*1 (Okla.1980); Autry v. District Court of County, SADLER,
Muskogee Appellant, Wayne David (Okla.1969). action adjudication A final Oklahoma, Appellee. STATE would not bar a separate maintenance subsequent action for divorce between No. F-88-958. parties. Autry same v. District Court of Thus, sepa County, supra. Muskogee Appeals of Court of Criminal Oklahoma. par action two rate maintenance between adjudicate the same cause of ties does Jan. 1993. (cid:127) proceeding between the action as a divorce Rehearing Denied 1993. Feb. parties. Autry The rationale of same Id. upon proceedings the nature of was based The separate maintenance and divorce. Pleading did not Code of 1984
Oklahoma separate maintenance
change the nature of proceedings. by The reliance
and divorce upon respondent-real-party-in-interest pleading procedure for counterclaims laying legal justification for venue of
as Sequoyah in the District Court of
divorce
County misplaced. guidelines The ex apply different
plained by Autry still when authority in con
District Courts exercise proceedings. The case of
flicting divorce Drummond,
Drummond v. 49 Okla. (1916), though relied on re
spondent-real-party-in-interest, has been
disapproved. See McAdams v. District County, 197 Okla. Court statutory proceeding special
Divorce is a seq. 101 et The com-
under O.S.1991 § statute,
pulsory counterclaim 12 O.S.1991 2013(A) general pleading is a statute.
§ special gener- statute controls over the pleading statute. 43 103 de-
al O.S.1991 § the venue for a action.
termines divorce prohibition
The writ of is issued to the
respondent judge, assigned or other
judge, proceeding from further in the di- presently pending
vorce action before Sequoyah County
District Court No. D-92-247.
Cause THE BY ORDER OF SUPREME
DONE JANUARY, DAY
COURT THIS 25TH OF
1993.
All concur. Justices *4 Prosecutor, Williams, Sp. Wa-
Charles V. Hovis, Hobart, Stephen tonga, Richard E. Beam, Weatherford, Brown, Cindy D. G. Defender, Norman, Appellate Asst. Public appellant. Gen., Loving, Atty. Susan Brimer Steven Gen., Kerr, Atty. City, S. Asst. appellee. OPINION JOHNSON, Judge: SADLER, appellant, DAVID WAYNE originally charged the crimes was with Degree Degree First Murder and First Rape, in Case No. in the CRF-87-32 Dis- change County. trict Court of A Greer granted venue and tried by jury for crimes in County, these Custer jury Case No. returned CRF-88-45. The a punishment guilty verdict of and set at life imprisonment charge for- the murder and (15) imprisonment years rape fifteen on the ap- charge. day, neighbor The trial court sentenced the Later that a discovered pellant jury’s body in accordance verdict with Esther Steel’s dead in her bed. Testi- mony to be raped and ordered sentences served revealed she had been and concurrently. Judgment From this and stabbed to death. She had been stabbed Sentence, perfected has three times in the chest and once in the appeal. neck. Adams, Pat
Phillip appellant’s accessory investigated by crime was the Okla- co-defendant, plea bargain made with homa State Bureau Investigation. Sub- Attorney sequently, the District in order to avoid the both Adams and were penalty. pled guilty questioned, death Adams to First charged arrested and as co- Degree Murder and received a life sentence burglary defendants for the crime of understanding testify with the rape would the murder and Ap- Esther Steele. against appellant. pellant confessed that he was with Adams April 15, 1987, 14 and being but denied testimony Adams revealed that on the rapist murderer. Adams 14, 1987, night April Mangum, Okla- sworn statement to the on December homa, appellant and Adams went out drink- 3, 1987, implicated appellant as the ing. drove the Adams truck rapist and murderer. He pled guilty later passenger. They bought quarts was a four accessory *5 received life of country beer drove out into the to sentence. The details of these and other Later, they Blair, drink it. drove to Okla- pertinent facts will be they addressed as homa, buy to visit a friend and some more appellant’s propositions relate to of error. beer and then went to Granite. After run- ning beer, out money they of Appellant’s proposition discussed first of error is they get how would some money more and that the trial court committed reversible appellant asked Adams if he granting appellant's knew of error in not motion for They old ladies. city drove around the Appellant of a mistrial. claims that a mistrial pointed Granite and Adams out Esther was process warranted because his due house, Steele’s an elderly rights, woman recognized who had as in Brady Mary land, 83, been his teacher. 1194, 10 373 U.S. 83 S.Ct. L.Ed.2d (1963), were violated the State’s Adams dropped appellant stated he off allegedly exculpatory failure to turn over around the corner from Mrs. Steele’s evidence. Appellant got house. out of the truck and grabbed put a knife and his socks on his The in report evidence issue is a technical hands. Adams drove the truck around and that testing contained the results of DNA picked appellant up about an hour samples body later. on semen taken from the Appellant returned with a billfold and samples the victim and blood taken from backroads, Adams ten Taking Adams, dollars. appellant, Philip victim, and the Adams drove back out into county Esther samples Steele. The State sent the stopped where he “get private to let company analy- rid to a that does DNA of the stuff”. Appellant (Tr. went 800) into a bar sis in pur- forensic cases. The later, ditch and returned a pose few moments having the tests run was to deter- Appellant bare-chested. put green on some mine which co-defendant the semen be- coveralls that to, thus, were in the truck. longed providing proof on who (Tr. rape. 800) committed the The tests The two men drove around until Adams perform OSBI were able to were not lost control of the truck and rolled it over (Tr. 800) conclusive. in a Appellant bar ditch. left the crash help. scene to find He was seen Granite Appellant first learned of this test and about 4:00 a.m. in morning April on report on day the fourth of trial while 1987, by a passerby who took him to the cross-examining Mary Long, M. a criminal- police station. An ambulance was sent to ist with the Oklahoma State Bureau of the accident scene and Investigation (OSBI). both men were tak- Upon discovery of Mangum en to City Hospital. report, hearing in camera counsel, there were to defense report, questioned about When held. left to conduct additional enough specimens received the Long that she Mary stated all the first test consumed tests 22, 1987, the result of because July report nega- second, report was specimen; vagi- inconclusive because the test was from be drawn could tive and no conclusion analysis did not sent for she nal swab might have been although report it and admitted DNA. She contain sufficient defendant, it was not detrimental but, helpful in her were also taken swabs cervical appellant. enough good they were not of opinion, with because for the lab to work quality violation, a Brady To establish There- deteriorated. sperm cells were prosecu that the must establish defendant testing in for fore, not send them she did favor evidence that was suppressed tion first test came results from the when the exculpatory and that him or able to back inconclusive. Mary Brady was material. evidence giving in not 10 L.Ed.2d they land, erred 83 S.Ct. admits 373 U.S. State 812; error, (Tr. report. reversible copy To find of show 3.) specifical- meet the burden at must appellee’s brief actually sup report (1) prosecution in his mo- has type ing: ly requested this October, has after that evidence pressed evidence compel discovery, filed tion to defense; (2) the hearing requested by the (O.R. 55-57). motion been At the 1987. appellant’s de ap- evidence was favorable judge ruled January, (3) material ei fense; the evidence is “any report, scienti- pellant was entitled or to his guilt ther to the technical, exculpato- fic, if it’s or otherwise State, 752 P.2d Lay v. punishment. 35) Further, judge (M.H. the trial ry.” Tr. (Okl.Cr.1988), citing v. Illi to Moore exchanged at reports that the be required nois, U.S. 92 S.Ct. else the prior to trial or least one week *6 L.Ed.2d 706 report the subject the matter of report or (M.H. 34) Tr. would not be admissible. question that evi As there is no the to judge ordered State submit The only question the suppressed, dence was magistrate for reviewing to a its materials her actions are inquiry is whether the first exculpatory materials. determination This the State. Court imputed to to be 35-36) (M.H. report in issue was Tr. officers, investigators, police views not submitted. officials, police tech independent and OSBI actors analyzers as State nicians or test hearing, prosecutor the In the in camera reports are used counsel, testimony or that, when their like defense he too claimed in a against a defendant prosecutor knowledge report previous no had State, 740 Moore v. criminal case. See Mary Long cross-examined as the until (Okl.Cr.1987); v. P.2d 736 Van White file. Defense counsel report was not (Okl.Cr.1988); State, Du 752 P.2d 819 argued appel- for a mistrial and moved (Okl.Cr. State, P.2d 1164 prejudiced by the omission even rant lant was 1986). inconclu- though the result of the test was knowledge prior He claimed sive. directly faced has Recently, this Court (1) him to: have
report could have allowed of infor- prosecutor’s of a source the issue (2) analyze report; expert an hired prose- withholding and the mation evidence (3) comparison purposes; be used it for having knowledge of the withhold- cutor no cross-examination; (4) for prepared better State, ing. Pierce v. people who be able to cross-examine (Okl.Cr.1990). prosecu- Unknown semen; transported collected tion, City Department Police (5) performed. DNA had their own tests all of the forensic chemist did not send (Tr. 809-810) testing. independent to an lab evidence of a court or- in direct violation judge the motion for This was The trial overruled failure to held the chemist’s harmless der. Id. We finding a mistrial the error be- the State’s violation First, send the evidence was report cause: if the had been even (1985); at 1261. of the court order. Pierce Re- L.Ed.2d 481 accord Ray v. State, (Okl.Cr.1988). versible error was not found because knowledge appellant had two months be- A review of the record indicates was not fore trial that the evidence sent presented the evidence at trial that obligation the lab and was under to inform appellant’s guilt showed was co-defendant discovery of the court violation testimony against appellant, Adams’ admis court order. The State’s failure to Id. by appellant cellmate, sions made to a excused, send the evidence was not but microscopically appel hairs consistent with problem appellant ignored because hairs, lant’s. Other than none of the continuance, did not ask for a he waived his presented forensic evidence was conclusion right independent to have an examination Thus, ary. fail to see we how the outcome of the evidence. Id. appellant’s trial would have been differ if ent he had had access report to this Pierce, Following Mary find that we earlier. judge The trial chose to believe Long’s withholding action of the existence the criminalist when she stated that there testing of the DNA of the semen and blood sperm samples were no other that could be samples imputed prosecution is to the tested and what was submitted was con discovery violated the State order. Ad process sumed. Due considerations re ditionally, we find that the State violated quire the State allow the accused an ll-2.1(a) Section of the ABA Standards opportunity samples independently to have Justice, Criminal which was the stan tested, but this rule does not extend to prosecutorial dard for disclosure of evi sample situations in is necessari dence at the time of this case. See Moore ly testing. Moore, consumed 740 P.2d at (Okl.Cr. P.2d 735-36 Accordingly, although 736. the State’s 1987). As we have stated before “a crimi withholding report, of the DNA via the game nal trial is not a of hide and seek.” actions, error, OSBI criminalist’s Moore, type at 735. This of conduct is not cumulative, omission of a inconclusive test condoned. does not undermine our confidence in the Looking prong at the second of the Bra- proposition outcome of this case. This dy analysis, agree judge we with the trial denied. that the evidence was not exculpatory or proposition, appellant In his second favorable. Like the blood test that was independent- claims that the State failed to *7 evidence, admitted into the DNA test was ly accomplice corroborate co-defendant and inconclusive and neither eliminated nor con- Phillip testimony against appellant. Adams’ cluded that the belonged ap- semen to the disagree. We pellant, the person. co-defendant or a third general While the rule is that simply The omitted test was cumulative testimony accomplice of an must be corrob evidence of the blood test. evidence, alone, standing orated with that
Looking at
Brady inqui
the last
link
tends to
the defendant to the commis
ry,
say
suppressed
we cannot
that the
charged;
evi
sion of the crime
see Howard v.
appellant’s
State,
125,
dence was material to
guilt
(Okl.Cr.1977);
or
561 P.2d
132
tes
punishment. Materiality
timony
is viewed from
accomplice
require
of an
does not
the context of the whole record.
respects.
United
corroboration as to all material
97,
Agurs,
2392,
v.
427
State,
1142,
States
U.S.
96 S.Ct.
Johns v.
742 P.2d
1146
(Okl.Cr.1987).
ip Adams was corroborated testimony against identi a defendant Eyewitness court tial evidence. be admissible in a truck in the area the the defendant who initiates fied two men if it was descrip communication, fit exchanges, The truck or con victim’s house. further that both Adams and police tion of truck with the defen versations driving around in. appellant intelligently admitted knowingly and waived dant on the vic Additionally, the hairs found Ari right he had invoked. Edwards v. story. Adams’ bedding 1880, corroborate zona, tim’s 68 451 U.S. S.Ct. assignment is without merit. Illinois, This (1981); v. L.Ed.2d 378 Smith 83 L.Ed.2d. U.S. S.Ct. propositions Appellant’s third and fourth (1984); accord Walker surrounding both involve the circumstances (Okl.Cr.1990). . May 20, taking On of his confession. filed and a war- an information was prosecution The bears burden La- appellant’s arrest. rant was issued proving the waiver was know whether afternoon, arrested ter that was totality ing intelligent under the Appellant rights. his Miranda circumstances, including fact necessary that taken to the station and was accused, police, reopened that not the evening ques- arrived to two OSBI officers dialogue Oregon with authorities. taken an inves-
tion him. Bradshaw, 1039, 103 462 U.S. S.Ct. tigation given his Mi- room where he was 405, (1983). 77 L.Ed.2d. rights again. Appellant waived randa rights rights by a signing these waiver Appellant admits he initiated con appel- brought form. One of the officers officers, approached the but based tact and cup a and told that lant of coffee Innis, 291,100 446 U.S. Rhode Island v. Phillip involve- Adams had confessed (1980), argues he S.Ct. 64 L.Ed.2d murder had pointed ment interrogation being left in the room as finger at murderer. right put to silence after he had invoked point, appellant lawyer. At asked “interrogation him in an environment”. immediately The officers terminated the Thus, asserts that the initial interview any fur- interview and told appellant had no choice never ceased and lawyer ther communication without his Therefore, agents. to the but talk OSBI present de- would have to come from the interrogated after he invoked his he was ap- fendant himself. The officers left the rights. pellant interrogation in the room to finish his coffee. two-pronged test for determin ing person custody is in an whether Approximately five la- three to minutes First, “interrogation is: environment” ter, appellant opened the door and told the subjected by the suspect whether the them. officers that wanted to talk to *8 police police words or actions that the to Mi- Again, appellant the was his reasonably likely should have known were rights. Appellant signed new randa a incriminating response to an from elicit told ver- waiver form and the officers his Innis, 303, him. 446 at 100 at U.S. S.Ct. pointed finger sion at of events and a 1690; second, suspect’s and was incrim being Adams as the murderer. inating police’s response product of the proposition, Appellant In his as- third words or actions. Id. right against serts his Fifth Amendment totality When self-incrimination was OSBI viewed under the of the violated when circumstances, agents questioned him after he had invoked we do not find that the offi- Thus, right cers he to his to counsel. statement to that had initiate claims that the trial court erred not further conversation was the suppressing type and of of the confession reversal statement officers knew was reasonably likely incriminating required. his conviction is to elicit an
385 first-degree burglary, first-degree rape and he told The officers response. knowing. intelligent not and they and had his waiver was conversation to initiate had Thus, him as erred in not implicated had he claims the court him that Adams told likely confession. suppressing This statement his the murderer. proper, as response, but was elicit a
to his Appellant is correct rights had not his appellant had waived Right to arose Amendment counsel Sixth Viewing the counsel. right his invoked information was filed. Patterson when the context, find that we do not in this scenario 285, 290, Illinois, 108 S.Ct. 487 U.S. to come out of appellant’s decision 2394, (1988). But, 2389, L.Ed.2d 261 he wanted to tell the officers that room and requirement that there is no constitutional police product of words to them was a talk particulars told the an accused be in- appellant had spoken or actions after charged with before crime has been right to silence. his voked Amendment waiver can be considered Sixth that his argues further Indeed, intelligent. the Unit knowing and requested he had rights, after waiver expressly re Supreme ed States Court has counsel, knowing intelligent was not warnings or jected the idea that additional circumstances because totality under required accused are with an discussions officers did not tell the OSBI Amendment waiver can be a Sixth before attorney do to have an he needed to what question post-indictment effectuated for have been He claims should appointed. required ing. All that is are Miranda cell, when or told how and returned to his Illinois, 487 U.S. warnings. Patterson v. appointed been attorney would have 2389, 2396-97 295-96 at n. S.Ct. him. (1988). at n. 101 L.Ed.2d police If this a situation where rights. given his Miranda Appellant was interrogation room suspect in the had left him he was Additionally, told hours, might point the circumstances Steele, of Esther charged with the murder giving such informa- police coercion him of the seriousness appraised But, in the appellant was left tion. being accused of crime he was five minutes. We find room for three to warning him of what he was proving has met its burden the State questioned about. right of the to counsel was volun- waiver of Sixth whether a waiver To determine appel- intelligently made and tary during post-indiet- rights Amendment the OSBI lant initiated the contact with inquiry voluntary, the questioning ment request to talk to agents with a direct suffi- is, accused was made “whether the Connelly, officers. See Colorado right to counsel ciently of his have aware L.Ed.2d 473 107 S.Ct. U.S. questioning, and of present during the did not err in allow- The trial court to for- consequences of a decision possible presented to the ing this confession to be v. Illi- counsel.” Patterson go the aid of jury. nois, at 2395. 108 S.Ct. 487 U.S. at proposition, Appellant In his fourth given Miranda appellant was Since right Amendment to coun asserts his Sixth right him of his warnings, which informed not know violated because he did sel was conse- present and the have counsel right ingly intelligently waive agents, talking to the OSBI we quences of during post-arrest present counsel have intelli- knowing and find his waiver was he had not in questioning because been Patterson, 487 U.S. at gent. See charges of the particulars formed *9 denied. proposition This is at 2394. S.Ct. Specifically, he claims that against him. claims proposition, appellant by the In his fifth he informed OSBI because was his Constitutional charged he was denied Oklahoma that he was arrested and officers hearing all the Steele, preliminary a right rather to the murder of Esther with informa- charges presented in the amended charges formal were being told that than by murder, charged Originally, appellant was against first-degree him for tion. filed 386 er did not acting Philip with instructions. submit
information of
concert
committing
request
any
crimes first-
or
a
of the “omitted”
the
make
Adams
aforethought
instructions,
by
object
any
malice
or
in-
degree murder
nor
to
first-degree rape,
felony-murder,
given. Thus,
and first-
re-
that were
our
structions
burglary. Appellant was
degree
bound
be
to
of each instruction will
limited
view
charges.
trial on these
Subse-
only.
over for
fundamental error
the information
quently, the State amended
First, appellant claims the trial
appellant with
act-
charged
the crimes
given,
sponte, an
judge should have
sua
ing alone.
to
the
requiring
jury
believe
instruction
While it
is correct
that
Sadler unless
exculpatory statement Mr.
provides
“no
that
Oklahoma Constitution
disproved by the State.
the statement was
by
felony
person
prosecuted
shall be
for a
appellant’s
not
statement to be
We do
find
hearing
a
a
before
information without
him if
acquitted
that would have
be
such
having
prelimi
magistrate, or
waived such
lieved,
a
of his inno
but rather
contention
Const,
2,
examination”,
nary
art.
Okla.
State,
128
v.
432 P.2d
cence. See Knott
State,
17;
P.2d
327
Thrasher v.
734
§
(Okl.Cr.1967).
(Okl.Cr.1987).
per
Title
Section
information,
mits the State to amend
Second, appellant
tri
claims the
substance,
it can be done
matter or
where
given
al
have
Uni
judge should
to
injury
without material
the defendant.
CR-205,
con
Jury
which
form
Instruction
O.S.1981, 304;
State,
22
v.
515
Battle
§
crime
person’s presence
cerns when a
at a
(Okl.Cr.1973).
P.2d
The fact that
criminally culpable.
scene makes them
does
re
an information was amended
not
request
made no
for such
Again,
preliminary
it
quire a new
examination if
in
Determination of
instruction.
substantially
charge
does
alter the
or
not
given
a
jury
be
to
is
structions shall
necessitate information on new issues.
of the trial
matter within the discretion
State,
(Okl.Cr.
P.2d
Grizzle v.
court,
given
provided that the instructions
1977).
a
It is also well established that
correctly
applicable
fairly and
state
preliminary
can
both a
defendant
waive
State,
(Okl.
P.2d
Russell v.
law.
information,
hearing on an amended
and Cr.1988);
State,
Nunley
Fifth,
claims
the trial
judge
by giving
jury
erred
instruction
agree
prosecutor improp
that
We
states:
OUJI-CR
erly gave
personal opinion
and com
in
person may
No
be convicted of murder
mented on facts not in
evidence when
degree
the first
unless his conduct
stated:
person allegedly
caused the death of the
case,
my theory
It’s
ladies and
killed. A death is caused
conduct if
gentlemen,
day
that the next
this defen-
the conduct is a substantial
factor in
dant came out and retrieved the evi-
bringing
and the
about
death
conduct
I
you,
say
dence. Mind
what
is not evi-
dangerous
destroys
and threatens or
you’re
dence and
not to consider it as
(O.R. 393)
life.
my theory
such. This is
of the ease.
I
Appellant claims the instruction was con-
out
submit Sadler came
there and knew
fusing
jury
and could have mislead the
into
exactly
where
evidence was and he
believing
could be convicted
anymore.
retrieved it and it’s not there
first-degree
murder for
intoxicat-
(T.R.1013)
agree
ed. We
it would have been
improper
This comment
and was not
was
judge
better for the trial
not to have
submits,
as the State
“comments on the
this instruction as it deals with the issue of
But,
evidence in a time-honored fashion”.
whether a defendant’s actions caused a
admits,
objections
as
no
were
dispute
death and
did not
Thus,
ap
made to
of the comments.
death,
victim’s cause of
but rather claimed
pellant has waived all but fundamental er
not commit
did
the murder at all.
State,
(Okl.Cr.
ror.
Carol v.
But,
light
appel
of the fact that
1988).
looking
In
at the whole record and
object
lant did not
to this instruction and
considering
penalty
the fact that the death
under the facts and circumstances of this
sought,
jury
returned the less
was
but
given,
case and the instructions that were
life,
say
cannot
that this
er verdict of
we
we do not find that this error confused the
error
the outcome of the case.
affected
jury
believing appellant
guilty
reasons,
Accordingly,
foregoing
for the
first-degree
solely
murder
because he had
the trial
Judgment
and Sentence of
drinking. Jury
been
instructions are not to
court is AFFIRMED.
unit,
be considered in isolation
as a
but
consideration,
totality
after such
if the
LUMPKIN, V.P.J.,
BRETT, J.,
fairly
accurately
the instructions
state
concur.
law,
applicable
they
are sufficient.
State,
(Okl.Cr.
Newbury v.
torial misconduct. he claims that he was entitled to an instruction on *11 error, case, the exculpa- used in this disprove instructions his the State’s burden real, is not fundamental. states, while “We tory majority do statement be such not find statement [the] believed, if acquitted him but have
would his innocence.” I contention of
rather a agree.
can not told the that when up to the home which
and Adams drove Adams his broken into
was to be
waited,
intoxicat-
socks and sweatshirt
rel., David
ex
STATE of Oklahoma
He
ed,
in.
fur-
while Adams went
outside
MOSS,
Attorney,
District
had blood on him when
ther
Adams
stated
Appellee,
This state-
returned to
truck.
Adams
into the definition of
squarely
fits
ment
THREE
TWENTY-SEVEN
HUNDRED
set forth Knott v.
exculpatory statement
($327.00) and Smith & Wes-
DOLLARS
(Okl.Cr.1967). It
urges error de- is fundamental Jr., McMahon, pro Peter se. J. prived of defense. Moss, Morgan, Atty., Fred David Dist. J. Harker, Legal Atty., W. have, Asst. Dist. John While the trial court could Tulsa, Brief, appellee. Intern on the should the standard perhaps have matter, covering instruction Jury #
Uniform Instruction-Criminal MEMORANDUM OPINION strip to do the defen- the failure so did ADAMS, Judge: Presiding Within the instruc- dant of defense. McMahon, Kimberly Jr. and Peter J. jury told it must tions as a whole the trial order appeal a court Jones-McMahon weigh conflicting evidence and State twenty-seven dol- forfeiting three hundred prove must each element of crimes ($327.00) to lars the State Oklahoma.1 beyond doubt. a reasonable Error, separate In their Petitions aware, doubt, is well no Counsel nu- thereto, Appellants raise amendments preserved by error has not been Kim- relating to the order. merous issues must be fundamental to warrant counsel berly has filed no brief Jones-McMahon goes to reversal. Fundamental error error, her support allegations of her case, determina- foundation appeal and dismissed. is deemed abandoned Jackson, tion the elements of the crime or the Okl. Cornelius dismissed, (Okla.1948), appeal range punishment. Given the full set of P.2d 166 portion pellant to this raises issue as 1. The trial court also ordered forfeiture of a However, pistol. ap- Smith & Wesson neither order.