Thomas v. State, F-87-802

Citation811 P.2d 1337,1991 OK CR 58
Decision Date10 May 1991
Docket NumberNo. F-87-802,F-87-802
PartiesDerrell Lynn THOMAS, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Derrell Lynn Thomas, Appellant, was tried by jury for the crimes of First Degree Murder and Robbery by Force in Case No. CRF-87-94 in the District Court of Creek County before the Honorable G. Bruce Sewell, Associate District Judge. The jury recommended the death penalty for the murder charge and a term of ten (10) years on the robbery charge. Appellant appeals. Judgment and sentence is AFFIRMED.

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

Robert H. Henry, Atty. Gen., William H. Luker, Wellon B. Poe, Asst. Attys. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

Appellant, Derrell Lynn Thomas, was convicted of First Degree Murder (21 O.S.Supp.1982, § 701.7A) and of Robbery By Force (21 O.S.1981, § 791) after a trial by jury in the District Court of Creek County, Case No. CRF-87-94. The jury recommended the death penalty for the murder charge and a term of ten (10) years on the robbery charge. Appellant was sentenced accordingly. He now appeals from that judgment and sentence.

Janie Powell met Appellant on April 27, 1987, at the Sapulpa V.F.W. Mrs. Powell sat at the bar for a short time with Appellant and another man, Kenneth Worrell. Powell told the men that she was in the process of building a house. Appellant asked her if the property had been treated for termites and suggested that she hire him to perform those services.

After agreeing to accept Appellant's offer of services, Mrs. Powell attempted to give Appellant directions to her house and tried to draw a map. Eventually, she asked Appellant simply to follow her to the house. They left the bar and Appellant followed Mrs. Powell to the house in his own car. Mrs. Powell was found dead in her home the next day. Her jewelry and several hundred dollars which she had received from her husband the previous day were missing.

The day after he went to Powell's house, Appellant went to the Mustang Lounge in Tulsa. He sold several pieces of Mrs. Powell's jewelry to the owner of the bar. He also showed the bar owner's daughter several one hundred dollar bills which he had in his wallet.

During the investigation of the crime, police spoke to Mrs. Powell's father-in-law, who lived in a mobile home next to Mrs. Powell's house. He reported that he saw a brown car with no hubcaps parked in Powell's driveway the evening before. Police made a video tape of the driveway, recording the distinctive patterns on the tire tracks left in the dirt.

Appellant was apprehended at the Coppa Motel in Durant, Oklahoma. After he executed a consent to search form, police searched his room and seized his car. The car matched the description given by Powell's father-in-law and the patterns in the tire tread matched the tracks found at the scene of the crime.

At trial, the medical examiner testified that Mrs. Powell died as a result of a severe beating which included manual strangulation. She was also stabbed four times. Two of the stab wounds were received post-mortem; however, the other injuries occurred prior to Mrs. Powell's death.

I

As his first assignment of error, Appellant claims that the trial court committed reversible error by allowing the State to endorse additional witnesses immediately prior to the commencement of his trial. Specifically, Appellant claims that it was error for the court to allow the addition as witnesses of Appellant's daughter, Regina Thomas, and of Mary Wofford, Appellant's sister-in-law. Although the State requested the endorsement more than forty-eight hours prior to trial, Appellant did not receive notice of the addition until the Saturday prior to the Monday trial. He also claims that the addresses given for the witnesses were incomplete and that Wofford was erroneously referred to as Mary Thomas. 1

In addition to the endorsement of the two women, on the day of trial, the State requested permission to add Mrs. Powell's husband as a witness, claiming that his exclusion was an oversight which had just been discovered.

The Oklahoma Constitution provides that a criminal defendant in a capital case, must be "furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their post office addresses" at least two days prior to the commencement of the trial. Okla. Const. Art. 2, § 20. This Court has previously explained the procedure by which a defendant may challenge the late endorsement of a witness. In Diaz v. State, 728 P.2d 503, 513 (Okl.Cr.1986), we held that a defendant must do more than simply object to the addition of more witnesses on the eve of trial; he must withdraw his announcement that he is ready for trial and request an immediate continuance. See also Fisher v. State, 668 P.2d 1152 (Okl.Cr.1983); Blanton v. City of Oklahoma City, 568 P.2d 288, 290 (Okl.Cr.1977); Mason v. State, 560 P.2d 1048 (Okl.Cr.1977). In Diaz, we quoted the rule established in Paschall v. State, 96 Okl.Cr. 198, 252 P.2d 175 (1952):

The trial court in the exercise of judicial discretion may permit the name of a witness to be endorsed upon the information after the trial has commenced. If defendant's counsel is surprised at such action and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case was continued. Where he fails to do this the error, if any, is waived. (Emphasis added.)

Id. at 513.

In the present case, Appellant first raised his objection to the endorsement of the three witnesses immediately prior to the selection of the jury. During the hearing, which took place in the judge's chamber, Appellant's counsel stated "In this particular case, I'm not asking for a continuance in the case, but I would ask the Court to prohibit the use of testimony of three late endorsements of witnesses." Transcript, p. 22. 2 The trial court specifically asked:

Mr. Miller, do you think you need a continuance for purposes of investigation of any of these three witnesses? I understand your argument but it would appear to me that if you perhaps needed a short continuance I might grant you that for 48 hours, but I do not believe it would be appropriate for me to disallow the State from having the right to call these witnesses if they should so desire.

Tr. 27.

Appellant again declined to accept the court's offer, notwithstanding the fact that he did not believe that his client understood the nature of at least one witness' testimony:

I have discussed, not the specifics of what Mr. McClain says the testimony of Kenneth Powell will be, but--so he doesn't know that somebody is going to come in here and testify about hundred dollar bills that were in the possession of the deceased--I would--I think that I should talk to him first about that. He has made it clear to me that he wants to go ahead with this trial today--

Tr. 27.

After this statement by counsel, the court overruled the motion, but then offered and took a "short recess" to give counsel time to meet with Appellant. After the recess, the proceedings moved into the courtroom without further discussion of the objection. Under these circumstances, we find that any error, assuming that such error existed, was waived.

In his brief, Appellant discusses the testimony of the three witnesses at length and presents the Court with the argument that he was prejudiced by the endorsement

merely because the testimony of the witnesses was harmful to his view of the case. Quite simply, this is not the standard which we will apply in such a situation. We will find error when a defendant's right against unfair surprise has been violated, resulting in prejudice to his ability to prepare for his defense. Simply because the witnesses will provide detrimental evidence against the defendant does not warrant their exclusion. We will not exclude relevant, however damaging, testimony when the defendant is given the opportunity to protect his ability to prepare in such a situation through the grant of a continuance. We find that the trial court followed the correct procedure when it offered Appellant a continuance. Rhodes v. State, 695 P.2d 861, 863 (Okl.Cr.1985). His refusal of the offered continuance has waived any error.

II

We next turn to Appellant's allegation that a statement made by Mary Wofford was inadmissible hearsay so prejudicial, his conviction should be reversed. At issue, is the following testimony:

Q. (By Mr. McClain) In this conversation did--Well, let me ask you: What time, about, did Regina Thomas call you that Tuesday evening?

A. Oh, it was probably between 8:00 and 10:00.

Q. Did she tell you anything in that conversation that you recall?

A. Well, she just told me that--

MR. MILLER: I've got to object to the hearsay, Judge.

THE WITNESS:--that Derrell killed--

MR. MCCLAIN: Don't--Don't answer yet.

THE COURT: Wait a minute Ms. Wofford. I'm going to sustain the objection.

(Tr. 486).

The State alleges that the error presented by the introduction of the hearsay statement by the witness is waived because Appellant did not request the court to admonish the jury or to grant a mistrial. We held in Kelsey v. State, 744 P.2d 190 (Okl.Cr.1987) that we would no longer deem an error to be waived if such error was properly preserved by contemporaneous objection, notwithstanding the fact that the objection was not accompanied by a request that the jury be...

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