1993 OK CR 49
862 P.2d 487
STEPHEN LEE ALLEN, APPELLANT, v. THE STATE OF OKLAHOMA,
APPELLEE.
Case No. F-92-120.
October 28, 1993
As Corrected November 29, 1993.
Rehearing Denied December 6, 1993.
An appeal from the District Court of Washington
County; John G. Lanning, District Judge.
Stephen Lee Allen, appellant, was convicted of
First Degree Murder, in the District Court of Washington County, Case No.
CRF-90-239, sentenced to life in prison, without parole, and appeals. AFFIRMED.
Alan R. Carson and Kevin D. Buchanan, Garrison,
Brown, Carlson & Buchanan, Bartlesville, Trial and Appellate Counsel
for Appellant.
Craig D. Corgan, Washington County Dist. Atty.,
Bartlesville, Trial Counsel, and Susan B. Loving, Atty. Gen. Of Oklahoma
and Dan Connally, Asst. Gen., Oklahoma City, appellate counsel for appellee.
OPINION
CHAPEL, Judge:
Stephen Lee Allen was charged
by Information in Washington County District Court Case No. CRF-90-239 with
Murder in the First Degree, in violation of 21 O.S.Supp. 1882 §
701.7[21-701.7](A). The State filed a bill of particulars seeking the death
penalty, alleging the murder was especially heinous, atrocious or cruel.
Following a trial before the Hon. John G. Lanning, District Judge, the jury
found Allen guilty of first degree murder and recommended he be sentenced
to life in prison without parole. The trial court sentenced accordingly and
Allen appeals.
On the evening of June 11, 1990,
Allen's wife Sandra was viciously attacked and bludgeoned to death in the
family home. Allen testified he arrived home that evening with one of his
young sons, and as he drove into his driveway he noticed the shadowy figure
of a person at the edge of his patio. When the auto lights hit the person,
he observed the figure run from his home. Allen locked his son in the auto
and ran into the house where he found his wife lying on the floor in a pool
of blood. In an effort to revive her, Allen said he shook her causing blood
to spatter on him and about the room. Allen then went to the phone to call
for help. Seeing a ball peen hammer lying by the phone, he picked it up and
in frustration, struck the counter top. Fearing his bloody prints on the
hammer might implicate him in his wife's injuries, he further testified that
the cleaned the hammer with paper towels and hid both the hammer and the
towels in the attic. He then called for help.
The authorities found the hammer
and towels and charged Allen with his wife's murder. The medical examiner
testified that blunt force head injuries caused her death. The State also
presented evidence concerning an extramarital affair Allen had with secretary
in his office which had ended about six months before his wife's death. Other
evidence pointed to problems in the Allen marriage. The jury was sufficiently
convinced of Allen's guilt to convict him, although it refused to impose
the death penalty. Rather, the jury recommended the sentence of life without
parole.
Allen complains he was prejudiced
by the trial judge's questioning of witnesses at the trial. Initially, we
note there is no question about the authority of a trial judge to question
witnesses. This authority is statutory created and has long been recognized
by this Court. See 12 O.K. 1981 § 2614 [12-2614](B); Howard v.
Territory, 15 Ok 199, 79 P. 773, 774 (1905). See also Hicks v.
State, 713 P.2d 18, 20 (Okl.Cr. 1986). However, while trial judges may
have the authority to question witnesses, they should be very careful in
exercising such power. Trial judges must remain neutral and should not indicated
their opinion as to guilt or innocence in any trial. Richmond v. State,
456 P.2d 897, 898 (Okl.Cr. 1969). The Oklahoma Constitution guarantees a
persons charged with a crime a trial before an unbiased judge. Ok.Con art.
II § 6. See also Arnold v. State, 803 P.2d 1145(Okl.Cr.1990).
Therefore, the high degree of latitude normally afforded trial judges to
question witnesses must be balanced against the right of a defendant to a
trial free of prejudice. See Stanley v. State, 94 Okl.Cr. 122, 230
P.2d 738, 744-45 (1951); Schmitt v. State, 57 Okl.Cr. 102, 47 P. 2d
199, 212 (1935).
In this trial, the judge questioned
the defendant and two other defense witnesses. We have reviewed the trial
transcript and the questions asked by the trial judge. Nothing in the record
reveals the jury was informed of the court's opinions or views or that the
defendant was unfairly prejudiced by the trial judge's questions.
In his second proposition, Allen
asserts it was error for the trial judge to deny his pretrial motion for
a change of venue from Washington County. As a sub proposition he also complains
publicity surrounding the trial was so pervasive as to deny him a fair trial.
This case did generate substantial pretrial and trial publicity in Washington
County, and indeed, in Northeastern Oklahoma. The fact that publicity existed
and was adverse to the defendant does not alone form the basis for reversal.
The inquiry is whether or not the defendant received a fair trial by an impartial
jury. Gregg v. State, 844 P.2d 867, 871 (Okl.Cr.1992); McBrain
v. State, 763 P.2d 121, 123-24 (Okl.Cr. 1988).
Allen correctly cites Coates
v. State, 773 P.2d 1281, 1286 (Okl.Cr. 1989) as setting forth a two-prong
test to determine whether or not a defendant's due process rights have been
violated by the failure to grant a motion for change of venue. The first
Coates prong is an inquiry into whether "the influence of the new
media, either in the community at large or in the courtroom itself, pervaded
the proceedings." Id. at 1286. Prejudice will be presumed if the media has
pervaded the proceedings. The second prong involves examining the entire
proceedings to determine if the defendant received a fundamentally fair trial.
Id. at 1286. See also Brown v. State, 743 P.2d 133, 136 (Okl.Cr. 1987),
quoting Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031,2036,
44 L.Ed.2d 589 (1975).
The trial judge in this case was
careful to allow extensive questioning of prospective jurors. Prospective
jurors are acceptable even if they have heard about a case through the media
and even if they have formed an opinion about the case, provided they are
willing and able to set aside their opinions and base their decisions in
the case solely on the evidence presented at trial. Gregg v. State,
844 P.2d 867, 871 (Okl.Cr. 1992); Kiser v. State, 782 P.2d 405, 409
(Okl.Cr. 1989). The jurors in this case indicated on voir dire they could
do just that.
To support his motion for change
of venue Allen submitted three affidavits from Washington County citizens
and testimony from an expert along with a public opinion survey performed
by the expert. We are not persuaded by the affidavits, the testimony or the
survey that Allen has met either prong of the Coates test. There was
substantial publicity, but the publicity did not pervade the pretrial proceeding.
Moreover, after reviewing the entire transcript to determine if the publicity
unfairly affected the trial, we find it did not.
Allen also complains he was prejudiced
by the trial court's adverse rulings on his motion to require the State to
cease testing by experts on the ball peen hammer and the motion in limine
relating to the testing. Allen essentially argues it is fundamentally unfair
to a defendant to permit the State, with all of its resources, to continue
expert testing right up to the trial's commencement. The prosecution provided
the defense the results of its final testing on June 18, 1991. Voir dire
of the jurors in this case began on July 15, 1991 and the testimony began
on July 22, 1991. Allen, therefore, had the results of the State's testing
approximately one month before the trial began.
There is no question the test results
were prejudicial to Allen. However, in any criminal case all or at least
most relevant evidence offered by the State is prejudicial in that it tends
to prove the case against the defendant. The prejudice against Allen, therefore,
directly resulted from the evidence and not from the adverse rulings by the
trial court. Moreover, under theses circumstances were are not persuaded
that one month prior to trial is too little time to have been furnished the
test results.
In another proposition concerning
discovery, Allen contends the trial court erred in refusing to order the
State to provide him with work papers of its experts. Our decision in Allen
v. District Court, 803 P.2d 1164,
1168 (Okl.Cr. 1990), requires the prosecution to disclose "any reports or
statements made by experts in connection with the particular case, including
results of physical or mental examinations and of scientific tests, experiments,
or comparisons."
In this case Allen was provided
with the results of the prosecution's experts. He now asserts, however, that
in certain instances, discovery of the conclusory reports alone is inadequate
and urges this court to extend the discovery principles set forth in Allen.
This Court has never allowed the discovery of prosecution witnesses' work
papers. See Wing v. State, 490 P.2d 1376, 1382 (Okl.Cr. 1971), cert
denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119 (1972); Smith v.
State, 462 P.2d 328, 330 (Okl.Cr. 1969). Although there is some merit
to Allen's arguments concerning difficulties caused by production of the
bare results or conclusions of experts, we decline at this time to expand
the requirements set forth in Allen.
Allen next asserts error on the
part of the trial court in failing to sustain challenges for cause to three
specified jurors. The decision whether to disqualify jurors remains within
the trial court's sole discretion. Workman v. State, 824 P.2d 378,
380 (Okl.Cr. 1991), cert. denied, __U.S.__, 113 S.Ct. 258, 121 L.Ed.2d 189
(1992); Sherrick v. State, 725 P.2d 1278, 1282 (Okl.Cr. 1986), cert.
denied, 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987). The decision
should not be overturned in the absence of an abuse of that discretion.
Simpson v. State, 827 P.2d 171, 175 (Okl.Cr.1992); Bickerstaff
v. State, 446 P.2d 73, 77 (Okl.Cr. 1968)
A review of the voir dire transcript
clearly indicates that in the case of the three prospective jurors about
which Allen complains, each asserted they could put aside personal predilections
and follow the law. Bolts v. State, 806 P.2d 1117, 1122 (Okl.Cr. 1991),
cert. denied, __U.S.__, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991).
Allen next asserts the trial court
erred in allowing the State to present evidence of the affair with the secretary
and in allowing rebuttal evidence by two witnesses. Because the affair had
ended about six months before his wife's death, Allen urges it was not relevant.
Further, he argues the State offered such evidence to prove him a "bad man"
and its prejudicial effect far outweighs any probative value. We disagree.
The mere fact that Allen had at
one time been unfaithful to his wife might not be relevant. Here, however,
while the evidence indicated the sexual relationship had ended, the evidence
also clearly established that Allen and the secretary maintained a very close
personal relationship up to the date of the death. Along with proof of the
affair, numerous notes were introduced which were taken from his electronic
mail system. These notes revealed that he and the secretary discussed the
most intimate sexual problems in the Allen marriage. This evidence was relevant.
Past acts are often relevant to show motive and have been admitted into evidence
on many occasions. See 12 O.S. 1981 § 2404 [12-2404](B); Cook v.
State, 704 P.2d 86, 88 (Okl.Cr. 1985); Bristow v. State, 644 P.2d
118, 120 (Okl.Cr. 1982). The facts concerning his relationship with the secretary
coupled with the evidence concerning his marital difficulties form a sound
basis for his motive to murder his wife. There was no error in admitting
such evidence.
In the same proposition of error,
Allen complains the trial court erred in allowing the State to present the
rebuttal testimony of Tom Bevel and Alan Eastman. As to witness Bevel, who
testified as an expert on blood spatter, Allen contends his testimony was
offered only so the State could have the last word on that issue. He further
argues the testimony of Bevel was merely a rehash of previous testimony of
another expert presented by the State.
The witness, Alan Eastman, testified
on rebuttal concerning a statement Allen made immediately after his wife's
funeral. According to Eastman, Allen said, "I don't know if I did it or not,
I just don't remember what happened." (Tr. 8/7, 8, 10/91 pg. 16 ln. 5-6)
Similar testimony had been presented earlier by another witness. Allen denied
making such a statement. On appeal Allen contends he was not given proper
notice of Eastman's testimony and, in addition, the testimony does not constitute
rebuttal.
We reject the proposition that
the trial court erred in allowing the rebuttal testimony of Bevel and Eastman.
The decision whether or not to admit testimony is a matter within the discretion
of the trial court and is not grounds for reversal absent abuse. Spencer
v. State, 795 P.2d 1075, 1078 (Okl.Cr. 1990). Further, as to rebuttal
testimony we have held "[r]ebuttal evidence may be offered to explain, repel,
disprove, or contradict facts given in evidence by an adverse party, regardless
of whether such evidence might have been introduced in the State's case in
chief or whether it is somewhat cumulative." Kinsey v. State, 798
P.2d 630, 633-34 (Okl.Cr.1990); see also Salyers v. State, 755 P.2d
97, 102 (Okl.Cr. 1988); Smith v. State, 695 P.2d 864, 868 (Okl.Cr.
1985).
Allen complains that the trial
court erred in allowing the State to ask questions intended to embarrass
his expert forensic pathologist. Some of the voir dire was conducted in the
presence of the jury and some outside its presence. Some of the questions
dealt with issues extremely remote in time and others, which the State attempts
to justify as showing bias, were irrelevant. We are not persuaded, however,
that these minor imperfections require reversal. The admission of evidence
is within the trial court's discretion and we find no abuse here. Spencer
v. State, supra.
The Bartlesville Police Department
videotaped the crime scene shortly after arriving at the house. The trial
court permitted the jury to view the video portion of the tape, but excluded
from evidence the audio portion of the tape. Allen contends the trial court
erred in excluding the audio portion of the tape. We disagree. While the
audio may have had some relevancy, "[r]elevant evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the jury. . . . "12 O.S. 1981
§ 2403 [12-2403]; see Cooper v. State, 671 P.2d 1168, 1173 (Okl.Cr.
1983).
Allen sought to admit the audio
portion to lay the groundwork for his challenge of the investigative procedures
and to show that he was immediately considered the primary suspect, thereby
causing the police to abandon his theory of a burglary by the "shadow of
a figure" he observed leaving his residence. However, Allen as much as concedes
he was able to introduce through witnesses' testimony, all of the points
he might have made had the audio portion of the tape been admitted. See,
e.g. Sellers v. State, 809 P.2d 676, 683 (Okl.Cr. 1991), cert. denied,
__U.S.__, 112 S.Ct. 310, 116 L.Ed.2d 252 (1991). Even if the audio portion
of the tape should have been admitted, its exclusion did not constitute
reversible error. It is clear that the information Allen sought to introduce
through its admission was placed before the jury through witnesses' testimony.
Finally, Allen contends the evidence
was insufficient to support a guilty verdict. The standard of review applicable
to this proposition is "[w]hen reviewing for sufficiency of the evidence,
the question is whether, when viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt." Luna v. State, 829
P.2d 69, 73 (Okl.Cr. 1992); Jackson v. Virginia, 443 U.S. 307, 320,
99 S.Ct.2781, 2788-89, 61 L.Ed.2d 560 (1979).
In support of this proposition,
Allen raises five issues. First, he contends a contact lens that did not
belong to him or his wife was found on the victim's body. He asserts this
casts doubt on the State's theory that he was the killer. However, the victim's
optometrist testified the lens in question was consistent in form and strength
with the lens he had prescribed for her a few months prior to her death.
Secondly, Allen argues the State
failed to prove that his relationship with the secretary motivated him to
murder his wife. He contends that because this extramarital affair had ended
months before the murder was committed, it could not have been his motive
for killing his wife. While the physical relationship may have ended, there
was substantial evidence of a continuing close personal relationship with
the secretary. This evidence along with substantial evidence of sexual problems
in the Allen marriage sufficiently enabled the jury to find motive.
Shortly before her death, while
still at work, the victim received an unusual telephone call from a stranger.
Allen argues in his third subproposition that the State's evidence failed
to explain the call. Perhaps so, but the facts and circumstances surrounding
the call were presented to the jury for whatever weight it chose to give
them.
Substantial evidence was presented
to the jury on the issue of blood spatter. Allen contends in his fourth
subproposition his experts were highly qualified and testified the physical
evidence was consistent with his theory of the case. On the other hand, Allen
is critical of the methodology and testing performed by the State's expert.
The point, however, is simply that the evidence conflicted on this issue.
The jury resolved the conflict in favor of the State.
In his fifth and final subproposition
concerning insufficiency of the evidence, Allen contends the ball peen hammer
could not have been the murder weapon. Again, the evidence was somewhat
conflicting. There was evidence the victims injuries, while caused by a blunt
instrument, were not consistent with those normally caused by a hammer. On
the other hand, the State's expert testified he could not eliminate the hammer
as the murder weapon, and Allen's own expert indicated the manner in which
the hammer was used could be a factor in the kinds of injuries a hammer would
typically cause. Again, the evidence on the issue was conflicting but sufficient.
This was an extremely hard fought
case in which virtually every detail was challenged and in which very able
counsel represented both sides. The fact that the evidence was challenged,
however, does not mean the evidence was insufficient. When viewed in the
light most favorable to the State, the evidence in this case was entirely
sufficient to enable the jury to find the essential elements of the crime
beyond a reasonable doubt. Luna v. State, supra.
Accordingly, judgment and sentence
of life without parole is AFFIRMED.
LUMPKIN, P.J. and JOHNSON, V.P.J., and LANE, J.,
concur.
lh 2000