Hale v. State, F-84-208

• Decision Date: 29 January 1988
• Docket Number: No. F-84-208,F-84-208
• Citation: 1988 OK CR 24,750 P.2d 130
• Parties: Alvie James HALE, Jr., Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 130

750 P.2d 130

Alvie James HALE, Jr., Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-208.

Court of Criminal Appeals of Oklahoma.

Jan. 29, 1988.

Rehearing Denied March 2, 1988.

As Corrected Feb. 25, 1988.

An appeal from the District Court of Pottawatomie County; Gary R. Brown, District Judge.

Alvie James Hale, Jr., appellant, was convicted in the District Court of Pottawatomie County, Case No. CRF-83-348, of Murder in the First Degree and Kidnapping for Extortion. He received the death penalty and life imprisonment, respectively. Judgments and sentences are AFFIRMED.

Elaine Meek, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., David E. Lee, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Alvie James Hale, Jr., was convicted in Pottawatomie County District Court of Murder in the First Degree and Kidnapping for Extortion, Case No. CRF-83-348. The death penalty was assessed for the murder conviction and life imprisonment was assessed for the kidnapping conviction.

The crimes of which appellant was charged were for the kidnapping and murder of William Jeffrey Perry of Tecumseh, Oklahoma. The victim, his sister, and his parents owned and managed a local bank. When he failed to arrive for work Tuesday morning, October 10, 1983, his sister went to his home to locate him. She found his automobile in the driveway, the front door to his home open, his clothes laid out for work and Jeff missing. The only sign of a struggle was an upset alarm clock. At 10:30 a.m. that day, Jeff's mother received the first of a series of telephone calls concerning her son from an unidentified man. The second call came at 1:30 p.m. and was received by Jeff's sister, Veronica, who was asked "where the money was, where the $350,000.00 was?" During each call, the family asked to speak with Jeff and were told that he was at a lake cabin but that he would be released after the caller received $350,000.00 from them. The family could not arrange to have the money until the following day.

At approximately 7:00 a.m. the morning of October 11, 1983, a man identified as appellant came to the bathroom window of the house where Janet Miller lived. He asked her if he could use a telephone and she told him there wasn't one. As the man went back to this white station wagon in her driveway, a second man dressed only in undershorts yelled for help from an adjacent field. Appellant hurried to the spot where the second man, who was bent over with pain, was located and pulled him over a fence into the automobile. Hale was convicted in federal court of the charge of Affecting Interstate Commerce by Extortion based upon his actions in this case.

The F.B.I. was called on Tuesday and traced the telephone calls made to the Perrys. They were also present on October 12 when Mrs. Perry placed the cash at the dropsite. Appellant arrived and picked up the money before Mrs. Perry could get back into her vehicle. The F.B.I. agents pursued appellant traveling at high speeds in Oklahoma City until his vehicle finally came to a stop after hitting a drainage ditch, went airborne and then finally stopped after an F.B.I. agent's vehicle collided head on with appellant's truck. All the money Mrs. Perry had delivered was found in the truck and appellant was taken into custody at that time.

Appellant made a statement to F.B.I. agents on October 12, 1983. He claimed that he had been hired by a man named Poe to pick up money owed Poe by the Perry's. He stated that he knew nothing of the disappearance of Jeff Perry.

Appellant's father gave law enforcement officers consent to search his home and property. Officers found there the victim's body wrapped in a dark colored trampoline tarp within a metal storage shed; one which fit a trampoline frame found at his own home. Jeff Perry had been shot a number of times. Also located there was a cream colored station wagon appellant had used the morning of October 11th. A blood stained towel was found in the vehicle which contained a hair identified as that of appellant. A .38 caliber revolver was found in a kitchen cabinet. There was a great deal of other physical evidence linking appellant to the offenses.

I

Appellant moved for a change of venue prior to his trial based upon extensive adverse media coverage of his case. The trial court delayed ruling on the motion until after voir dire of the venire, at which time it was denied.

Appellant in assigning error notes that each of the jurors who sat on the petit jury had read or heard of his case in the media. Six admitted having formed opinions concerning the case. Some knew members of appellant's family, and some were acquainted with members of the victim's family.

Each of the jurors finally seated stated that he or she could set aside any opinion held and impartially judge the case on the evidence presented at trial. This is the standard of a fair jury trial. Foster v. State, 714 P.2d 1031 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173.

It is not required ... that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.

Irvin v. Dowd, 366 U.S. 717, 722-23, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961).

Appellant cites Irvin and the reversal therein in support of his contention that his own conviction should be reversed. Irvin, however, is distinguishable from the case at bar. In Irvin, a jury panel of 430 individuals were called, of which the trial court excused 268 members on challenges for cause as having fixed opinions as to the guilt of the petitioner. The petitioner used all twenty of his peremptory challenges. In the case at bar, only thirty-seven prospective jurors were interviewed. Seven were excused for cause and eighteen were peremptorily challenged. The record reveals that every juror challenged for cause was excused by the trial judge. Defense counsel only requested that one prospective juror be excused for cause, and that request was granted.

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), after reviewing cases which were reversed due to the press coverage, the Court summarized:

The proceedings in these cases were entirely lacking in the solemnity and sobriety to which a defendant is entitled in a system that subscribes to any notion of fairness and rejects the verdict of a mob. They cannot be made to stand for the proposition that juror exposure to information about a state defendant's prior convictions or to news accounts of the crime with which he is charged alone presumptively deprives the defendant of due process.

421 U.S. at 799, 95 S.Ct. at 2036. Although there was a great amount of pretrial publicity in Murphy, the Court held that the petitioner had failed to show that the setting of the trial was inherently prejudicial or that the jury selection process permitted an inference of actual prejudice. The Court contrasted the jury selection in Irvin, and noted that in the case before them twenty of seventy-eight persons questioned were excused because they indicated an opinion as to petitioner's guilt.

In the case at bar, where every juror challenged for cause was excused, it cannot be said that the appellant met his burden of showing that the trial court abused its discretion by failing to grant the change of venue. Andrews v. State, 555 P.2d 1079 (Okl.Cr.1976). This assignment is without merit.

II

Appellant next contends that the trial court erred in not allowing individual sequestered voir dire of the veniremen. He argues that his voir dire of the potential jurors was unduly hampered since the court refused his motion.

Appellant points out several instances where individual voir dire would have facilitated a greater depth of inquiry. We note, however, his pretrial request was for individual questioning concerning the death penalty only, and he did not request it again during voir dire. Yet we find no abuse of discretion by the trial court in declining the pretrial motion. Foster v. State, 714 P.2d 1031 (Okl.Cr.), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980).

III

Appellant urges reversal due to error committed by the trial judge in refusing to grant trial counsel's Application to Withdraw from the case. Trial counsel asked to withdraw from representing Hale because he suspected appellant of attempting to burglarize his offices and thought that his personal animosity might hinder communications with Hale. The trial court held a hearing out of Hale's presence and declined the application. We find no abuse of the court's discretion in requiring counsel to overcome his personal feelings and to represent Hale. There is no constitutional right to an attorney client relationship free of animosity. Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983). This issue was not properly preserved for review on appeal either because it was not raised in appellant's Petition in Error. This assignment must fail. Chronister v. State, 538 P.2d 215 (Okl.Cr.1975).

IV

Appellant seeks reversal because of the improper introduction of evidence of other crimes. As he points out in his own brief, no objection was raised at trial. Failure to object to...