Dutton v. State, F-79-337

• Citation: 1984 OK CR 12,674 P.2d 1134
• Decision Date: 06 January 1984
• Docket Number: No. F-79-337,F-79-337
• Parties: Lonnie Joe DUTTON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1134

674 P.2d 1134

Lonnie Joe DUTTON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-337.

Court of Criminal Appeals of Oklahoma.

Jan. 6, 1984.

Rehearing Denied Jan. 31, 1984.

An Appeal from the District Court, Oklahoma County; Harold C. Theus, District Judge.

Lonnie Joe Dutton, appellant, was convicted of Murder in the First Degree in Oklahoma County, Case No. CRF-79-105. The jury imposed the death penalty from which his appeal was lodged to this Court. Judgment and sentence AFFIRMED.

James W. Berry, James W. "Bill" Berry & Associates, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

Lonnie Joe Dutton was convicted by a jury of Murder in the First Degree in the District Court of Oklahoma County. The death penalty was imposed.

Dale Eugene Gray, the deceased, was gunned down after being robbed on January 2, 1979, while working in the Cottage Bar in Oklahoma City. His mother, Wanda Honeycutt, was also shot, but recovered and testified at appellant's trial, identifying Dutton. On January 5, and January 11, 1979, appellant admitted to police officers that he shot both victims while his confederate, Carl Sheldon Morgan, waited in the car. He also gave written statements concerning his involvement in another robbery-murder of one Wilma Speaks on January 1, 1979 at the Agnew Bar in Oklahoma City, Oklahoma.

Appellant first assigns as error the trial court's failure to grant his pre-trial motion for change of venue. Appellant's confederate, Carl Sheldon Morgan, was granted a change of venue and was tried in Tulsa County. Dutton argues that the publicity was equally damaging for both, and that his motion should have been granted.

We first point out that appellant failed to follow the procedure prescribed by 22 O.S.1971, § 561 in presenting his change of venue motion to the trial court. A written and verified petition is not contained in the record, nor were affidavits of credible witnesses submitted. The petition, not being properly before the trial court, is not properly before the appellate Court. Ake v. State, 663 P.2d 1 (Okl.Cr.1983).

Appellant had the burden to demonstrate that he could not get a fair trial in Oklahoma County. He provided no evidence to prove this, but rather relies on the fact that Carl Sheldon Morgan was granted a change of venue supposedly on the basis of adverse pre-trial publicity. Appellant has failed to overcome the presumption that he was able to receive a fair trial. Hammons v. State, 560 P.2d 1024 (Okl.Cr.1977). The mere showing of adverse pre-trial publicity will not overcome this presumption especially where an extensive voir dire was allowed, as was done here, to ferret out those juror's who were unable to render a verdict solely upon the evidence presented at trial. Russell v. State, 528 P.2d 336 (Okl.Cr.1974). That a change of venue was granted to his accomplice does not necessarily dictate that a change of venue be granted appellant. See, State ex rel. Young v. Warren, 536 P.2d 965 (Okl.Cr.1975). The trial judge did not abuse his discretion in denying appellant's motion.

Appellant next assigns as error the trial court's refusal to conduct a competency hearing prior to trial. His attorney states that Dutton made an outburst at trial and refused to assist counsel in his own defense.

Appellant was tried in May of 1979. The controlling statute at that time was 22 O.S.1971, § 1162 (now 22 O.S.1981, § 1162). It required that a jury be impaneled to determine a criminal defendant's competency to stand trial or to be sentenced when "a doubt arises" as to defendant's present sanity. The doubt referred to in the statute is that in the trial judge's mind after an evaluation of the facts, source of information, and motive. The trial judge's finding is not disturbed on appeal absent a showing of clear abuse of discretion. Beck v. State, 626 P.2d 327, 328 (Okl.Cr.1981).

In the present case, the trial judge made a determination that appellant was competent to stand trial based upon his own observations as well as the opinions of two psychiatrists who examined appellant at his attorney's request on the second day of trial. They reported that appellant was simply "scared stiff". Appellant's lack of cooperation with his attorney was due to his fear of the possible consequences if found guilty, as opposed to an inability to appreciate the proceedings. The trial court had ample opportunity to observe appellant's conduct during the trial and prior to sentencing. Reynolds v. State, 575 P.2d 628 (Okl.Cr.1978). We find that no abuse of discretion occurred.

Appellant next contends that two prospective jurors were improperly dismissed for cause under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The veniremen tended to hedge when answering questions by the prosecutor and judge, but ultimately indicated that their views regarding capital punishment would prevent or substantially impair performance of their duties as jurors. Juror Rutherford, when asked if he could decide the issue of guilt without considering the potential penalties, remarked: "I don't believe I could. I don't believe I could get that off my mind, no." A juror who cannot impartially decide guilt violates his oath, and this is a proper challenge for cause under the directives of Witherspoon. Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980). Juror Hopcus remarked, when asked whether she could ever vote to impose the death penalty, "I don't think I could." This juror indicated by her several answers that she was irrevocably committed prior to trial to vote against the death penalty. This is also proper cause to excuse a juror under Witherspoon, 391 U.S. at 522, n. 21, 88 S.Ct. at 1777, 20 L.Ed.2d at 785; see also Jones v. State, 660 P.2d 634 (Okl.Cr.1983).

Appellant assigns as error the admission into evidence of his statements to police officers after he was arrested on January 5, 1979, but prior to his arraignment on January 11, 1979. Appellant urges that the delay in arraigning him was unnecessary and infringed upon his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution, rendering his statements involuntary.

The right to come before a magistrate without unnecessary delay is a statutory (22 O.S.1981, § 181), not a federal constitutional right. Delaney v. Gladden, 397 F.2d 17 (9th Cir.1968), cert. den., 393 U.S. 1040, 89 S.Ct. 660, 21 L.Ed.2d 585; Stidham v. State, 507 P.2d 1312 (Okl.Cr.1973). The burden is upon the appellant to demonstrate a delay, and that he was prejudiced by such delay. E.g., Stidham, supra.

[T]his court has never held that taking a statement or confession of an accused person prior to his arraignment will per se vitiate such statement or confession nor render it inadmissible upon a subsequent trial of the accused.

In re Dare, 370 P.2d 846, 854 (Okl.Cr.1962). In Dare, a delay of thirty-three days did not of itself cause prejudice.

Each of appellant's statements were introduced only after the trial judge conducted a Jackson v. Denno ¹ hearing and found them voluntary. The jury was instructed that they should not consider this evidence unless they found it to be voluntarily given. Upon a review of the record, we are satisfied that the delay in arraigning appellant did not coerce the admissions.

Appellant next asserts that the trial court, prosecutor, and his own counsel made unconstitutional comments on his refusal to testify. During trial, appellant was not responsive to his appointed counsel unlike prior to trial. Appellant was examined by two psychiatrists and found to be "scared", but competent to stand trial. These doctors advised the trial judge that delaying appellant's trial would only worsen this condition. The trial proceeded, and defense counsel announced during opening statement that appellant would testify. The defense theory was that appellant committed the crimes under duress from his accomplice. Appellant did not respond when called by his attorney to testify. The trial judge immediately called the attorneys and appellant into chambers and there advised appellant of his right to testify or to not testify. He advised appellant that he could be cross-examined about prior felony convictions if he did take the witness stand. The appellant would not respond to the judge. Court was again called into session and defense counsel again called appellant to testify. Appellant did not respond to his attorney's calls and the defense rested, having no further evidence. The trial judge twice ordered the record to show that the "Defendant sits silent" and declines to testify, and once stated that the defense rested, "there being no evidence presented to the jury." During closing arguments, defense counsel remarked that his client was "physically unable" to testify. The prosecutor objected that there was no evidence of that nature, and the judge sustained the objection.

From a review of the record, it is apparent that any error which may have occurred was invited by defendant and his trial counsel. We have previously held that a defendant may not complain of error he has invited, and that reversal cannot be predicated upon such error. Fox v. State, 524 P.2d 60 (Okl.Cr.1974). See also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

The judge's remarks were made simply to clarify for the record what had occurred. Moreover, the objection by the prosecution and the trial judge's ruling did not constitute a comment upon appellant's refusal to testify. Wills v. State, 636 P.2d 372 (Okl.Cr.1981).

Appellant implies that he received ineffective assistance of counsel in this regard. A criminal defendant should receive reasonably competent assistance of counsel. Johnson v. State, 620 P.2d 1311 (Okl.Cr.1980). However, this does not mandate flawless counsel or counsel judged...