Robison v. State

• Decision Date: 13 January 1984
• Docket Number: No. F-81-388,F-81-388
• Citation: 677 P.2d 1080,1984 OK CR 21
• Parties: Olan Randle ROBISON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1080

677 P.2d 1080

Olan Randle ROBISON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-388.

Court of Criminal Appeals of Oklahoma.

Jan. 13, 1984.

As Corrected April 2, 1984.

An appeal from the District Court of Stephens County; George W. Lindley, District Judge.

Olan Randle Robison, appellant, was convicted of three counts of Murder in the First Degree, in Stephens County District Court, Case No. CRF-80-165. He was sentenced to death and appeals. AFFIRMED.

Hegel Branch, Jr., Duncan, for appellant.

Jan Eric Cartwright, Atty. Gen., of Okl., Susan Talbot, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

Olan Randle Robison, appellant, was convicted of three counts of Murder in the First Degree in Stephens County District Court Case No. CRF-80-165. In accordance with 21 O.S.Supp.1976, § 701.11, the jury fixed punishment at death by lethal injection, in all three counts.

Appellant was convicted for the deaths of Julie Sheila Lovejoy, Averil Bourque, and Robert Leon Swinford, all of whom shared a house on the outskirts of Velma Oklahoma. A robbery apparently precipitated their deaths, which was evidenced by the disheveled state of their home when their bodies were discovered the morning of June 12, 1980. The victims died from wounds inflicted by a .22 caliber pistol and a .380 caliber pistol.

The state presented a number of witnesses at trial who implicated appellant and two other men, Johnny Gillum and William Starr Jordan, in the murders. One of the witnesses, Sharon Briscoe, was appellant's girlfriend and it was her apartment in Healdton, Oklahoma, where several persons, including appellant, had gathered on June 11, 1980, to discuss a future amphetamine laboratory. Throughout the day appellant consumed drugs and alcohol until he finally passed out in the early evening, but not until after he had called Johnny Gillum in Wichita Falls, Texas, requesting that Gillum come to Healdton because he was needed. When Gillum arrived and successfully awakened appellant, the two of them and William Starr Jordan took several guns from the apartment and loaded them in Sharon Briscoe's car. Appellant stated that he was going to "get some gold" or "get rich" and the three men left.

After returning sometime before 11:00 p.m. with a suitcase and an empty brown purse, appellant gave one of the women in the apartment a lady's watch, a man's watch, and a pocket knife. He then had her clean his boot, which contained a spot that looked like blood. Appellant also removed his blood-stained shirt. Upon appellant's orders, everyone packed and left that night for Wichita Falls, Texas.

Patricia Brumfield was with appellant and Johnny Gillum later that night when they travelled to Lake Arrowhead where suitcases and a gun were tossed into the water. The gun, a .380 caliber pistol was later recovered. At trial, Ms. Brumfield testified that appellant told her of shooting the people in Velma; that one of the women was naked and had a gun. He also told her that they did not find the gold they had gone after. Appellant requested that Ms. Brumfield retrieve a .22 pistol from William Jordan, but she discovered that Jordan had disposed of it.

Two other witnesses for the State also testified of being told by appellant that he had participated in murdering three people during a robbery.

When the crime scene was processed, jewelry was discovered in a purse beneath Averil Bourque's body on her bed. A jeweler estimated the value to be between $6,000 and $8,000. It was revealed at trial that appellant was aware that Ms. Bourque possessed valuable jewelry. Among possessions discovered missing from the house following the murders was Robert Swinford's watch, and a .22 caliber pistol.

I.

Appellant initially contends that the trial court erred in denying his motion for change of venue. He attempted to support this contention prior to trial through the affidavits of three residents in Stephens County who verified that appellant could not receive a fair trial in that County because of the extensive pretrial news coverage of the triple slayings which prejudiced the citizens of that county against appellant and thereby rendered it impossible to empanel a jury which did not have a fixed opinion concerning his guilt.

The applicable rule to this issue is stated in Hammons v. State, 560 P.2d 1024 (Okl.Cr.1977), as follows:

When considering a motion for a change of venue, the presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense charged was committed. The presumption is rebutable, but the burden of persuasion is upon the defendant. Fry v. State, 91 Okl.Cr. 326, 218 P.2d 643 (1950). A mere showing that pretrial publicity was adverse to the defendant is not enough. Shapard v. State, Okl.Cr., 437 P.2d 565 (1967). The defendant must show by clear and convincing evidence that jurors were specifically exposed to the publicity and that he was thereby prejudiced. Tomlinson v. State, Okl.Cr. 554 P.2d 798 (1976). The granting of a change of venue is a discretionary matter within the powers of the trial court and unless it is clear from the record that the trial court has abused its discretion, or committed error in judgment, this Court will not overrule the trial court, especially where there has been an extensive voir dire examination to determine the prejudicial effect of the pretrial publicity. Shapard v. State, supra.

While it is true that appellant sought to rebut the presumption in favor of his receiving a fair and impartial trial in Stephens County through the affidavits and testimony of the three affiants, we are compelled to agree with the trial judge that he did not meet success.

The newspaper accounts of the homicides do not appear to be adverse to appellant, although they relate the fact that he was charged with the crimes and give some background information about him. The jurors each truthfully conveyed that they had been exposed to publicity concerning the crime through the news media, but through voir dire it was established that their prior knowledge would not act to prejudice them. They each indicated they could render a fair judgment on the evidence presented in court aside from information they may have obtained outside of court. Thus, no abuse of discretion was shown by the trial court's denial of change of venue.

II.

Appellant urges reversal of his conviction because of comments made by the prosecutor that amounted to comments on appellant's right to remain silent. The initial incident assigned as error occurred during voir dire when the prosecutor questioned a prospective juror concerning the consideration he would give to defendant's bias, interest, and credibility should he testify. The law in this area is that it is error for the prosecutor to comment at any stage of the jury trial upon the defendant's right to remain silent. Hanf v. State, 560 P.2d 207 (Okl.Cr.1977).

When a similar situation arose in Stover v. State, 617 P.2d 898 (Okl.Cr.1980), this Court reversed the conviction. The reversal was predicated on the prosecutor's comments followed by defense counsel's timely objection and motion for mistrial. Defense counsel did not object to the comments in the present case, which is mandatory for preservation of the error; thus, there is no basis for review of this alleged error other than to review it for fundamental error. Having found none, this allegation provides no grounds for reversal.

Appellant also complains of statements made during closing argument, which he alleges were comments on his failure to take the stand in contravention of 22 O.S.1981, § 701. We have read the closing argument and are of the opinion that the comments were no more than reasonable comments on reasonable interpretations of the evidence. See Cobbs v. State, 629 P.2d 368 (Okl.Cr.1981). Only when taken out of context, as appellant has done, do the remarks appear to be emphasizing appellant's failure to testify. Furthermore, no objections were entered when the remarks were made and any error which could have occurred was waived.

III.

Appellant's third argument urges reversal because of the tainted in-court identification of appellant by Terry Henderson who had undergone hypnosis prior to identifying him. Ms. Henderson had been travelling past the murder victims' home the night of the murders when a car containing at least two occupants was backing out of the driveway. After hearing of the murders, she contacted the sheriff's office and gave a description of the car and one of the occupants.

During the investigation of the murders, Ms. Henderson underwent hypnosis. At trial appellant sought to have her testimony excluded, but was unsuccessful. When the witness testified, she positively identified appellant as the man she saw in the car.

This Court has not deviated from the rule pronounced in Jones v. State, 542 P.2d 1316 (Okl.Cr.1975), that statements made in a hypnotic state are inadmissible "when offered for establishing the truth of the statements." But the issue in the present case is not resolved by that rule. The issue at hand is whether a witness may make an in-court identification following hypnosis when no identification had been made prior to the hypnosis. We think not.

Through our research, we have discovered that the Arizona Courts share the same view on hypnosis as we have come to hold. Testimony by a witness who had been hypnotized was held inadmissible from the time of hypnosis forward in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). The court reasoned:

It is generally agreed that hypnosis is a state of altered consciousness and heightened suggestibility in which the subject is prone to experience distortions of reality, false memories, fantasies and confabulation (the "filling in of memory gaps with false memories or inaccurate bits of information"). In the context of pretrial interrogation under hypnosis, these distortions, delusions...