Master v. State

• Decision Date: 25 June 1985
• Docket Number: No. F-83-540,F-83-540
• Citation: 702 P.2d 375
• Parties: Rodney Madson MASTER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 375

702 P.2d 375

Rodney Madson MASTER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-540.

Court of Criminal Appeals of Oklahoma.

June 25, 1985.

Jim Bland, Gotcher, Brown & Bland, McAlester, for appellant.

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

OPINION

BUSSEY, Judge:

The appellant, Rodney Madson Master, also known as William Wallace Troxell, was convicted in the District Court of Comanche County, Case No. CRF-82-812, of Murder in the First Degree for which he received a sentence of life imprisonment and he appeals.

Briefly stated, the facts are that on October 20, 1982, the appellant and Cornel Cooks, the co-defendant, broke into eighty-seven-year-old Jennie Ridling's mobile home some time after midnight. Discovering Ms. Ridling in her bedroom, Cooks struggled with her and sent the appellant to "get a towel or something to keep her from yelling." After returning with a towel which was too short, and failing the second time to find a longer one, the appellant held Ms. Ridling while Cooks searched for a gag. He returned with a strip of material torn off a curtain. After striking her in the head with his fist in order to force her to stop struggling, Cooks wrapped part of the curtain around her eyes and tied knots in it. In his second written statement, appellant stated that he held her head while Cooks wrapped the material around her face, contradicting his testimony during the trial where he stated that he left the room after Cooks returned with the material. The material was also placed tightly over her mouth. Cooks admitted in his statement that he later raped Ms. Ridling. The appellant and Cooks took several items and some cash and then left the trailer. Dr. Robert Dix, who performed the autopsy on Ms. Ridling, testified that she died of suffocation.

I

For his first assignment of error, the appellant alleges that the trial court erred in refusing to grant his motion for severance. The granting or denying of such a motion is discretionary with the trial court and its ruling will not be disturbed on appeal, absent a clear showing of abuse of discretion resulting in prejudice. Cooper v. State, 584 P.2d 234 (Okl.Cr.1978). Citing Murray v. State, 528 P.2d 739 (Okl.Cr.1974), the appellant argues that he was prejudiced because the defenses of the appellant and co-defendant were inconsistent, pitting them against each other; and citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), he argues that he was further prejudiced by the admission into evidence of his co-defendant's confession which he alleges violated his right to confront the witnesses against him.

The appellant argues that the defenses were inconsistent because the out-of-court statements were in conflict with each other, the in-court testimony of the appellant conflicted with the co-defendant's out-of-court statements (the basic position of each was that the other was responsible for the actual application of the death producing gag), that there were a great number of objections at trial by one defense counsel against the other, and finally, during closing arguments accusatory remarks were made in attempts to show Cooks should have greater responsibility. The holding of Murray, supra, is that where the respective defenses of two defendants are mutually antagonistic in that the testimony and confession of each exculpated himself and inculpated the other, the effect of trying both together would be to try each on the confession of the other and serves to deny those defendants a fair trial. Therefore, the issue before us is not whether there are disagreements between defendants concerning the facts, nor whether one or the other should bear a greater responsibility for the crime, but whether the defenses are antagonistic in that each defendant is attempting to exculpate himself and inculpate his co-defendant. We find that these defenses were not antagonistic. The defendants were charged with first degree murder under the felony murder statute because the victim died as the result of acts committed to further the commission of two felonies: forcible rape, and first degree burglary (21 O.S.Supp.1984, § 701.7(B), 21 O.S.1981, § 1114, and 21 O.S.1981, § 1431). Their statements are consistent in showing that both the appellant and the co-defendant broke into the dwelling house of the victim while she was there, that the victim was gagged to prevent her from summoning help, that the co-defendant raped her, that they carried away cash and personal property belonging to the victim, and that as a result of being gagged, she suffocated. An examination of the statements of both defendants and the testimony of the appellant clearly shows that each inculpated himself of felony murder. Determining who actually tied the gag is immaterial to the issue of guilt.

Nor was the appellant prejudiced by the acceptance into evidence of the co-defendant's confession which he alleges violated his right to confront the witnesses against him. The Supreme Court of the United States held in a plurality opinion in the case of Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) that the admission of interlocking confessions of nontestifying co-defendants with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution. Although the Supreme Court did not define the term "interlocking confession" the court cited decisions of the Court of Appeals for the Second Circuit which do describe the elements of the term. A more recent opinion of a district court of that circuit summarized those elements stating:

[C]onfessions need not be "material twins" to be interlocking, United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 48 (2d.Cir.1975); rather '[i]t is sufficient if the two confessions are substantially the same and consistent on the major elements of the crime involved.' Id. at 49. Thus, interlocking confessions may cover different facts, and may even contain considerable discrepancies as to the time that the crime was committed. It is enough that as regard to 'motive, plot, and execution of the crimes they are essentially the same.' United States ex rel. Ortiz v. Fritz, 476 F.2d 37, 39 (2d Cir.1973) (emphasis added).

Forehand v. Fogg, 500 F.Supp. 851, 853 (S.D.N.Y.1980). As the previously described statements of the appellant and co-defendant are essentially the same in describing the motive, plot, and execution of the crimes and since the jury was given a proper limiting instruction from the Oklahoma Uniform Jury Instructions, OUJI-CR 817 (O.R.354), we find that there was no violation of the appellant's constitutional rights under Bruton, supra. This assignment of error is without merit.

II

As his second assignment of error, the appellant alleges that the trial court erred in refusing to allow him nine peremptory jury challenges. The law is clear that where two defendants are tried jointly, they shall join in their challenges unless they have inconsistent defenses (22 O.S.1981, § 655). As we have found no substantial inconsistencies, the trial court properly overruled the motion to allow each defendant nine separate challenges. This assignment of error is without merit.

III

As a third assignment of error, the appellant complains that the admission of four black and white photographs of the victim's body was error because the prejudicial effect of the photographs outweighed their probative value. The photographs, each shot from a different angle, show the wrappings around the victim's face, the position of the body which is nude from the waist down, a towel and various articles of clothing lying on the bed next to her, and the body in relation to various items scattered about the bedroom.

In Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958), this Court adopted the test first formulated by the California Supreme Court in the case of People v. Carter, 48 Cal.2d 737, 312 P.2d 665 (1957), wherein the Court stated:

'If the principal effect of demonstrative evidence such as photographs is to arouse the passion of the jury and inflame them against the defendant because of the horror of the crime, the evidence must of course, be excluded.

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On the other hand, if the evidence has probative value with respect to a fact in issue that outweighs the danger of prejudice to the defendant, the evidence is admissible even if it is gruesome and may incidently arouse the passions of the jury.'

Introduction of photographs taken subsequent to a homicide is largely within the discretion of the trial court, and unless this discretion is abused it will not be cause for reversal. Bias v. State, 561 P.2d 523 (Okl.Cr.1977), cert. den., 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977). These photographs corroborate the testimony of the witnesses, the confessions of the appellant and co-defendant, and were not gruesome. We therefore find that their probative value outweighs the danger of prejudice to the appellant. Therefore, this assignment of error is also without merit.

IV

As his fourth assignment of error, the appellant argues that refusing to allow him to be present during an in-camera hearing concerning the admissibility of the co-defendant's confession was error. We must first observe that appellant made no objection to his exclusion from the hearing and therefore has waived any error on appeal. Mills v. State, 594 P.2d 374 (Okl.Cr.1979), Sallee v. State, 544 P.2d 902 (Okl.Cr.1976). Second, he has not shown prejudice because the sole purpose of that hearing was to ascertain that the constitutional rights of his co-defendant had been preserved. A defendant has no standing to object to the admission into evidence of a co-defendant's self-incriminating statement because the Fifth Amendment rights protected by the Miranda decision are personal in nature and may not be vicariously asserted. ...