Brecheen v. State

Decision Date27 January 1987
Docket NumberNo. F-83-710,F-83-710
PartiesRobert A. BRECHEEN, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BUSSEY, Judge:

Robert A. Brecheen was convicted by a jury of Murder in the First Degree and Burglary in the First Degree. Punishment was assessed as the death penalty for the homicide and twenty years' imprisonment for the burglary.

During the evening of March 27, 1983, Hilton Stubbs was awakened by the scream of his wife, Marie Stubbs, and then he immediately heard a gunshot. He saw his wife, who was in the livingroom, fall to the floor. He reached for his gun and rolled off of his bed to the floor. The intruder came to the bedroom door and fired three shots into the empty bed. As the intruder turned to leave, Mr. Stubbs fired at him. The man reached the porch and fired two more shots through the storm door at Mr. Stubbs. Mr. Stubbs again fired at him. He later saw the intruder exit the front gate and walk north.

Though Mr. Stubbs was unable to identify the intruder, he could describe him as wearing a light or tan shirt. When the police arrived, they found appellant severely wounded lying by his truck approximately two hundred yards north of the Stubbs' residence.

Appellant's defense was that some black man had entered his truck as he left a bar. This man made him go to the Stubbs' residence and carry the rifle to the door. When Mrs. Stubbs opened the door, the black man pushed him inside and the gun accidentally went off and killed her. Mr. Stubbs did not see but one person at his home the evening of the killing, but did testify that he was acquainted with appellant who had recently approached him for a loan.

I

Appellant first assigns as error the trial court's refusal to grant him a change of venue for trial. The motion was primarily based upon the fact that the Stubbs owned a local clothing store and practically all veniremen knew who the Stubbs were. The State did not present evidence in opposition to the motion.

Practically all those who were acquainted with the Stubbs were so because they had traded in their store. Some knew policemen and prosecutors. Practically all had read newspaper accounts of the incident.

The fact that jurors know the victims of a crime does not in itself demonstrate the need for a change of venue, just as the mere existence of pretrial publicity is insufficient. It is only when a criminal defendant establishes by clear and convincing evidence that a fair trial is a virtual impossibility that such a motion should be granted. Thomsen v. State, 582 P.2d 829 (Okl.Cr.1978). A defendant is not entitled to a jury which is unacquainted with the victims or facts of his or her case.

An exhaustive voir dire was conducted at trial. Those who served on the jury stated they could fairly and impartially judge the case on the evidence presented. Those who formed opinions concerning appellant's guilt or doubted their ability to serve impartially were excused. We find there was adequate safeguard of the jury process, Frye v. State, 606 P.2d 599 (Okl.Cr.1980), and the need for a change of venue was not established.

II

A venireman named Price was voir dired concerning his views of the death penalty. Initially he stated he was against the death penalty but would "go along with the rest of them" if appellant was convicted. Upon more penetrating examination, he stated he could not imagine a case in which he would vote for a sentence of death, regardless of the facts or the law. Appellant contends that since Price never retracted his statement that he would go along with the other jurors, his position concerning the death penalty was not clear and he should not have been excused for cause.

A juror's prejudice against the death penalty need not be demonstrated with "unmistakable clarity" before excusal for bias is proper. Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). If a prospective juror's view of the death penalty would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," he may properly be excused from capital sentencing juries. Id. Appellant was not denied a trial by an impartial jury because Price was excused.

III

Appellant contends there was insufficient evidence of a "breaking" to sustain the burglary conviction. But we disagree. It was his testimony at trial that Mrs. Stubbs came to the front door of her home and with rifle in hand, he and the black man pushed their way into the house. Photographs introduced at trial show that there was a glass and screen door as well as a wooden door at the front of the house on this March evening. Appellant testified that Mrs. Stubbs just backed away from them and then screamed. He admitted that they were not invited to come in by the victim.

The statute defining Burglary in the First Degree provides that the offense is committed by:

Every person who breaks into and enters the dwelling house of another, in which there is at the time some human being, with intent to commit some crime therein, either:

1) By forcibly bursting or breaking the wall, or an outer door, window, or shutter of a window of such house or the lock or bolts of such window or shutter; or

2) By breaking in any other manner, being armed with a dangerous weapon or being assisted or aided by one or more confederates then actually present.... (Emphasis added).

21 O.S.1981, § 1431. Appellant's own testimony provided sufficient circumstantial evidence of a "breaking" under the statute. Where there is evidence from which the jury can rationally conclude that a defendant is guilty of the charged offense, this Court will not interfere with their verdict. Spuehler v. State, 709 P.2d 202 (Okl.Cr.1985).

IV

He further argues that the jury was improperly instructed concerning the element of "breaking." In this regard, the court advised the jury that:

[T]he word 'breaking' means any act of physical force, however slight, by which obstructions to entering are removed.

Breaking may also occur when entry is obtained by any other manner, such as fraud, trick, or threats being armed with a dangerous weapon. (Emphasis added.)

The definition given is that set forth in the statute except for the italicized portion. The words "such as fraud, trick, or threats," were evidently added by the trial judge as an explanation of the statutory language "in any other manner." This is commonly referred to as "constructive breaking" and we hold that 21 O.S.1981, § 1431 encompasses this definition of breaking.

In Tice v. State, 283 P.2d 872 (Okl.Cr.1955), this Court stated in its syllabus that breaking may be either actual or constructive. This definition of breaking is also consistent with the common law. 4 Blackstone Commentaries, p. 226 (Christian's 15th Ed.1809). Therefore, the instruction correctly stated the applicable law. Johnson v. State, 621 P.2d 1162 (Okl.Cr.1980).

V

Appellant further contends in regard to the "breaking" instruction that the prosecutor misstated the law by arguing to the jury constructive breaking. Because of our disposition of the previous assignment, we hold this to be without merit.

VI

Next, appellant assigns as error the refusal of the trial judge to grant a new trial based upon juror misconduct. Appellant for the first time suggested at the hearing on his Motion for New Trial that one of the jurors selected acted improperly at trial by telling a member of the victim's family that the case was in the bag since she got on the jury panel. The issue was not raised in the original or an amended motion for new trial. Defense counsel never divulged to the trial court the name of the witness or of the juror involved. Due to the surprise of the assignment and of the proffered evidence, the trial court refused to hear it because the assignment was not properly preserved. 1

This Court remanded this cause to the trial court to conduct an evidentiary hearing. At this hearing, the district court took the testimony of the juror alleged to have made the statement, the person to whom it was allegedly made, the person who overheard it, and that of five other jurors of the panel. The trial judge made a finding against juror misconduct. All the testimony except that of the person who allegedly overheard the statement indicated that it had not taken place. The individual who made the allegation of misconduct had a son who was married to appellant's sister. The trial judge noted that her sympathy toward the appellant may have led her to believe she heard something which she had not actually heard.

A criminal defendant has a right to an impartial jury. Okla. Const. art. 2, § 20. Juror misconduct is an appropriate ground for granting a new trial. 22 O.S.1981, § 952. To be entitled to a new trial, a defendant must affirmatively show that the juror was actually prejudiced against him and that he suffered an injustice as a result. Parks v. State, 457 P.2d 818 (Okl.Cr.1969); Odell v. State, 89 Okl.Cr. 184, 206 P.2d 229 (1949). The evidence of misconduct submitted in support of appellant's motion for new trial was insufficient to prove actual prejudice. The trial court allowed five of the jurors to be called and questioned concerning the attitude and behavior of the allegedly errant juror. They unanimously indicated she did not appear prejudiced against the appellant or for the victim. The trial court did not abuse its discretion in denying the motion.

VII

Appellant next contends that the trial court erred in not granting defense counsel access to the victim's husband's home where the homicide had occurred. He alleges that this denied him due process of law.

The hearing transcript reveals that the trial judge did not believe he had...

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