Duvall v. State

• Decision Date: 28 May 1991
• Docket Number: No. F-87-392,F-87-392
• Citation: 1991 OK CR 64,825 P.2d 621
• Parties: John Wayne DUVALL, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 621

825 P.2d 621

John Wayne DUVALL, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-392.

Court of Criminal Appeals of Oklahoma.

May 28, 1991.

Rehearing Denied March 2, 1992.

An Appeal from the District Court of Stephens County; George W. Lindley, District Judge.

John Wayne Duvall, Appellant, was tried by a jury for the crime of Murder in the First Degree in the District Court of Stephens County, Case No. CRF-86-251. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at death. The trial court sentenced Appellant accordingly. From this judgment and sentence, Appellant appeals. AFFIRMED.

Thomas Purcell, Asst. Appellate Public Defender, Norman, for appellant.

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

OPINION

LUMPKIN, Vice Presiding Judge:

John Wayne Duvall, Appellant, was tried by a jury for the crime of Murder in the First Degree in the District Court of Stephens County, Case No. CRF-86-251. Appellant was represented by counsel. The jury returned a verdict of guilty and recommended punishment at death after determining the aggravating circumstances that the defendant was previously convicted of a felony involving the use or threat of violence to the person, and that the murder was especially heinous, atrocious or cruel. The trial court sentenced Appellant accordingly. From this judgment and sentence, Appellant appeals.

In August, 1985, the Appellant, his wife Karla, also referred to as the decedent, and their young son moved into a duplex at the Chickasaw Nation Apartment Complex in Duncan, Oklahoma. Karla Duvall became friends with the next door neighbor, Connie McKinney. Several months later the Appellant moved out of the apartment because of marital difficulties. However, Karla and the Duvall's young son continued to occupy the apartment.

On September 18, 1986, Appellant walked into the Stephens County Courthouse, and approached County Commissioner and former Assistant Police Chief, Alvie Chasteen, and asked to speak to him. Mr. Chasteen testified that he asked the Appellant if he was in any kind of trouble and the Appellant's response was, "I killed my wife Monday night". Chasteen called the sheriff and immediately took Appellant up to the sheriff's office. Once inside, Sheriff Alexander read Appellant his Miranda rights. The Appellant indicated that he understood his rights, signed a waiver form and stated that he desired to talk to the authorities. At that time Appellant told the sheriff and Mr. Chasteen what happened on September 15, 1986. A tape of the Appellant's statement to Sheriff Alexander was played to the jury. On that tape the Appellant stated that on Monday night, September 15, 1986, between 10:30 p.m. and 11:00 p.m., he killed his wife, Karla. After taking the Appellant's confession, Sheriff Alexander obtained a consent to search, notified the District Attorney and other law enforcement authorities, and proceeded to the Appellant's duplex where they found the body of the decedent lying naked on the bed. During the search of the duplex, various knives, Appellant's clothing, and a number of other items were found, which corroborated Appellant's statement to the police.

The State also called a number of witnesses during the trial to corroborate Appellant's statement. Connie McKinney, a witness for the State, testified that she saw Appellant walking towards the apartment at approximately 10:00 p.m. on the night of the murder. Frankie Dale Vaughn and Jeff Brown, also witnesses for the State, testified to giving Appellant a ride from Love's convenience store to the entrance of the apartment complex. The defense did not put on any witnesses during the first stage of the proceedings, nor did it present any evidence during the second stage.

In his first assignment of error, the Appellant alleges trial court error in admitting evidence of the defendant's previous acts of violence in violation of the hearsay rule. Specifically, he refers to statements made by Karla Duvall to her neighbor, Connie McKinney, and to her brother, Nathan Bobbett. Ms. McKinney testified that approximately two weeks before her death, Karla Duvall came running over to Ms. McKinney's apartment and asked her son to lock the door. Karla Duvall then hid under Mrs. McKinney's kitchen table, and appeared to be so frightened that she was trembling and causing the table to shake. Mrs. McKinney was going to call the police but was stopped by the decedent, who said that her husband would kill her if he was arrested. The Appellant then arrived and told Mrs. McKinney to open the door, and when she refused, he threatened to kill her as well as his wife. When Mrs. McKinney told Appellant that she had called his brother-in-law and that he was on his way, he threatened to kill the brother-in-law as well. During this testimony, the defense objected only to the testimony concerning statements made by the decedent. The trial court overruled the Appellant's objection, admitted the statement, and admonished the jury.

Mr. Bobbett testified that three weeks prior to the murder, he received a call from the decedent concerning a fight with the Appellant, asking him to come and pick her up. During his testimony, Bobbett also mentioned a conversation he had with the decedent in which she informed him that the Appellant "told her if she left him, that he would kill her". Again, the defense attorney objected to all testimony concerning statements attributed to Karla Duvall, and the trial court overruled the defense objection, admitted the statements and admonished the jury as follows:

BY THE COURT: Ladies and gentlemen. let me interrupt at this point to speak concerning the statement that you have heard that was made. That statement is introduced not for the truth of the matter related in the statement, but only as that statement relates to the state of mind of the deceased, Karla Duvall, in relation to the defendant, John Duvall. Not for the truth of the statement, but only as it may shed light as to the state of mind of the decedent. All right. Thank you. You may continue, sir. (Tr. 674, 675)

Prior to the admission of this evidence a pretrial discussion was conducted wherein it was indicated that the defendant would take the stand and testify in his own behalf. Although we agree that these statements are hearsay, we find that they are admissible under the state of mind exception to the hearsay rule set forth in 12 O.S.1981, § 2803(3), which states in pertinent part:

§ 2803. Hearsay Exceptions: Availability of Declarant Immaterial.

The following are not excluded by the hearsay rule, even though the declarant is available as a witness;

3. A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan motive, design, mental feeling, pain and bodily health....

The relevance of testimony showing ill feeling, threats, or similar conduct by one spouse toward another in a marital homicide case has been established by this Court. Lamb v. State, 767 P.2d 887 (Okl.Cr.1988); Manning v. State, 630 P.2d 327, 330 (Okl.Cr.1981). In Wadley v. State, 553 P.2d 520 (Okl.Cr.1976), this Court, in citing II Wigmore on Evidence, § 396 (3rd ed. 1940), recognized that where hostile emotions at a particular time are to be proved in a case, the existence of the same emotion in the same person at another time is proper evidence. Moreover, the court admonished the jury each time testimony regarding statements made by the decedent were elicited from these witnesses.

In addition, the trial court instructed the jury on the applicable law of the case, including Instruction No. 10, which provided:

During the trial, you heard the testimony of Connie McKinney and Don Bobb[e]tt as to certain statements made by the decedent, Karla Duvall, as to threats related to her by the defendant. You were instructed during the trial that you could consider the statements only as they might relate to the decedent's state of mind.

At this point, you are instructed to disregard all statements of the decedent, as they are not relevant to any of the issues you will be called upon to decide. (O.R. 151)

Appellant has attempted to raise the issue of notice under Burks v. State, 594 P.2d 771 (Okl.Cr.1979), overruled on other grounds in Jones v. State, 772 P.2d 922, 925 (Okl.Cr.1989), for the first time on appeal and as a part of the supplemental authority provided to the Court four (4) days prior to oral argument. The purpose of the notice required by Burks is to ensure that a defendant has the opportunity to defend against evidence which is admissible pursuant to 12 O.S.1981, § 2404 B. The issue of notice was not raised at any time during trial or in the Appellant's original or reply briefs. In this case, the record does not disclose whether or not the Appellant was surprised by the evidence or if he objected to its presentation based on a failure to give notice. Thus, in light of Appellant's failure to object to the notice requirements set forth in Burks at the time and manner prescribed by the law, he has now waived his right to claim error based on these grounds. Therefore, it is the opinion of this Court that testimony showing decedent's fear of Appellant is relevant, hence, Appellant's first assignment of error is denied.

In his second assignment of error Appellant alleges that the trial court erred in failing to instruct on either First Degree Manslaughter or Second Degree Murder. A trial court should not instruct on a lesser included offense if the evidence will not reasonably support a conviction on the lesser included offense. Hale v. State, 750 P.2d 130 (Okl.Cr.1988); Funkhouser v. State, 721 P.2d 423 (Okl.Cr.1986). Here the Appellant, in his statement to police, admitted to planning the murder after talking to his wife around 3:00 p.m. that afternoon. In his statement he admitted that he had been thinking about...