Freeman v. State
721 P.2d 1327
Okla. Crim. App.
1986
Check Treatment

*1 FREEMAN, Appellant, Murrell Oklahoma, Appellee.

STATE of

No. F-84-309. Appeals

Court Criminal Oklahoma.

July

1328 M.T. police

told the that had had sexual evening after an appellant relations with drinking. appellant suggest- had She said days having party ed several to her such she had and that also had sexual before night boyfriend. with relations that M.T.’s appellant Linda and M.T. testified that physically her to have intercourse forced appellant orally then to sodomize with and had been too him. She said she ashamed Palmer, Appellate Deputy Patti Public incident. did admit or She report Defender, Norman, appellant. for being with that after confronted the fact Gen., Atty. Turpén, Michael C. Tomilou orgy. Linda said there had been an Liddell, Gen., Gentry Atty. Asst. Oklahoma Appellant assigns first as error for City, appellee. infor joining the offenses in one State’s all them in trial trying mation and all one OPINION days ten earlier and since one occurred evidence. Our control involved different BUSSEY, Judge: O.S.1981, ling 436-440. statutes are §§ Murrell Freeman convicted in Chero- in a They joinder allow the County Rape kee District Court if single single and in a information trial Degree, Sodomy, Injury First Forcible and acts the counts same series of involve Minor to a Child. He received sentences of transactions. Allison forty years’, twenty years’, twenty policy subscribed years’ imprisonment, respectively, to be reducing the number of that of trials concurrently. served Dodson v. expenses. the attendant presented There was evidence at (Okl.Cr.1977) (Brett, special 562 P.2d 916 J. appellant, wife that with his Linda Free- ly concurring). Provision is made for sev acting accomplice, raped as an man joint prejudice erance trial would where a M.T., victim, sodomized the their home O.S.1981, defendant. State 21, 1983, on March and that the two also 439. § conjointly injuries acted to inflict to M.T. on Appellant contends that all the evidence 31, placed March 1983. M.T. had been allegedly for victim’s the Freemans’ home foster as a child sever- testimony proving uncorroborated went to prior al months to these incidents. She Injury charge. to Minor He Child years was sixteen at the old time of the claims that at the trial resulted crimes and of the trial. sodomy his conviction The Freemans approximate- chased M.T. charges solely upon evidence of other ly three blocks from their home to a car Appellant crime. reasons that had he re- on wash the evening March 1983. trials, separate ceived evidence of the Linda Freeman held her the neck while sodomy would not have been admissi- face, struck M.T. in the according offense, injury ble in the trial for eyewitnesses. statements of several vice necessarily versa. But this is not so. One witness police notified the and an offi- Evidence of offenses than cer arrived at the Freemans’ home where purposes is admissible for such as beating Appellant had resumed. proof motive, intent, opportunity, prepa- arrested at this time. ration, plan, knowledge, identity or absence Later the morning, O.S.1981, next an of mistake officer or accident. inter- viewed 2404(B). Linda Freeman and Since defense § learned that there had been requi- an each “orgy party” offense that he lacked some ten days earlier which site involved criminal intent and the evidence of the M.T. Linda this, ly refute other crimes tended to the evi- noted in that case the court is not re- quired give dence admissible limiting would have been even had instruction in granted. the absence objection trials been of an to the other O.S.1981, crimes evidence. See 12 present In the all the in- object did not to the evidence or victim, volved the same the same defend- *3 request a limiting previ- instruction. As ants, during occurred the two or three ously noted, evidence, the except for that period legal month in defendants had which by counsel, elicited only defense was child, custody of and the testimony the crimes coincidental to those majority from a of the witnesses at trial did not fall of Burks. guidelines within the was relevant to each of offenses. We There is no error. therefore find no of the abuse trial court’s denying discretion in severance of a trial. Appellant that now claims the trial State, Faubion (Okl.Cr. v. P.2d 1022 court should him not have asked in front of 1977). jury testify. whether he to A wanted this, open court, few minutes in before charges the further trial appellant personally announced that he allowing court with error State to wanted to take the witness stand after both put 1) on evidence of the crimes of judge had trial sides rested. The at this M.T., causing minor, possession to a be meeting point announced a in chambers. 2) beverages, of alcoholic of the defendants Appellant told he judge wanted to testi indecently exposing themselves front of fy though attorney his not him did want to M.T., 3) private her exposing parts. appellant so. judge do The allowed his He complains also evidence he that to privately counsel confer and tell the raped prior M.T. on occasion a should not of the After conferring, court decision. have been We note introduced. that all of appellant judge going told the he was not the recited last were testify. judge they The them to told while committed at the time as the still in he were chambers that would ask sodomy. part Those offenses which are appellant open whether court he wished parcel (for transaction” “entire testify. Appellant agreed counsel to merly gestae) are properly termed res ad he appellant this and said would decline that basis alone. Burks v. on missible was jury. This done and the before State, (Okl.Cr.1979). 594 P.2d 771 Even jury they was later that instructed could occurred, had error defense counsel did not appellant’s no draw inferences from failure object alleged and waived the error. testify. State, Young v. (Okl.Cr. 531 P.2d 1403 Wé trial find no error in the court’s con- 1975). inquiry appellant duct. The court’s was The occurring evidence of O.S.1981, 701, not a violation of 22 which prior to the one charged was elicited as a calling forbids a criminal defendant to testi- questioning result of a witness by de fy by save his or her choice and disal- own fense solely counsel. The accused is re lows on comment a defendant’s failure to sponsible by for error invited defense. testify. Nor Fifth appellant's was Amend- State, Cooper (Okl.Cr. v. right against ment self-incrimination violat- 1983). assignment This is meritless. apparently judge ed. moti- by clarify jury vated the need to for the Appellant claims he was further appellant taking fact that not wit- damaged by give the trial court’s failure to ness stand his choice. own cautionary jury limiting to the instruction jury’s any consideration the other crimes Not did waive error by agreeing evidence. on opinion plan He relies our on announced court’s Burks, supra, ask him if to testify, appel- for the assertion that such he wished regardless actually an required any instruction is of a lant’s own conduct invited sub- sequent Dutton request by specifical- But error. defense. we (Okl.Cr.1984). Finally, involved a Dutton it is contention imposed to that of this case. that the sentences very similar situation are excessive. However, they had announced that are within the statutory counsel lim After defense its for testify, instance, Dutton did not the crimes. In such an the defendant would modify Court them to do so. will not respond they Twice unless when asked so excessive as to shock the the record to reflect conscience of judge ordered Court. found Scott P.2d 54 We that defendant sat silent. clarify were made to judge’s remarks the same conclusion the record. We reach Each of the crimes were acts of violence Any possible present error in the case. against the victim and occurred while the jury instruction to the by the was remedied minor had been entrusted to the care and be drawn there- that no inference could safekeeping appellant. The evidence from. against appellant quite substantial. *4 Under the facts and circumstances of this that M.T.’s testi Appellant contends case, we do not the find sentences improp- unreliable, mony improbable, was contra er. Citing Cooper dictory and uncorroborated. Finding warranting no error reversal or (Okl.Cr.1977), State, 568 1300 he P.2d modification, judgments and sentences are testimony only was the contends that her AFFIRMED. rape sodomy the and supporting evidence incompetent, result convictions and it was BRETT, J., concurs. ing in of the offenses. proof insufficient PARKS, P.J., dissents. However, Linda Free it was codefendant orgy man first the with a who discussed PARKS, Presiding Judge, dissenting: police also testified officer. at trial She The appellant Rape was with again events she and recited the Degree, the First Sodomy Forcible and In- consensually then and claimed it occurred jury to a Minor objected Child. M.T.’s In party that the idea. her been joinder to this requested a police she had initial statements to the said separate charge injury on the of to a party the idea and that was Minor majority Child. The holds that the appellant had M.T. have intercourse made trial court did not abuse its by discretion Thus, testimony with him. M.T.’s denying appellant’s request. Supra at properly corroborated. 1329. I must respectfully dissent. charges The in this case were based on We do not M.T.’s failure to flee find two separate incidents. The first incident the incident so unrea report home or the involved rape a sodomy of a sixteen testimony require sonable as to her to be year old minor in which both her foster completely testimony Her discounted. parents, defendants, were implicated. not as to make thoroughly impeached so it The second involved an altercation which State, unworthy of Gamble v. 576 belief. place took at public a car wash days ten (Okl.Cr.1978). P.2d 1184 Since her recita after incident of and sodomy. essentially tion of the corrob assaults was Again, both parents foster implicated were by orated the statements Linda Free in the act physically striking the minor man, testimony was not so im her several times in the face. The majority pugned clearly unworthy as to make it holds that were properly crimes joined law, belief and insufficient as a matter of for trial on ground they involved opinion inapplicable. our Cooper Our the same series of acts or transactions as reveals review evidence sufficient authorized this interpretation Court’s jury evidence from could find which O.S.1981, 436, Supra 22 at beyond a doubt that reasonable committed the offenses. recently This Court has had occasion Renfro interpret application of Section 436. In (Okl.Cr.1985), relatively time, Glass v. over period short rape, held counts of the Court that several approximately location, the same robbery with intent to sodomy, and assault proof as to each overlaps transaction so properly joined for when were as to plan. evidence a common scheme or gave rise incidents which Shearer, Accord United States v. charges occurred within few blocks of (8th Cir.1979) F.2d (construing each other on the same street within a 8(a), Rule Crim.Proc.). Fed.Rules of case, day span. three time In each similarity Mere pro- does not vaginal sex defendant demanded oral and adequate vide an joinder basis for under victim, attempted from his forced or our statute. Accord Drew v. United give up jewelry force the victims to States, 331 (D.C.Cir.1964). F.2d 85 possessions, and the vic- valuable accosted Id. at 768. addition, night. tims In defendant In proof as to each transac- weapon used same last inci- two tion clearly “overlap does not so as to determining In dents. whether the evidence a plan.” common scheme proper, this Court stated: joinder of two such unrelated offenses 436, joinder Section of defend- Under should be considered to abe violation of permitted ants in one information is process due provisions under the of Section “if they alleged partici- to have 7 of II Article of the Oklahoma Constitu- pated in the act or transaction or in I, therefore, tion. would reverse re- of acts transactions same series *5 mand for new trials with instructions to constituting an offense or offenses.” It charge sever Injury of ato Minor Child. follows, em- analysis therefore under the Dodson, by Judge ployed Brett applies

this same standard Thus, joinder sepa- as

offenses well. permitted is if

rately punishable offenses offenses arise out of one transaction, part

criminal act or or are

a series criminal acts transactions. 875,

Accord Johnson v. (Okl.Cr.1982)(dicta). FREEMAN, Linda Appellant, Turning it to the facts of the clear that all of offenses did transaction; a single not arise out of Oklahoma, STATE of Appellee. however, they did occur a series of No. F-84-310. never transactions. We have had occa- intepret phrase sion to “series of Court of Appeals Criminal of Oklahoma. criminal acts or transactions” this con- 7, July statute, construing In text. so we obligated employ the common and meaning ordinary statutory term. Cartwright Georgia rel.

See State ex.

Pacific, Dictionary de- College

The American things, “series” “a

fines as number

events, ranged occurring spa- etc. succession;

tial, temporal, or (Emphasis add-

sequence.” Id.

ed). Accordingly, joinder offenses is joined so refer

proper where the counts occurring type