Brian Wheatley Fire v State Of Oklahoma

F-2002-548

Filed: Aug. 6, 2003

Not for publication

Prevailing Party: Brian Wheatley Fire

Summary

Brian Wheatley Fire appealed his conviction for seven counts of Lewd Molestation. The conviction resulted in a sentence of 20 years in prison for each count, with the sentences to be served one after the other. Judge Strubhar wrote the opinion and three judges agreed, while one judge dissented. The Court found that errors during the trial denied Brian a fair trial, specifically that some witnesses inappropriately said they believed the victim's story and the prosecutor wrongly talked about Brian's silence after he was arrested. Because of these issues, the Court decided to reverse Brian's convictions and order a new trial.

Decision

The Judgment and Sentence of the trial court is REVERSED AND REMANDED FOR NEW TRIAL.

Issues

• Was there improper testimony that vouched for the credibility of the prosecutrix, which denied Appellant a fair trial?
• Did the State's failure to provide all available reports violate Brady v. Maryland and Appellant's due process rights?
• Was Appellant's right to call witnesses violated when the trial court denied his request to call Ann Lecrone?
• Did the improper admission of evidence of an uncharged crime deprive Appellant of a fair trial?
• Did the prosecutor's comments about Appellant's post-arrest silence constitute fundamental error?
• Was there insufficient evidence presented at trial to support Appellant's conviction?
• Did the trial judge commit reversible error by admitting hearsay statements?
• Did prosecutorial misconduct and trial errors cumulatively warrant a new trial or modification of Appellant's sentence?

Findings

• the court erred in admitting testimony that improperly vouched for the credibility of the prosecutrix
• the court erred in denying Appellant a fair trial due to the state's failure to provide requested discovery
• the court erred in denying Appellant's request to call a witness, violating his right to a fair trial
• the court erred in admitting evidence of an uncharged crime, depriving Appellant of a fair trial
• the prosecutor committed fundamental error by commenting on Appellant's post-arrest silence
• the evidence was not sufficient to support Appellant's conviction due to inconsistencies in the testimony
• the court committed reversible error by admitting hearsay statements that violated constitutional rights
• the cumulative effect of prosecutorial misconduct and trial errors warranted a new trial

F-2002-548

Aug. 6, 2003

Brian Wheatley Fire

Appellant

v

State Of Oklahoma

Appellee

SUMMARY OPINION

STRUBHAR, J.: Appellant, Brian Wheatley Fire, was tried by jury in the District Court of Oklahoma County, Case No. CF-2000-4192, and was found guilty of seven counts of Lewd Molestation. The jury recommended twenty years imprisonment on each count. The Honorable Susan W. Bragg, who presided at trial, sentenced Appellant accordingly and ordered the sentences to be served consecutively. From this judgment and sentence, he appeals. Appellant raises the following propositions of error for review:

I. Testimony from several witnesses improperly vouched for the credibility of the prosecutrix, was cumulative and denied Appellant a fair trial;
II. The State’s failure to provide defense counsel with all available reports as requested in the defense’s motion for discovery violated Brady v. Maryland and violated Mr. Fire’s fundamental due process rights under the federal and state constitutions;
III. Appellant’s fundamental right to call witnesses and due process right to a fair trial was violated when the trial court denied his request to call Ann Lecrone after late notice of the report she prepared for Children’s Hospital;
IV. The improper admission of evidence of an uncharged crime, of which Appellant could have defended against with proper notice, deprived Appellant of a fair trial;
V. The prosecutor improperly asked questions on cross-examination commenting on Appellant’s post-arrest silence, which constitutes fundamental error;
VI. Insufficient evidence was presented at trial to support Appellant’s conviction as A.F.’s testimony was so controverted and inconsistent that it is unworthy of belief and therefore required corroboration;
VII. The trial judge committed reversible error by admitting hearsay statements in violation of the Sixth and Fourteenth Amendments, Article 2, § 20 of the Oklahoma Constitution, and Okla.Stat. Tit. 12, § 2803.1; and
VIII. Prosecutorial misconduct and trial errors, when considered in a cumulative fashion, warrant a new trial or a modification of Mr. Fire’s sentence.

After thorough consideration of these propositions and the entire record before us on appeal, including the original record, transcripts, briefs, and exhibits of the parties, we reverse Appellant’s convictions and remand his case for a new trial. In reviewing the above claims, we find the combination of two errors denied Appellant a fair trial and requires relief. The first error occurred when the social worker/forensic interviewer improperly vouched for the credibility of A.F. by giving her opinion that A.F. was essentially telling the truth. See Lawrence v. State, 796 P.2d 1176, 1177 (Okl.Cr.1990). This case is very similar to Resendiz v. State, Case No. F-98-921 (unpublished)(Sept. 17, 1999), in which the social worker’s testimony dance[d] around the issue of [the alleged victim’s] credibility, with the State asking essentially every conceivable question except whether [the social worker] personally believed [the alleged victim] was telling the truth. Resendiz, slip op. at 2. The social worker here did not limit her testimony to the common behaviors of child victims and her observations of A.F.; rather, she commented on how A.F. fit the profile and was believable. Such questions and testimony invade the jury’s province to determine the credibility of the witnesses. In addition, Ruth Kiser, A.F.’s school counselor, testified she believed A.F. was telling the truth. Though she was not specifically qualified as an expert in child sexual abuse cases, the State did elicit that she held a master’s degree in counseling and education and had been a counselor for eight years. The State further established that part of Kiser’s job was to take care of abuse cases. A review of her testimony shows she did not testify simply as a lay witness. Accordingly, we find her opinion on A.F.’s truthfulness was error under Lawrence, 796 P.2d at 1177.

The second error occurred when the prosecutor repeatedly impeached Appellant with his post-arrest silence on cross-examination and then made reference to it again in closing argument. This Court has repeatedly held that it violates the Due Process Clause to impeach an accused with his post-arrest silence. Parks v. State, 765 P.2d 790, 793 (Okl.Cr.1988); Smith v. State, 744 P.2d 1282, 1284 (Okl.Cr.1987). We have found such error reversible when the State cross-examined the defendant about his post-arrest silence and referred to his silence during closing argument. Parks, 765 P.2d at 793; Wood v. State, 748 P.2d 523, 525-26 (Okl.Cr.1987); Smith, 744 P.2d at 1284-85. Here, the State did both. While the evidence in this case is strong, this is not a case where the prosecutor asked an isolated question. Rather, the prosecutor asked Appellant repeatedly why he had not talked to the police. While Appellant failed to object, this error when coupled with the State impermissibly vouching for the victim necessitates relief.

DECISION

The Judgment and Sentence of the trial court is REVERSED AND REMANDED FOR NEW TRIAL.

APPEARANCES AT TRIAL
RONALD SKIP KELLY
ATTORNEY AT LAW
ONE N. HUDSON
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

APPEARANCES ON APPEAL
ANDREA DIGLIO MILLER
ATTORNEY AT LAW
228 ROBERT S. KERR
SUITE 550
OKLAHOMA CITY, OK 73102
ATTORNEY FOR APPELLANT

CONNIE POPE
ASSISTANT DISTRICT ATTORNEY
320 ROBERT S. KERR
SUITE 505
OKLAHOMA CITY, OK 73102
ATTORNEY FOR THE STATE

W.A. DREW EDMONDSON
ATTORNEY GENERAL OF OKLAHOMA
KELLYE BATES
ASSISTANT ATTORNEY GENERAL
2300 N.LINCOLN BLVD., SUITE112
OKLAHOMA CITY, OK 73105
ATTORNEYS FOR APPELLEE

OPINION BY: STRUBHAR, J.
JOHNSON, P.J.: CONCUR
LILE, V.P.J.: CONCUR
LUMPKIN, J.: CONCUR IN RESULT
CHAPEL, J.: CONCUR

RB

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Footnotes:

1. Okla. Stat. tit. 12 § 2803.1
2. Brady v. Maryland
3. Lawrence v. State, 796 P.2d 1176 (Okl.Cr.1990)
4. Resendiz v. State, Case No. F-98-921 (unpublished)(Sept. 17, 1999)
5. Parks v. State, 765 P.2d 790 (Okl.Cr.1988)
6. Smith v. State, 744 P.2d 1282 (Okl.Cr.1987)
7. Wood v. State, 748 P.2d 523 (Okl.Cr.1987)

Oklahoma Statutes citations:

• Okla. Stat. tit. 12 § 2803.1 - Hearsay Exceptions
• Okla. Stat. tit. 21 § 701.8 - Sentencing for Child Sexual Assault
• Okla. Stat. tit. 22 § 2001 - Due Process and Fair Trial

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• Lawrence v. State, 796 P.2d 1176, 1177 (Okl.Cr.1990)
• Resendiz v. State, Case No. F-98-921 (unpublished)(Sept. 17, 1999)
• Parks v. State, 765 P.2d 790, 793 (Okl.Cr.1988)
• Smith v. State, 744 P.2d 1282, 1284 (Okl.Cr.1987)
• Wood v. State, 748 P.2d 523, 525-26 (Okl.Cr.1987)