Bear v. State

• Decision Date: 02 September 1988
• Docket Number: No. F-86-263,F-86-263
• Citation: 1988 OK CR 181,762 P.2d 950
• Parties: Charles Michael BEAR, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 950

762 P.2d 950

Charles Michael BEAR, Appellant, v. STATE of Oklahoma, Appellee.

No. F-86-263.

Court of Criminal Appeals of Oklahoma.

Sept. 2, 1988.

An Appeal from the District Court of Atoka County; Doug Gabbard, District Judge.

Charles Michael Bear, appellant, was convicted of Shooting With Intent to Kill, in the District Court of Atoka County, Case No. CRF-85-100, sentenced to life imprisonment, and appeals. AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., M. Caroline Emerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Charles Michael Bear, appellant, was tried by jury and convicted of Shooting With Intent to Kill (21 O.S.1981, § 652), After Former Conviction of a Felony (21 O.S.1981, § 51(A)), Case No. CRF-85-100, in the District Court of Atoka County, the Honorable Doug Gabbard, District Judge, presiding. The jury set punishment at life imprisonment. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

For a complete statement of facts, see Guance v. State, 751 P.2d 1074, 1075 (Okla.Crim.App.1988). Additional facts will be introduced as necessary to resolve appellant's assignments of error.

For his first assignment of error, appellant asserts the trial court abused its discretion by denying his motion for a change of venue, thereby depriving him of a fair trial. In support of his motion for a change of venue, appellant provided four affidavits from residents of Atoka County stating they were familiar with the case and that appellant could not receive a fair and impartial trial in Atoka County because of adverse pretrial publicity. These affidavits were provided in compliance with 22 O.S.1981, § 561. The trial court held appellant's motion in abeyance until completion of voir dire, at which time the trial court denied appellant's motion. Appellant, at trial and again on appeal, fails to support his proposition of adverse pretrial publicity with specific examples of media coverage. We, therefore, confine our review to the affidavits and the transcript of voir dire.

Affidavits offered in support of a request for a change in venue merely raise a question of fact to the trial judge and are not dispositive. Brown v. State, 743 P.2d 133, 135 (Okla.Crim.App.1987); Walker v. State, 723 P.2d 273, 277-78 (Okla.Crim.App.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986). There is a rebuttable presumption that the accused can receive a fair trial in the county in which the offense occurred and the burden of persuasion is on the accused, who must show by clear and convincing evidence that he was prejudiced as a result of the jurors being specifically exposed to adverse pretrial publicity. Brown, 743 P.2d at 136. A mere showing that the pretrial publicity was adverse to the accused is not sufficient. Id. The relevant inquiry on appeal is not whether the community was aware of the case, but whether the jurors impaneled at trial had such fixed opinions that they could not judge impartially the guilt of the accused. Patton v. Yount, 467 U.S. 1025, 1035, 104 S.Ct. 2885, 2891, 81 L.Ed.2d 847 (1984).

We apply a two-pronged test to determine whether a due process violation occurred as a result of juror knowledge and pretrial publicity. Prejudice may be presumed where the fact pattern reveals that the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceeding. Brown, 743 P.2d at 136; Walker, 723 P.2d at 278. We find nothing in the record to reflect a "barrage of inflammatory publicity" or that the jurors were predisposed to convict. Harvell v. State, 742 P.2d 1138, 1141 (Okla.Crim.App.1987). Nor does the record reflect that the trial was conducted in a circus atmosphere in which the courthouse was given over to the press. Id. In the absence of egregious publicity, we refuse to apply the presumption that a due process violation occurred in this case. Id.

If the facts are not sufficiently egregious to give rise to a presumption of prejudice, the totality of the circumstances will be examined to determine whether the accused received a trial which was fundamentally fair. Brown, 743 P.2d at 136; Harvell, 742 P.2d at 1141. Seven of the jurors were excused for cause, six because they either knew the victim, Officer Marley, or because they had formed an opinion about the case. One juror was jointly excused by the prosecutor and appellant because the juror's hearing prevented him from understanding the questions posed during voir dire. The trial judge scrupulously excused those potential jurors who indicated they might not be able to set aside their knowledge or opinion of the crime and impartially and fairly judge appellant based upon the evidence presented at trial. Brown, 743 P.2d at 136; Moore v. State, 672 P.2d 1175, 1177 (Okla.Crim.App.1983). Additionally, seven jurors were excused by peremptory challenge, three by the State and four by appellant and his co-defendant. Appellant argues that juror Booth should have been excused for cause; however, this point is moot because the prosecutor excused Mrs. Booth with a peremptory challenge. Appellant also argues that juror Bagley should have been excused for cause. The transcript of voir dire reveals that appellant's counsel passed juror Bagley for cause (Tr. at 131) and the defense waived their fifth and final peremptory (Tr. at 161), which could have been used to remove this juror.

Of the twelve jurors impaneled, all had heard something about the case. A qualified juror need not be totally ignorant of the facts and issues involved. Harvell, 742 P.2d at 1141; Walker, 723 P.2d at 278. It is enough that the jurors can set aside their impressions or opinions and render a verdict based upon the evidence presented in court. Harvell, at 1141.

The trial court overruled appellant's motion for a change of venue based upon the extensive voir dire, the jurors' responses that they would not allow what they had heard or read about the case to influence their decision, and appellant's waiver of his last peremptory challenge. (Tr. at 164-64). The question on appeal is whether there is fair support in the record to conclude that the jurors would be impartial. Patton, 467 U.S. at 1038, 104 S.Ct. at 2892-93. Whether jurors have opinions that disqualify them is plainly one of fact and the resolution of such question is entitled to special deference by a reviewing court. Id., at 1036-38, 104 S.Ct. at 2891-92. This is especially true where, as here, that determination is made after an extended voir dire designed specifically to identify biased veniremen and the trial court's determination that jurors are unbiased is essentially one of credibility. Id. at 1038, 104 S.Ct. at 2892. See also Robison v. State, 677 P.2d 1080, 1084 (Okla.Crim.App.1984), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). After reviewing the record, we are unable to conclude that appellant did not receive a fair trial and find the trial court did not abuse its discretion by denying appellant's motion for a change of venue.

For his second assignment of error, appellant asserts the trial court abused its discretion by refusing to sever appellant's trial from that of his codefendant, and by permitting the State to introduce into evidence his codefendant's confession which inculpated him, thereby depriving him of a fair trial. We address these two questions in reverse order.

Appellant and his codefendant were both on parole from Texas when Officer Marley stopped them, appellant for murder and Guance for felony car theft. Both men were armed in violation of parole, appellant with a .32 caliber revolver concealed in his boot and Guance with a .38 caliber revolver on his person and another .38 in a sack on the motorcycle, both of which were stolen from a friend in Frost, Texas. Both men confessed to the police, appellant at the Atoka County Sheriff's office and Guance at the Bryan County jail. Both men led the police officers to the river to retrieve the guns they threw in the water: appellant's .32 caliber revolver, Guance's .38 caliber revolver, and Officer Marley's .357 Magnum revolver.

While there was no evidence that any of the shots fired by appellant struck Officer Marley, Guance's oral confession implicated appellant in the plan to shoot the officer. In an in camera hearing, the O.S.B.I. agent who heard Guance's oral confession testified that when Officer Marley stopped the men, Guance asked his brother what he wanted to do and appellant responded, "shoot him." (PH. Tr. at 235, T. Tr. at 341).

Relying on Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), the trial court permitted the introduction of the interlocking confessions into evidence and instructed the jury that a confession could be considered only against the person making the confession and not against the codefendant. (O.R. at 96) The trial court redacted Guance's oral confession to excise any statements made by appellant to Guance, any joint agreement, plan or decision, and any indication that Guance acted at appellant's behest, request or plan. (Tr. at 338-42) The trial court similarly redacted appellant's oral confession to delete any statements made by Guance to appellant. (Tr. at 223-24) Both oral confessions were revealed to the jury through the testimony of the officers present when the men confessed. Neither appellant nor Guance took the stand. Neither man was available for cross-examination by the codefendant.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court found that admission in joint trials of a codefendant's confession which incriminates the defendant, and the codefendant cannot be cross-examined because he does not take the stand, violates the defendant's right to confrontation under the Sixth Amendment, even in those cases where the trial court...