State v. Harbert

758 P.2d 826

Okla. Crim. App.

1988

Check Treatment

STATE of Oklahoma, Appellant, v. Donald Eugene HARBERT, Appellee.

No. S-86-480.

Court of Criminal Appeals of Oklahoma.

July 15, 1988.

758 P.2d 826

er as an accessory, so the defense was put on notice that they might have relevant information.

Wilhite v. State, 701 P.2d 774 (Okl.Cr.1985), this Court held that unsworn statements of prosecution witnesses are considered to fall within the work-product privilege and are not discoverable. This privilege extends as well to police investigative reports. While the work-product privilege may not be applied in derogation of a criminal defendant’s constitutional rights to disclosure of evidence favorable to the defendant, such evidence must be material to either guilt or to punishment before it is discoverable. .

In the present case, appellant never claimed that he was not the one to have killed Smith. He admitted killing Smith. Moreover, his defense was that he shot Smith in the heat of passion, which the jury evidently believed. Therefore, under the guidelines of Bagley, we are unable to say that such evidence undermines our confidence in the outcome. This assignment of error is without merit.

For the foregoing reasons, the Judgment and Sentence is AFFIRMED.

BUSSEY, J., concurs.

PARKS, J., specially concurs.

PARKS, Judge, specially concurring:

I concur in the result reached by the majority. I write separately because the United States Supreme Court has refined the holding in

Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), by ruling that the invocation of right to counsel is limited to its purpose. . Appellant requested assistance of counsel for the limited purpose of determining whether Oklahoma City police had the authority to transport him back to Oklahoma City from Weatherford on February 21, 1983. This request was clear, unambiguous, and less than all-inclusive. . Oklahoma City police informed appellant he could call an attorney when they returned to Oklahoma City. The officers made no attempt to interrogate appellant during the drive back to Oklahoma City, and the promise that appellant would be given an opportunity to call an attorney was honored upon arrival at the Oklahoma City Jail. The following morning appellant responded to police questioning after expressly waiving his right to remain silent and his right to have an attorney present. Midway through his confession to the murder of Smith, appellant said, “I think I need an attorney.” All questioning ceased, and appellant was again informed of his right to remain silent and his right to counsel. Appellant began to cry and said, “No, I’ll go ahead and tell you all about it.” Appellant initiated the further conversations with the police, and voluntarily and knowingly waived his right to counsel. See ; .

With regard to appellant’s claim that the prosecutor improperly suppressed exculpatory evidence by failing to deliver a police report to defense counsel, I would note that, for the reasons given by the majority, appellant’s case is distinguishable from

Bowen v. Maynard, 799 F.2d 593, 613 (10th Cir.Cir.1986). For the foregoing reasons, I concur.

Robert H. Macy, Dist. Atty., Gary L. Ackley, Asst. Dist. Atty., Oklahoma City, for appellant.

No appearance by appellee.

OPINION

PARKS, Judge:

The single issue before this Court comes on a reserved question of law. Donald Eugene Harbert, appellee, was charged in Oklahoma County District Court, Case No. CRF-85-5107, with First Degree Murder (21 O.S.1981, § 701.7) (Count I) and Assault and Battery with a Deadly Weapon (21 O.S.1981, § 652) (Count II) arising from the death of Lachelle A. Goldsby and the injury to Tiffiyon Goldsby, an unborn quick child. After the State presented its evidence at a jury trial, the trial judge sustained a demurrer to Count II and ordered that the charge be dismissed, ruling that a fetus cannot be a “person” as required by statute for assault and battery. We uphold the trial court’s ruling.

Lachelle A. Goldsby, was dead on arrival at a Midwest City hospital, the result of a bullet wound. She was within two (2) to four (4) weeks of a full-term pregnancy, and was kept on life support systems until the child was delivered. The child, Tiffiyon, was a normally developed, viable, near-term baby. She was not struck by the bullet that killed her mother, but was critically injured by deprivation of oxygen, with resulting lung, neurological, kidney and intestinal problems. Had the mother not died, it was predicted that the baby would have had a normal birth.

Whether a fetus can be a “person” to qualify as a victim in the assault and battery statute has never been decided by this Court. The Oklahoma Supreme Court decided over a decade ago that a common-law negligence action could be brought on behalf of a surviving child that was negligently injured before birth.

Evans v. Olson, 550 P.2d 924, 927 (Okla.1976), reasoning that “justice requires that the principle be recognized that a child has a legal right to begin life with a sound mind and body.” We find this language persuasive, but feel we have no choice but to uphold the trial court’s ruling for the following reasons.

This Court must operate under the directive that nothing is illegal in this State unless it is made so by statute.

Griffin v. State, 357 P.2d 1040, 1046 (Okla.Crim.App.1960). Penal statutes cannot be enlarged by implication or extended by inference. .

The legislature gave us little guidance in this area, stating merely that the word “person” “includes a corporation as well as a natural person.” 22 O.S. 1981, § 4. Nor does the title dealing with definitions and general provisions provide any relief, where “person, except when used by way of contrast, includes not only human beings, but bodies politic or corporate.” 25 O.S. 1981, § 16.

There is no mention that the definition of a “person” should include a fetus. Since there is a doubt, the well-established rule in Oklahoma was articulated by Judge Bussey in

State v. Humphrey, 620 P.2d 408, 409 (Okla.Crim.App.1980): that penal statutes are to be interpreted “strictly against the State and liberally in favor of the accused, and words not found in the text of a criminal statute will not be read into it for the purpose of extending it or giving it an interpretation in conformity with a supposed policy.”

Second, the language of the statute can hardly be said to comply with the due process requirements that a criminal offense be so clearly defined that an ordinary person could determine in advance what was prohibited. Statutes creating criminal offenses must be sufficiently explicit so persons of common intelligence may understand their provisions without resorting to speculation.

Evans v. Trimble, 746 P.2d 680, 684-85, (Okla.Crim.App.1987); ; .

Third, we note that the legislature specifically included a fetus in 21 O.S.1981, § 713, where the killing of an unborn quick child constitutes first degree manslaughter. See also 21 O.S.1981, § 714. We conclude that since the legislature made specific reference to the unborn quick child dealing with the death of a fetus, the absence of such language in the assault and battery statute indicates an intention not to include a fetus in that statute’s protection. See

Love v. State, 450 So.2d 1191, 1193 (Fla.App.1984).

We are aware that this ruling is inconsistent with the Oklahoma Supreme Court’s holding in

Evans v. Olson, 550 P.2d at 927, that a fetus can be a “person,” but point out that there is a fundamental difference: the Supreme Court was interpreting a common-law negligence action. “No act or omission shall be deemed criminal or punishable except as prescribed or authorized by this code.” 21 O.S.1981, § 2.

Therefore, the trial court’s ruling is AFFIRMED.

BRETT, P.J., concurs.

BUSSEY, J., dissents.

BUSSEY, Judge, dissenting.

While conceding that the decisions of the Oklahoma Supreme Court are not binding upon this Court, I feel that the opinion of Justice Lavender in

Evans v. Olson, 550 P.2d 924 (Okl.Cr.1976), interpreting the word “person” to include a viable unborn child, should be adopted for purposes of our criminal statutes. I would first note that the majority has mischaracterized the holding in Evans as one applying to a common law negligence action. That notion is in direct conflict with the language and holding of that case. In Evans, Justice Lavender held that a “person” would include a viable unborn child for purposes of 12 O.S.1971, § 1053, the wrongful death statute in force at that time. He specifically wrote “The right of action known as wrongful death accrues solely by virtue of statute.” . Thus, we are not dealing with a distinction between common law causes of action and statutory causes of action; we are dealing with two statutory causes, one civil and the other criminal. The question for purposes of this appeal is whether the word “person” has the same meaning in each context. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” . It is precisely that duty which this Court must exercise in this case.

I believe that the word “person” does include viable unborn children for purposes of our criminal statutes. As the majority has noted, our statutes do not give direct guidance on this question. I agree that “[t]here is no mention that the definition of a ‘person’ should include a fetus.” Majority opinion at p. 827. Likewise, however, there is no indication that a fetus was meant to be excluded. This case is not analogous to

State v. Humphrey, which is cited by the majority. In that case, we held that “carrying” a firearm meant physically carrying a gun, as opposed to having it in such proximity as to be easily accessible for immediate use. By including viable unborn children within the definition of “person”, we would not be moving beyond the express language of a statute. We would merely be including viable human life within the express language contained in the statute. This is not enlargement by implication or extension by inference, but application of the law to an act which is within both the letter and the spirit of the prohibiting statute. .

I also believe that no due process problems arise from inclusion of viable unborn children within the meaning of “person.” A person of ordinary intelligence can surely understand that an assault committed against a viable person inside the womb is no less criminal than an assault committed against a viable person outside the womb. To hold otherwise appears to defy common intelligence, and seems to require speculation instead of avoiding it.

Finally, I cannot join in the majority’s finding of legislative intent to exclude unborn viable children from the definition of “person.” The definition of “person” found in 22 O.S.1981, § 4 is inclusive rather than exclusive. The different treatment of an “unborn quick child” in our homicide statutes does not preclude use of an inclusive definition. Indeed, the fact that killing an “unborn quick child” is manslaughter tends to support its inclusion within the definition of “person”, since proof of the corpus delicti is essential to any homicide prosecution, regardless of the degree. That is, “No person can be convicted of murder or manslaughter, or of aiding suicide, unless the death of the person alleged to have been killed and the fact of the killing by the accused are each established as independent facts beyond a reasonable doubt.” 21 O.S.1981, § 693. (Emphasis added.)