Reynolds v. State, F-76-471

• Decision Date: 13 February 1978
• Docket Number: No. F-76-471,F-76-471
• Citation: 575 P.2d 628
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Jack Junior REYNOLDS, Appellant, v. The STATE of Oklahoma, Appellee.

Page 628

575 P.2d 628

Jack Junior REYNOLDS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-76-471.

Court of Criminal Appeals of Oklahoma.

Feb. 13, 1978.

An appeal from the District Court, Oklahoma County; David M. Cook, Judge.

Jack Junior Reynolds was convicted for the offense of Murder in the First Degree; was sentenced to death by electrocution, and appeals. Judgment and Sentence MODIFIED to Life Imprisonment, and as so modified, AFFIRMED.

John T. Elliott, Public Defender, Garvin A. Isaacs, Asst. Public Defender, for appellant.

Larry Derryberry, Atty. Gen., James C. Peck, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Jack Junior Reynolds, hereinafter referred to as defendant, was charged, tried by jury, and convicted in the District Court, Oklahoma County, Case No. CRF-75-4770, for the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1975, § 701.1 P 9. The sentence was fixed at death. From said judgment and sentence and death warrant, an automatic appeal has been perfected to this Court.

The uncontroverted evidence presented at trial revealed that the defendant and his brother Floyd had spent the evening of August 20, 1975, in Floyd's apartment sniffing paint and drinking beer. At approximately midnight, defendant left his brother's apartment, intending to go "straight home." At S. W. 33rd and S. Robinson Streets, defendant noticed a young female hitchhiker; he stopped his automobile and offered her a ride. The defendant and the girl, later identified as sixteen-year-old Rita Ann Whitley Sealey, traveled for a few blocks before stopping in front of a home at S. Harvey and 28th Streets. The defendant began to make sexual advances toward the girl and she resisted and attempted to leave the automobile. A struggle ensued, during which the girl repeatedly screamed and honked the horn. The defendant choked and beat the girl, and stabbed her in the neck, chest and abdomen approximately twenty-eight times; and from these wounds Ms. Sealey died.

Pursuant to a radio bulletin, Oklahoma City Police Officers Mullenix and Pyle located an automobile parked in front of a home at 3400 S. Harvey, six blocks from the scene of the homicide. Upon observing bloodstains on the outside of the vehicle, the officers approached a nearby house. Receiving permission to enter, the officers observed the defendant wearing only blue jeans, with blood just above his right elbow. The officers arrested the defendant, advised him of his Constitutional rights, and transported him to the police department. Subsequently, Sergeant Robert Harvey of the Oklahoma City Police Department, returned to the residence and recovered the defendant's pocket knife from the defendant's mother.

The defendant did not deny killing Ms. Sealey, but sought to prove that his act was not premeditated. Several members of the defendant's family testified that he was a slow learner and had sniffed paint for several years. Based on the combination of those two factors, defendant's family members concluded that defendant could not distinguish between right and wrong. A specialist in toxicology testified concerning the effect on the brain and on behavior patterns of chemical agents found in paint. Psychiatrists presented by both the State and the defendant testified that defendant had no brain damage and that he was able to distinguish between right and wrong. Although all three psychiatrists agreed that defendant acted mainly from impulse, he was capable of forming premeditation.

As his first assignment of error, the defendant contends that the prosecutor was guilty of misconduct when he dropped a photograph in front of the jury box before the photograph was admitted into evidence. The record reveals that at the time of the incident now complained of, the prosecutor was questioning Officer Dawson. As the prosecutor handed the officer several pictures and asked him to identify them, one photograph apparently fell to the floor. At that point, the defendant moved for a mistrial and the prosecutor responded:

"I dropped one, Judge. It wasn't intentionally. On my oath as an Officer of this Court."

In the instant case, defendant does not complain of the admission of the photographs, but only of the fact that one of the jurors could have seen the photograph prior to its introduction into evidence. While it is unclear which of the photographs was dropped, all of the photographs were subsequently admitted into evidence. We find the defendant's first assignment of error to be wholly without merit.

The defendant urges, as his second assignment of error, that the trial court erred by failing to grant a continuance. The defendant requested the continuance because a toxicologist named Richard Prouty, had been subpoenaed as a witness and was out of the state at the time the trial began.

This Court has consistently adhered to the general rule that the granting or denying of a motion for continuance is addressed to the sound discretion of the trial court and will not be disturbed on appeal unless the ruling was arbitrary or capricious. See, Prevatte v. City of Tulsa, Okl.Cr., 542 P.2d 969 (1975). In the instant case there is nothing in the ruling by the trial court that appears arbitrary or capricious. The unavailability of Prouty did not deny the defendant the use of an expert witness on the subject of the effect of paint sniffing on the brain. The defendant called Hubert E. Maxey, a specialist in toxicology, who offered testimony on the issue. Moreover, at the conclusion of Mr. Maxey's testimony, the defendant and the State stipulated that had Richard Prouty been called as a witness, his testimony would have been substantially the same as that given by Mr. Maxey. In Fields v. State, 85 Okl.Cr. 439, 188 P.2d 231 (1947), this Court stated in paragraph 12 of the Syllabus:

"Where the evidence of an absent witness would merely be cumulative, it is not error for the court to overrule a motion for continuance based thereon."

Also see, Driver v. State, Okl.Cr., 490 P.2d 1109 (1971). We find that the defendant failed to establish that he had suffered any prejudice as a result of Mr. Prouty's absence, nor is there any showing that Mr. Prouty's testimony would have been more than cumulative. Defendant's second assignment of error is therefore without merit.

The defendant contends, as his third assignment of error, that the defendant's Motion for Mistrial should have been sustained after it was revealed that the foreman of the jury was acquainted with one of the witnesses in the case. During the course of the trial, one of the jurors, Mr. Walcher, informed the trial court that he was acquainted with one of the witnesses, Officer Knox, who had previously testified in the case. The trial court then examined Mr. Walcher in the presence of both counsel, as to the nature of his friendship with Officer Knox and its effect upon his ability to render a fair and impartial verdict. In substance, Mr. Walcher stated that he would be able to render a fair and impartial verdict and would not be influenced by his acquaintance with the witness.

This Court has often held that in order for the defendant to receive a new trial on the ground that a juror who served on the jury was prejudiced against him, he must not only show the prejudice of the juror, but must also show that he suffered an injustice by the presence of that juror on the jury panel. See, Wagers v. State, Okl.Cr., 370 P.2d 567 (1962). In the instant case, the trial court thoroughly questioned the juror and was satisfied that he was impartial. In Newton v. State, Okl.Cr., 516 P.2d 827 (1973), we considered a similar situation and found that the trial court had not abused its discretion by refusing to grant a mistrial. We find this contention to be without merit.

As his fourth assignment of error, the defendant alleges that the trial court committed error by answering the juror's questions after the deliberations of the jury had commenced. The jurors sent a note to the trial court requesting information on several issues, including probation and parole. The trial court conferred with both counsel and gave them an opportunity to hear his proposed answer before calling the jury back into open court. Neither attorney objected to the answer, and the jurors were informed in open court that pardon and parole was a matter for the Executive Branch. This Court considered similar circumstances in Brown v. State, Okl.Cr., 530 P.2d 1056 (1975), and found:

"Because the communication which is now complained of occurred with the knowledge and consent of defense counsel . . . and constituted but a simple negative response imparting no additional knowledge or instruction to the jury, we find that any objection was waived, that no presumption of prejudice arose and that same did not constitute error. . . ."

Therefore, upon careful examination of the transcript, we find that the trial court committed no error by answering the jury's question.

As his fifth assignment of error, the defendant alleges that the trial court abused its discretion by denying defendant a jury trial on the question of defendant's present sanity prior to sentencing. Before the sentencing of the defendant, the trial court permitted the defendant to present witnesses on the question of his sanity. Several persons testified and at the close of the evidence, the trial court denied defendant's request.

The authority for ordering a sanity hearing appears in 22 O.S.1971, § 1162, in pertinent part as follows:

". . . if a doubt arises as to the sanity of the defendant, the court must order a jury to be impaneled . . . ."

It is well-settled in Oklahoma that the doubt referred to in the statute is that doubt which must arise in the mind of the trial court. See, Russell v. State, Okl.Cr., 528 P.2d 336 (1974). The trial court may look to the source of the information and motive in determining whether there is doubt which would justify...