White v. State
726 P.2d 905
Okla. Crim. App.
1986
Check Treatment

*1 v. Con- of

sequently, granting since the a sever- of discretion the trial

ance is a matter with

court, an abuse of that discretion must be appel- In

demonstrated. the instant case any

lant has failed to show such abuse the part of trial court.

In his last of there contends that was insuffi

cient evidence to sustain conviction. clearly record before this Court

flects there competent was sufficient jury might

evidence from which con guilty

clude that of Spuehler

charge he confronted.

It is not the of this function Court to

again weigh evidence which con- jury

sidered considering province

case. The exclusive is weigh the evidence and determine the scope appeal

facts. The of review on from is conviction limited to a of determination

whether there is substantial evidence

support verdict. In the instant case we

find evidence was sufficient

support verdict jury. reached It

is clear him- record that

self, testifying, while corroborated most judgment

the State’s case. The sen- Court, County

tence in Beckham District

Case No. CRF-78-41 is AF- therefore

FIRMED.

PARKS, P.J., BUSSEY, J., concur. WHITE, Appellant,

Rawshall Luther Oklahoma, Appellee.

STATE

No. F-84-245. Appeals

Court of Criminal Oklahoma.

Oct. 1986.

906

CRF-83-83, charge Degree on the of First Murder, impris- for which he life received onment, appellant, Rawshall Luther White, assignments four raises of error. 1983, night The March appel- approached lant Ronald in Abraham parking pool Sapulpa lot of a hall in stated, “Ronnie, got good I’ve probation, you because I’m on know.” Mr. a,nd reply, Abraham not did walked his house, nearby. mother’s which was Later cousin, Bruner, Jr., Abraham and his Willis Cafe, Big went to the Cabin they and while stood talking, appellant approached. Abraham into the went cafe Bruner while appellant and the stood and talked. Dur- ing the he conversation told Bruner that he really living. care did not about Subse- quently, cafe, Abraham came out approached appellant asked, “Rawshall, can we sit down and talk about appellant this?” To replied, which “Yeah, Ronnie, we can talk about it.” At point pulled forty-four that appellant cali- magnum jacket ber revolver from his shot the victim once in the abdomen. He then building chased Abraham around the firing him, four more times at but without striking again. him Abraham ran to his mother’s where collapsed. house he After being transported hospital, to the he died day. the next The testified that on that eve- ning, displayed Abraham had both a knife him, gun and a and threatened to kill During incident, him. him, claimed approached that as victim he noticed had in Abraham his hand pocket out, protruding which was and that arm, Abraham bent his Barrett, Counsel, Sp. Mark Appellate him shot in self-defense. He then claimed Defender, Norman, appellant. Public for that some of Abraham’s friends shot at the appellant who returned fire. He stated he Gen., Turpén, Atty. Michael C. Jean M. never shot more than one time at the vic- LeBlanc, Gen., Atty. Asst. City, Oklahoma tim. appellee. for error, first As his OPINION appellant contends that the trial court com BUSSEY, Judge: mitted fundamental permitting error in appeal from his in On conviction peremptory jury challenges. Dis- five Title County, O.S.1981, trict Court of Creek provides Case per- No. for nine emptory challenges prosecutions you, MR. COWAN: Thank Your Honor. murder. my made If I can finish sentence.—he has not' objection brought no to the trial court’s did you any Witness who claimed to request peremptory additional chal- have seen the events that occurred there. lenges, night, nor has he prej- shown how he was brought you and has not any. ruling. udiced the court’s As the bur- Witness story that corroborates his *3 upon den is him to establish the fact that he did not fire five times at Ronnie Abra- prejudiced rights was his substantial ham .... by error, complaint the commission of this cas.es, cites including is not sufficient to cause the reversal of Thompson State, v. (Okl.Cr. 462 P.2d 299 State, this conviction. Landrum v. 486 1969), proposition for the criticizing (Okl.Cr.1971). P.2d 757 defendant’s failure to call witnesses is re versible error. Such a broad statement is Appellant alleges next nine instanc incorrect. prosecutorial misconduct, es only of four of Subject to the rule ... that a comment properly preserved which were for review by prosecution the on the failure of ac- State, See Tucker v. by timely objections. produce cused to witnesses or evidence is (Okl.Cr.1980). 620 P.2d 1314 Two instanc improper if it constitutes a reference to upon es involve comments appellant’s the accused’s failure to testify, generally it is any failure to call witnesses who observed held that it is prosecut- not error for the shooting. the prosecutor The first time the ing attorney to comment on the failure of appellant’s referred to spe failure to call a accused produce to or use certain wit- witness, objection by cific the defense coun nesses, who are to him accessible or in sustained, sel request was but no that the control, cognizant and who are of jury be admonished was made. Failure to facts, material and compe- relevant request an admonition waives an error thereto, testify tent to and whose testi- which could have been cured the with mony presumably would aid accused or State, drawal of the remark. Rushing v. story substantiate his if story the were (Okl.Cr.1984). 676 P.2d 842 During the true, where, as example, for the witness- instance, prosecutor second referred to accused, es referred to are relatives of or closing argument defense counsel’s peculiarly are otherwise under accused’s during was sur influence or related in interest to him. rounded friends of the victim. The 23A C.J.S. Criminal Law (1961). prosecutor went on to state: We have reversed or modified cases due to I there, submit Mr. had White friends comment failure of the defendant to yet, Mr. White has been unable to call witnesses where the comment was mis bring you any Witness. He has the leading, improper. or otherwise A careful subpoena power same that the State does Thompson reading and Baldwin v. subpoena any Witnesses that he wants State, (Okl.Cr.1974) 519 P.2d 922 reveals brought to here. He has one that those cases were modified because the Witness— prosecutor questionable in each drew case Honor, MR. MILLER: Your object we conclusions from matters outside the being improper that as and move the record. This Court affirmed Porter v. Court to jury disregard admonish the State, (1943), 76 Okl.Cr. the statement. prosecutor argued where the that the de Well, THE jury COURT: is the best fendant could not find one witness to testi judge of whether or not the Defendant fy him, every for and that witness who brought has Witnesses. Overruled. testified contrary story. related facts to his Exception. MR. MILLER: argument As that was a deduction from THE COURT: You have minutes appeared two the evidence justified, which close. argument proper. was

During testimony, guilt verdict as the evidence of gave people the names of several who were overwhelming. Tharps See present during shooting, although they he claimed were all friends of the assign- We therefore find this second

victim, at least one of those witnesses testi ment of error to be without merit. fied that he appel was also a friend of the Although testified, lant. several witnesses his third In story

none appel corroborated the appellant argues prosecution that the con lant that he shot one time at the jury through fused and misled the pre victim, and that was in self-defense. We sentation of rebuttal evidence on collateral argument find that the of the prosecutor stated, issues. previously As we have permitted closing argu within that may buttal evidence explain, be offered to Capps ment. See P.2d 554 counteract, repel, disprove, destroy or facts given in evidence party, an adverse as *4 disputed well as clarify point, a even appellant complains The next of the though testimony might that same have display photo. of an unadmitted It shows in been introduced chief. The introduction holding photo the victim a small child. The of such evidence is a matter of discretion by is about two inches wide three inches court, for the trial ground and will not be a long. The trial court sustained defense for reversal absent an abuse of that discre objection counsel’s to its admission into evi State, tion. Schneider v. 538 P.2d 1088 dence, but denied the motion for a mistrial. (Okl.Cr.1975). The record reveals that the photo, Given the size of the and the fact trial carefully court monitored the rebuttal jurors that the were never allowed to ex testimony, and stopped prosecu even it, amine we do appellant not find that the point inquire tion at one what he was prejudiced. was attempting during testimony rebut In the fourth by instance cited of one witness. doWe not find an abuse of appellant, prosecutor, dire, during voir discretion, and therefore this in questioning the context of prospective error is also without merit. juror past who stated her experiences that ability would interfere her with in fair Finally, claims that case, questions: this asked these the trial court should have instructed on MR. COWAN: Do feel that there is misdemeanor-manslaughter. The some added burden either De- argues his supports that case all of the fendant or for the State in this case to underlying misdemeanors which existed in you, you’re convince if not neutral start- the case of Dawson v. ing off? case, In that the jury was THE (Mrs. PROSPECTIVE JUROR: upon instructed the crimes of second de Roberts) Yes, I would be neutral. gree degree murder and second man MR. But COWAN: that there would be slaughter. The majority held that in an stronger some burden on one side or the struction on misdemeanor-manslaughter (Tr. 114). other you? to convince given also, should have been as the Court found supporting that there was evidence After the defense objected counsel to such guilt during of accidental questions at a homicide bench conference com outside the misdemeanor, mission hearing jurors, of a the trial which consti court ad- manslaughter tutes in prosecutor stay away degree. monished the from first particular that line of We must first note questioning. As the that the trial in court correct proof, gave burden of as well case at bar as the an instruction on innocence, presumption manslaughter in degree, were the sub- the first 21 O.S. jects questions, other voir dire and cov- 711. The upon court instructed § 711(2), ered in the jury, instructions to the do manslaughter we in the first § not find questions by affected the passion. heat of The claims 711(1), man- support impartial jury. that the facts also an trial Failure to af § slaughter degree by in the misde- ford an accused to the correct number of meanor-manslaughter. peremptory challenges Subsection one is in should result versal, not a included offense of subsection if the lesser accused exercised all those O.S.1981, 711, challenges two of 21 and therefore no was allowed the trial affirmatively fundamental issue is raised. Because and did not court those waive challenges appellant object- there is no record that the allowed law. I dissent. ed to the instructions and offered own writing, properly pre- he has failed to

serve this issue for appeal. consideration on

Phipps

Furthermore, dispute there no was intentional,

shooting issues pre-

raised were whether the murder, passion

meditated heat of man- slaughter, justifiable or homicide. This as- COX, Appellant, Ben Allen signment of error is also meritless. AF- judgment and sentence is FIRMED. Oklahoma, Appellee. STATE of No. F-86-213.

BRETT, J., concurs. *5 PARKS, Appeals Court Criminal P.J., of Oklahoma. dissents. PARKS, Presiding Judge, dissenting: 14, Oct. 1986.

I respectfully dissent to the majority’s

opinion. O.S.1981, Title provides § in all prosecu murder

tions, (9) a defendant is entitled to nine case,

peremptory challenges. In this (5) five just peremp afforded challenges,

tory and he exercised all five. object

While it is ture the defense did not irregular procedure,

to this and unlawful O.S.1981, places

Title 22 an affirma duty properly

tive the trial court to regarding

inform an accused selec process,

tion proper objections order that

may lodged. be The defendant in this proper say

advised case. It is not knowing intelligent waiver oc- has

cured give trial court failed to

statutory right admonition. The trial impartial jury

before an is the hallmark system

our of justice, American and is

guaranteed by both the Federal Okla

homa constitutions. See U.S. Const. VI, II,

amend art. Okl. Const. §§

20. In order to implement this constitu right, Legislature

tional Sec enacted 655, regulating

tion peremp the number of

tory challenges necessary to fair insure a