Bias v. State

evidence, if the other surprise, and such to rebut the tes- produce

any, he could witness if the of such additional

timony was continued. Where of the case any, is this the to do

he fails ’ . . waived.” case, in the absence of

“In the instant accused, through

any claim that

counsel, unable to locate or con- had been Wentz, tri- Betty

tact the witness before

al, surprise to show in counsel’s failure witness,

over the introduction the cumulative nature of her

in view of

testimony, we cannot conclude that it was grant to refuse to a continuance.”

error therefore,

We, of error find this without merit.

to be the record is

In conclusion observe any error which would cause rever-

free of justify judgment modification. The

sal is, appealed accordingly, sentence

AFFIRMED.

BRETT, BLISS, J., J., concur. P. BIAS, Appellant,

Thomas Andrew Oklahoma, Appellee.

The STATE of

No. F-75-365. Appeals Criminal of Oklahoma.

Feb. 1977.

Rehearing Denied March 1977. the 17-year-old

Four weeks later defend- charge on a intoxication was arrested ant questioned by police for two to later, hours hours. Some three Clifford Rame, co-defendant, was arrested and his in the implicated the defendant statement of Mrs. Bush. He said that the de- death her Four co- slashed throat. other fendant them, were arrested. Two of defendants Henson, and Jess were con- the defendant degree. in the first Two victed of murder guilty manslaughter pleaded others the final degree, and two co-de- the first immunity prosecu- received from fendants testify at the defendant’s trial. tion to purchased witness testified he five One Henson which were delivered guns defendant, and one of guns those belonging to the victim. later identified said that witness Another cut he had Mrs. Bush’s throat. admitted Rame, the wit- key prosecution Clifford ness, following evening an of testified he, the drugs defendant drinking others, acting upon the instructions of three II, Wallace, Sapulpa, for W. Creekmore Henson, rural home went to the of Jess appellant. Bush. He said the defendant Mrs. Susan house, then gain to access a ruse used Gen., Michael Atty. Larry Derryberry, on Mrs. Bush and demanded gun a held Jackson, Gen., appellee. Atty. for Asst. having any she denied mon- When money. premises proved search ey and a OPINION was under water fruitless, victim held PER CURIAM. of time to force periods for bathtub in her Following hiding place. her to disclose Bias, herein- Thomas Andrew Appellant, place, a regarding hiding a denials further defendant, charged to as was after referred life. used to end her knife was kitchen in the with five co-defendants conjointly house, ransacked her the five Rame said Court, No. County, Creek Case District items, guns, left to including several taking CRF-74-123, Murder in for the offense of her returned and set and then gasoline, get 21 Degree, in violation of O.S. First fire. on house 701.1(2). tried Defendant was Supp.1973,§ to convicted and sentenced separately, of er assignment first Defendant’s judgment and sentence a said From death. a that he was denied substance ror is in perfected has been to this timely appeal notes he was arrested on He trial. speedy Court. 1974, brought to trial until 18, not but July time During period this of during night 20, of May hour 1975. some dark At Bush, heаring, mental 19-20, 1974, el- Mrs. an a certification Susan was June there ar widow, body examination, hearing, and County preliminary died. Her derly Creek her twice moved among charred remnants of Defendant raignment. found objection of house, water- for severance. Over submerged in a court fire-destroyed changed Muskogee binding venue was bathtub, cord an electrical defendant filled County on to Tulsa County neck. on November wounds in her three stab arm and one 528 County on

January and later to McIntosh arrest and trial not to be unconstitutionally 21,1975. February On a writ of mandamus prejudice For excessive. defendant states Young v. of Oklahoma ex rel. War (State the inconsistencies in testimony witnesses Okl.Cr., (1975)), 536 P.2d 965 this Court ren, (but he fails refer this Court to exam- County case back to Creek sent missing (but a ples), and witness defendant 7, 1975. March allege fаils to what this witness would testi- to). Therefore, fy this Court finds the de- are to consider guidelines four There assignment first fendant’s of error be of Length delay, ‍​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌‌​‍trial issue: speedy in a without merit. delay, of waiver cause defendant and See, to defendant. v. Dis prejudice Wilson Defendant’s second of County, Okl.Cr., of Oklahoma trict Court challenges error Juvenile Court’s discre (1970); Trusty State ex rel. v. 471 P.2d certifying tion in defendant stand Graham, Okl.Cr., (1974). 525 P.2d 1231 trial as an adult. Defendant notes the prejudice, argues As he sub- eight guidelines for certification contained Newt Wheeler poenaed for trial but he O.S.Supp.1974, 1112(b), § which are could not be located. Defendant also as- State, Okl.Cr., in J.T.P. v. emphasized testimony serts inconsistencies witness (1975) and P.2d 1270 refined in Calhoon v. plea bargaining argument in his loss But, 548 P.2d 1037 prejudice. says Defendant also guidelines utilizing these Calhoon said in delаy prose- much resulted from the State, supra, that the trial court must “misunderstanding cution’s law.” find “substantial evidence” child is that the Oklahoma, Hampton v. In State of exist not amenable rehabilitation under (10th stated, 1966), Cir. F.2d programs. ing juvenile opin We are of of time establish an passage “Mere does not ion that State has met burden. speedy denial of trial or unconstitutional There was that the defendant “right speedy to a trial is process,” due school, dropped out his only and that light and must be determined in relative contact with authorities a charge involved of each the circumstances case.” Wood policy officer, cursing charge later States, (10th 317 F.2d 736 v. United Cir. when the dismissed defendant apologized to 1963), Tenth Circuit of Appeals the officer. Defendant was arrested on a said, should be soоn as “accused tried as the charge later when a car in he which of the of the orderly conduct business court riding was found to contain a loaded Shumate, Coggins permits.” However, pistol. Colt .45 the damag- most 995, this Court said: 401 P.2d testimony ing regarding poten- defendant’s “Generally speaking, ‘speedy a trial’ is rehabilitation tial for came from Barbara according prevailing conducted one Rame, of two sister co-defendants. She rules, regulations, proceedings and of law adjacent cell jail was in a to the defendant arbitrary, op- from and free vexatious when asked him she if her brothers were delays. pressive right The does not re- the killing. involved in She that testified arrest, a quire immediately upon or the “said defendant something to the effect filing the of an indictment or informa- they that weren’t cоld-blooded like he was tion; requires but be as that the trial had really he give (sic) didn’t dama reasonably possible, soon as within the (Juvenile old about the bitch.” Hearing, statutory requirements, depriv- without 98) page prosecution ing of a reasonable time prepare for trial.” Defense challenges finding of merit, Considering defendants, prosecutive one of the two main find number of by attorneys, ings required Calhoon v. supra, various motions filed and certify juvenile argued, stages several order to a certifica- stand trial as trial, adult, and the the other required finding tion to court-initiated venue an being changes, nonamenability find the ten months between to rehabilitation. Defend- ant. Defendant Jack contends Rame testimony was arrest- objected to ant questioned ed and based on information relating to cо-defendant Clifford McKenzie confession, from the defendant objection should obtained himself. Rame’s Hearsay is forbidden been sustained. have O.S.1971, 1109(a), Title 10 § states: See, 10 adjudicatory hearings. juvenile gained by information questioning “No provides that O.S.Supp.1975,§ admissible child shall be into evidence “according hearings shall be conducted said the child unless the against questioning evidence.” the rules of in the presence . is done of said parents, guardian, attorney, child’s or the however, We, this as harm view child, legal custodian of the and not until O.S.1971, 3001), (see 20 error § less parents, guardian, the child and his or proving prose- so far as strictly cumulative custodian shall legal fully other be ad- evidence, light of the other merit in cutive legal their constitutional and vised of testimony that one of the victim’s especially ” . . rights was sold to a B. J. McDaris co-de guns testimony Henson and the Jess fendant challenges evidence used defendant brought gun defendant to Henson him under the “fruits against poison- Then, place. the sale took there was doctrine,” when Wong tree delineated in ous Sun overhearing Rame’s States, Barbara v. United U.S. S.Ct. talking and two co-defendants 9 L.Ed.2d searching Lake police Sahoma about However, we need not reach that consti- weapon, expressing and their the murder question. Transcript testimony tutional re- nothing rain so could be found. hope for police veals that the had information from saying quoted Miss Rame the defendant independent, two although least un- rain, “the mud would be at that if it did named, regarding informants see you a foot thick and that couldn’t least prior role in the crime to his arrest. (Juvenile with mud a foot thick.” anything hearing on a During suppress motion to Transcript, 98) We are of Hearing page information, 30, 1974, October Offi- evi opinion that there was sufficient was asked: cer Moore finding pros- support the court’s dence “Q. prior Okay, to this time when he nonamenability, and of merit ecutive arrest, Moore, placed under Mr. did the seri requirement being bymet latter yourself any any have indication or you crime, its and violent nature ousness suspicion that Mr. Bias was involved in and defendant’s admission premeditation trial, charge for which he’s on he’s disregard and “cold blooded” atti callous today? here the victim and the crime. De tude toward Yes, sir. “A. second of error is fendant’s “Q. Okay, you just would state me merit. without what that basis was? cites, assign his third Defendant as Through separate, two confidential “A. of the contentiоn that the State ment informants. proof in its burden of to show that failed against used the defendant was information “Q. at the time Mr. Bias was ar- Okay, from sources other than the de obtained have you rested did sufficient evidence in illegally The fendant’s obtained statement. to arrest him for this your mind murder defendant on 17-year-old was first arrested charged today? with he’s 18,1974, on a July charge of intoxication Yes, “A. sir. He was he sat behind wheel of a car. Headquarters ques taken to Police fair_strike parents presence “Q. without the of his it be tioned Would that. thereafter, Shortly or of attorney. young Clifford either both these Were men upon gave properly arrested and a arrested based information gained Rame was implicating questioning the defend- from the Mr. statement Bias? obtained No, See, reverse. “A. sir. Brown light P.2d 604 In of thе fact that it evidence? “Q. independent On was defendant’s motion for severance filed 22-26) Yes, pages (at sir.” “A. day before sustained, trial in the Jack McKenzie testified Investigator assignment find this of error without merit. as follows: Hearing Juvenile you 18 would “Q. July your Prior to assignment Defendant’s fifth of er crime to have been consider contends the trial ror court should pretty good have idea you Did solved? have excluded three veniremen for cause it? who did made due to statements them in voir Yes, sir. “A. prospective jurors dire. These were later ^[******] removed peremptory challenges. In his brief, defendant states that venireman Gar- “Q. supplied prior your you Had been ringer said he knew several of the witness Rame, you talking to Mr. Clifford had es, had read media accounts of the crime any with informa- supplied been whiсh indicated defendant committed the questioning tion that arose from slaying, actual and that “somebody has Bias? Thomas Andrew prove his innocence.” Venireman Titus added, No, (Emphasis “A. sir.” said he knew two witnesses prose and the 175-176) pages Anglin cutor. Venireman said of the de Mr. McKenzie’s light fendant, guilty, “if he’s not he has to be ample finds there was evidence that innocent, proved he?” doesn’t per “if a of defendant’s involvement information son is guilty killing somebody, found result crime was not the of defendant’s dope, either drunk or on I can’t believe that statement, therefore and we dismiss de- manslaughter.” it would be assignment third of error. fendant’s Pertinent text the voir dire examina- fourth tion of Garringer, venireman as it appears is that court abused its of error record, in the is as follows: his motion for denying discretion in contin Okay. “MR. you WALLACE: Dо think prior uance when his motion for severance Mr. prove Bias has to that he is innocent? day unexpectedly granted “JUROR GARRINGER: Somebody has claims, prejudice, he trial. This resulted prove his innocence. for a co-defendant because he and counsel Judge, “MR. WALLACE: object the voir had-agreed split dire. juror cause, Your Honor. trial, 19, 1975, May day before On “THE Mr. Garringer, you COURT: un- defendant a renewed motion for filed sever- derstand the law in this state states that ance, court took it and the trial under ad- presumed to be innocent following day the prosecu- visement. The and that presumption innocence carries joined agreed tor to severance and in the throughout with him the entire trial until motion. When that occurred the defendant by competent is overcome he up. He said still wanted sеver- backed presented by the State of Oklahoma to ance, only those defendants with but your satisfaction? “antagonistic” defenses. Defendant states “JUROR GARRINGER: right. That’s only he wanted a short continuance —not past jury prepare docket —to the voir “THE COURT: And you would in this dire, but the record reflects that defendant presumption case allow that of innocence asked for a “reasonable continuance” with- to continue with this defendant until it’s specifying long out how he would need. overcome, is, by if it competent ever evi- dence from the State Oklahoma before frequently This Court has held that mo- you would entertain the possibility of him tions for are continuance within the trial being guilty in this case? court’s showing discretion and absent a abuse of such discretion this Court will not “JUROR GARRINGER: That’s right. case, question this and based оn the I you Do understand that COURT: “THE state, earlier, proof in this you you asked and I want to is the burden this, upon the State Oklaho- would Mr. placed think about Coleman’s burden a your beyond satisfaction prove testimony any to or the other ma to allegations material doubt the might appear reasonable officer that here to- police you in this information before alleged just he is a day police as that because offi- guilty verdict of on this return a cer, you could it make treat his would testimo- any defendant? than witness? ny any different other right. That’s GARRINGER: “JUROR the circum- “JUROR TITUS: Under (Tr. 273) that I don’t think so.” you follow stances “THE COURT: Would law? Yes, sir. “JUROR GARRINGER: “MR. WALLACE: Junior Banks? right, you All I think can “THE COURT: Yes, sir, I know a Jun- “JUROR TITUS: (Tr. 115-116) questioning.” further

have Banks, Sapulpa lives in or in that ior text of the voir dire examina- Pertinent area, for L. B. Jackson. works Titus is as follows: of venireman tion Yes, sir, that’s the “MR. WALLACE: you Dо know these at- COURT:] “[THE one. torneys? relationship with Mr. Banks your “Would I do David. ‍​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌‌​‍“JUROR TITUS: witness, appears he you, if cause Young? You know Mr. “THE COURT: be, you him more than would believe else? anybody TITUS: Yes. “JUROR Well, I would think long you have “THE COURT: How “JUROR TITUS: Young? known Mr. not. relationship say years. your I’d fifteen Is

“JUROR TITUS: “MR. WALLACE: casual? with him acquaint- And is that “THE COURT: Casual, uh, (Tr. with anceship acquaintanceship a close huh.” TITUS: “JUROR 297) him? represented “JUROR TITUS: He examina- text of the voir dire Pertinent I at that time.

company that worked for Anglin appears as it tion of venireman represent “THE COURT: Did he ever record, follows: is as your family personally any mat- you or you right. All Will “MR. WALLACE: ters? prior proving me State require No, sir. “JUROR TITUS: Andy a reasonable doubt that you beyond anything there in that “THE COURT: Is you will charge, guilty of Bias is relationship you that have had with him Andy prove him inno- me or require give to either more you would cause that cent? оf this lawsuit? or less to his side Well, not if he’s ANGLIN: “JUROR No, sir. “JUROR TITUS: innocent, proved to be he has guilty Outside of that relation- “THE COURT: he? doesn’t compa- ship representing your with him your In answer WALLACE: “MR. relationship, ny, you any have had other No, sir. question. your acquaint- him or is you do visit with across, is under trying get I’m “What casu- anceship acquaintanceship a close required not for- law I am come al to that extent? whatsoever of any with ward (Tr. Casual, any.” “JUROR TITUS: My primary requirement is to innocence. 262-263) he, they prove cannot establish n : ^[*] n ^{[*] [*] [*]} he was guilty, can you understand that? listed Mr. “MR. WALLACE: Coleman Yeah, I understand ANGLIN: the District “JUROR provided byme

on the list mean now. you what possible witness Attorney’s office as Now, appears I don’t have to that each of the re- WALLACE: veniremen “MR. if I deem he sponded whatsoever that would follow the any evidence court’s put on instructions, Andy presume to show that didn’t do the necessary to be it it, entirely upon proven guilty, is until the burden innocent that his that prove relationships proposed to that he did with the of Oklahoma witnesses State they prove must each casual at and that and were best and would not influence do it degree of first murder be- every element him. guilty him of that. Do you can find

fore The defense cites the rule in Justus that, sir? you understand State, Okl.Cr., (1975), P.2d as Yeah. ANGLIN: “JUROR assignment governing of error when Judge in- WALLACE: Should “MR. stating: you is the law will follow that struct that ... a venireman ... is “[I]f instruction?. he whether could stand indif- uncertain Yeah. “JUROR ANGLIN: ferent between defendant and the deliberating in you according WALLACE: And will not re- his verdict State “MR. evidence, the law and the then he Andy’s innocence un- to has quire prove me to forewarned the court beyond a to that extent they establish reasonable less whether he he is undecided could your guilty? comply mind that he is doubt in juror. A challenge with the oath of a Right. ANGLIN: “JUROR granted against cause should be such a they And if fail to “MR. WALLACE: ” venireman, (Citations omitted) . . prove you be- show some element doubt to a moral cer- yond a reasonable is But such not case here. The tran they fail to show some element tainty script if reveals the veniremen they said could Judge you put any instruct on what opinions already will aside formed. are, you they feel that holding the elements This Court reaffirmed our in Litt State, you beyond a reasonable failed to show rell v. 22 Okl.Cr. 209 P. 184 doubt, State, resolve that doubt in fa- you will in the 1973 case of Vavra v. assuming Andy, Judge quoted P.2d when we vor of from Litt you to? instructs rell as follows: “ Yeah, they prove ‘Ordinarily, juror “JUROR ANGLIN: where a testified that got go, you guilty, you that he’s not he believes he can and the court finds know, would, for him. a matter of fact that he if select- ed, impartial an upon render verdict trying What I’m “MR. WALLACE: evidence, impartial juror, he is an under this, Judge will delineate say is under our Constitution and the statutes of this several elements or several the statute ” 509 P.2d at state.’ proved you that must be in things to establish that Mr. order for State juror Whether a should be excluded guilty degree of first murder. Bias rests in the sound discretion of the trial your own mind fail State “Should abused, court. Unless such discretion is any to show of those elements or if there is no error. there Bickerstaff v. Okl. your mind as to the truth is doubt of Cr., 446 P.2d 73 Each venireman elements, will any you promise of those dire, lengthy voir taking underwent all you me that will resolve that doubt questions responses together, Andy’s favor? of the are trial court did discretion, only way “JUROR ANGLIN: That’s the abuse its and thеrefore not find go (Tr. .you can if there’s a doubt.” 334- fifth error to be ‍​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌‌​‍336) merit. without (cid:127) cursory assign- From even the examination Defendant contends in next most court, examination, full assigned text of the voir dire ment of error that an Judge, is clear that without authority counsel’s contentions are District merit, wholly affirmatively jurors, without for it additional and that summon his ac-

533 declining objection to doing so in violation of 38 raise the in until tion after O.S.1971, verdict. . . P.2d 20 and 21. .”84 at page 46 §§ (Citations omitted) assigned judge power of an is found 103.1A, assignment seventh O.S.1971, which of 20 states that § Defendant’s error challenges trial the court’s failure to have assigned judge continuing “shall an reject for cause veniremen who on voir dire assignment, to authority without further expressed regarding doubt the penal death disposition any regu- final matter make ty then in force. Defendant cites Wither during or before him larly submitted tried Illinois, spoon 510, v. 391 1770, U.S. 88 S.Ct. designa- time of his period term or 20 (1968), L.Ed.2d 776 general for the rule O.S.1971, tion, and, 20 103.- . . § State, and supra, Justus v. which distin 1B, an assigned judge which states that guished Witherspoon in cases where the of a “may any make order nature not re- penalty mandatory death is upon finding hearing any notice and cause quiring guilt. argues Defendant this case should heard, heard, being by or him theretofore be distinguished from Justus grounds assigned county].” [in that an instruction of lesser included O.S.1971, 21, clearly gives Title 38 § manslaughter offense of in the degree first authority trial court to draw additional given to jury here. This Court veniremen, deny authority and to that same feels, however, point is moot in assigned judge patently an is frivolous. light of Supreme Court’s decision in opinion, hold, are of the We therefore Davis v. Oklahoma, 907, 428 96 U.S. S.Ct. assigned judge pоwer an has the same 3217, 49 L.Ed.2d 1215 which ruled provisions jury summons a under Oklahoma’s death statute unconstitutional. O.S.1971, 21, have as could been exer 38 § In State, Okl.Cr., Williams v. 542 P.2d 554 whom judge the district he was cised (1975), we said that in State, Justus v. su- assigned replace. Accordingly, we find pra, this Court held that the applicability of assignment to be of error without mer Witherspoon was limited to those cases it. where upon conviction for the offense contends Defendant next that the charged jury has discretion to resolve allowing juror court erred in Walk- whether the defendant shall suffer death or ingstick jury panel to remain on the when degree punishment. some lesser serving panel admitted on the for two she Bumper Carolina, In v. North 391 U.S. prior to start of the weeks evidence 543, 1788, 1790, 88 20 S.Ct. L.Ed.2d 797 case, in this in violation of presentation 38 (1968), decided the day same as Wither O.S.1971, 21. Defendant cites no case § Illinois, spoon v. supra, Supreme Court authority for this of error. said: Defendant, carefully after examining the Illinois, Witherspoon “In v. ... we in detail juror ascertaining she had have held that a death sentence cannot before, jury on the two weeks served ex- constitutionally be executed if imposed passed juror for pressly cause. by jury have been excluded who, more, for cause those without are It is clear that the defendant was well punishment opposed capital or have aware of the error which he about now scruples against conscientious imposing complains by failing timely object penalty. the death Our decision in With- Walkingstick, by expressly passing Mrs. erspoon does govern present case, not cause, he waived the any. hеr jury because here the recommended a State, Carr v. 65 84 Okl.Cr. P.2d 42 ” imprisonment. sentence of life . . (1938), this Court stated follows: 391 U.S. at S.Ct. 1790. “The rule is well that a settled known ground disqualification juror Further, to a be- as we in the said recent case of during trial, Okl.Cr., fore or the progress v. Jones P.2d it, by withholding refusing (1976): waived or Branch, Riggs light Jess, “In We needed to call because we had (1976) only appropriate P.2d 823 sen- car trouble and needed to borrow a constitutionally tence which could have let phone and she’d us in. That’s how imposed by the trial court in the been (Tr. get 1942) we’d in.” imprisonment instant ease was life State, Okl.Cr., In Harvell v. 395 P.2d true, being labor. This the trial hard many since, and in cases we said: excusing jurors, action in the court’s “While it is the duty of counsel in making not require light would reversal in opening an statement to state the facts Carolina, Bumper v. North U.S. fairly, and to refrain stating from facts 20 L.Ed.2d 797 88 S.Ct. he not can or will not permitted be , Supreme wherein the . prove, the mere violation of the by rule Witherspoon inapplicable where a held prosecuting attorney is not of itself imprisonment of life sentence was im- faith, that he acted evidence in bad retried, this case to Were be the posed. does not constitute reversible error. The impose court could not more than a trial' conclusion of the Court is that such over- life sentence.” upon statements react the party making We, therefore, find this them, injuring rather than the party without error to be merit. against they whom were made. Defendant, in eighth assign his we are of the that such state- error, argues prosecutor, that the ment ments did not the influence verdict.” statement, opening imрroperly his re prosecutor We conclude the merely taken to evidence from defendant’s ferred laying the scene for the testimony of wit- illegally obtained statement which was not ness Rame and objected the to com- witnesses at trial. proved by other Defend opening ment his statement was not objects following specifically ant the made in bad faith but was a conclusion the opening argument: used in statement running from the testimony of the witness. The evidence will be that the ... prejudice find no We to the defendant defendant, purpose of this real and true same, and therefore dismiss this assignment fully invading home [the victim’s] of error. place night, was to case the and be sure argues defendant next that the was no one else there. He went in there court erred in allowing into evidence рretext using the that he was and used (shown slides color on a 4V2 foot 4½ foot call, phone pretended and he screen) victim, of the murder when black dial a number and looked around and saw photographs and white and anatomical ex (Tr. 1588) no one there.” were available. hibits illegality The State admits the of the de- cites Oxendine v. The defendant statement, argues fendant’s but (1958). However, 335 P.2d 940 we prosecutor’s legitimate comment was a in- view Oxendine being clearly distinguish- ference drawn to be Oxendine, able from the case at bar. In trial, and, presented in the regardless, photo five colored slides of the murder vic- comment to be such the basis for reversible body tim’s nude after au- it must have been extensive error made in bad faith —taken topsy surgery performed had been manifestly prejudicial оr be to the defend- —were introduced as evidence agree. gunshot ant. We reversed, saying wounds. We pictures Witness Rame testified that co-defendant probative merely had no value but appealed gave Jess Henson the defendant the follow- passion to the and prejudice jury. of the ing instructions: In Oxendine this Court said that “A. go up He told —he said to and knock the in- son, on the say door and troduction of photographs subsequent taken Walter, and we had a flat and largely she’d let— to a homicide is in the discretion of trouble, we had car and she’d let us in. trial court and unless this discretion is plastic (Tr. be cause fon reversal. bag. 1741) it will not abused Defendant himself out this Court set Syllabus Oxendine only admits a “possibility” that the jury following guidelines for the introduc- alleged marihuana, saw the prose- while the photogrаphs: tion cutor stated the evidence was never handed (Tr. effect of principal jury. If the demonstra- 1832) “2. The trial court stat- photographs ed, is to such as tive evidence “All I can see bullets, I some don’t passion jury of the and in- arouse the know what’s in there.” 1832) Later, (Tr. against them defendant be- flame alleged marihuana was removed from crime, horror of the cause bag. We find there prejudice was no excluded. must be the defendant in that there is no evidence hand, the other if the evidence jury “3. On saw alleged marihuana or respect value with to a fact probative it, has identify could and we therefore find this outweighs danger that the of in issue assignment of error to be without merit. defendant, to the the evidence prejudice Defendant also argues the prosecu gruesome if it is evеn and is admissible improperly tor cross-examined Father Mur- incidentally passions arouse the of may tagh, a character witness by called the jury.” the question objected defendant. The to by the see, State, Okl.Cr., Pate v. 361 P.2d Also defendant was as follows: (1961). 1086 “Q. [By Mr. Young] you Have ever color slides in Of the four controverted on the 30th day June, heard that of of bar, depict case at two of condition Andy Bias that and Kenneth Grego- neck, hair, including and the face unburned ry, Larry Henson and Jess Henson were shows a neck wound and the fourth one Decatur, Alabama, and were in a bur- the electric cord shows used to tie the vic- glary of the residence of James Barnes?” correctly argues tim’s wrist. State (Tr. 2134-2135) portrayals these that corroborate the testi- The trial court sustained objec- defendant’s officers, mony investigating pa- tion to question and the prosecutor ad- witnesses, thologist including other mitted defendant had not been convicted of Rame, witness co-defendant in the case. alleged burglary. The trial court ad- Further, we hold the slides are grue- not so jury monished the to disregard any refer- cross that line between probative some as to alleged ence to the crime in Alabama. evidence prejudicial jury. value and to the agree prosecutor’s We that the question find this of error to be We improper, was but we are of basis, deny same. without was properly remedied when the court ad- argues Defendant next reversible jury monished the to disregard it. was committed when a bag error clear Defendant’s next assignment of evidence, bag into said contain introduced error is that the Stаte introduced irrelevant bullets, ing which were the intended evi of a evidence co-defendant not on trial at dence, and also a substance thought to be time, evidence of defendant’s marihuana, move which was not evi intended as following ments the crime which had no argues dence. The defense that when a it, relevance to and evidence in the put offense, on trial for defend one he convicted, possession ant’s when he all, was arrested is to be which bore no relevance to guilty that he is of the crime at which shows that of bar. alone, fense and evidence of other crimes only Defendant’s authorities are Gamble prior committed either or subsequent to State, Okl.Cr., v. (1976) P.2d 1336 of which he is on trial is offense inadmissi State, Berg v. 97 Okl.Cr. 262 P.2d 913 See, State, Okl.Cr., v. ble. Pruitt 518 P.2d (1953), speak to proposition (1974). mаy “There be some situations in which the weapons We observe that the defendant made no may admission be unduly preju- objection State, to the introduction of the clear v. supra, dicial.” Gamble at 1342. pos- charge pelled testify, with unlawful to

Berg himself, dealt either for a code- intoxicating liquor state, and the State session fendant for the while he is a party weapons and other items not Trusty State, Okl.Cr., introduced the case.” charge. We held that be related P.2d We hold the deci- Here, the State introduced ‍​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌‌​‍prejudicial. quash the subpoenas sion was discretion- possession found in the of the defend- pistol with ary the trial court assign- and find this when he was arrested. In Gamble this ant ment error without merit. said, quoting from Friday v. Defendant next contends that trial court 348 P.2d 1083 “the burden of allowing erred not introduction of statе- establishing prejudice from admission ments of co-defendants Gibson Grego- incompetent upon evidence is the defend- anticipation made in ry, plea bargaining. Id. at 1342. are of the opinion ant.” We The trial court ruling made its on the pistol preju- introduction did not premise that Court earlier had refused necessary the defendant the extent dice to allow the State to use such statements require reversal. We find that against Gibson and Gregory. The defend- movements following of defendant’s ant contends since the trial court necessary tes- crime corroborate the quashed subpoenas the ap- Rame, timony of co-defendant an accom- pearance of Gibson and Gregory, he should Moreover, we are plice. convinced that the put allowed to be thе stand an officer did not contribute de- above evidence heard who those statements. bar, in case conviction the at fendant’s therefore, error, it if is harmless error. Any such by statements an offi obviously would hearsay, cer be and our opinion It this that is the of Court is, only question exception is it an to the re complained the errors of have neither hearsay rule. One the criteria per for justice miscarriage in a sulted nor do mitting hearsay testimony is evidence of a they constitute substantial violation of a of the truthfulness out of court testimony. right. statutory constitutional or Title 20 fact, appear it must In so truthful and so also, O.S.1971, Chapman 3001. v. See § necessary the opposition that will be 824, California, 18, 386 U.S. 87 S.Ct. 17 prejudiced deemed not in foregoing its (1967), out setting L.Ed.2d 705 the federal right cross-examination. case the be applied error” rule to to a “harmless bar, the statements of Grego co-defendants right; of a federal denial constitutional ry and Gibson are sought challenge California, and, 250, Harrington 395 U.S. testimony of witness Rame directly who (1969), 23 L.Ed.2d 284 apply S.Ct. implicated the defendant killing. in the ing “overwhelming an evidence” test under Defendant had his opportunity to cross-ex Chapman “harmless error” rule. This Moreover, Rame at the amine time. assignment of error is dismissed. is Court not convinced of the inherent Defendant, assign his twelfth truthfulness of statements sought to be ment of contends the trial erred court There testimony introduced. is they that quashing subpoenas of two co-defendants unsworn are statements made for the pur time, not on trial at the and so violated plea pose bargaining. We therefore hold rights compul constitutional trial court correctly refused admit process obtaining sory for witnesses. testimony. the officer’s quash by were filed motions the co-de attorneys who court fendants’ informed the Defendant contends the court trial their clients their would invoke constitu in overruling erred his motion new rights against tional self-incrimination and grounds newly on evi discovered refuse to testify. dence in that co-defendants Gibson and However, Constitution, Gregory pleaded guilty the Oklahoma manslaughter II, cases, interpreting degree following Art. and its also first § the defendant’s person trial, that “a charged hold cannot be com- thus eliminating Fifth Amend- Defendant testimony in the de- admits their subpoenaing barrier co-de- ment Barry fendant Rame therefore but failing The defendant to call him case. fendant’s a witness. (Hearing trial, for new of Gibson Feb- written statements contends 20, 1976, ruary page 8.) “newly discovered evi- are Gregory dence.” This is not convinced defend- arguments. ant’s We note instructions is on a hear- argument based Defendant’s given were on both intoxication and man- conviction, during following his ing held slaughter degree. first We note defendant Gregory and Gibson co-defendants which subpoenaed Rame, co-defendant Barry but testimony regarding their condition gave failed to call him. As for trial testimony of drugs consumed from beer intoxication defendant’s intoxication on the day of the crime, at time they preceding crime, we note investigator Jack McKenzie plead guilty to a allowed to reduced were opinion offered his that on night of the Manslaughter in the First De- charge of crime defendant “was either under the that he contends Defendant gree. influence of intoxication or marihuana.” permitted and should be intoxicated equally (Tr. 2081) We note that co-defendant Clif- prove it Gregory and Gibson to to a call Rame ford testified that the defendant jury. house, drove victim’s that defendant newly The rule discovered later drove back to it, the house to burn State, Okl.Cr., in Walters v. may be found smoked marihuana and which states: P.2d beer on day drank of the crime. of a new trial on the granting “The Newly discovered evidence will not newly testimony discovered ground of grounds for granting be a new trial when the trial largely matter within court’s State, Okl.Cr., is cumulative. Curtis v. is not to be exercised ex- discretion and P.2d 1288 Based on an intensive probability where there is reasonable cept study transcript, this Court is of the that, such evidence had been intro- although of Gib duced, Gregory different results would have been son would add a dimension to intoxication, the defense of (Citations omitted) is . . .” indeed reached. cumulative. We are further convinced that a grounds for new trial under One of result of the trial would be the same O.S.1971, 952, is as follows: § we thus dismiss assignment defendant’s When new evidence is discov- “Seventh. of error. defendant, ered, material Defendant’s assignment fifteenth he could not with reasonable dili- which goes error to the proposition imposi of trial, discovered before the gence have of tion Oklahoma’s death penalty is uncon in relation and that the facts With agree. stitutional. this we must Da unknown to the defendant thereto were State, We supra. vis v. modify therefore jury trial attorney his until after the or imprisonment defendant’s sentence to life was sworn and were not of in the case Branch, Biggs our decision in v. supra. ” . . . record. Defendant’s of er final bringing, this proper procedure for The O.S.1971, 1271, is that 22 ror which limits § the trial evidence to attention of new in attorney indigent fee cases to O.S.1971, in 22 952: is as § court follows $250.00, is an unconstitutional deprival or “. . . When a motion for a new trial taking private property public of for use ground newly discover- is made on the compensation a requiring reasonable under evidence, produce the defendant must ed Amendment, Fifth in that hearing support in thereof affida- at the attorney spent 255½ hours in the case. witnesses, may or he take testimo- vits of While this Court commends the defense at provided thorough thereof as in ny support torney representation for his [22 client, O.S.1971, appeal, ...” both at trial and on his § 494] agree just that a more formula of оr while confession of a child inadmissible into handling indi- attorneys compensation against him without the necessi- wanting, his definitely is chal- cases gent ty inquiry of further into circumstances. jurisdiction not within the of this is lenge The statement which is the Court, a brought be civil suit but must of that product interrogation [outside the State. against parents presence who waived constitu- rights] tional must is, be evi- judgment according- and sentence excluded from The (Emphasis added, dence.” Imprisonment to Life footnote omit- ly, MODIFIED ted) and otherwise AFFIRMED. labor hard The defendant argues exclu ORDER DENYING PETITION sionary rule delineated in Wong Sun FOR REHEARING States, 371 United U.S. S.Ct. rehearing assign first his On L.Ed.2d 441 should all evi exclude argues that ment radiating dence illegal statement obtaining illegal after an admitted poisonous as fruits of the Wong tree. But juvenile-defendant, had from the statement with a Sun deals constitutiоnal issue while every piece of showing the burden bar case at is concerned with a statuto against him at evidence introduced ry right. that, We are of pro than derived from source other given vided defendant was Miranda his Defendant cites as authori

defendant. rights prior to questioning, the burden of O.S.1971, 1109(a), begins: ty 10 § independent proving source of evidence gained by questioning information “No on the does not rest shoulders of the State. shall be admissible into evidence child there case In this evidence that the Mi questioning the child unless the against were rights randa read to the defendant presence in the of said . is done 30, 1974, (October 32). Hearing, page guardian, attorney, or the parents, child’s We further note child, custodian of the and not until of the six witnesses legal to which parents, guardian, child and his defendant nоw objects or grounds legal custodian be that the fully shall ad State failed to prove other its burden of source, legal independent of their constitutional and vised the testimony only . .” rights, Brice one—Sheriff objected Coleman—was trial, and to at that came during the cross critical issue before us concerns the examination. word, as used in the “information” statute above, and whether it refers narrowly cited We therefore dismiss this assignment statement, to a confession or admission only error. by juvenile during question- made ing, broadly more or which can argues Defendant next refusal through a party be admitted third whose court to order identification of identity was through questioning discovered by informants utilized denied State juvenile-defendant. of the We are of the right his of a fair trial. Defendant con proper the former is the inter- identity tends the of the informants is pretation. needed to determine if the evidence against him at presented trial came from a is a case impression

This of relative first than illegal source other his only in this State. The statement. We prior decision of dismiss this dealing Court in this with that it was not interpretation specific part presented initial appeal this statute was J. T. P. to this Court State, Okl.Cr., (1975), v. 544 1270 authority, P.2d and the cited City Scott v. page Okl.Cr., stated at Tulsa, which 1277: P.2d does See, 1.18, “. .A not control. Rule prosecution failure Rules of the compliance Appeals, O.S., show with ... Court of Criminal O.S. Ch. [10 1971, 1109(a)]will § render the admission App. assignment of final

As his he was denied his con contends ‍​​​‌‌‌‌‌‌​​‌‌‌‌‌‌‌‌​​​‌​‌​‌​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌‌​‍compulsory process right of

stitutional subpoenas quashed court the trial

when from their on word co-defendants two

for would the co-defendants

attorneys that refuse to Amendment and the Fifth

plead jail were co-defendants held

testify. following hearing out the time granted the trial court jury,

presence subpoenas. It is quash motion to the trial court to the discretion of

within corpus of habeas ad deny a writ

grant is, essence, what the

testificandum See, v. are. Crutchfield

subpoenas light P.2d 504 proposed of their testi nature

cumulative they would un fact that plus the

mony, testify as cases refused

doubtedly have them, we find the against pending

were discretion, its not abuse did

trial court assignment of error.

so dismiss order of this

IT THEREFORE IS be, rehearing petition DENIED, and the hereby, is the same directed to issue the of this Court

Clerk forthwith.

mandate BUSSEY, P. J.

J.H. Jr., BLISS, J.

F.C. BRETT, J.

TOM WHITEHORN, Jr., Appellant,

George L. Oklahoma, Appellee.

The STATE

No. F-75-476. Appeals of Oklahoma. of Criminal 23, 1977.

Feb.

Case Details

Case Name: Bias v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 16, 1977

Citation: 561 P.2d 523

Docket Number: F-75-365

Court Abbreviation: Okla. Crim. App.