Shapard v. State

the conse- what transpiring, and what might be. plea

quences herein, petition stated the reasons For denied, peti- corpus habeas

writ dismissed. appeal is post conviction

tion for

BUSSEY, J., concurs. Error, SHAPARD, Plaintiff William

John

v. Oklahoma, Defend-

The STATE in Error. ant

No. A-14017. Appeals of Oklahoma. of Criminal

Court 20, 1967. Nov.

Rehearing 1968. March Denied 15, 1968. Rehearing Denied March

Second

570'

Shapard City, Shapard, & Oklahoma plaintiff in error. Gen.; Blankenship, Atty. Penn

G. T. Lerblance, Gen., Atty. for defendant Asst. in error.

BUSSEY, Judge. Shapard, hereinafter re- William John defendant, ferred to as the was convicted Degree crime Rape for the Second County, in the District of Canadian Court imprisonment, years sentenced to serve five appeals. brief, argues In his defendant numerous assignments separate seven of error under propositions. purpose clarity, For assignments deal we will with each of these they pre-trial of error arose proceedings trial, during the without regard the propositions under which urged brief. were in the defendant’s defendant, 16, charged The age of the Peace Court of Marvin Justice Oklahoma, County, Cavnar in Oklahoma co-defendants, Wyatt Smith, Larry with his 17, age Stanley, age 17, Payton Richard Stanley, age 17, Michael Otis David James Fellers, age Ishmael, Jr., 17, age 16, Johnny 17, Hampton Brogan, age and Paul for the Rape crime Degree, al- Second legedly day July, committed on 7th 1965,upon year girl. preliminary a 15 A old laboratory of examinations and day results on 7th commenced hearing was immediately by them conducted studies 1965, and terminated September, alleged crime after the commission of time at which September, day of 9th charged and Defendant was with which were his co-defendants the defendant and Defendant in- which have shown Court of Okla- District over to the bound nocent. arraignment County, their homa where September 1965.

set for subpoenas The for the Defendant issued twenty-two witnesses following (22) who propositions, defendant one of As testify: present ready Johnny were pre- proper urges that he was denied Noble, Noble, Ishmael, Billy Martha required by liminary hearing as law Laverty, prosecutrix], Patricia following [the errors: reason of Laverty, Harry Deupree, Kay Dr. Sandra examining magistrate re- A. That Tucker, Athony, Cooper, G. P. M. B. W. J. fused to call and examine the witnesses Reynolds, Uandell, Larry Dr. Dr. Joe present subpoenaed by the defendant Hill, Kenyon, Dudley, Rex E. D. John upon and therefore the information which Marshall, Mary Reeding, Dr. William Jim subsequent proceedings he was and all tried Ishmael, Knox, Single- K. Bruce Robert initio; were void ab tary, Kelly Rowden and John Jones. examining B. That refusal of following (10) witnesses en- magistrate to call and examine witnesses upon dorsed the Preliminary Information present subpoenaed by defendant con- as Witnesses for the State and were right stitutes a denial of constitutional present: Laverty, prose- Patricia [the process due under the Sixth Amendment cutrix], Laverty, Kay Plarry Sandra Dr. obligatory made Four- States Deupree, Tucker, Anthony, W. G. P. J. teenth Amendment. Reeding, Lt. Cooper, M. B. Dr. Jim Joe In support above, of “A” listed the de- Rеynolds, Johnny Ishmael. fendant further states in his brief: The testimony in Preliminary Hear- hearing, preliminary purported “In the ing was terminated after only four (4) statutory, denied his Defendant was witnesses had testified for the State. rights fundamental and constitutional Johnny Ishmael and prosecutrix] [the under the and laws of Constitution testified with reference alleged the Constitution State of Oklahoma crime and Anthony, W. Police-man and J. America the United and was States M. B. Cooper, County Attorney’s Chief Examining process that the denied due Investigator, solely testified as to the Magistrate allow Defendant refused to location of alleged crime. subpoenaed for the de- call witnesses The defendant permitted to call purported pre- present fense and at the only two witnesses of the ten witnesses liminary hearing, which would endorsed on the Preliminary Information. proved the defendant innocent Kay Sandra Laverty upon testified and had no crime been committed. the calling of the witness, second Dr. Examining Magistrate The to refused Harry Deupree who would have shown no allow Defendant to call medical witnesses crime committed, the court refused physical prove the stand the con- * * permit him testify prosecuting dition of the witness immedi- upon 2, Defendant relies Article Okla- ately alleged after the crime and which Constitution, 17, homa Section pro- same proved rape that no viding : committed. person “No shall prosecuted be Magistrate criminal- Examining The refused to ly in felony courts of record allow for or mis- medical technicians and custodians by presentment demeanor otherwise than hospitals records and laboratories testify records, showing indictment produce per- information. No

573 felony purpose is to for a “Its determine whether prosecuted be shall son pre- having had a offense committed and whether there without information probable examin- cause to believe the ac- before an liminary examination guilty having such cused was thereof.” waived magistrate, or ing Prosecutions preliminary examination. upon In regard the State relies the fol- not record in courts may instituted be lowing language appears in which Melchor complaint.” duly upon a verified State, supra, v. as as Parmenter v. well State, supra upon by (relied used defendant language urges that Defendant 283, 93, above) : State, 100 P.2d Wyatt v. 69 Okl.Cr. case the instant applicable in particularly is trial, preliminary hearing “A is not a this Court stated: wherein it is not since conducted to determine guilt accused, only jurisdic- two not have issues— did “The district court committed, de- was a crime is there try unless the defendant tion to probable preliminary cause to believe accused com- actually had fendant mitted it.” same.” or waived examination upon 22 O.S. § further Defendant relies 340, In 22 Criminal Law discuss- § C.J.S.

2S7, is as follows: whiсh ing duty magistrate examining must, magistrate “At the examination preliminary examination is stated: place, defendant first read statute, however, provides “A which He him. complaint before file on complainant he shall examine and the must, also, after the commencement directory witnesses on oath is as to subpoenas any wit- prosecution, issue taken, quantity of the evidence to or the required by prosecutor nesses require not examine does him to all defendant.” he is witnesses for state if satisfied * * 259, : which as follows as 22 O.S. well as § People Curtis, with less v. Mich. N.W. 767. witness the examination of “When closed, any wit- part of the State further, Law, 21 Am.Jur.2d, And Criminal may produce must nesses defendant provides: § be sworn and examined.” obligation produce only enough “Its is to State, Parmenter Defendant then cites v. proof probable give believing cause for Okl.Cr.App., 377 P.2d 842: guilty charged. the accused the crime evi- whose hearing, “At the all witnesses indictment An or information will these upon relevant dence is material and quashed ground therefore be should be heard.” issues preliminary at the examination the de- Wyatt v. urges language He that the used in fendant was committed without the ex- State, State, supra, supra, and Parmenter v. aminations of all the witnesses who were controlling in the instant case. summoned for the State or who were sub- “A” Proposition In answer to under sequently used at the trial.” of'error, position is assignment the State’s quotes State further v. Melchor preliminary proper that the defendant had a State, supra, following ap- in which the required law and that examination pears : any prejudiced denied was not fundamen- complains “Defendant the right tal when all witnesses were further because defendant’s county attorney call the preliminary at examination. did not all of not heard the conclusion, preliminary hear- support the relies witnesses listed at the In of State ing, upon State, Okl.Cr.App., P.2d and that defendant should been Melchor v. 404 have quoted entitled to cross-examine all wit- in which this of these Court C.J. However, right. defining pre- nesses as a matter of S. Criminal Law § any liminary support he does not this with cited examination: authority; the nor do we find it to be law termined from an examination entire of the in this record. State.”

and further: defendant, Proposition under “B”, preliminary

“Certainly, evidence at the asserts: the a crime hearing sufficient to believe “That magis- the the examining refusal of committed, probable cause to had been and pres- trate to call and examine witnesses the had com- believe that defendant herein subpoenaed ent and con- defendant mitted it. stitutes a right denial of constitutional of process due the sixth under amendment stated, any allege defendant As we did not obligatory made the four- states the preliminary hear- at the defense —either teenth amendment.” ing, There or at the district court trial. authority jury’s support No is ver- cited is no to believe that the this conten- reason opinion tion and we are had all any dict different of that the same would have wholly prelimi- is without merit. of witnesses testified at nary hearing. bearing It on the had no urged It is further that: jury.” evidence submitted to “The defendant was denied a fair and impartial opinion process are trial consistent with of due

We preliminary hearing guaranteed required by of law as evidence at the adduced Constitution ample support magistrate’s find reason of the fact that judiciary ing overstepped ju- and his crime been committed bounds of dicial probable propriety finding cause to and acted there was with undue haste and guilty. partiality.” believe that defendant We opinion are of the the failure further assignment Under this of error defendant magistrate testimony of the hear the urges that the of Judge remarks Cavnar oc- sought witnesses the defendant which curring at preliminary hearing, were so way prejudicial call was in to the ac no fundamentally prejudicial require as to re- trial, provided, prior cused who a re complained versal. The appear remarks port medical examination conducted transcript as follows: prosecutrix alleged on the shortly after “Before I rule boys, on these other I have rape occurred. urge to make some statements. significant the defend It is Probably, a little philosophy is involved attempt ant any did not to call wit know, like matters this. You we have testimony nesses on the he now trial whose Nature; laws of God and we have laws of urges pre was vital at the defense Pennsylvania we the laws of liminary hearing. It that the clear is thus New Oklahoma, York and Illinois testimony defendant did not consider well as our federal laws. These laws these material to witnesses his defense obeyed; all made to be all of them. hold, we are of the and therefore presented preliminary where evidence know, If don’t all the laws are based hearing magistrate before sufficient upon right wrong. You can check establish that a crime has been committed law, pro con, matter, on most and there probable cause to believe civil criminal, you’ll find that guilty, magis defendant the failure are fair. trate to allow defendant to offer testi They by lawyers been meted out mony testimony witnesses whose is not judges from time has immemorial. There material defense, to the does constitute been a study lot of made on them. reversible question error. The of the ma teriality testimony sought pro to be got think that we have here situation preliminary duced hearing be de- at must City, Oklahoma and in Oklahoma County, state, probably in the entire to take stock of themselves and their family life, needs to be looked into. and see how much lоve there family. is in that song, you it, This old have heard ‘Love round,’ go makes the I think you’ll world it’s If pardon personal remark, my pretty song. true youngest years old, son you is 29 and do know I’ve sitting reading down many ways There are to demonstrate love. paper, watching something, television or father, mother, Love of love of love of notion, and if he took a he would come brother, sister, Flag, love of love of the stoop over and down and kiss me country, everything. love our love of jaw, and tell me that he loved me. round; really go Love makes the world And, you else, do something know I like go does. If love didn’t world make this it; I like that. round, stop Almighty, think, I up. And, it and burn it got he’s more whiskers on his face have, than I but I have kissed his face a Now, up I believe that have back we time or two and told him that I loved him. my and take a things. look at I heard old know, And, say time, said, father one ‘You doesn’t hurt a father to a 16- kiss my foresight year-old if boy 17-year-old just boy about one-tenth or a and tell good my you hindsight, as him that just I’d be rich.’ love him. You can’t tell you him that by giving love him him a things. same is true of time other It’s place go. car and a got You’ve to tell for parents us to take stock. time It’s for him, actually, you Let him. them love everywhere to know where their children they belong. know that are. It’s time to do that. you Do see what I mean? Maybe we need a here in I curfew town. Now, just these are a few the things one; understand that we have I don’t necessary that are up make this life know whether it ever enforced or not. that we live. lately. I haven’t checked it I don’t know n whether many, There many ways we have curfew or not. that a child good can have a time him going without But, have, one, if we don’t we should have violating out and the law. and I applies grown people think that as well as kids. You kids that are here and under the my voice, you sound of I want to take heed I upon think it’s incumbent every parent, telling you what I am about this. voice, under the my sound of to know times, where their children are at all I many up my so like cases they obey. see that instance, court. For a child abandonment case County Attorney my that the files in I think happens, you if that can control court, vagrancy non-support for of a your children, you any will not have children, child or lawyers and I never —the trouble with them. you practice will tell my up who court I boys; raised maybe two I’d better knock there, always wayward I ask these They on wood. any have never been in fathers, you you ‘Do love this child ? Do serious trouble. Well, love you say these you children? But, that doesn’t mean that it couldn’t do, why you supporting aren’t them? happen anybody time. you Don’t know that are entitled to a Here, we have a bunch of fine men whose glass milk get before even a drink children gone bit; astray just a little of water? These children are innocent.’ some town, of the finest men in and it’s things Those fighting we are for. а shame. ought These kids to know we are urge had the just fighting them; make these trying few we’re to do remarks, and things to have fathers and mothers for them. overruled, whereupon the defendants rough were pretty get have we Sometimes plea the court entered a of mute and stood is more that he thinks the father Guilty.” “Not children, his than his important than like that. family. don’t Thereafter, al, We Shapard, sought et an or- prohibiting the District this Court der of little old up in this Now, there we’re proceed- further of Court Oklahoma people. We’re' persecute mine to court of ground ings defendants on be, that’s if need prosecute, there to hearing proper preliminary been denied all. was without and that the District Court there; up good a lot of that we do I know November, day jurisdiction. On the 2nd of to. people jail, we put a lot of we * * 1965, prayed for denied writ this Court question review- holding raised was remarks these Defendant contends only appeal. Thereafter trial was able prospec- paper where published in the were set. they probably read them and jurors tive Thereupon, a Motion the defendant filed thereby. prejudiced were Change for Continuance and Motion Venue, day the 4th of which was heard on Magistrate at the The remarks of 1965, Judge November, before Boston undoubtedly made hearing were preliminary Smith, Judge of presiding Division Criminal a. good faith and with by Judge Cavnar County. At the conclusion Oklahoma their advising defendants view of in the hearing, following appears said relating philosophy parents of his Page Transcript Pro- record at of the relationship duty parent-child and their 4, ceedings November 1965: society, they each other and toward going is “THE COURT: Court part preliminary improper of the were as Change grant of Venue. hearing and should not have been made. remarks, however, be not made These says respect Like Mr. Duncan and I who tried the case in El Reno fore opinion, try seen him cases before change granted, after the first of venue was ‘Why juries years says, here for and he nothing and there in the record of the City take a chance.’ I think that Oklahoma jurors voir dire examination of the to indi a fair wants these defendants to have magistrate’s cate ever that the remarks were duty give trial them and is our sworn read them that had form a fair trial and the mention of the word opinion guilt ed an of the defendant’s based that, ‘rape’ par- emotion. know stirs We upon contrary, said remarks. To mothers, women, ticularly minds out, point we will later arewe here, just replete I have but the record is jurors that the who tried the defendant were through exhibit here while impartial fair and and that their verdict was argument. making their counsel was pre-trial publicity. not based on responsible citizens Their affidavits from good reputations in the com- who all bear Although the arraignment was set for munity. disregard pretty It is hard to 17, September that date said ar- these affidavits. raignment day was continued to the 20th September, 1965, and the defendants there- will notice MR. MOORE: If the Court after filed Plea Abatement and Motion form that those affidavits. Quash and Set Aside the Information. But, that. THE COURT: I understand A hearing pleadings on these defend- them have Let’s want a fair trial. we arraignment ant’s for Octo- were set down give them a fair trial. 1, 1965, Mclnnis, ber before District JoAnn rights too. has some here Judge, Now State County, Division No. Oklahoma forget that the State sometimes We Judge Mills also sat Oklahoma. Clarence plaintiff is the Oklahoma advisory capacity. Motions Said taken people or State of Oklahoma When out Oklahoma of context re of many in these in quoted so of marks the brief descrip and the defendant and the con- speedy a The tion of the tone of voice in cases demand trial. which made, support a to says to tend stitution is entitled defendant’s con tention; however, public to speedy cursory is entitled even the most trial just reading Judge have these trials —these cases of Smith’s tried remarks discloses protect desire and intention rights fast. to of the defendants in them a fair securing July, The in the al- offenses occurred trial. His statement that defendants and leged offenses, what the Informa- that is public speedy are entitled to a trial as November, says. And, of tion here it is guaranteed by the is a Constitution correct course, October and November were statement law nothing of and there is to it, first two we could have tried months support the defendant’s contention that his right? isn’t that ruling conduct partiality showed for MR. HARRIS : Yes sir. against Moreover, State and the accused. THE going I COURT: Now am to check we are of that it does not demon on in the availability of the Courtroom Judge strate that Smith acted with undue El Jury. going Reno and a We to are sped haste and thus the defendant to trial. try this case this month all possible. if at again ap deal We will with issue as it this And just so we are over going to move pears in the record. El Reno start this case. hearing 4, 1965, At said of November an Change Order for of Venue was issued Now, right I am going check now by Judge and the removed Smith case was availability jury of Courtroom and a County from Oklahoma to Canadian Coun- panel I and will ask counsel to stand ty, City Oklahoma, Reno, of El for by. It will' take few minutes while trial. call over there. day November, On the 10th of MR. please, SPIVEY: If Court application Change filed an defendant for a the Court granting Change now the of County of from Canadian Venue and a Mo- Venue? Continuance; day tion for 12th on the of THE Yes, sir. COURT: November, 1965, application he filed depositions. hearing A take out-of-state (THEREUPON, the Court recessed day on the 12th of Novem- conducted P.M.).” 4:00 o’clock ber, Change. for 1965 on defendant’s Motion assignment As of error defendant asserts the same Venue and Continuance and (quoting from page 119 of brief) : by the were denied trial court. “On the day November, Judge 4th now the trial Defendant asserts that Smith had listened to testi- convincing ruling denying change of court’s him a mony support Change of Venue venue continuance reversi- and a constitutes appeared anger almost in what to be support argued ble defendant error. The might because the trial Defendant court, and here of these motions trial delayed, his voice reaching fair appeal, that he could not obtain point shouting, stated: County by of ad- trial in Canadian reason publicity. pre-trial verse * * * rights

‘The State has too public is entitled to have trial and at this The evidence adduced * * * going we try tempted case of de this be introduced on behalf * * * Change month application We are fendant move over El sharp Reno and start conflict with Venue was of case’ (C-M., Transcript except Proceedings State, fered save and 4,1965, exhibits, Nov. page 76.)” newspaper articles, letters and in- urged on is that the trial court erred Based now introduced. defendant which Quash overruling mo- this Motion to him on this presented to the evidence grounds, argues panel number the trial on a of hut opinion that the tion, of arewe specifically that Rule 22 grant the the court violated refusing to err in not did court however, ruling is set of the 7th District. This rule is venue; this change of Judicial forth in defendant’s brief as follows: of whether issue the of determinative not “ prejudiced and was biased jury the selected pre- jury called, a be should ‘When are of We the accused. against specify in siding judge shall a written overruling in err did not court the trial clerk, of order to the court number * * * based for Continuance Motion jurors defendant’s The order shall needed. sup- in offered evidence identical upon the drawing at not made and had time be a Change of Venue. for Motion port twenty of days than twelve more less or than United in language used adopt the prior hereWe next to the date on said which F.Supp. 495: D.C., Hoffa, 156 jurors v. report duty/ States shall ordered to for (Emphasis supplied.)” wide- has there fact “Mere about publicity pretrial spread adverse Although alleges the defendant itself, not, by establish does defendant Quash that the Motion to to called defendant probability reasonable court, carefully attention of we have jury impartial a fair obtain cannot examined the record and find unable to entitled therefore trial and is at criminal support anything which would con this indefinite for trial of postponement to day tention. This motion filed on time. period of or substantial jury began selection defendant jurors prospective Mere fact urge wished to the motion he should newspaper publicity items read or other called to the prior attention of court itself, not, by critical of defendant does to the jury requested selection of the bias, pre-judgment, establish other or a hearing thereon, presented evidence and prospective part of disqualification on argument, excepted the ruling to of ' ' jurors, to and does not entitle defendant (cid:127) court. postponement of or" trial for indefinite Title 38 in provides part: O.S. 29§ period substantial time. of “ * * * (cid:127) compliance with A substantial widespread Where there has been adverse n Chapter call- provisions of [the pretrial publicity defendant, proper about pre- juries], be sufficient ing shall of procedure majority in vast cases is setting ren- verdict vent the aside postpone indefinitely trial or for sub- hereunder, unless jury by a chosen dered period time, proceed stantial but to drawing, sum- irregularity in trial and to determine on dire of voir same, . moning empaneling the resulted panel and individual talesmen whether litigant sub- depriving of some party in a impartial fair and jury can be selected/’ however, that right; provided, stantial competent We will later evi- consider - specifically irregularity must such preserved dence the record Volume presented to the court or before of the Case-made insofar as it relates try cause.” jury time the is sworn the issue of the defendant able whether supplied.) (Emphasis County. secure a fair trial Canadian the instant The failure of defendant day November, 1965, On the 16th present specifically this motion case to Depositions Motion to Take Out-of-State prior to the selection of the court granted. witnesses was On this same- waiver, abandonment of constituted date, parties, having after announced appeal. same and cannot be considered ready trial, began selecting the jurors ' dire, page voir appearing at day argument, Defendant’s on this same défendant' ruling, brief, filed Quash-the It7 the trial jury panel. Motion to 120 in his court’s made, had been demonstrated The State then n.one called the when attention court’s accused, prejudice un- to an article in paper toward the morning bias which presented purported here immorality the circumstances to reflect der on the prosecutrix. completely without merit. The defendant then moved for mistrial and the same was overruled. time, grant- severance was Prior to and the elect- ed to several defendants State dire voir examination was then re- try Shapard ed to first. William John defense, sumed counsel for com- who pleted his jurors examination of the 12 This us consideration one leads to a passed cause; them for whereupon, the viz., appeal, of the in was crucial issues State then preemptory exercised its first jury County so the selected in Canadian challenge and еxcused jurors. one the 12 prejudiced against biased and the accused m., At 10:50 a. inquired the court the by pre-trial publicity the that he was unable jury panel heard, read, of them had County? to secure a fair trial Canadian seen anything or they about the case considering since In this issue we it neces- deem came previous to the courthouse the morn- sary to set forth in considerable detail the ing. jurors Those acknowledged who voir dire prospective jurors examination of they questioned had were then by the re- they appear as in Volume Case- spective parties in chambers. Some of the made. jurors by having excused the court for commenced on No- jury The selection read case; about discussed the some 16, 1965, the exam- vember with voir dire were excused from further attendance for prospective jurors being ex- ination of the other reasons. the Neither State nor the by Attorney, County who chal- amined the objected defense the discharge of these jurors lenged six of the 18 for cause first jurors. proceedings The in chambers ter- passed remaining cause, at the 12 for and minated at 11:40 a. m. and at 11:45 m. a. Thereafter, approximately 2:00 12:30. at jury the was seated in the box and voir m., p. the voir dire examination resumed dire examination County resumed with the Berry, with Mr. Bill one the defense Attorney examining juror prospective the counsel, examining remaining jurors who was juror called after the 12th extensively qualifications as to their to sit pre-emptorily by challenged the State. they as jurors, whether or not were familiar juror, Shoemate, This challenged Mrs. was pre-trial opin- publicity, their and and Kep- for cause thereafter Mr. Clarence impression ex- ion or based thereon. This ler prospective was called juror as amination continued until 15 minute recess juror voir dire examination. This was recess, by was declared court. After passed by (C-M 246) for cause the State question- counsel for defense resumed the 251). and defense (C-M Whereupon, the ing prospective jurors until 5:15 pre-emptory defendant exercised his first afternoon, at which time the re- court challenge. Kickingbird Mr. Carl then was proceedings properly cessed the and ad- prospective juror passed called as a and was discuss, jury panel monished the by 254) for (C-M cause both State and to, anything listen read concerning (C-M Whereupon 255). defense the Court during the case recess. He in- further recessed at 12:00 with usual admoni- following structed the return the m., tions p. and court resumed at 1:30 morning. point which the defense exercised second its the morning On of November challenge. pre-emptory Mc- Mr. Robert Berry Mr. called the to an court’s attention by passed Daniel then called was appeared article the previous which eve- passed (C-M 261) by the State defend- ning gist City the Oklahoma Times. The (C-M 265). ant The then exercised State County purported quote of the article Attorney pre-emptory challenge Mr. stating of the co-de- its third two guilty. juror fendants called as a plea intended to enter a Tatum was Alvin Barger, Raymond Lee L. Mor- 268), ban, David (C-M by State cause for passed 272). Robert McDaniel. ris and (C-M defendant by the passed pre- third Thereafter, exercised dire examina- then further voir Defendant Mr. Walter challenge and alter- for the selection of two emptory tion continued by challenged called, was partici- but Shepherd jurors, was did not nate but since by objection 273), with no case was- (C-M pate in State the deliberations when Shepherd excused. unnecessary submitted, Mr. finally we deem it the defense called, then relating to their proceedings Reba Barrett to consider 275), (C-M by selection; say the State that at passed for cause suffice (C-M by the defense cause passed for of the alternate conclusion of selection fourth exercised its jurors, then his Mo- State the defendant renewed 282). The Eden, Herman challenge and “grounds on the set pre-emptory tion for Continuance juror, prospective hostility called as and for the reason forth” Jr. was 282), (C-M challenged community. State This Motion Con- Dar- defendant. objection overruled. with no tinuance was court passed for by and sequestered then called jurors was zenkiewicz were thereafter passed 284), and (C-M by they cause State court until returned verdict. De- (C-M 289). by defendant for cause brief, that three In his defendant contends pre- fourth exercised his then fendant jurors (Gatz, Alexander) of the Urban and Yeclc Charles challenge and Mr. emptory selected to consider -case when was by called, challenged the State was but was submitted, ultimately expressed various- objection by defendant. 290), no (C-M opinion guilt degrees of an of the of the de- called, then was Schmitzer Charles H. Mr. juror, as- fendant a fourth selected and by (C-M challenged State was but expressed an (Davis), alternate had also by 291), objection defendant. with no again guilt as to the defendant of the and called was then E. Girard Mr. M. which take evidence to would remove. 293), by (C-M State cause passed for reiterate that since Mr. We Davis- (C-M The 296). passed by defendant and juror was an alternate not on the and was pre-emptory exercised its fifth then State ultimately to which case was sub called, but challenge and Goldie Wade was deliberation, unnecessary mitted for it is to’ 299), challenged by (C-M as the State was qualified consider whether to sit coun- for of the defense had worked one she jury. agreed. Frank and defendant sel Jenkins At the outset that none we observe by the passed cause then called and for jurors ultimately whom case by 303), passed for cause and (C-M State submitted of whom defendant now com- then Defendant (C-M 308). defendant plains, cause, challenged except were for challenge, fifth last his exercised Alexander, challenge Mr. and this for cause prospec- Barger called as David Lee was withdrawn re- defendant. We by the juror passed cause tive and was for presented iterate that since the here issue (C-M 309), passed for cause State is appeal, one crucial in issues this we 313). (C-M the defendant it necessary deem to set forth in detail the Gatz, jurors examination of Urban proceedings the 12 point At in the this dire, response ques- Alexander on voir in ultimately jurors to the case was whom propounded by respective parties tions submitted, empaneled con- duly and the court as relate to this issue. following of Ca- sisted of the residents Gatz, County: appears nadian William From Lawrence the record that Mr. Gatz Hanson, Kicking- farmer, Kepler, City, Carl living Clarence in Union Okla- bird, Tatum, Buddy homa, Jenkins, Frank and is the girls Alvin father of two and one Rains, [Alexander, boy, ages Ur- Thomas B. Vernon whose at the time of trial were you eleven, anything From the record Do see wrong ten and nine. with it? appearing pertinent questions and answers really I don’t think so. Case-made, pages 43-65, are Q. Now, Judge at the conclusion of follows: case, you this to hear the evi- Now, the BERRY: remain- “MR. BILL dence from the witness stand but at the questions, hope I these none of der of case, conclusion Judge of this will being you repetitious think that I am will you instruct applicable on the law that is unduly boring I to ask them but want to the facts in this case. you individually. only Those things are the two under our them, changes will be There some system judicial prudence arriving basically questions are the these same. at this decision this case. You are Gatz, you you triers of the are, Mr. like to start with facts and Gatz, you ques- individual the sole weight now ask some determiner of the qualifications credibility your to be tions which will be attached to testi- mony of the 'sit as a witnesses and the Court will Juror. you so credibility instruct of the wit- complaining in this case is witness nesses is an issue this case. year girl a fifteen old the name of then, Now through do believe again Sherri Noble and she the Coun- that is— ty slightly repetitious this is Attorney’s alleges that Information but that all right boy Shapard raped her, upon lawyer Bill based to exert every effort charge or her I have reasonable information and as obtain evidence that explained County Attorney establishes that you to are witnesses today credible ? charge has filed this arewe defending Shapard, Bill William Well, part John ‍​‌‌​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​​​‌‌​‌​‌​​‌‌‌​​​​​‌​‌‍A. I think that is it. Shapard. Q. then, though Now complain- even you believe, Gatz, that he en- Do Mr. is ing year witness- fifteen girl is a old every

titled to make effort to reasonable case, you this you do are believe and defend himself ? boy question satisfied that this can her credibility you thinking without tak- Yes, he is MR. GATZ: sir. ing unfair"аdvantage of her? BY MR. (Continuing) BILL BERRY: ****** Q. you person Do believe that when one A: I think so. charge against makes a another that the Gatz, Q. through we our ex- person know right who is to accused has perience each we have in common with investigation make background an into the other, people some are truthful some individual who has made these people aren’t, right? is that charges against him? right. A. That is

IA. think so. Q. people may And truth- Q. some be more You think so? others, ful than that isn’t correct? (Nods head). A. A. Well, (Nods head) Q. you then, now think do there anything is wrong lawyer with me as the Q. And, you quarrel so have no of this boy for people this or for working boy’s right by competent to establish evi- me, I having accepted lawyer employ- as a says girl dence that what this untrue is case, ment in this going out to talk to he can if so establish that? people year who have known this fifteen right. A. I think is that girl, old the complaining witness, in an effort to find person Q. right, you out what kind of a All not feel then at do she is girl can alleged year was at the this time that fifteen old time of this crime ? only tell ca- the truth that is she is not you take know now whether will offense

pable but the truth. telling anything unpleasant against it it if is and hold it just to this time You don’t feel year my the nature or girl me or client because of fifteen old she she is a because may be offensive? telling anything but the connotation capable is not truth? ^[*] n ^{[*] [*] [*] [*]} I don’t think so. A. A. No. complaining Q. anticipate I’ll the com-

Q. And, only insofar as take the stand witness will witness plaining but insofar is concerned witness length that I will examine her at may put cross on which other witnesses may questions and I her support ask stand witness State case, case, cross examination that I even dis- I won’t should the State’s of their daughter my it presence in the cuss also say, you believe we do attempt put you will be before credibility? question their right to case. facts A. I sure do. you going to take I ask offense then, you Are you understand

Q. And forty-four complaining witness —I am a facts, aas determiner of the as the sole year year girl this is a facts, old and fifteen old you may attach what trier of —things ordinarily that would be offen- credibility any witness’ weight sive, you going against me hold credibility you want to ? my client? A. Yes. quire that on occasion about sex letter words and Q. ing may very Now possibly by the considerable border nature of not, then, (spelling) used from as I I that the must the sordid anticipate hear four lawyers s-e-x, explain case the witness way testimony I in anticipate testimony you may eliciting stand go- re- You this client? anything offends Q. Court would be all ^[*] I Let think you, you me ^[*] as a not be put anything permitted by lawyer n would not another offended? right ^[*] in this case which with me. hold way. ^[*] it If against ^[*] do A. I sure testimony from the witness stand. wouldn’t. way your any con- in this shock

Would Q. brought This as it case has you think the effect that science to previously today has received consider- your deliberations might interfere with publicity newspaper able form in this case? stories, print, rаdio announcements or A. I don’t think so. I presentations reports television and . necessarily, your half of which are Q. the; V so, this Mr. n ' facts Then ears or my will 'Gatz,' ,in.- not. elicit or client out of might develop that this case be in to ' n going anybody behalf of bring ^[*] to to be effort else’s. you. necessity my client, ^[*] out pleasant to to I, If I do matters present on be- ^[*] must Bill may may request throughout want hold anticipate the trial of this case. during lunches, sequester This —I is matter which to know a Jury together during that this Jury at trial, publicity this at him to Mr. night, time, Judge will continue Gatz, that I impound throughout the Court recesses, may mean or or I necessarily may only inquire this I can I do. Shapard, may I find will purpose presume be time and for the that wouldn’t elicit matters have to this, will, request question may he I pleasant that If I do to to. listen probably that, be present the him to do and this will going' effort be in an t.o^ protractive proceedings and we rather a I want this case facts to you Thanksgiving, Q. you may run over into new Did hear the saw old thing about, week. kicked ‘well, around boys will boys’? be you you together, held and if are Now you if I re- would A. I feel—would feel that don’t I think heard that. you you suppose just I that I quest told Q. — you Have heard anything about this request Jury held am girl having suffered any sort of mutila- you permitted together you are to— injury? tion or in this case are retained as Juror No, A. I don’t think so. eleven you going to be with the other are Q. you Did ever hear anything about trial, any people in this anything said they thought these any feelings way you cause to have boys ought to be taken hung? out and my your against me delibera- or client Well, A. I pretty heard things. bad case? tions of this Q. You never heard person one stand A. I don’t think so. up say that they oughten even to have Q. request can made This is a a fair trial? prosecution the defense and both or n # * if* # * may may they or not make it and I can’t Q. you Have had occasion to be in a may request you at tell this time if I your church or church or anybody’s may or the Court do it Mr. Harris and or church and any heard sermons about this may say I never word. purported fact? Gatz, prior your prior selection and A. No sir. say your summoned, being I as a should Q.

prospective juror proceedings, any Ever in this attended P.T.A. meetings you anything persons express an other like that to heard have heard the purported guilt Shapard testimony? Bill boys of these ? No, A. sir. Well, I it- guilt A. don’t know about the Q. you Have prosecutor heard or his I heard self but have the crime discussed assistants talk meetings at civic about lot, a lot of it. discussion on this ? Q. you Have anybody ever heard A. No. your presence say as far as are con- Q. any private Do cerned, they information guilty? that has come you by purported have, might there has been lot facts in this case ? talk. A. (Nods head) Q. you Have any person say ever heard Q. Your prospective names as they were innocent? Jurors published were in the newspaper and A. I don’t think so. you since anybody were summoned has Q. up come you anybody you Hаve to heard comment remarked you about reading on the fact boys boys that these are rich about your fact that name they buy way will the newspaper you their out this? were serving Jury on the in this case? Yeah, A. I have heard talk some about it. A. There has been people several they said going knew I on it. Q. There has been considerable talk about it. I you Q. wanted to They be sure if you knew that were to be heard it. called on this case ? A. Yes. Sure, yes, A. sir. Shapard pre-] full benefit your Bill any remarks they make Q. Did sumption of innocence? guilt? their innocence

presence about Yes, sir. A. a lot has been Yes, I said there like A. do, then,

of talk. Q. you I am sure Now you are you realize that entitled do you sum- been were Q. has since This yourself whether a doubt decide have ever told and none moned as a Juror may you entertain is reasonable or they all they were you that innocent you nobody is entitled tell else ? you they guilty were told you this is or not but whether reasonable they I if them said know all of A. don’t reasonable are determine whether is talk is more There guilty were or not. your that is decision? or not done they ought to be about feel what Yes, sir. A. than guilty rather they if found guilt. Q. you and if this doubt If have a doubt reasonable, you and appears you do any expressed Q. you ever Have —can individuality and you your will maintain yourself ? way one the other your judgment to another not surrender guilty? they are A. About whether acquit hope or other Juror Jurors Q. Yes. the defendant? No, sir, A. I haven’t. Absolutely, my privi- I think that is A. out, now, brought Q. And has lege. got to you will this because —I tell you Q. your decisions and You make first, you you something tell know else stay it? prov- he presumed man is is until innocent Yes, sir. A. beyond doubt, guilty en is reasonable you then, Q. instruct Now the Court will that correct? every prosecution prove must Yes, A. sir. beyond a reasonable element of this crime realize, Gatz, that Q. you Do also you ele- he tell what the will doubt defendant, Shap- you Bill give the must is charge are ments contained ard, presumption the benefit of this single every they prove filed must any innocence without mental reserva- beyond a solitary element of the crime tions whatsoever? reasonable doubt. A. I think so. then, beyond if do not establish Now pre- Q. required, This what is every ingredient a reasonable doubt sumed ? innocent your satisfaction, you acquit him? will A. Yeah. Yes, sir, out get doubt I don’t Q. you And if permitted to remain my mind. Jury, you presume him in- must things that Regardless of these O. nocent without mental reservations or heard? seen whatsoever. happened be will think whatever A. Yes, A. sir. my be based on. what decision will Q. And, you you do realize are to your Q. you surrender wouldn’t So presumption consider this as of innocence it and you stay right with judgment would proof actual of innocence until it is over- prove beyond a you make the State will by proof guilt beyond come reason- every single ingredient reasonable doubt able doubt? of the Information or element (Nods head) A. says must be done? Court Q. then, Gatz, your Now Mr. do I have Yes, promise you sir. give will this defendant A. you ingredients you will instruct as to what the or you promise

Q. me Will you then any elements are and will any way engage in form what the in not require prove every single may may not them to one speculation as to what Bill you before convict the facts in this case ? them will Shapard. fully to something proven If wasn’t A. Well, stay you mean that have to A. we

my satisfaction. every every- until we bruise and know you permit any speculation to Q. Will thing? ‘well, it void, you say, fill in that will concerned; proven Q. No, I am wasn’t as far as no.

that is it’ ? you ingredients He will instruct as to the proven A. No. of that crime and what must a crime but before can then constitute Q. you you engage not Will or will has every things these each and one of possibility probability regardless doubt, proven beyond a to be reasonable you you strongly of how feel about it, point just part that is proven beyond don’t believe that is a rea- you. trying get I am over disregard you sonable doubt will it? they they just prove part If don’t of it and right. A. That is prove doubt the other or some reasonable Q. charge This is the that has been existing your the others mind of brought against Shap- the defendant Bill you you acquit then him and must vote to ‘ Gatz, ard, he, did Mr. . . . then doing so? have no hesitation in would unlawfully, wilfully, wrong- there and IA. don’t believe so. fully, feloniously, and means of Q. Regardless of all of the conversa- force overcome the resistance and you your tions background, have had in injury and means of threat of immediate right is that ? harm, accompanied by ap- great bodily right. A. That is parent power execution, pre- Q. You understand that the burden of venting there resistance then and proving guilty beyond the defendant beating, bruising and mal- striking, prosecu- reasonable doubt rests with the Noble, treating holding one Sherri Shapard tion and that Bill need not intro- age years, of fifteen a female of any duce evidence whatsoever to estab- sexual inter- did and then have hold truth, lish his do understand that? Noble, course the said Sherri years, (Nods age head) female of fifteen A. defendants, or not the of the said wife Q. The burden remains with them any them, and the said defendants throughout. age of being persons male under the that, Now knowing is that sexual eighteen years said act of —and the burden and that he doesn’t have to do accomplished by the being intercourse anything innocence, to establish his having by said defendants force after knowing that you require him at the said Sherri overcome the resistance of any time satisfy you as to his in- Noble, her consent without nocence ? They be- against her will.’ must establish I don’t think so. Gatz, every

yond Mr. a reasonable doubt Q. single charge. question Is your element of this there mind about ments of Gatz, Q. That is ^[******] is [sic] what crime I am ingredients must he talking proven еach of the ele- about, satisfy you as to his innocence. you there it because think this this is question boy has to very your important. do anything mind that If every and the will A. I one of them Court don’t think so. Q. so, probably, You don’t think I know? A. I have heard newspapers. and read (cid:127) television No, A. sir. Q. newspapers You have read Q. any- you You so far know that as you heard the and radio have television thing you up that I have asked about concerning reports it ? you about, you that date heard are have prove Yes. still to make the State him A.

guilty ? Now, Q. then, when Mr. Harris ex- Yes, you, you he not amining asked or whether A. sir. you the facts or had about Q. right, then, All knowing that he now purported facts in this case explain is not bound to his of the case side suppose you what I have heard from I you that he satisfy is not of his bound to you opinion as do have some innocence, you you would would — boy about guilt or innocence or you my would Gatz consider you the merits of this and from what case testify client’s failure to would be an in- heard or read in the news- have or seen guilt you? dication would papers ? A. No. really. far I don’t believe I As A. do Q. I telling you am not he will or think, he I could sit saying guilty, is I testify trying will not I am what testimony right up here and listen to the you any- tell is that he to do does not' have myself. and decide thing to establish innocence and Q. you, filed Have this case was now doesn’t take the in his be- stand witness 8th, pub- July think, I back on that is you as an half this would not consider reporting it on lication or news started guilt, you admission of Mr. Gatz? would City, you July living 8th in Union No. A. You within Channel 4 and S 9’s area. pick up things it all of these I take ? crime, Q. Knowing that this that is rape or a charge against Shapard A. Yes. Bill crime, you fair give can him the same sex Q. City you Do take the Oklahoma you if it were give

trial that him newspapers ? crime, charged say if he were lesser Sunday No, got I A. have the El Reno running with some misdemeanor such as paper. stop sign? seen, any Q. you heard, Have or read innocence, yes. guilt far as A. As or boy purported facts to the effect that this sodomy? committed an act of doesn’t Q. magnitude the crime Yeah, say exactly, actual- way A. I wouldn’t feelings one you any cause have ly keeping that close of I haven’t been or other ? I know that I read of it. touch. n so, think that don’t don’t A. I think I you have read Q.- Does this fact that part of it.' you might you this now affect so you have heard ‍​‌‌​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​​​‌‌​‌​‌​​‌‌‌​​​​​‌​‌‍.Q. You testified impression opinion about or have some way the other some comments one about purported facts in this case or other and these guilt about and innocence in this case? the merits you anything about things, do know haven’t you I I don’t think has. than what A. facts of this case other it. thought you mentioned about until today ? heard thus far Well, it in the you I read mean if this case and Q. during It will come out newspapers television ? it on heard surprise at want it to come as don’t whether time and I know Q. рurported facts wanted to you Do know it, having today you read it recalled ? other heard than what you. Q. Thank you impression when any you form did part it ? that Gatz, you about can believe, read that you Do upon the evidence solely long judge this case so, been it has think A. I don’t the fear of allowing you and not up it before keep tried to time. I haven’t verdict? your criticism affect later at all. A. I think so. newspapers the you read Q. Did County At- purported quotations of Q. you that the If came to a conclusion re- he torney in which said proven guilt prosecution had not good record it ‘a a medical and was ceived beyond doubt but a reasonable the accused case,’ you do remember for our side majority of the other you that a found hearing that ? reading or boy guilty did believe Jurors your simply be- you change verdict par- papers would it in the I read A. minority? you cause are of part I know. ticular don’t No, sir, I am an individual. any A. you reading state- Q. remember Do quoting the com- purportedly ments about Q. you were in the the fact that Would said she in which she plaining witness your at all ? minority decision influence used the car that a knife was drug in A. No. up, you remember tied do or that she was Q. your experience If knowl- from things ? anything about those reading edge you feeling believe or have the happened read it I A. Like I said when that certain facts facts do exist these newspapers. it all in the satisfactory proven by have not evi- been j you the accounts Q. Did read you disregard your dence can beliefs or' by then a co- and obtained statements of feelings ? County defendant, Johnny Ishmael Yes, A. I believe so. Attorney? Q. you though something Even feel that I heard it. I know if read A. don’t in, has left been out or more is to come Q. heard about it? You have you disregard can it? (No response) A. A. Yes. . Q. you You

Q. things that understand the comments of these None may-make that I may you Judge arrive read caused make heard or prosecutor may or the any opinion about make any impression or do not con- stitute case, you evidence in will the merits of case now which boy understand that ? attorney require for this me as an things put any proof these to remove (Nods head) A. your mind? Q. only It is what comes from the sworn open I came in here with A. I think witnesses. mind. head) (Nods A. sir, knowing you know Q. right All what Q. you you heard, Do or have ever do brought out this case as has about you know what is meant the term of here, you be by my questioning accomplice prosecu- referred to by Jury tried or a satisfied to be Juror tion or in the defense of cases of this sort having your frame of mind? charge criminal ? trying to do That is what am A. I imagine. A. put myself there. over Q. satisfied You would be Q. accomplice An person in a crime is a your frame over there with part who took Juror commission mind? crime or aided in it with the intent assist in Yes, its commission. sir. objection MR. MOORE: We o’clock make 7:00 news and course it onwas defining' anything. his headlines.

THE Q. you COURT: Sustained will be What did hear on the radio? up taken in the Court’s instructions. truthfully really IA. don’t—I wasn’t awake, BY I MR. BILL (Continuing) paying BERRY: wasn’t attention to it. something know said about that and Q. understand, you you you Do say that (Spell- that he said sex of what accomplice, some idea Mr. put like it ing) s-e-x out. Gatz, you testimony understand that the of an accomplice Q. though As considered a statement that testi- mony from a tainted source and is to be defense counsel'made ? by you

scrutinized and— report BILL A yester- MR. on BERRY: Objection. day’s MR. proceedings? MOORE: THE THE I COURT: WITNESS: think that was Sustained. probably what it I turned it off was. MR. BILL excep- BERRY: Note our I when heard. tions. THE BY COURT: BY (Continuing) MR. BILL BERRY: Q. you Have seen heard on anything Q. Gatz, question one last as we ? television come today boy into this Court does No. A. against strikes him as far now you Q. anyone Has arc ? discussed the case with concerned you? A. I don’t think so. My happened A. wife me asked what Q. boy All right does fact that this I right and headed it off there and when lawyer is a you son of a cause to have morning I took kids to school this any feelings way or the one other? there was propane a fellow who drives a A. It sure don’t.” up says, truck he comes to me T interrogation

This of Mr. said, concluded you all papers.’ read about I Gatz; however, following questions and so, you paper. ‘That read about regard answers were elicited Chambers in I ain’t allowed to discuss it.’ newspaper appeared to the article which had MR. BY MOORE: City the November 17th Oklahoma Q. your Is mind state of the same as Times, beginning page 203 the Case- yesterday? made, Volume I: I think A. so. “(THEREUPON, enters Gatz Juror Q. It wasn’t influenced anything in Chambers.) the interim? THE pre- No, COURT: Mr. Gatz who has A. because I think I headed it off viously passed for cause. Have before. seat Mr. Gatz. THE you Are your sure in COURT: mind about that? BY THE COURT: Yes, THE WITNESS: sir. you Q. anything What have read newspapers about this case in the ? (THEREUPON, Mr. left Gatz Cham- bers.)” Nothing. A. Q. anything Have heard The record reveals Mr. Urban morning? radio this F.A.A., worked for the Mustang, lived in morning. I woke I have up to and was the father girls, of three whose got a for 7:00 ages 12, clock and I had it set radio boy, 9. age one o’clock, always up at wake Pie to bed worked for the F.A.A. since

589: had questions asked asked tially it was had obtained 'Q. A the car or a bruises circumstances n prosecution “Q. A. those A. reports BY MR. A. Q. About Q. wife was previous purported acts of essentially the same Yes, sir. I read Mr. You No, Did stories, newspaper and answers sir. never read BILL Gatz, you read unemployed I don’t remember the medical something about received? battered condition? knife was based on. you of how she BERRY: photograph duty. Mr. don’t report that only any being: sodomy ? involved or newspapers about questions remember stories report other he had showing her what the medical Urban about pertinent gotten that аs those any any of essen- police never tions Yukon. questions Alexander was asked age Mr. You have had some “Q. but mind what BY MR. Mr. might make. have had A. lems Q. slight opinion further, fill 10. ^[******] Urban, and answers up age It wouldn’t effect * you thought Harris, you as far as You, His wife was He was the the hole on as those * BILL is there might slight * slight 8 and you only other would there voir BERRY: being: effect some time asked of opinion you said opinion any question in you you this father of three dire essentially the same not concerned with this your deliberations that would and one would be reasonable doubt any examination employed. Mr. pertinent ques- that Mr. you to deliberate come in and decision you might any daughter, Gatz probably okay. prob- your sons sure I ? those ? opinion you formed before this No.” you A. the evidence ? heard you ’Q. about which Jurors sequently couldn’t n somethingI don’t know about Mr. A. No ^[*] Is got home Urban, you heard me might there sir, ^[*] I don’t think effect you thought, you anything and recalled ^[*] maybe I inquire? my judgment,’ and possibly asking these other ^[*] whatsoever last ‘Well, maybe anything. ^[*] don’t night questions and con- ^[*] know when now, A. A. and read and saw it is reservations whatsoever about this A. Not so Q. explain sumption of innocence? Q. ****** All No, sir, My Do what I am you right, far have at this time wouldn’t. that is the best as the law concerned. so based on trying all hearsay. what I heard get any way at. mental I can pre- Q. you Do mental reservations And, you are concerned Q. far as so presumption about of innocence render a you can sit as a now Juror this defendant? impartial verdict ? fair and Yes, A. sir. Only I A. what have read. reversed, you

'Q. the situation Were Q. you I will From what have read? your be satisfied to have Juror you you anything read about ask sitting your ? mind case frame of purported sodomy? acts of Yes, sir, I would.” sure A. Yes. newspaper had not read the Mr. Urban therefore, Q. 17th; you anything about Have read article of November that the had obtained fact State said questioned in Chambers. good report? medical Alexander The record reveals that lived A. No sir. Electric and worked for General Well,

Q. you read the fact that opin- Did' about MR. ALEXANDER: it is an pulled really car and tied girl anyone into the ion. think reads raped point? anything help having opinion. out and at knife cannot taken BY (Continuing) A. No. THE COURT: Q. anything Q. you forget reading something read about the fact Did Let’s about opinion. everything the codefendants made a state- that one of about this What County Attorney asking which ment to the I am is do have a im- mere pression the girl’s opinion? corroborated testi- is it said —he or a fixed mony? just impression, A. It an is not a fixed opinion. Yes, A. I read that. you you

Q. Now, say insofar as what BILL BERRY: MR. We would withdraw you challenge have read causes to have some our Your Honor.

mental reservations about the case? right. THE All COURT: the other. thing A. I think it is not have á impossible feeling to read .one way some- or case now and Q. ^[*] Knowing what ^[*] being ^[*] in you ^[*] know about this frame mind ^{[*] [*]} Q. right, you you All do. There is some you are would be satisfied your neces- concern in mind 'that not sitting your is have a frаme of Juror sarily you but idea sitting your concern have some mind case ? you you of what have read because I think A. so. haye opinion present at the time as to ; Q. you If came to conclusion that guilt defendant? or innocence of this : proven had not guilty State this boy No,, guilt so far as actual or in- not ..A.- beyond a reasonable doubt had started .opinion nocence but insofar as your- deliberations about it you found read, yes. I have articles self, talking about the lone- football the , Q. you opinion mean end, sitting You have an based some out there all alone of ? eleven,

on what these articles you said the other but are satisfied you but have reasonable doubt will sir, A. I realize Yes of course that those you your hold to conviction and would may may not be true. you acquit vote to this defendant or n n n n ‡ ¾: accused in this case? Q. Well, you opinion have drawn sir, Yes, A. I my right. think is you opinion but do have an that is what Q. Yes, right your right sir is — talking I am about? that there against you is eleven of them Yes, A. sir. said, you ‘no, sir, I have a reasonable doubt.’ mere fact majority that the challenge MR. BILL BERRY: willWe you, against you is are not to let this Juror. you your that effect judgment in it, Objection MR. HARRIS: Your way? Honor, says he under the law if the Juror No, A. not all. opinion, yes says has fixed if he he can listen to the and the evidence Q. you you Do know anything which and render a instructions the Court might upon night have reflected over impartial disregard fair and verdict hearing questions after these con- anything might that he heard or read have sequently I don’t about and know can’t before, qualified he is to serve. inquire prevent you sitting about to impartial as a fair in this Juror Alexander, THE is it COURT: Mr. case? impression mere at this opinion ? time or it a fixed belief or án thing.” is can’t think of a particularly true criminal cases. To the news- not read Alexander any pre- hold that the mere existence of and was November 17th paper article guilt conceived as to the or inno- notion questioned Chambers. accused, more, cence of an without only- stated, the heretofore As we presumption sufficient rebut the of a by the defendant cause made challenge for prospective juror’s impartiality served, ultimately jurors who .against the impossible to establish an standard. It is to Mr. by counsel that made defense juror lay can aside his sufficient impression challenge with- Alexander and this and render a ver- defense. counsel for drawn presented dict based on the evidence (Emphasis ours.) court.” disposed summarily We could have the failure reason of of this contention In applying the rules set forth in n ofthe defendant to jur any of the challenge Dowd, supra, Irvin v. on the basis of record preserve the ors for cause and thorough study record of voir ruling the court exception to the of taking jurors dire the examination of selected to challenge; however, need denying we said submitted, ultimately whom the case was procedural tech opinion on this mot rest our opinion we are of the that the defendant’s 662, provides in nicality. 22 Title O.S. § contention he did not a fair receive part: impartial by and trial reason fair that a and “ * ** disqualified person be impartial no shall jury could not be from obtained having or juror by formed County, as a reason of the inhabitants Canadian is not of upon the or expressed opinion an matter supported by jurors the record. The who jury, found- to such extensively by cause to be submitted were defense coun examined jour- rumor, public sel, upon latitude, ed given statements wide who as to their ap- nals, notoriety, provided it qualifications they or common all -would stated declaration, court, pears upon presented to the their verdict the evidence base on otherwise, lay that he can any impression opinion under oath or aside will, opinion, notwithstanding they act might such which have formed a, as result impartially fairly upon the they matters of what had read or heard discussed.' challenge submitted to him. The to be holding To summarize our in the instant oral, may upon be be entered the must case, opinion, we are the the record of the minutes of court.” us, distinguishable before that this case is particular language in this statute is Dowd, supra, The the of Irvin v. cases language Sheppard Maxwell, of the 333, .almost identical with the v. 384 U.S. 86 S.Ct. Supreme 1507, 600, in Irvin v. United States Court 16 L.Ed.2d Estes v. State 717, 1639, Dowd, Texas, 1628, L.Ed. 366 U.S. 81 S.Ct. 6 381 U.S. 14 L.Ed. S.Ct. Court, speaking through 2d the (relied wherein 2d 543 defendant) Clark, following stated the fol- particulars: Honorable Justice lowing : (a) jur- In the instant case None of the however, required, cause;

“It (b) is not challenged ors were All of totally jurors ignorant they of the facts and jurors unequivocally be stated that swift, days issues In these involved. their the evidence would base verdict on widespread of com- presented lay any impression and diverse methods aside munication, important case can be ex- opinion they might an as a have formed which pub- pected they to arouse interest of had read or heard dis- result of what cussed; represented (c) Defendant was vicinity, scarcely any lic n those best choice capable attorneys his own jurors several qualified to serve extensively examine impression or was allowed will not formed some n opinion called; punishment jurors (d) The the merits of the case. This as to imprison- Judge newscasters. advised years five defense jury was fixed that: ment, sentence counsel of the maximum one-third imposed. could which “Well, know, stop people, we can’t don’t any event, listening It (a) to it. a matter case: Two-thirds In the Irvin speech, free and the petitioner court can’t opinion an control jurors had * * * everybody not the material We are wеre familiar with guilty and * * * involved, every including jury morning harass facts and circumstances point getting It is do it attributed where we other murders were the fact that say every morning, we him, suspecting far as to going so some jury. I have confidence in this their be- evidence to overcome take *_» * * jurors lief; said he (b) One of the ** * the ben- give “could defendant not Sheppard After case submitted An- he is efit of doubt that innocent.” jury, sequestered for its delibera- certain other stated that had a somewhat tions, days nights. five which took and four opinion guilt; fixed the defendant’s as to verdict, After defense counsel ascer- represented by (c) court- Defendant was jurors tained that the been had allowed appointed did counsel who not examine ten telephone every make calls to their homes jury panel members as whether or day they sequestered while ho- at the guilt had as to Although tel. telephones re- Ninety per jurors accused. cent of the jurors’ rooms, moved from the jurors point, called and examined on indicated permitted phones were use the in the bail- guilt ranging opinion some the in in- iffs’ placed by rooms. The calls were the tensity suspicion from mere absolute cer- jurors themselves; kept no of record was ; tainty (d) the Defendant was sentenced to jurors calls, the telephone who made the punishment imposed maximum be that could parties numbers or the called. The bailiffs —death. sat only in the room they where could hear the jurors’ clearly distinguishable The end the instant of The case conversation. court had pre- not instructed the bailiffs to Maxwell, from Sheppard supra. In the v. By subsequent motion, vent such calls. a instant granted of change case venue was urged defense ground counsel that this alone county from the the crime was al- where trial, warranted a new the motion was legedly jury seques- the committed and was overruled and no evidence on was taken tered throughout they trial and had the until question. the per- returned a jury The not verdict. Texas, In Estes supra, v. State of the Su- mitted newspaper to read articles of the preme Court of the States United held trial, television, watch or listen to the radio the telecasting broadcasting pre- of the concerning it. press The and radio were trial hearing on the tele- motion ban the permitted not to create the' carnival-like casting of the subsequent trial and the tele- atmosphere that typified characterized and filming trial, cast and of de- violated the Sheppard nine-week trial in Cleveland right fendant’s impartial to a fair and trial where, trial, throughout course of and reversed that in- conviction. In jury had free access to the radio and stant case telecasting there was no of the press concerning releases the trial. In the pretrial motions, telecasting nor there Sheppard judge, case the trial who had re- itself, trial rule enunciated grant venue, fused change or a con- in application Estes has no to the instant tinuance, permit would not defense counsel case. question jurors concerning whether they had prejudicial read or heard the news are We of the further nationally releases and comments of known that defendant’s contention that 22 O.S. §

593: extensively in conflict with allowed to unconstitutional and cross-examine- 5611 is provision prosecutrix both the constitutional and witness Ishmael' the Oklahoma 202, again 2, properly before these were Article is not witnesses cross-ex- Section qualified during amined Although Corky that a trial. us since we have determined produced the in Brown was impartial jury from not as a witness at was selected Moreover, State, preliminary County. hearing by the he habitants of Canadian extensively judge deter cross-examined the de- had trial we observe that fense the trial mined, on of the case. on for a second either the motion venue, change or voir dire examination Although Layman defendant relies v. jury, a fair of the that he could not secure State, Okl.Cr.App., 444, 355 and State P.2d impartial residents of from the Lackey, ex rel. Okl.Cr., Sadler v. 319 P.2d County, not have been Canadian clearly distinguishable those cases prevented granting change of venue from the instant case. 22 county the state ‍​‌‌​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​​​‌‌​‌​‌​​‌‌‌​​​​​‌​‌‍since to another within Lackey In the trial case the court allowed expressly prohibit a O.S. does § pre-trial inspection report an F.B.I. county change second of venue to outside analysis paint scrapings allegedly impartial jury judicial district when an belonging matching paint vehicle within cannot be selected from the counties Court, sustaining to the This defendant. judicial district. action, trial court’s held that trial proceedings The court recessed court its ad- did not abuse discretion depositions might order that out-of-state although such the court mitting evidence Antonio, Texas, trial taken in and the San that the de- go did not so far as to state resumed on November 1965. right pre-trial fendant absolute jurors sequestered throughout remained following inspection. We believe that the they trial until returned verdict language Syllabus the Court jurors sequestered the two alternate were clearly distinguishes Lackey, supra, State v. discharged by the court. until it from the case: instant discussing Prior to the evidence offered' in case “1. The defendant a criminal State, here on behalf of the we will consider inspec- right pre-trial has no absolute of that assignment the error defendant’s of report possession in tion of an F.B.I. require failing the trial court erred in to merely prosecutor the because of Attorney pre-trial in- County the to allow to him. may it be beneficial believes spection Deu- rеport of Dr. of the medical right inherent 2. The defendant has no pree, and the statements of witnesses the evidence examination of state’s to witness, Ishmael, Johnny prosecuting the up may turn hope something in the that Brown, Corky length of a sufficient gath- supply for clues which would aid or properly prior time in to trial order ering evidence. prepare the defense. good justice, error considering assignment In of In the interest of 3. pre- shown, that, denial of appears the tran- the we observe as from cause where posses- report in the script hearing, inspection the of a preliminary of defendant trial 1. in trial trict defendant provided, itants county trial “Any shall which defendant is court cannot criminal in said * ^[*] appear begun, be removed may, is ^[*] judicial in cause pending at had the minds of a fair and so ponding manner hereinafter therein.” application district, prejudiced against time before some the in whenever impartial the dis county of the inhab other the 2. “In all criminal venue county shall county public be prescribed committed: trial may accused, of in which the be by law.” State, an changed in such manner prosecutions right the impartial Provided, crime to some the application a speedy the accused shall have that as of the other may the 594 prosecution might result in ing, given copy Deupree’s

sion of a of Dr. medical miscarriage justice, a the trial court report of prosecutrix, on examination of the right has the inherent in of sound report exercise such was made to him be- available 'remedy judicial grant discretion fore trial and neither the State nor pre-trial inspection report in sought testimony defendant to offer the prosecution’s possession where Deupree Dr. on this matter. these Under longer primary source no in existence circumstances we are report only and the constitutes avail- the defendant’s merit. contention without evidentiary able source of information.” During part the trial State’s State, Layman supra, In said: this Court v. chief, prosecu- case in the State called intricate, special- “In cases an involving testimony trix whose in substance was as ized, report highly of a technical and she, year follows: a IS old white nature, supported graphs, scientific trial, female at the time of had been visit- charts, pictures, engineer’s calcula- ing City, in Oklahoma but her was in home tions, computations couched Antonio, San She testified Texas. at highly professional terminology, even- cousin, trial that she her who was justice requires pretrial handed examina- time, gone get a coke around report tion of con- such where same p. July 7, 1965, 8:30 or 9:00 m. on charged. evidence of the matter stitutes boys, Felix, Johnny four Charlie Ishmael permit right But not unbridled does Stanley, and Michael stopped Richard files; inspection prosecutor’s they their car girls and asked the two only is in the nature matter which go get wanted to with them to a coke. highly report.” of a technical Since the boys, cousin knew one of the n go Burger. did with them bar, to the Sir In the case at defendant was They places several went other and on 53rd attempting inspect “highly technical City, Street in report place Oklahoma at a refer- investigation of an which was place,” they red to as a “monument met scientifically completed and months group boys, another identified as Bill making,” but rather statements Shapard, Fellers, David Brogan Paul files of the prosecuting authorities made boys. two witnesses, prosecutrix other got all defendant was out of whom the car; given however, of the Felix right extensively cousin did cross-examine. not. There We here was some rule as ex mention of general follow pressed riding, prosecutrix horseback Depositions but the Am.Jur.2d, stated Discovery, go Stanley she had to home. Mike as follows: § took her the arm and the led her to inspection by discovery “Pretrial and away car. She they stated drove the defendant of statements of written she her, screamed her help cousin to prospective witnesses or witnesses for they but away. this time were far too prosecution the generally de- been testimony Her Shapard revealed that Bill Thus, nied. been has held that- an car, the driver the of the other and discovery accused is not entitled to and boys in the car with her were Fel- David inspection prosecution of statements of ' lers, Mike Stanley, Johnny and Richard state, possession witness the of the Ishmael, Brogan Paul Larry and Smith. of the transcript of the statement of a state they Edmond, She past witness stated that prosecuting taken before a drove preparatory trial, officer to the got of Fellers out of car the the and unlocked product’ ‘work prosecutor con- gate, they up stopped. went a hill and then sisting of signed by statements others boys quiet they The and stated that than the defendant.” did want to scare Michael horses. although Stanley We further observe tried to kiss her and she told him not, defendant preliminary at hear- to leave her alone. She further testified clothes, Larry hoys taking off her and Smith. He stated started she screamed that the Shapard kept beg- them and cried Bill said for for about an hour and time which ging her be- them her He her clothes bruise to take home. further tear not to way left. stated that all the back they want marks one cause didn’t clothing, Stanley Larry They her, twins mak- then held removed her Smith were raped clothes, ing sodomy. each her do oral then removed their He testified they Johnny exception Split-T pick Ishmael all back with the came to the her car; helped up her Shapard his that Bill whom she stated would went home Shapard car; if he that Bill alone his could. She and he took other testified first, Smith, boys Larry home in raped her then the Stan- his car that had been left at twins, ley Brogan, Split-T. Paul David Fellers Shapard again. Bill further stated She It point was at proceedings boys, exception that all of with that one of assignments the defendant’s Brogan, practice her Ishmael and made of error arose. It .is contended that “the sodomy so oral on them. first to do witness, Ishmael, stating that he had lied others, on Shapard, Bill then the granted not been immunity prosecu- way home, Michael and Stan- Richard tion, which adopted by fact was known and ley Larry She testified Smith. prosecuting attorney impaired which keep her there was mention of a knife “to jury’s ability pass credibility.” his on however, quiet”; she never did see support In of this contention defendant boys knife. The her took back to following cites proceedings which oc- Split-T they her take her told Reno, Oklahoma, curred El in the cham- home; however, told them “No” and she Smith, bers of Judge parties Boston with all got car, out of the went the carwash present: car, Corky washing where Brown was “THE COURT: Let the record show him take asked her home. that in presence Chambers out of the Johnny The next witness called was Jury all appears of counsel of record originally co-defendant, Ishmael who was as well Dudley, as Mr. Attorney at John charges against had him been dismissed Law, and with him Johnny Ishmael. granted immunity and he tes- MR. DUDLEY: If please, the Court tify. testimony His in substance es- want Johnny the record to .show that sentially prosecutrix as that same present. Ishmael is At Johnny one time up rape. leading alleged tes- He charged Ishmael was with crime they open field got tified that when is now trial. I want the record to everybody except the got car out of the show that on or about the day 30th prosecutrix Stanley twins. and one of the July, 1965,an immunity given by offer of Brogan, boys, except The other he and Curtis Harris which accepted offer was taking the went back to the car started day by Johnny Ishmael also on off, prosecutrix’s clothes at which time that date this matter up was taken holding They her. him to were all directed Judge W. R. Judge Wallace then District did, go gate, back close the which he of City approved Oklahoma who of- the upon the car he his return to saw immunity. fer of Shapard prosecutrix Bill and the car, Larry his

back seat of the had At voluntary Smith time a statement of mouth, Shapard Johnny hand her and Bill over Ishmael was turned over to having County her. He stated Attorney intercourse with Johnny Ishmael subsequently sat of car about immunity he on on hood that offer of minutes, but did turn and saw Preliminary around testified at a Hearing in this following have intercourse with her: Bill again case. He has subpoenaed been Fellers, Stanley Shapard, David both twins a witness. Preliminary- you your the time made Q. Prior to the conclusion of At counsel, County or statements to motion statement

Hearing upon the of his immunity Attorney upon him.. which the as to charges were dismissed ac- granted, you did or possibility that might be a There newspaper accounts of and for cess to charges could he refiled today? again here make a incidents which are involved I want to record reason regarding immunity. No, A. sir. Q. anything read You like for He is immune or would either newspapers at all ever? of- County Attorney to reaffirm immunity July fer made 30 so of on trial ? A. About the may testify.

witness Q. August 8 is about the time Well you statement, your made it not? subpoenaed The HARRIS: State MR. Johnny Ishmael as a witness and A. Yes. authority of the of the State Constitution 8, And, Q. July August between 7 and Oklahoma, 7, Article we of Section you any newspaper did ar- never read prepared authority are use the of the any ticles or accounts or heard television County Attorney grant Office anything over the about what radio immunity complete prosecution for 7,1965 July over ? occurred Rape Degree crime Second papers A. I did read the but it didn’t day July, submitted on 7th have much in it. against Marie Noble. victim Sherri Q. paper you reading? What prepared are also the full au- We use A. The Oklahoman. thority grant complete im- a full and munity possible any implication Q. reading You must have been a dif- * * any may Johnny copy crime that involve Ish- ferent than I was. testify to, may mael that he asked Further, appearing page 524, II, at Vol. only condition we make that he the Case-made: verify testify to the truth and the “BY BILL BERRY: fully whole completely truth Q. charge against you was dis- nothing doing but the truth so you missed after at testified the Pre- implicates any type himself of crime liminary Hearing, was it not ? rape, we will charges not file A. Yes. Johnny Ishmael. Q. You were there ? MR. Johnny DUDLEY: On behalf of A. Yes. Ishmael, Johnny you have heard the Q. You County get Attorney. up heard Harris tell the Committing Magistrate Presiding Yes, MR. ISHMAEL: sir. Magistrate that charge should be MR. you And accept DUDLEY: do against you, dismissed you didn’t ? immunity. offer of A. Yes sir. Yes, MR. ISHMAEL: sir.” Q. You knew that it be dis- Appearing page 503, II Vol. missed, you, didn’t because had been Case-made, following appears on cross- Judge before prior W. R. Wallace Johnny examination of Ishmael: granted been immunity ? “BY MR. BILL BERRY: No, I was never Judge before Wal- Q. Johnny, you here testifying after lace. having granted by the immunity Q. You went before Judge, you did Court, you are not? not, you before testified at the Pre- Yes, A. liminary sir. Hearing? A. No. A. Yes. neys, here A. Yes. bearing THE vant and immaterial. ruled. TPIE W. R. Q. had along MR. BY MR. BILL Q. You Q. on the 30th Court’s chambers Court (THEREUPON, Bench, please. Bench). You And been today and were HARRIS: with COURT: in the record in this case that COURT: Could Wallace, you heard say that taken before you not ? myself day Jr. case, incompetent, you been Objection Objection, BERRY: discussion you and these July, when your were granted did granted I 1965, it was counsel tell see counsel present not? will be Judge, Judge (Continuing) other attor- didn’t immunity immunity granted has had irrele- over- you? you no at ing occurred: when At that? was know. A. That morning you was made A. dismissed the before the A. I sought Q. “Q. Johnny, Q. Court Q. page beg your pardon, ^[******] split questioned by your testimony? saying Well, Well, Is Well And ? you 537 of Vol. II of the hairs Preliminary you any prior your in the Court’s chambers this that I obtained, before right.” Court and were with as counsel has only charge, were Court, any testimony Mr. got that time in Johnny. you, taken Court that did you understand granted Hearing Harris, is the just immunity Court, wrong Court that no deal I don’t want your brought only Case-made, I immunitv. where exchange know of follow- Court? lawyer if Judge, which one was you out he I you Q. were you present not? Were back the Court’s morning?

chambers this A. Yes. A. Yes. Q. you Do know the terms and condi- tions granting immunity? of that Q. And, you your lawyer say that heard Well, way you it, I Judge understood taken before the you just day told the truth July, 1965, on the 30th and been law would just .granted take immunity, its turn. he re- wanted it morning you got newed here this before Q. And you grant- the Court told that in you the witness pres- stand and you ing immunity ? that, you ent at weren’t ? A. Yes.” say MR. HARRIS: He did State, upon Defendant relies Hurt v. I’ll challenge the record on that. Okl.Cr.App., 169, 312 P.2d which cites approval 554, People Savvides, v. 1 N.Y.2d THE that, COURT: don’t recall N.Y.S.2d 136 N.E.2d wherein Berry. Objection will sustained. it was stated: MR. BERRY: challenge We will record. “Savvides, learning matters, these sought nobis, a writ error coram which THE right. particu- All COURT: That court, denied ap- trial and on aspect it, lar mean whether peal by Division, Appellate but went Judge before Wallace or not. allowed the Court Appeals of New MR. BILL BERRY: He has denied that York. The court held: prior he did on the witness stand ‘ * * * testify Preliminary prose- which for the Where witness .September 7, falsely 1965. cution testified there was he deliberately had lied about the receive mat- that he was to agreement no ” testifying against ter stand.’ for lenient treatment Attorney defendant, Assistant District Clearly distinguishable the instant case is exposed lie the wit- of should have Savvides, from the of Hurt and cases su- ness, and to do so constituted failure State, pra. hearing In Hurt in a coram v. ' so fundamental substantial error nobis, petitioner sought to establish guilty of would not be that verdict prosecution witness for been had stand, proof permitted though even promised Hurt, leniency testify against may guilt been of defendant’s promise leniency but had denied this convincing.’ questioned jury. when about it before the hearing, three-judge In the coram nobis body And in the the Court hearing Court before whom the was con- said: ducted, although determined that the evi- leniency promise of other ‘Where a or promise conflicting, dence no was of lenien- is held out to a self-con- consideration cy by had the prosecuting been made au- accomplice for his co- fessed criminal thorities and therefore rule enunciated that, operation, grave danger there is People Savvides, supra, in appli- v. had no unscrupulous, be weak he will сation. to incriminate others to hesitate In the Savvides case trial before- Long further own his self-interest. jury, prosecuting witness denied' experience granting leniency to “co- having granted promised immunity operative undoubtedly accomplices has Jeniency prosecuting and the authorities practice shown the hazards in knowing false, that this statement re- than socie- more offset benefit to mained and did not silent disclose ty its falsi- punishment in the detection and ty to the counsel, court or defense nor requires was. It no discus- crime. extended jury. called to the attention of the however, sion, to establish that the ex- promise might istence of such a abe In affirmatively ap- the instant case it jurors strong factor the minds pears pres- that counsel for defendant was assessing credibility the witness’ Ishmael., immunity granted ent when evaluating and in the worth of his tes- witness, Ishmael, carefully cross- timony. The failure to an disclose concerning examined the circumstances un- “understanding” promise aor cannot immunity der which originally grant- seriously impair jury’s ability principal ed. The contention of the de- issue, pass upon and that vital witness, Ishmael, fendant is that lied when precisely infirmity under which he stated that appeared he had never before- jurors labored in before the case Judge granted W. R. Wallace and was im- us.’ - munity prior testifying preliminary at the state-, hearing. upon Defendant relies pointed It was out that while the trial ment made Ishmael’s counsel in Cham- judge by interrogation elicited some vague might which have induced bers answers that: jury 'to believe that Mantzinos was “I want the record to that on or show ‘hoping’ leniency, charge for day July, 1965, about the 30th offer judge’s indicated own belief Harris, immunity given by Curtis hope, that the witness entertained such day accepted which offer was appellate court said: Johnny Ishmael also on that date this ci'y positive up matter Judge

‘But that a far was taken R.W. knowledge actually Judge Wallace then District Okla- Mantinos City approved return homa been assured consideration in who offer of" immunity.” co-operation continued

599 testimony boy her shorts. He of stated that clear from the some whom It is said, he did not up before know walked to him and he was never taken that Ishmael say anything “Did being raped she about the statement ?” and indeed Judge Wallace replied, to which he purport “No.” Then a does not man in Chambers of counsel leaned in the Judge window asked if he taken before W. knew that he was to state replied where Bill went. He that Wallace, the matter was he did rather that R. but any not Bill, nothing know knew It likewise clear about up taken with him. this, just all brought girl but testimony home. Ishmael from of man tp This being identified in court immunity were as relative negotiations Shapard, Mr. David Curtis father of and Mr. Wil- counsel made between his John Shapard. liam was called to Harris. All of this P. by jury’s in сross-examination attention by On Berry, cross-examination Mr. by Berry examination and re-direct Corky Brown testified that he had refused Ishmael, witness, on the Mr. Harris of the to talk to defense counsel until he could ob- jury. for defense trial Counsel before copy tain a given of his statement to the every opportunity to call this County Attorney’s office. This was never prop of and the court attention Berry done. Mr. practically elicited jury. erly instructed the Brown, same information from Mr. as to happened night, events that circumstances, as was we are of the these Under brought out the prosecuting error authorities. assignment of wholly without merit. testimony Most of the of witness by the State in The last witness called physical Brown related to the condition and Brown, (“Corky”) Calvin chief was Cordell appearance prosecutrix of the when she part testimony urged it of whose is now came to the carwash where he was wash part gestae the res was inadmissible as ing testimony prosecu- his car. The of the hearsay. testimony in His substance trix was that she ran over to the carwash evening about 12:00 o’clock on the being after released from car of her as 196S, July 7, washing he car his sailants, only which would cover matter City, next on North in Oklahoma Western would, seconds. This many under Split-T, he to the drive-in called the when authorities, bring be sufficient girl running noticed a toward him. As she within gestae, prosecu- the res but since the sobbing came him toward she was ask- did trix not make detailed statement ed take her him name and if he would his crime, concerning to the witness it is He told her that wanted finish home. he unnecessary here suffice it to consider: her his car and then he would take home. say that: He he would around the stated walk complaint been made “One whom has car, off, op- wiping get she would to the may testify making also to the posite side, up. or back Her face was swol- complaint by prosecutrix, her condi- len, her clothes were wrinkled and she was appearance tion and at the time the com- crying quite heavily. They had little con- plaint made, may permit- home, way lit her versation on the to her testify ted statements made cigarette and she calm down seemed to prosecutrix as to the details the out- some, cry. they ap- but continued to As reported rage as to the witness.” proached home, cars in there were State, Coppage See v. 76 Okl.Cr. front of the house and she asked him to P.2d 797. hurry sobbing again. and started As she In the instant all that was got from the case this is car ran front of witness, except headlights, testified to save he could see her back side young man had in- the statement that a the first time and the back of her shorts pros.ecutrix couple quired at spot had a the residence of blood inches anything running whether she had said about be- her waist to the crotch of below general ing raped question reputation asked of witness termination to admit and the and' specific by if he exclude acts an Brown the defendant’s father knew effort on his ques- adopt behalf a rule Bill Neither of these to most where was. favorable t'o the objected except accused in specifically to order to tions were assure him a fair trial. However, testimony that after of the witness that a since considerable confusion ex- ists, necessary we young man had asked witness Brown if she deem to set forth the raped rules to anything being had about be followed in all said future cases charged wherein an that she had not said accused is Brown answered with forci- rape, ble anything, testified in re- either in and Brown had the first or second de- gree sponse boy and the question if he knew who the rule which should to a have been not, followed in the and that did counsel for defense instant case. We have ex- many amined interposed following: bearing authorities on this issue and the opinion prose- are of that in a still is BILL BERRY: This “MR. rape cution for forcible the undis- where boy coming gestae, res this in under the puted evidence establishes that sexual inter- up asking ? this course accomplished prosecu- with the Yes. THE COURT: trix force or fear overcoming her re- objec- Note our BILL BERRY: MR. sistance, and where neither the evidence tion.” offered on behalf of State, nor the evi- dence defendant, offered on behalf of the pre properly did not Counsel any tends degree substantial to raise the appeal. on question for review serve this consent, issue of neither the evidence of objected the statements He should general reputation prosecutrix of time complained of at the now for unchastity, specific nor acts of sexual requested testified to the witness prosecutrix intercourse between the disregard be admonished others, are admissible. In the event that objection been proper However, had them. the evidence on prosecution behalf of the pre interposed statements to these defense, of the raises the issue of con- appeal, their on for consideration served sent, then general reputa- evidence of the not have evidence would admission into prosecutrix tion of the unchastity for is error, they did not for constituted reversible admissible, specific but not acts of sexual alleged rape. purport give of the details intercourse unless such acts were with the reiterate, the statements We none of accused. pur- prosecutrix to this witness made alleged ported any to relate details of of the We are further assault, hear- assuming them to be and even when the evidence adduced the trial say, only their could be consider- admission tends to рrosecutrix establish that ed as harmless error. pregnant, event, then in that evidence of specific acts of sexual intercourse between rested, prior The State then prosecutrix persons other than the testimony behalf of introduction accused, occurring near concep the time of defendant, trial an in-cham- court tion, are admissible tending to show that respective parties, bers discussion with the pregnancy resulted from sexual connec determined that he would admit evidence persons tion with other than the accused general reputation prosecu- of the of the and this evidence is admissible without re chastity, spe- trix for lack exclude gard to charge whether the be forcible or acts. This is reflected in the Case- cific Ill, page statutory made, rape. Vol. 629. the rule re observe justification We oft-stated for the rule

lating permits to when evidence this character which testimony the admission of may introduced, relating not well settled either general reputation jurisdiction prosecutrix and that the court’s de- unchastity, or evidence police station he wanted 'to give intercourse specific acts of sexual upon opportunity an others, is him to set record prosecutrix with based proba- straight actually happened.” what underlying' principal that is more as to assent an unchaste woman would ble This witness further testified that Mr. At- It act a virtuous woman. than to such kinson had him informed father of not, that the however, logically follow (cid:127)does especial co-defendant Fellers was an friend of evidence characer admission his, but that he had not been directed disprove any issue prove tend to or would anything concerning' write Fellers. par- the conduct of the where in the case The next called for the witness defense everything ex- jury and before the ties is Schmidt, Eugene was Holland who testi- n cludes the idea of consent. old, years that he a fied was nineteen form- statement, the opening making his After employee in currently T. & and er of G. Y. witness, Daniel first called his defendant He the armed stated that 1:00 forces. Webster, reporter Oklahoma Jour- a for 3, 1965, morning July in he o’clock testified, substance, in Mr. nal. Webster Tommy driving were down and one Smith arraignment on had that he attended prosecutrix they where Western saw Johnny talked to he July where They stopped and her cousin. and talked Smith; Wyatt that at Larry and Ishmael girls after and Smith had established to the cutting they laughing that time and prosecutrix’s in with the friends common although been up they had advised cousin, they like girls indicated would reporters, Mr. stated: talk to Webster to got in something girls The to drink. “They present at they had not been said car, they seat went after back rape. They during this saw time place pur- the beer was At tire where beer. n something they going happen was chased, got in the back seat with Schmidt took a walk. decided leave got her in the prosecutrix and cousin They anything it and didn’t know about They a seat with Smith. drove to front anything any crime.” they didn’t know Hefner, Lake where the area near wooded testified: witness cross-examination, testi- this witness On days subsequent to that two three fied the back in a corner in seat “I sat back accompanied by P. arraignment, Mr. W. beer, she laid across my and I drank n “Bill” Atkinson, the Oklahoma publisher of one my lap got and she to—no Journal, Mr. David he the home of on, went to see what was front seat could lengthy conversa- Shapard, he where had being done.” Shapard. He further testi- with Mr.

tion point, presence of the At this outside directed had been fied when asked he chambers, the wit- court’s jury Mr. Atkinson write stories favorable attorney, Mr. was instructed ness Shapard, Mr. as follows: any questions on the Marrs, not answer incriminate yes might no. tend to grounds that in a that it I can’t “A. answer wit- presence of the him. In the particu- was Mr. Atkinson said the witness recalled to ness Schmidt cer- Shapard and was lar friend of Mr. appears following where the stand a side Shapard that Mr. must tain record: me asked out and of it that hadn’t come Shap- (Continuing) BERRY: get “BY BILL please in contact Mr. MR. not Mr. Q. whether or story that show will ask and write a ard Schmidt, you had intercourse standpoint what sexual Shapárd’s Mr. from particu- Noble at this happened. with Sherri Marie had place? lar time and hav- prided ourselves on He we said My not to answer lawyer advises me ing newspaper that told both sides n so ap- might question. tend to incriminate appeared It far all made pear Shapard took his son me. Mr. way, shape or get form to fair trial of Oklahoma MOORE: State

MR. contempt proceedings. in these that this witness be held asks Court, Your Honor. show MR. MOORE: Let record also State, behalf of the the statement BERRY: would at MR. BILL We room, that immunity made me in the Court grant ask the Court to time loudly enough speak even for particular rea- I did not witness same Harris, me immunity who was behind which granted to has sons from, Jury Johnny direction that Ishmael. me; me, to hear and that I said under- just right, All a minute. THE COURT: my breath. Ladies, gentlemen, Court will re- Re- Let show that Court record like to for five minutes. I would cess didn’t, (cid:127) porter didn’t hear it and the Court with counsel chambers. confer it. here the earlier Please remember instructions standing- BILL BERRY: were MR. You you. given I have Kickingbird in and front of Mr. another (THEREUPON, the and Court recessed juror, them,, right and a few feet to the room, people leaving the the Court me then him. and both looked at and at following transpired). the when just (Indicating) like that. MR. BILL BERRY: a minute. Just Just the MR. MOORE: Let record further minute, a Your Honor. that show inasmuch as the counsel de- for presence Jury panel, In the of the Sam it fense called to the obvious attention just openly boy Moore said that a this is Jury knowing they the if had heard’ plant and we know it. аttention, it, that he caused it to be the to just openly it He said in and front of two Jury. of the Jurors, they it heard and both were loudly Further that he objected the- looking you looking at right and at me Jury repeated what he said that T after said it. deny it, said. don’t that he heard but I: TITE COURT: Please' remember don’t think Jury that it. heard earlier given you. instructions I have THE COURT: Motion is overruled. (TPIEREUPON, The Court recessed Exceptions. BILL BERRY: MR. p. 2:40 m.) THE That COURT: is for mistrial.”’ (THEREUPON, transpir- the following urges The defendant the Assistant ed in chambers.) Attorney, County Moore, Mr. Sam com- THE press COURT: The will be exclud- by making preju- mitted error reversible ed from the hearing. chamber right, All presence jury. dicial remarks Berry. We condone the conduct of' cannot MR. BILL BERRY: Comes now the De- County Attorney making- in the Assistant fendant Shapard William John during this the- statement courtroom moves the Court to a enter mistrial jury trial, be whether could heard this case for the reason that the counsel not, presented, but since no was evidence State, for the standing within feet three support of defendant’s contention that at. of the Jury box Judge when the admon- comment, jurors either least two heard ished counsel to chambers, come says, into at the time the court considered said ob ‘This boy is plant a and we it.’ know jection in for chambers motion This presence was in the Jury. of the trial, new ex nothing we have before us It highly is prejudicial. way cept There is no coun conflicting statements of defense in the world to remove County Attorney sel and the Assistant minds of Jurors, these obviously However, is testi Moore. since Schmidt’s just impossible for us proceed mony purpose was offered the sole o£ for only immunity granted act of could be when specific a attempting to establish charge against an prosecutrix, pending accused and with the intercourse sexual inadmissible, immunity granted re- his the witness whom incompetent and tending guilt in- has evidence to establish testify issue created fusal Here prejudicial of the accused. it can seen the jury which was ference County authority Attorney excluded. was without have been and should to the State n Under grant immunity. see fail to circumstances we such prose- Tiow, had heard jurors even Tommy was next called as wit- Smith injured remarks, defendant was -cutor’s testimony by the ness defense n -thereby, from this he more benefited given as substantially same wit- injured than incompetent he was- evidence he He testified that ness Schmidt. '.by the remarks. years age into urges: Defendant now army unemployed; and presently that the prosecutrix quantity of beer on consumed trial, made the Defendant the time “At 3, 1965, evening July appeared Attorney County grant request that the “tight.” to him to be He further stated (cid:127) immunity Schmidt witness Gene defense prosecutrix on two occasions the matters testify to certain so that could together Schmidt left the car and that he enlightened court -which prosecutrix’s remained in car with the the facts the truth and .and n cousin. request case When at bar. County Attorney made the stated: -was testimony objectionable This is for the testimony same the Schmidt grant to man reason as of are ‘We not Ill, testimony page similar be excluded (cid:127)immunity (C-M., should to lie.’ Vol. involving in all future these cases same (cid:127)664). circumstances. upon the Coun it is incumbent 'While not Attorney immunity the De grant to :ty Garis, Ann Gayle The next defense called witnesses, unreason .fendant’s not an year neighbor prosecutrix’s 16 the a old immunity light request in the that (cid:127)able cousin, had who testified that she known witness, granted the 'had been State’s prosecutrix years; the for number of granting

.'Johnny Ishmael. The of im that gone she knew and had to school with n munity seeking in the truth is a to aid tool 3, 1965, defendant; July the and that on is not to the in each case and .as merits prosecu- had the she a conversation with n merely to be as instrument used prosecu- tired. the trix who looked When n fortify case and be issued the ‍​‌‌​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​​​‌‌​‌​‌​​‌‌‌​​​​​‌​‌‍State’s appearance questioned was her trix about prosecutor’s in at the whim. As stated previous the she testified that at 1:00 a. m. Holohan, Mooney 103 v. U.S. S [55 evening gone had and her cousin she 340], 79 L.Ed. .Ct. 791: Mustang, boys, driving a the lake with two prosecution evidence ‘A that withholds that they had drunk a lot of beer which, <on demand of an accused if “fun”; boys that one of the had exculpate available would made tend to prosecutrix that the him and blanket with shape penalty helps him or reduce the revealing jeans unsnapped her blue then heavily a trial that bears the defend- on it. marks on had blue her abdomen which ant, prosecutor the casts gave who not tell her prosecutrix did The proceeding (cid:127)role an architect of a further “hickeys.” This witness her comport that does not the stand- the resi- present at was that she testified ” justice.’ ards staying prosecutrix was dence where morning 1:10 at about 1:00 or opinion as We in 7, 1965, prosecutrix arrived merit, July when (cid:127)signment of is without error a blood that she observed Okl.Cr., blue car and State, 542, we held Pate 429 P.2d v. Antonio authorities advised which Had San shorts prosecutrix’s stain oath, statements, if in their under them blood. described menstrual prosecutrix they having admitted inter- had sexual testi witness’ portion of this The year girl, the with a 13 or 14 course old made statements mony relative on. against could have been them same used 1965, 3, July prosecutrix to her on statutory prosecution Texas, the- rape and similar have been admitted not should so been correct authorities in all future testimony be excluded should doing. testimony cases; however, relating police photog- The further fact that a July prosecutrix’s appearance on rapher pictures deponents took at competent. depositions made, place where the does were as- defendant’s will consider the here We Moreover, we- not constitute harassment. prosecuting au- signment of error that most of the were observe witnesses in that error committed reversible thorities an em- photographer unaware picked up witnesses were out-of-state Department. a. ployee of the Such Police police, jail Antonio held the San the- procedure undoubtedly followed for photo- and later taken from them statements purpose allowing prosecutrix to view police graphed by photographer at accusers, present the- her who were deposition hearing, some of and that said trial. they testi- witnesses were advised that assign- are of We statutory might subjected fied wholly ment of error merit. without rape charges and could receive death deposition The first the de- offered penalty. only The fense that of Mother Leone. bearing on this issue evidence testimony deposition of offered from the prosecuting be is that when the authorities Leone princi- Mother was that she was the came familiar with the names of wit pal high school in Antonio where San depositions nesses whose to be taken prosecutrix the year one went to school for Antonio, they in San the contacted San page 1964-1965. On the 743 Case-made requested Antonio authorities and that these following appears: witnesses be interviewed and statements se MR. you “BY FELLERS: Do know precisely cured from them. is what This her reputation about it to whether as it San Antonio authorities did. While good be or bad for truthfulness? appear witnesses, does that some who police Objection. MR. characters, were MOORE: cooperative with the San only Antonio authorities be Well, in general, A. I think that should prior cause of their them, with it contact it would more on the untruthful side.” appear does not from the evidence that On cross-examination Mr. Moore the : authorities, police prior securing these to following appears page on 749: statements, ever threatened witnesses this, Well, “Q. you don’t even -know with they having electrocution if admitted day that Sherri Noble in had ever been had sexual prosecutrix intercourse ? trouble at time when such act constituted statu No, I A. don’t. tory rape. So, Q. I assume that when she ad- Defendant support seeks to this conten- your mitted to academy had, that she in- tion newspaper clippings and statements you as sofar ascertain, were able of his counsel made prop- to the court. The reputation? good er method of establishing alleged er- Yes, A. I assumed that Yes.” she did. ror would question have depo- been to nents as to whether been they deposition coerced The next was that Michael Sawyer intimidated and with the threatened who at the time of trial was- John electric year chair. prosecu- 19 old male who knеw

605 prose- MR. HOWARD BERRY: he had Who testifying that After 1963. in trix police? cuting year 1963 during the prosecutrix seen C. home of at the women company of Yes, I think are. MR. MOORE: An- Avenue, San Lovett Hassell, 914 A. agree BERRY: MR. HOWARD as described Texas, of whom one tonio, but I don’t think— following portion of prostitute, That does refer to one MR. MOORE: Case-made, Vol. appears deposition specific cop. questioned 755, being when Ill, page at Page THE COURT: The rest of 39 is by the defense: examination direct through about Lines 18 25. What chasti- the word what you Do know “Q. Page 40. ? ty means object MR. HOWARD BERRY: I don’t Yes, sir. A. Page 40. Q. What? in, Page Page now THE COURT: 40 is guess. Virgin, I 41. chasti- reputation for her Q. What Page 41, I MR. HOWARD BERRY: ty? object to it. don’t easy piece, known as A. She forty-one in. right, THE COURT: All some.” wanted Forty-two, BERRY: MR. HOWARD objects to cross- defendant now The object objection I don’t and no Sawyer, the Michael examination of John * * Page 43. Case-made, record at appearing in the same observe that the cross-examination II, Page pages On 789 We 790-792. Vol. 39, Page began following ap- on Line Case-made, Ill, admitted Vol. Sawyer not deposition does while pears in the record: rec- entirety anywhere in the appear in its Moore con- “(THEREUPON, Mr. Sam now ord, defendant testimony of which Sawyer’s reading tinued Michael John deposition assuming the complains, page 39, line deposition Jury to the reporter court taken a certified follows:)” depo- transcripts and manner in which ap- ruling of the court in-chambers usually taken, could sitions Case-made, III, pages pear Vol. deposition, but page 39 of appeared on page through On we find 618. deposi- 40, 41, 42 of the page rather on following: by the objected tion, to of which were none open in chambers or either defendant Objection “MR. BERRY: to HOWARD court. Page all of 39. objection appears that neither an thus It through THE 1 6. COURT: Not lines complained testimony the now taken to was Yeah, MR. BERRY: about HOWARD ruling of, exception to the an taken nor was getting him think a new car. don’t I the court. of anything that has to do with it. Thereafter, portions of offered defendant depo- He that. Young’s MR. MOORE: volunteered Kenneth D. testimony of he was Young testified sition. I am to MR. HOWARD BERRY: Elementary Dwight Avenue principal of object being responsive to as not Antonio, prosecu- where in San School question. During in 1963. a student trix was Objection THE COURT: is sustained enough to good that she was time he stated through Page Line 7 17 on 39. forth set and he an office assistant work as that she He testified question per- MR. This her duties. further MOORE: about Huseman, taining police. with Collins Wade associated Soey, Roger Q. go jail? North and David Did he Dean Saw- yer. proven guilty? A. You mean Roger Q. Yes. deposition that of

The next who, time of trial at the Dean North proven guilty, put A. He was year male, old testified that probation, him on think.” I prosecutrix grade, knew seventh testimony Counsel’s contention her six and dated fоr five or months. When duly objected properly with reputa- by defense as to the asked counsel exceptions sup- taken the Court is not prosecutrix, he she stated that tion of ported record, page 585, Vol. awas “whore.” III, Case-made, in the of in-chambers editing deposition North, fol- urges for the Counsel defendant now lowing proceedings occurred: attorney prosecuting was allowed improper cross-examination make an “MR. say MOORE: I would Roger specifically objects D. North and probability Court homicide testimony appearing Page to the burglary murder and safe should shut IV of Case-made: Vol. out. gen- MR. HOWARD BERRY: Your “BY MR. MOORE: erosity think makes me there is an ul- Now, your Q. what is name? terior motive. Rodger A. North. Page THE COURT: 31 (Question) you Q. any other name? Do charged rape “Pías he been with in—” question and the Line 6 of same No, sir. A. page— Q. any brothers? Do question MR. MOORE: I see if the Yes, sir. A. object defense doesn’t to it. your Q. Vernon brother? North James MR. HOWARD BERRY: I we think Timmy A. North? ought go to let all of that in on Q. James. page. Jimmy A. North —James— right, page THE COURT: All 31 is in.” Q. Jimmy Vernon North. It appears thus that neither ob Yes, sir. A. jection was testimony taken to the now Q. Jimmy Known as V. North? complained of, exception nor anwas taken ruling court, to the Yes, and we are of A. sir. assignment that this error 12, Page MR. Line 31. MOORE: completely without merit. Q. He charged see. has been deposition Larry The next was that of rape in Antonio ? San who, trial, Click at the time a 21 Yes, sir. year private Army. old He became Q. charged He has been with homicide acquainted with prosecutrix in Fall in San Antonio ? pertinent It 1964. that he testified A. Homicide ? had seen her at the C. he A. Hassell present Murder, Q. house and at killing somebody? that time David Sawyer, Cullard, girl Frency, Mike a called No, I A. don’t think so. girl Joane, peo- another named and several Q. charged he burglary Was safe with ple not he did what know. When asked in California? prosecutrix’s reputation truth was for Yes, A. sir. veracity, testified, Click she “Well, n Q. he charges? Was on those convicted caught lies, has been in some and it makes A. Convicted, you mean— it bad.”

607 Well, reputation Q. did she have a complains cross-ex- now Defendant Case-made, virgin she whether was or not? Larry Click amination testimony This IV, pages and 884. 883 Vol. sir, Well, virgin, no, A. as a she deposition beginning on read from was didn’t. 3, continuing thereafter. 24, line page Q. reputation? Did she follow- proceedings, the the in-chamber In Yes, A. sir. IV, Case-made, page Vol. appears in the ing Q. right. Now, All repu- what was 844, deposition of to the with reference tation ? Click: 24, Page right on slut, “THE All A. The girls pig, COURT: other called her a the boys 1 and 2. Lines called her a whore.” wrong anything don’t see MR. FUNK: The urges prose- defendant now with the rest of it. cution committed reversible error in in- Page right. All 25. troducing THE testimony, COURT: appearing in the Case-made, IV, pages Vol. 883 I don’t have BERRY: MR. HOWARD being the same cross-examination anything more. objections to Hulme. The ruling in-сhambers of the through THE Lines 17 will COURT: appear court Case-made, IV, at Vol. Page 26. be eliminated on pages 825 through although we hearing (THEREUPON, The Chambers carefully searched the record as- * * adjourned *.)” objection certain where an interposed to the testimony complained of, now we apparent readily It from the record are unable specific objection to find that objection interposed ad- that no to the with reference testimony. to this Under and we mission of this cross-examination such presents question circumstances no assignment also merit. hold without reviewable appeal. deposition next was that of Donald deposition The next Shirley was that of who, trial, at the time of Nelson Hulme Fuqua who testified that she awas doc- years and he old testified Antonio, tor’s wife in San was the mother prosecutrix right got met the after he out children, of five and when prosecutrix penitentiary he first When 1964. moved in neighborhood her she was about Sawyer boys, met her she with Fuqua 13. Mrs. good became a friend of David and Michael was drink- she Marty (the prosecutrix’s mother) quite ing. He stated like further she “seemed often visited in up their home until about then, pretty girl very nice first time prior six months deposition time the I met her.” was taken. She friendship- stated their On direct of Donald Hulme examination split Marty’s over taking job in which counsel, following appears defense she away week, flew during the and on a in the record: couple of Marty paid weekends. her to drive her husband to work pick up “Q. Now, yourself, what in addition to prosecutrix at school until one week-end people group other in this have a crim- came she back $3,500 with about worth of inal record that know of? clothes, one being dress worth $500.00. Click, Valadez, Larry Albert David Fuqua Mrs. stated that she contacted her Parker, Sawyer, Joey and Butch A.C. aunt who told her have nothing further Hassal, Mike Cullard. to do Marty, which advice she follow- ed. acquainted Q. you reputa- Are with the

tion of her Sherri Marie Noble for vir- prosecutrix the further testified that She 7, ginity prior July 1965? baby her was one time and she sitter babysit. No, did not think it was fair to her to sir.

'608 go skating. reading From a during wanted She testified of the record

as she repu- empanelment jury, did not of the prosecutrix that the is seen reputa- judge gave telling the truth and her the trial th'e tation for standard admoni- community jury neighborhood (C-M, tion in the in the tion to the several times Vol. I, 31, 80, 127, 189, 256, pages 316, bad. 326). particular, examples In some ad- evidence offered on This concluded the judge monitions of the trial are as follows: behalf of defense and thereafter State C-M, p. I,Vol. n calledfor rebuttal witnesses. 80: They “ * * * cousin, prosecutrix, year anything her 17 old don’t read about the case, police Antonio, Texas, anything case, hear officer San about the see Raymond anything case, Lucas. deem it un- about the talking We amI Joe necessary possibility testimony forth about the to set of an article in the newspaper except story these on rebuttal to ob- or witnesses on the or radio testimony prosecutrix, serve that the of the television.” her cousin and Lucas was introduced to C-M, I, p. Vol. 128: refute certain evidence offered on behalf any case, “Do not read articles about the n defense, Castillion of Officer San past present; any or come across good reputation Antonio testified as to press articles or any radio or tele- prosecutrix. (cid:127)of the reports page vision paper turn Thereafter, jury, the Court instructed the or channel of the radio station or refusing give as he did so to the State’s television station.” requested 3, instruction No. defendant’s C-M, I, p. Vol. 189: requested instruction No. Defendant 20. now contends that the trial court erred in read, “Do not any listen or newspaper see refusing give requested in- defendant’s anything news media or about this case.” 20, struction No. that: judge’s We are of the instruc- “You weighing are instructed that throughout tions admonitions testimony your and arriving at ver- ample course of the trial were to insulate , dict, you by ques- must not be influenced jury against any hostile sentiment or public policy, tions of interest or news- prejudice and granting of defendant’s paper editorials, reports radio and edi- requested instruction would have been un- torials, reports editorials, television necessary repetition. n your the effect of upon per- verdict other It is also contended that: charged sons with crime and whether the verdict pleas- would or would not be “An additional reversible error in in- ing Judge, to the other considera- structions in the failure of the court

tion outside of the evidence in this case.” require elect the State to to which as alleged of two rape De- offenses of In this connection we observe that or, being fendant was on, tried instructions the trial court that the alternative, the court erred in not in- jury disregard should prejudicial publicity structing jury that it should treat the and any pre-existing prejudice bias or first proof pre- offense on .which "been referred to as sufficient to insulate upon sented offense con- which a the trial from hostile sentiment preju sought. viction was dice upon relied by the accused in his mo n * * * * * tion for continuance. Hart v. United (5 States La.) 128; Clearly Cir. 1940 112 testimony F.2d in this case indi- Shushan v. United (5 States Cir. 117 cated that 1941) alleged there were two acts of F.2d 1040; 133 A.L.R. Honda sexual v. Peo intercourse. court failed in ple, 111 178; Colo. P.2d Rogers its instructions to tell which one State, w. Ala.App. 8, 65 So.2d alleged 525. the two offenses the of-

609 holding Cody v. Cases this are State [Okl. Defendant the upon which fense 307; Dugan Cr.App.], 361 P.2d v. State tried. he 833; Cooper [Okl.Cr.App.], P.2d v. 360 spite the fact in occurred This error 503; State, 217, 238 Lou 31 Okl.Cr. Pac. Requested Instruction in the State’s State, 92 v. 222 P.2d 160 is Okl.Cr. the specifically asked the State No. 3 Kilpatrick State, 71 and v. Okl.Cr. jury follows the as instruct court P.2d 516.” 1105): V, page Vol. {C-M., issue, prepared The State’s brief on this 1* * * that connection in and General, by Attorney Mr. Penn Assistant offer- the evidence instructed that Lerblance, concisely the on forth law so sets acts prove first the ed which tends adopt point that we here in entire- its Defendant, by the intercourse of sexual ty: pros- Shapard, with William John urges there error “The State was no Noble, ecutrix, is the evidence Sherri elect inter- in failure to which act of rape charge upon which the since was but transaction course there one case.’ degree founded in second rec- charge was based. The on which give instruction The court refused to act of shows one continuous forcible ord gave following instruc- and instead rape although there was more than one page 1099): (C-M., V, tion Vol. penetration. evidence, any, tends to if which ‘Other Vol, CM, p. 410: prove of more than one the commission Witness) (By ‘A. any, rape, prosecutrix and of if aof crime, any, by than a de- more one so, they put And me the back seat proper and for fendant is admissible his Shapard taking off and Bill started Jury (1) consideration show kept fighting they held and I clothes so defendant, (2) intent of motive kept my legs my tell- and arms and defendant, (3) absence of mistake screaming I was ing quit me to part or accident defend- watchman, on up night to wake ant, person (4) identity charged then, Shapard and and Bill climbed commission of crime for started, getting his satis- he started put trial, which the defendant is him, the other and then after faction plan (5) common scheme of embrac- boys climbed on. ing the commission of two or more Q. Harris) (By each crimes so related to other you, Sherri, Shapard while Bill proof of one tends the oth- establish holding you? boys of the other er.’ (By Witness) Instruction No. have been [sic] Yes, sir.’ proper, very clearly for cases hold V, CM,Vol. p. 412: proof that when the State offers of more ‘TI-IE WITNESS: than one act of sexual be- intercourse see, Bill, Lar- then there was Let’s prosecutrix tween the defendant Smith, it was ry then from then no election made State as to tell, only by could their faces upon conviction, which act it relies for Stanley that was one of the I think court, duty it then becomes trial twins, Brogan, then Paul then motion, require on its ozvn the State Fellers, Shapard and then Bill David upon specific to elect which act the State again.’ relies conviction on to treat the first cited the defendant cases having Each act as been elected and instruct distinguish- argument is support of to limit its consideration to such these there since each of cases act able consider other acts corrobora- inter- time between acts of interval tion. by alleged In cited defendant the time of the course. the cases intercourse at first separate there were in and distinct act fact

offenses. State, 156, P.2d Louis v. 92 Okl.Cr. 222 160, clearly separate also involved acts: State, Okl.Cr., 307, Cody P.2d cited v. 361 ‘ * * * (prosecutrix) stepfather her by distinguishable defendant is her (defendant) took into the bedroom that, case at bar the Court found where got placed her bed and testimony ‘Her (prosecutrix) discloses top placed parts private of her and that the first act was committed in the * * * night of hers on the early part evening. She stated ** * day defendant “did McKelly’s that she defendant left night,” thing same and that apartment and numerous other visited morning thing” next “he did the same places. they returned Later to McKel- again night same “did the ly’s apartment another act where of * * * thing”, week about one accomplished.’ sexual was intercourse later the woods “he did the same thing”, making separate five acts.’ thus Dugan State, Okl.Cr., 833, In v. 360 P.2d Appeals of the Oklahoma Court Criminal State, 354, In al McManus et v. 50 Okl.Cr. held trial 356; 830, court’s instruction rape where a P. conviction exact date occurrence was imma- affirmed, the six 'held defendants terial, proof was in error where show- her and each defendant had inter- sexual eight ed different acts of her, intercourse or course with In two of them twice.’ by separated a time occurrences interval. that case the Oklahoma Court of Criminal Appeals cited and affirmed the rule which Cooper State, 217, v. 31 Okl.Cr. 238 P. urges defendant now but held that was distinguishable: is also applicable in that factual situation. ‘He (defendant) prosecu- then took requiring State submits that rule worked, trix to a where he cafe where an election between the acts inter- they supper together, and on return- course applicable likewise not ing to the hotel took her the back case at bar same as ex- reasons room, stairs to his where an act of plained State, supra: in McManus v. sexual accomplished. intercourse rape by ‘But in cases of force where They then called on some friends of his persons two or more at the time same town, and later returned to the place part and as a of the same hotel, and two three acts of sexual design purpose, acting common to- accomplished intercourse were in gether transaction, in a continuous room on the first floor. Some time female, parties ravish the two or more during night prosecutrix return- having intercourse, each sexual rule ed Guymon. train to After that the application. stated has no In the case defendant met her on one or two oc- consideration, now under is an force casions, when acts intercourse took ingredient, essential and the evidence is place.’ present each defendants Kilpatrick, 71 Okl.Dr. 109 P.2d [Cr.] intercourse, during the several acts of 516, is also distinguishable: perpetration assisted in the actual ‘Even though both of the offenses testi- prosecutrix holding crime fied to in this case were committed the aiding abetting. otherwise There night, same separate and dis- application force, was one continuous ;***.’ tinct offenses penetration by and while there each Kilpatrick, In supra, defendants, acts two occurred single was in fact within period four-hour and the any particu- defend- continuous transaction. If ant admitted denying one act while lar actual interval of time intervenes between acts, separate if occur un- “THE the COURT: You will now listen to might that there argument circumstances the der such of proper counsel which is a jury part that one a a to believe be basis for of this trial. Counsel for the State and thirty or more the acts were committed has opening minutes to make an might as to a doubt exist statement reasonable and counsel for defense an has others, an election. the there must be hour argument to make their and then tending to But where all the evidence counsel for the State follows.” prove continu- crime is it was a the Thereafter, the open- State concluded the force, and application of ous act and ing portion closing argument of its and there in the evidence for a is no basis counsel began for closing argu- defense his part a that a belief or reasonable doubt ment-which, eight pages after in the Case- part and a transaction occurred made, interrupted by the Court. After occur, did more of not nor one or open court, recess and in following may guilty the others accused be proceedings appear in the Case-made: not, crime, one then there is but one “(THEREUPON, the Court resumed at act, there need be no continuous P,M.) 2:00 o’clock case, election. all the In instant Jury, THE I Members of COURT: evidence the actual as to offense is regret in the having a recess middle prosecutrix was thrown on argument. take con- have to into We ground permitted and was not to rise Reporter is tak- sideration Court who until all the defendants had had sexual only ing argument down and that is her, intercourse and that all such I I am not reason declared the recess. by pursuant acts all the defendants were Berry orig- hour to hold Mr. to our purpose, intent, design, a common inally agreed upon reason. conspiracy by acting togeth- an may proceed. You appli- er of in a defendants continuous Honor, I am MR. BILL Your BERRY: cation of force. There is basis no sorry any if I I don’t made outburst. jury evidence under which the could might know I did not. I have said believe or entertain a reasonable doubt something shouldn’t have. part that a of the transaction occurred right.” THE All COURT: part did (Emphasis not occur.’ In brief defendant states: his supplied.) by prejudiced “Defendant was further Therefore, the State submits that there breaking de- judge abruptly trial into the was no reversible error in the trial below closing argument and call- fense counsel’s for the reason that the did in- court ing interruption came recess. This struct the only to consider one act of very point crucial in the defense’s clos- intercourse committed the defendant. ing argument the time when he such—at proof While there was of more than one point seeking the numerous and out penetration there single fact a con- testimony discrepancies material in the Furthermore, tinuous transaction. de- prosecutrix. interruption re- This fendant has failed to show how continuity of duced the effectiveness and prejudiced by assignment of error.” innocence Defendant’s assertion of ability lessened Defendant’s We are of the and there present posi- completely logically fore hold authority that under the of Mc- counsel, although tion. The Defendant’s State, et supra, assign Manus al v. that this experienced attorney an trial was notice- ment of error is without merit. ** ably upset pace. *. and thrown off After instructing jury, Judge easily the re- Smith influenced Jurors following made the greatest judge announcement: of a trial and the marks carefully examined the nothing is We be observed eare should the State and the de closing argument con possibility, can done that fendant, rec light entire judge’s trial expression strued as closing say that the ord we are unable to criminal merits of respecting views prejudicial as argument was so State circumspect be too cannot case. Courts modification, in require nor to reversal or Okl.Cr. Hill v. State regard. See [76 this deed, it opinion that influenced are we the of 261, 267. 371], 137 P.2d than jury impose greater a sentence the to de- interruption the This unbelievable imposed. proof ordinarily would be argument regard- closing fense counsel’s — crime, despicable is guilt defendant’s the recess—imbued the less of reason and overwhelming and unrefuted judge that the trial idea jury the the supported punishment which the maximum ‘open and a trial as the entire himself felt Here, by imposed law. could have been a hol- that summation shut case’ however, jury that the was. apparent it is to be something which had formality, low prejudiced the against not defendant right of an absolute than tolerated rather closing pre-trial publicity the the either or put opportunity to the Defendant and his Attorney. argument County of the We the cogently before clearly his cause comparatively say unable to the whether jury.” light imposed against the sentence accused undoubtedly is defense Counsel for youth, highly his or the reason of thrown argues that he was sincere he when improper injurious admission intо evi judge pace interruption, the off referring prose- dence of to the statements jury meticulously carefully and advised “slut,” “whore,” “pig,” “easy cutrix as a granted as to the recess and the reason for piece,” etc., by the and moderated further closing argu his additional time to make implications from wit to drawn defense duty only ment. to The court has not privilege against ness’ self-incrimination counsel, jury, of the but to members questioned specific when about of sex acts indeed, himself, to reporter, court prosecutrix. ual intercourse with unduly see or are not overtaxed There assignments are other error physical caused When the court discomfort. which we do not deem have sufficient merit pre necessary grant deems recess to opinion. to discuss in this We are physical vent discomfort overtaxation opinion, hold, and therefore judg- counsel, jurors, reporter, court or ment and appealed be, sentence should duty has a right declare a recess and the hereby, same is affirmed. doing imply

his conduct in does bias so prejudice party. or against interrupted SPECIAL CONCURRING OPINION

We are therefore hold assignment of error is without NIX, Judge. Presiding merit. Though I in the concur ultimate conclu- urges Defendant further that reversible Bussey, of Judge sion I feel compelled to error during closing was committed upon elaborate further defendant’s proposi- argument of the Defendant State. concedes tion dealing prelimi- number with the one closing argument some of the now com- nary hearing. The Statute of State sets

plained of, objected was not to and that his forth in language clear and concise objections to other remarks were sustained defendant right subpoena has witnesses by the Court and the admonished preliminary at a hearing and examine them disregard argument, however, them. His 22, O.S., under oath. Title 257, which § substantially obj not, that whether ected to or reads as follows: the closing argument County Attorney of the was so fundamentally must, unfair “At the require the magistrate as to examination reversal. place, first to the read defendant rights He restrict the defendant in his him. under complaint on file before - pertains preliminary hearings, of the law as must, also, commencement after fortify right magistrate wit- but does subpoenaes for prosecution, issue to restrict possess it to those witnesses who required by prosecutor ness information relative or (Emphasis ours.) material the is- defendant’’ sues. says: further The Statute O.S. § [22 259] Therefore, the rule in Par laid down witnesses examination of “When State, Okl.Cr., menter v. 377 P.2d still closed, any part witness State prevails. may produce be sworn must defendant (Emphasis ours.) and examined.” concurring opin- BRETT, (special Judge complied I feel that the statute should be ion). with, repealed. opinion herein the rendered I concur in Legislature does not enact statutes to The However, Bussey. insofar as Judge warped interpreted to or twisted suit deíendánt’s specifically’ not mention did particular the converse of a situation. concerning alleged violations complaint the preliminary It is well conceded that a rules, think should the court of district guilt hearing is trial the not a to determine ju- not take be said that this Court does accused, only of the “Was a two issues: the the rules district dicial of of notice committed, crime there reasonable properly is those rules are court. Unless cause to the committed record, believe defendant appellate alleged part made a of However, only ?”it this does not mean that cannot con- court rules district violations of magis- the state can put -Likewise,-when and the witnesses appeal. error on stitute proceeding trate halt allowed to call a part to of have been made such rules auspices under the objec- that he has satisfied occur, proper record and violations with the .exceptions evidence. taken be made tions should appeal.. properly preserve the record on to certainly produce

Defendant right has a to evidence Also, objec- material to issues as stated practice, two when' better it is materiality chambers”, above. as to of evidence “in to those tions made make scope these two is broad in and the open.court-in issues or- specific objections in same record.; magistrate testimony should restrict with properly preservé the der to As caution, may or else defendant be denied transpires general'rule,"what in chambers ;not right properly being with confronted necessarily- competent to records designated by- Though accusers. not something so -dif- reflects record When the. law, preliminary hearing in American contends to -what -counsel ferent- occurred Jurisprudence recognized has been as a chambers, the .Court is bound in;_ ;to,-accept First, serving purposes. median several .it . record. what-;is; . pontained-in-the. permits the state as well as the defendant to judge the trial record reflects This preserve witnesses, testimony in lieu fairness, ef- in an trial with conducted this depositions. die, leave the Witnesses protect defendant’s scrupulously fort to state, abscond, and are often to be unable also, Judge rights. is observed It Next, procedure whereby found. it is a de- prevent a situa- sufficient orders issued may testimony fendant discover what is to that de- developing similar tion against trial, may be used him at as he Supreme Court by the United scribed States prepared examine witnesses in detail and be Maxwell, Sheppherd 384 U.S. in v. cope testimony time their at the At (1966). L.Ed.2d 600 86 S.Ct. trial. appeared al- time, the samе those rules previously leeway to re-

This matter has been discussed low the media sufficient news during Rea- port happenings conference and it is the trial. concensus proceedings reporting Court’s that this is not to of trial decision sonable ' n media, principle the news is one of our safe- mained unrefuted by the defendant. Con- (cid:127) guards against sequently, pre-trial, the recurrence of “star- such appear- statements But, reporting proceeding”. prejudiced such not to have chamber sufficiently this de- subject rules must be made reasonable fendant cause reversible error. How-. the trial court. As the United States ever, apparent a case wherein that' repeated Supreme Sheppherd, publicity su- might Court such influenced . . pra: jury, or wherein the evidence was less bar, sufficient than it in the" case at press simply publish in- ‍​‌‌​‌‌​​​‌​​‌‌‌​‌‌​‌‌​‌​‌​​​​‌‌​‌​‌​​‌‌‌​​​​​‌​‌‍“The does not pre-trial newspaper such may státements against guards formation about trials but well constitute reversible error. miscarriage justice subjecting proc- police, prosecutors, judicial publicity further With reference to the public scrutiny above, esses to extensive and mentioned jury we believe n unduly criticism.” thereby. influenced In the clos- (cid:127) ing arguments, asked the jury the State however, out, It pointed should be impose punishment the maximum on this further, Supreme Court while re- stated defendant. The asked to sentence ferring Sheppherd ’to the trial court v. years the defendant to fifteen confinement Maxwell, supra: penitentiary. instead, in the state But “The court’s fundamental [trial court] jury imposed five-year upon sentence compounded by holding error is fact, defendant. This considered with the power publicity it lacked to control the evidence, unrefuted contained in the rec- about the trial.” ord, leads Court to conclude that believe, however, power We that such pre-trial was not influenced such should good exercised reason publicity. judgment. case, we have In instant Likewise, agree particular complaints completely heard no from the with what press Judge Nix has concerning Judge concurring stated Boston Smith’s opinion, governing coverage concerning the preliminary rules hear- news media ing. reason, For that this trial. there is no need for attempt me to enlarge on those comments. newspá- pre-trial reference With per prosecution, made statements After considering the voluminous record there my is no doubt mind whatsoever case, in this consisting case-made of improper. trial of a volumes, five transcripts all the separate place criminal case should take court- hearings, pleadings filed, numerous the ex- room. be aired The evidence should not sides, hibits briefs filed both we in the newspapers before the trial occurs. must conclude that defendant received In the trial, instant was suf- case evidence a fair proc- accordance with due ficient; corroborated; re- ess.

Case Details

Case Name: Shapard v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Nov 20, 1967

Citation: 437 P.2d 565

Docket Number: A-14017

Court Abbreviation: Okla. Crim. App.