Driskell v. State

• Decision Date: 16 February 1983
• Docket Number: No. F-77-603,F-77-603
• Citation: 659 P.2d 343
• Parties: Clifton Leroy DRISKELL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 343

659 P.2d 343

Clifton Leroy DRISKELL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-603.

Court of Criminal Appeals of Oklahoma.

Feb. 16, 1983.

An Appeal from the District Court of Garfield County; Ray Lee Wall, District Judge.

Clifton Leroy Driskell, appellant, was convicted for the offense of First Degree Murder, in the Garfield County District Court, Case No. CRF-76-1084, and was sentenced by a jury to suffer the death penalty. Judgment and sentence Modified from Death to Life Imprisonment, and AS MODIFIED, JUDGMENT AND SENTENCE IS AFFIRMED.

Mac Oyler and Mary E. Bane, Oyler, Smith & Bane, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., Timothy S. Frets, Danny K. Shadid, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

PER CURIAM:

On July 29, 1976, an 11-year old boy was kidnapped in Enid, Oklahoma; the next morning his body was found in a bar ditch outside of Covington, Oklahoma. His throat had been slashed several times. Investigation and arrest of the appellant led to his conviction of Murder in the First Degree for which he was sentenced to death in Garfield County District Court Case No. CRF-76-1084.

I.

The appellant first alleges error in the district attorney's use of Mr. Stephen Jones, a private attorney, as an assistant prosecutor. Not long after the information was filed, the district attorney sought and obtained an order of the district court appointing Mr. Jones as an unpaid "special prosecutor" to assist in this case. But prior to trial, in Driskell v. Goerke, 562 P.2d 157 (Okl.Cr.1977), we held that the Oklahoma statutes do not permit the use of special prosecutors. The district attorney then hired Mr. Jones as an assistant district attorney, with his duties to begin on May 16, 1977, which was the first day of trial of this case.

The appellant insists that regardless of the change of titles, the sole purpose of Mr. Jones' employment was to work on this one case. He rejects the district attorney's claim that Mr. Jones did some work on a federal lawsuit in another county of the district, emphasizing that his employment began on the first day of trial, and that the district attorney admitted the employment would not continue beyond that jury term. The appellant also alleges that Mr. Jones donated his efforts to the case preparation even during the period that he was not officially a member of the district attorney's staff, and that he continued to practice criminal law during the time of his "employment." A member of his law firm made appearances for him in several criminal cases during this period, although no case in which he had made an entry of appearance was tried during the jury term in which the appellant was tried. The appellant further asserts that Mr. Jones did not execute the bond required of assistant district attorneys by 19 O.S.1971, § 215.3, but the district attorney stated he maintained a blanket bond covering whomever he might hire as an assistant.

The attorney general argues that the sole issue in Driskell v. Goerke, supra, was the manner in which an assistant prosecutor may be appointed. He asserts that the error in that case was not in having a special prosecutor, but in the fact that the district court appointed him instead of the district attorney. The State's argument, however, misses the point of Driskell v. Goerke. In that case this Court found that Mr. Jones had, up to that time, been acting in the case as a special prosecutor, "meaning that he had been appointed by the district court for the special and limited purpose of assisting the prosecution of Clifton Leroy Driskell...." This Court also emphasized that a mere change of title, from special prosecutor to assistant district attorney, would not be acceptable if the reason for the employment was the temporary increased workload caused by a single case.

The issue is not the manner of employment, the issue is the purpose of employment. If the workload in a district becomes such that a district attorney or his or her assistants cannot manage it, the statutes provide that a district attorney can seek aid from other districts, 19 O.S.1981, § 215.4; or from the attorney general, 19 O.S.1971, § 215.9.

A district attorney may, of course, employ additional assistants if the need arises, 19 O.S.1981, § 215.15; but from the record before this Court it appears that Mr. Jones was employed for the sole purpose of assisting in the prosecution of the appellant. Although it was improper to have employed Mr. Jones as the State did, it was not reversible error. The appellant has failed to establish any prejudice resulting from Steven Jones prosecuting the case.

II.

Next the appellant complains of the State's closing arguments during the first stage of the trial. However, during the trial he objected to very few of the passages that he now raises as error. The appellant divides the alleged errors into seven categories, but in three of those categories none of the prosecutors' comments were preserved for review by timely objections.

A.

One category of comments which was preserved is that while the appellant did not present an alibi defense, the State accused him of setting up an alibi, and then showed why that alibi was weak. The appellant asserts that it was easy for the State to find weaknesses in the so-called alibi because the State itself tailored the alibi for that purpose.

It is true that the appellant did not present evidence that would constitute an alibi defense. But during the investigation of the murder he did attempt to account for his whereabouts on the night of the killing. In presenting its case, the State had a right to show any inconsistencies or weaknesses in that account. The comment to which the appellant objects was a fair comment on the evidence.

B.

The appellant also criticizes the prosecutor's repeated references to what he characterized as the appellant's conspiracy theory:

That somehow or other these police officers and the district attorney's office and the state's attorneys and the OSBI and all the other attorneys involved in this have for reasons or motives not elaborated shielded Glenwood Morrison and picked on this poor man that is in the defendant's dock.

Here again, only one comment has been preserved for review. The prosecutor's tone is obviously sarcastic:

Now there's a couple of other things about these fibers that show how we set out to arrest an innocent man. We didn't just rely on Ann Reed, ladies and gentlemen. We had these fibers taken to one of the leading experts in the country. You heard his qualifications. You heard him. You saw him. And he substantiates everything Ann Reed said and as a part of our conspiracy, ladies and gentlemen, to arrest this innocent man, their own expert came to the laboratory and examined them.

But in view of the appellant's own closing argument, the comment cannot be considered improper. Although he may not have needed to do so as frequently and vigorously as he did, the prosecutor was entitled to comment on this inference.

C.

The third category in which closing comments were preserved involves references to a previous incident in which the appellant kidnapped a child in Tonkawa, Oklahoma. This issue is discussed in the fourth assignment of error.

D.

The last category of complaints which were properly preserved pertains to prosecutorial argument of facts not in evidence. Only one comment in this area merits discussion, as most of the arguments raised were either not preserved or were legitimate inferences drawn from the evidence which was admitted. The exception was the following statement: The second thing to bear in mind is that he had a history, a lifelong obsession which he has acted out numerous times, if we can believe Dr. Prosser, of tying up young boys. He has literally lived out his fantasy.

There was evidence presented to the jury to the effect that when the appellant was a child he had played games with other children his age in which they would tie one another up. But the prosecutor's comment implies that he continued these activities into adulthood. The statement was not supported by the evidence, however we do not find it so prejudicial as to require reversal.

III.

During his opening remarks to the jury panel, the trial judge told the prospective jurors that the burden of proof lay entirely with the State to prove the appellant guilty beyond a reasonable doubt, and that the appellant did not have to say anything or to present any evidence. The appellant immediately moved for a mistrial on the basis of 22 O.S.1981, § 701. The motion was denied. Jury instructions on a defendant's right not to take the stand have been the subject of two recent cases in the United States Supreme Court. In Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L.Ed.2d 319 (1978), the Supreme Court held that it was not a violation of the Fifth Amendment for the trial judge to give a cautionary instruction over the defendant's objection. And, in Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981), the court held that it was a violation of the Fifth Amendment to refuse such an instruction when the defendant requested it, even though Kentucky had a statute prohibiting comments on a defendant's failure to take the stand.

Both of these cases are progeny of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), rehearing denied, 381 U.S. 957, 85 S.Ct. 1797, 14 L.Ed.2d 730, which forbade comment on a defendant's failure to take the stand. They explain that the holding of Griffin pertains only to adverse comments:

[The instruction's] very purpose is to remove from the jury's deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect. Lakeside v. Oregon, supra, 435 U.S. at 339, 98 S.Ct. at 1095.

Title 22 O.S.1981, § 701, gives the defendant...