters had not been properly provided in discovery. Dodd contends in Proposition IV(E) that the trial court improperly prevented defense counsel from impeaching informant Bryant with the prior inconsistent statements contained in these letters. We agree.

¶18 Section 2002(B)(3)(a) of Title 22 (Supp.1996) provides that upon the prosecutor's request, the defendant shall allow him access to inspect any paper or document in the defendant's possession which the defendant intends to offer in evidence. Such a request was made by the prosecution in this case. However, even if the trial court properly found a discovery violation, the trial court's ruling barring use of Defendant's Exhibit's 20 and 21 was an excessive sanction under the circumstances of this case. See Allen v. State, 1997 OK CR 44, 944 P.2d 934, 937. The excluded evidence was admissible for impeachment purposes pursuant to 12 O.S.1991, § 2613(B). Bryant's credibility was a pivotal issue in this case. The evidence in this case was wholly circumstantial and Bryant was a key witness for the State. To deny Dodd the opportunity to fully attack Bryant's credibility was error. Thus, we must determine whether this error requires reversal.

¶19 To determine whether or not this error is harmless, we look to the analysis set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). Five factors need to be considered: "(1) the importance of the testimony, (2) its cumulativeness, (3) the presence or absence of corroborative or contradicting evidence, (4) the extent of cross-examination allowed, and (5) the overall strength of the State's case." Omalza v. State, 1995 OK CR 80, 911 P.2d 286, 308. See also Beck v. State, 1991 OK CR 126, 824 P.2d 385, 390.

¶20 In all capital murder cases, the trial judge files with this Court a written trial judge's report. This report has statements relative to the trial. The trial judge was asked the question, "although the evidence suffices to sustain the verdict, does it foreclose all doubt respecting the defendant's guilt?" The judge answered, no. The judge further noted that in the second stage of the trial, the victim impact statements were very prejudicial and inflammatory, and the judge noted that in her opinion the jury was influenced by passion or prejudice or other arbitrary factors in imposing the sentence. Although this Court is not bound by the judge's statements, they are helpful on a close case such as this one. There are two primary pieces of evidence as to guilt. One was the statement by Appellant as to how the deaths occurred prior to the time that the medical examiner determined such fact. The other evidence was statements by Appellant to the jailhouse informant.

¶21 The way the deaths occurred was more of a gangland type execution. There is a question as to how one person could have performed the killings involved in this fact situation without assistance from another person.

¶22 The second piece of concrete evidence has to do with statements the Appellant supposedly made to a jailhouse informant. Courts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received some sort of a benefit for his or her testimony. This problem is even greater here when we look at the error that is discussed above as to the withdrawal of the statements by the informant and what the informant has to say about promises made to the informant. The Court should look to how many times the informant has testified before for the District Attorney's office. Here we have two very clear letters that may or may not be true but should have been in evidence. Consequently, under the unique circumstances of this case, we find Dodd's murder conviction must be reversed.

¶23 Upon review, we are unable to find this error harmless beyond a reasonable doubt. Defendant's Exhibit 21 directly called into question the truthfulness of Bryant's testimony. It further demonstrates the pressure under which Bryant may have been to lie for the State. The information contained in Defendant's Exhibit 21 was not cumulative to any other impeachment evidence presented. While defense counsel was able to effectively impeach Bryant with his numerous convictions, his prior history as an informant, and by calling into question Bryant's possible motives for testifying, the State's case was far from overwhelming. Consequently, under the unique circumstances of this case, we find Dodd's murder convictions must be REVERSED.

¶24 The judgment and sentences of the trial court are REVERSED and the matter remanded to the district court for NEW TRIAL.

AN APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY
THE HONORABLE NANCY L. COATS, DISTRICT JUDGE

Rocky Eugene Dodd, Appellant, was tried by a jury in the District Court of Oklahoma County, Case No. CF-94-7724 before the Honorable Nancy L. Coats. Dodd was convicted of two counts of First Degree Malice Aforethought Murder. After finding the existence of three aggravating circumstances for Count I and found aggravating circumstances for Count II, the jury set punishment at death for both murders. Finding error, the Judgment and Sentences are REVERSED and REMANDED to the District Court for NEW TRIAL.

APPEARANCES AT TRIAL BERT RICHARD BENJAMIN BROWN PATRICK J. EHLERS ASSISTANT PUBLIC DEFENDERS ROOM 611, 320 ROBERT S. KERR OKLAHOMA CITY, OK 73102 ATTORNEYS FOR PLAINTIFF SUSAN CASWELL CASSANDRA WILLIAMS ASSISTANT DISTRICT ATTORNEYS ROOM 505, 320 ROBERT S. KERR OKLAHOMA CITY, OK 73102 ATTORNEYS FOR THE STATE

APPEARANCES ON APPEAL CAROLYN L. MERRITT ASSISTANT PUBLIC DEFENDER 611 COUNTY OFFICE BUILDING OKLAHOMA CITY, OK 73102 ATTORNEY FOR APPELLANT W. A. DREW EDMONSON ATTORNEY GENERAL OF OKLAHOMA WILLIAM L. HUMES ASSISTANT ATTORNEY GENERAL 112 STATE CAPITOL OKLAHOMA CITY, OK 73105 ATTORNEYS FOR APPELLEE

OPINION BY: JOHNSON, J.: JOINS IN CHAPEL'S SEPARATE OPINION
STRUBHAR, P.J.: SPECIALLY CONCURS AND
JOINS IN CHAPEL'S SEPARATE OPINION
LUMPKIN, V.P.J.: DISSENTS
CHAPEL, J.: SPECIALLY CONCURS
LILE, J.: DISSENTS

RC

FOOTNOTES

¹ As to Count I, the jury found the existence of the following aggravating circumstances: (1) Dodd was previously convicted of a felony involving the use or threat of violence to the person; (2) Dodd knowingly created a great risk of death to more than one person; and (3) the existence of a probability that Dodd would commit criminal acts of violence that would constitute a continuing threat to society. As to Count II, the jury found the following aggravating circumstances: (1) Dodd was previously convicted of a felony involving the use or threat of violence to the person; (2) Dodd knowingly created a great risk of death to more than one person; (3) Dodd committed the murder for the purpose of avoiding or preventing a lawful arrest or prosecution; and (4) the existence of a probability that Dodd would commit criminal acts of violence that would constitute a continuing threat to society.

² DNA could not be extracted from the hair found on the towel which was found to be consistent with Dodd's hair.

LUMPKIN, VICE-PRESIDING JUDGE: DISSENT

¶1 I have great respect for my colleagues. However, I cannot find a basis in law or fact for the Court to disregard precedent and for the first time in the jurisprudence of the Court find reversible error in a trial judge's decision to deny admission of cumulative evidence. See Zackery v. State, 572 P.2d 580, 586 (Okl.Cr.1977). See also Spuehler v. State, 709 P.2d 202, 205 (Okl.Cr.1985); Stoner v. State, 568 P.2d 298, 301 (Okl.Cr.1977); 12 O.S.1991, § 2403.

¶2 Upon reading the majority's opinion and special concurrence in this case, a casual reader might readily conclude its authors are wholly unfamiliar with basic concepts of criminal justice, especially as those concepts relate to jury trials. Thus, the reader might conclude there really is no constitutional right to a jury trial¹ because three appellate judges are able to overrule the decision of twelve jurors whenever they are uncomfortable with the result.² The reader might also conclude the jury's exclusive role of adjudicating the weight of the evidence and credibility of witnesses³ is not exclusive at all, but is simply an advisory opinion which the appellate judges will review de novo. The reader might come to believe the Criminal Discovery Code and Evidence Code are not really laws but only helpful hints from which a pretentious judiciary can pick and choose simply because they believe they know best.

¶3 In fact, upon reading the majority's opinion and special concurrence, the reader might even conclude there really is no judiciary at all, beyond the trial level, but only a mini-legislature comprised of judges desirous of fixing problems which were never raised as error on appeal in the first place. If not a mini-legislature, then the reader might conclude the judiciary, at least on the appellate level, is some sort of glorified law review course.

¶4 I can sympathize. My reaction to the majority's latest effort is quite similar, essentially one of disbelief. While I do not pretend to understand the ideology, convictions (firmly held or not), or legal underpinnings of the majority's opinion, I do know this: the rule of law means nothing if appellate judges do not exert the self-discipline needed to follow it.

¶5 To paraphrase one of the great truths of the ages: If I were a legislator, I would speak as a legislator, think as a legislator, reason as a legislator. However, because I am a judge, I must do away with the legislative point of view. In other words, I must apply the laws duly enacted by those elected in the political process, unless those laws are unconstitutional.

¶6 As Judge Lile's dissenting opinion correctly points out, under Oklahoma law, "[e]very person is competent to be a witness . . . .", except as otherwise provided by the Oklahoma Evidence Code. 12 O.S.1991, § 2601. The majority points out no constitutional concern with this statute. By asking a trial judge to predetermine the reliability of a witness for purposes of determining whether the trier of fact will get to hear that witness, the majority has rendered this statute meaningless.

¶7 In 1994, the Oklahoma Legislature enacted the Oklahoma Criminal Discovery Code, 22 O.S. Supp.1994, § 2001 et seq., in an effort to ensure the availability of open discovery for all participants in a criminal trial. In this case, the right of discovery was exercised effectively by Appellant's counsel. In so doing, Appellant was able to discover many relevant issues regarding the weight and credibility to be attached to the testimony of Kenneth Bryant, a so-called "jailhouse informant" and to use those discovered matters in Bryant's cross-examination.

¶8 No one would disagree with the premise that complete and thorough discovery should be available to both sides in a criminal trial in order to allow the participants to test the weight and credibility of the trial witnesses. This is especially true of so-called jailhouse informants. Indeed, this Court has approved a special jury instruction to be used whenever a jailhouse informant takes the stand as a witness in a criminal proceeding and testifies. See OUJI-CR (2d) 9-43.

¶9 Here, defense counsel, armed with the ammunition they obtained through discovery, performed in an outstanding manner in attacking and testing Bryant's veracity and motivation for testifying. The statutory process worked, and the trier of fact was fully informed. A review of the evidence reveals that the two letters which were not entered into evidence were merely cumulative of the testimony given by Bryant at trial, and revealed nothing more on the issue of Bryant's bias or prejudice.

¶10 So why are we now adopting a novel procedure, completely outside anything contemplated by our Legislature? Your guess is as good as mine.

¶11 I adopt and join Judge Lile's excellent analysis in his separate opinion. I also dissent to the action taken by the Court in this case.

FOOTNOTES

¹ See Okla.Const. Art.2, § 19 ("The right of trial by jury shall be and remain inviolate . . . .); 22 O.S.1991, § 16.

² The State too has a right to a jury trial. See Crawford v. Brown, 536 P.2d 988, 990 (Okl.Cr.1975)("The State in our adversary criminal justice system, has a valid and legitimate interest in trying its case before that body which both history and the framers of our Constitutions have felt produced the fairest end result--the jury.").

³ Smith v. State, 1996 OK CR 50, 932 P.2d 521, 530 (J. Strubhar opinion) ("It is worthy of notation that the jury is the exclusive judge of the weight and credibility of the evidence."); Smith v. State, 1996 OK CR 13, 915 P.2d 927, 929 (J. Johnson opinion) ("This Court has held repeatedly that the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses' testimony."); Cheney v. State, 1995 OK CR 72, 909 P.2d 74, 86 (J. Chapel opinion) ("This Court has held repeatedly that the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses testimony.").

CHAPEL, JUDGE, SPECIALLY CONCURRING:

¶1 I agree that this case must be reversed because Dodd was denied his right to confront informant Bryant. As the majority opinion warns, "[c]ourts should be exceedingly leery of jailhouse informants, especially if there is a hint that the informant received [or might receive] some sort of benefit for his or her testimony."¹ Given that valid concern, I write separately to set forth a more stringent test regulating the admissibility of informant testimony. Minimal considerations of fairness demand that convictions be based upon reliable evidence rather than evidence as suspect as the testimony of jailhouse informants with much to gain and little to lose. A majority of the Court hereby adopts the procedures set forth herein.

¶2 The Constitution of the United States prohibits a jailhouse informant from testifying to a defendant's statements when the informant works for the government and "deliberately elicits" or coerces statements related to a crime for which an accused has been indicted.² While the state action affected by such a government/informant relationship triggers careful constitutional scrutiny, it permits equally insidious reliability problems to escape attention. Consider the more common example of the informant who does not work for the government when procuring incriminating statements. In these cases there is no state action and therefore no constitutional concern.³ But, this distinction matters little in terms of informant reliability or trustworthiness.⁴ Irrespective of whether initially contacted by the state, most informants relay incriminating statements to the state in expectation of benefit in exchange.⁵

¶3 Today we adopt a procedure to ensure that at a minimum, an informant is more likely telling the truth than not.⁶ Because not all jailhouse informants lie, this procedure must balance the utility of such testimony against the inherent risk of unreliability. The following procedures shall apply to all jailhouse informant testimony not specifically excluded by the United States Constitution.

¶4 At least ten days before trial, the state is required to disclose in discovery: (1) the complete criminal history of the informant; (2) any deal, promise, inducement, or benefit that the offering party has made or may make in the future to the informant; (3) the specific statements made by the defendant and the time, place, and manner of their disclosure; (4) all other cases in which the informant testified or offered statements against an individual but was not called, whether the statements were admitted in the case, and whether the informant received any deal, promise, inducement, or benefit in exchange for or subsequent to that testimony or statement; and (5) any other information relevant to the informant's credibility.

¶5 Prior to trial, the judge shall conduct a reliability hearing. At the reliability hearing, the reviewing court should evaluate the evidence by hearing the testimony of the informant, any other relevant witness (including possibly the defendant), and any evidence bearing on the informant's credibility. The judge shall specifically consider the following factors: (1) whether the informant has received or will receive anything in exchange for testifying; (2) whether the informant has testified or offered evidence in other cases and any benefit there received; (3) the specificity of the informant's testimony; (4) the manner in which the statement from the defendant was obtained; (5) the degree to which the statement can be independently corroborated; (6) whether the informant has changed his testimony in this case or any case;⁷ and (7) the informant's criminal history.

¶6 After considering the evidence, the judge should determine whether the moving party established that the informant's testimony is more probably true than not. If not, the testimony should be excluded. If so, the testimony should be admitted, leaving as a final safeguard any lingering questions on the witness's credibility to the jury. In all cases where a court admits jailhouse informant testimony, OUJI-CR CR 9-43 (amended as follows) shall be given:

¶7 The admission of such testimony shall be reviewed on appeal to determine whether abuse of discretion occurred. These requirements shall be applied prospectively to cases awaiting trial.

¶8 I am authorized to state that Judges Strubhar and Johnson have joined in this opinion.⁸

FOOTNOTES

¹ Historical as well as recent data indicates that jailhouse informants are untrustworthy and untruthful. See Clifford S. Zimmerman, Toward A New Vision of Informants: A History Of Abuses and Suggestions for Reform, 22 Hastings Const. L.Q. 81 (1994) and Welsh S. White, Regulating Prison Informers Under The Due Process Clause, 1991 S. Ct. Rev. 103 (1991). Attorneys should be as wary of jailhouse informants as courts: they are ethically obliged not to offer testimony that they believe is untruthful. Rules 3.3 & 3.4, Rules of Professional Conduct, Title 5, Ch. 1, App. 3-A (1998) (prohibiting knowingly offering false evidence or assisting a witness in testifying falsely).

² See Arizona v. Fulminante, 499 U.S. 279, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (defendant's confession to jailhouse informant was motivated by fear of physical violence and informant's promise of protection found to be coerced -- error to admit confession but admission of coerced confession could be harmless error); Illinois v. Perkins, 496 U.S. 292, 110 S. Ct. 2394, 110 L. Ed. 2d 243 (1990) (government informer permitted to question a prisoner regarding an uncharged crime); Kuhlman v. Wilson, 477 U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986) (Sixth Amendment does not prohibit the admission of statements not elicited by the informant); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980) (Defendant's statements inadmissible because they were "deliberately elicited" by a government informer regarding defendant's pending charges.) See generally White, 1991 S. Ct. Rev. at 104-105.

³ See Lugar v. Edmundson Oil Co., 457 U.S. 922, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982) (creating two-part test for a attributing a private party's action to the state).

⁴ 12 O.S.1991, § 2102. All rules of evidence in judicial proceedings are designed to ensure that evidence is reliable and probative.

⁵ "The judicial process is tainted and justice cheapened when factual testimony is purchased, whether with leniency or money." U.S. v. Singleton, 144 F. 3d 1343, 1347 (10^th Cir. 1998), overruled on rehearing en banc 165 F.3d 1297 (10^th Cir. 1999).

⁶ In Freeman v. State, 876 P.2d 283, 290 (Okl.Cr.1994), this Court declined to adopt a similar procedure but did not foreclose the possibility of regulating the admission of a jailhouse informant's testimony.

⁷ As in this case, that an informant becomes displeased with the State and threatens to withhold testimony or informs the State that he has lied is relevant in determining credibility.

⁸ Trial judges should be aware that as to the procedures set forth herein, this opinion is the majority decision of this Court.

LILE, JUDGE: DISSENTS

¶1 I agree with Judge Johnson that the two letters (Defense exhibits 20 and 21) written by the State's witness, Kenneth Bryant, should have been admitted into evidence by the trial judge. They were relevant to the witness' credibility. However, there is nothing of relevance in these letters that was not fully covered in cross-examination of the witness. Appellant was not, in fact, harmed or prejudiced by the trial court's exclusion of the exhibits. Under the provisions of 20 O.S.1991, § 3001.1, reversal is prohibited unless "the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right." Further, 12 O.S.1991, § 2104, states that error may not be found concerning exclusion of evidence "unless a substantial right of a party is affected . . . ." I believe that Appellant was not harmed in any substantial way, that Appellant received a fair trial and that reversal is not proper. I appreciate, however, that reasonable persons could differ in their evaluation of the importance of admission of the actual letters. I respectfully dissent to Judge Johnson's opinion.

¶2 Historically, both the State of Oklahoma and the defendant in a criminal case have been entitled to a jury trial. Okla. Const. Art. 2, § 19; Crawford v. Brown, 1975 OK CR 114, 536 P.2d 988; Morrison v. State, 31 Okl.Cr. 11, 236 P. 901 (1925).

¶3 Rules of evidence have historically been legislative enactments or have been mandated by constitutional requirements. Significant changes in the rules of evidence have been made after a study by a Bar Association Committee, which was followed by a recommendation to the legislature, ultimately resulting in codification by legislative enactment. In almost all cases, significant changes in the rules of evidence have followed widespread consideration and input by and from experienced lawyers, the Attorney General, legislators and trial judges.

¶4 Our evidence code provides "Every person is competent to be a witness . . . ." 12 O.S.1991, § 2601.

¶5 I believe that Judge Chapel's effort to create a "reliability hearing" to be conducted by the trial judge before the State will be allowed to present the testimony of a "jail house informant" to a jury is a violation of our constitutional scheme of separation of powers and a further chipping away at the right to a trial by jury.

¶6 Judge Chapel makes no attempt to argue that these new untested rules of evidence arise from any legislative enactment or from any constitutional requirement or from any authority to regulate trial courts. There are no such statutes. There is no constitutional imperative. Absent a finding that a statute is unconstitutional, this Court has no authority to overrule a legislative enactment. Our Court has previously stated, "It is not a function, nor the purpose, of the courts to legislate." Matthews v. Powers, 1967 OK CR 37, 425 P.2d 479.

¶7 Judge Chapel has many times asserted the proposition that questions of fact are jury questions. In Cheney v. State, 1995 OK CR 72, 909 P.2d 74, 86, Judge Chapel quoted Woodruff v. State, 1993 OK CR 7, 846 P.2d 1124, 1134, cert. denied, ___ U.S. ___, 114 S.Ct. 349, 126 L.Ed.2d 313 (1994), by stating, "This Court has held repeatedly that the jury is the exclusive judge of the weight of the evidence and the credibility of the witnesses' testimony." In White v. State, 1995 OK CR 15, 900 P.2d 982, 986, Judge Chapel wrote, "This Court will not reexamine the credibility of witness testimony as it is within the jury's exclusive province."

¶8 The problems inherent in the use of informant testimony are well recognized, but not just by appellate judges. Juries have for many years recognized the credibility issues involved, especially when aided by capable attorneys thoroughly cross-examining such witnesses.

¶9 Recently a panel of the 10^th Circuit of the United States Court of Appeals, construing a federal statute, pronounced that this kind of testimony, obtained in exchange for lenient prosecution of the witnesses' own crimes, should be subject to exclusion. United States v. Singleton, 144 F.3d 1343 (10^th Cir. 1998). Ultimately, the Court en banc set aside the panel opinion in United States v. Singleton, 165 F.3d 1297, 1301 (10^th Cir. 1999), and said:

¶10 For decades we have allowed juries to resolve the problems that are associated with this type of testimony. There is no compelling reason to change.

¶11 Under Judge Chapel's new procedure, a trial judge is to determine at a "reliability hearing" if the testimony is more probably true than not. If the evidence is such that a trial judge finds it more probably untrue, why does the majority fear that a jury will believe the same evidence beyond a reasonable doubt?

¶12 If the legislature wants to change the rules of evidence, let them pass the necessary legislation. If experienced trial lawyers and experienced judges want to change the rules of evidence, let the Bar Association propose it to the legislature.

¶13 At a minimum, we should request a response from the Attorney General before dictating such a change.

¶14 I dissent.