Allen v. State
| Decision Date | 28 October 1993 |
| Docket Number | No. F-92-120,F-92-120 |
| Citation | 1993 OK CR 49,862 P.2d 487 |
| Parties | Stephen Lee ALLEN, Appellant, v. The STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Stephen Lee Allen was charged by Information in Washington County District Court Case No. CRF-90-239 with Murder in the First Degree, in violation of 21 O.S.Supp.1982, § 701.7(A). The State filed a bill of particulars seeking the death penalty, alleging the murder was especially heinous, atrocious or cruel. Following a trial before the Hon. John G. Lanning, District Judge, the jury found Allen guilty of first degree murder and recommended he be sentenced to life in prison without parole. The trial court sentenced accordingly and Allen appeals.
On the evening of June 11, 1990, Allen's wife Sandra was viciously attacked and bludgeoned to death in the family home. Allen testified he arrived home that evening with one of his young sons, and as he drove into his driveway he noticed the shadowy figure of a person at the edge of his patio. When the auto lights hit the person, he observed the figure run from his home. Allen locked his son in the auto and ran into the house where he found his wife lying on the floor in a pool of blood. In an effort to revive her, Allen said he shook her causing blood to spatter on him and about the room. Allen then went to the phone to call for help. Seeing a ball peen hammer lying by the phone, he picked it up and in frustration, struck the counter top. Fearing his bloody prints on the hammer might implicate him in his wife's injuries, he further testified that he cleaned the hammer with paper towels and hid both the hammer and the towels in the attic. He then called for help.
The authorities found the hammer and towels and charged Allen with his wife's murder. The medical examiner testified that blunt force head injuries caused her death. The State also presented evidence concerning an extramarital affair Allen had with a secretary in his office which had ended about six months before his wife's death. Other evidence pointed to problems in the Allen marriage. The jury was sufficiently convinced of Allen's guilt to convict him, although it refused to impose the death penalty. Rather, the jury recommended the sentence of life without parole.
Allen complains he was prejudiced by the trial judge's questioning of witnesses at the trial. Initially, we note there is no question about the authority of a trial judge to question witnesses. This authority is statutorily created and has long been recognized by this Court. See 12 O.S.1981 § 2614(B); Howard v. Territory, 15 Okl. 199, 79 P. 773, 774 (1905). See also Hicks v. State, 713 P.2d 18, 20 (Okl.Cr.1986). However, while trial judges may have the authority to question witnesses, they should be very careful in exercising such power. Trial judges must remain neutral and should not indicate their opinion as to guilt or innocence in any trial. Richmond v. State, 456 P.2d 897, 898 (Okl.Cr.1969). The Oklahoma Constitution guarantees a person charged with a crime a trial before an unbiased judge. Okl. Const. art. II, § 6. See also Arnold v. State, 803 P.2d 1145 (Okl.Cr.1990). Therefore, the high degree of latitude normally afforded trial judges to question witnesses must be balanced against the right of a defendant to a trial free of prejudice. See Stanley v. State, 94 Okl.Cr. 122, 230 P.2d 738, 744-45 (1951); Schmitt v. State, 57 Okl.Cr. 102, 47 P.2d 199, 212 (1935).
In this trial, the judge questioned the defendant and two other defense witnesses. We have reviewed the trial transcript and the questions asked by the trial judge. Nothing in the record reveals the jury was informed of the court's opinions or views or that the defendant was unfairly prejudiced by the trial judge's questions.
In his second proposition, Allen asserts it was error for the trial judge to deny his pretrial motion for a change of venue from Washington County. As a subproposition he also complains publicity surrounding the trial was so pervasive as to deny him a fair trial. This case did generate substantial pretrial and trial publicity in Washington County, and indeed, in Northeastern Oklahoma. The fact that publicity existed and was adverse to the defendant does not alone form the basis for reversal. The inquiry is whether or not the defendant received a fair trial by an impartial jury. Gregg v. State, 844 P.2d 867, 871 (Okl.Cr.1992); McBrain v. State, 763 P.2d 121, 123-24 (Okl.Cr.1988).
Allen correctly cites Coates v. State, 773 P.2d 1281, 1286 (Okl.Cr.1989) as setting forth a two-prong test to determine whether or not a defendant's due process rights have been violated by the failure to grant a motion for change of venue. The first Coates prong is an inquiry into whether "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Id. at 1286. Prejudice will be presumed if the media has pervaded the proceedings. The second prong involves examining the entire proceedings to determine if the defendant received a fundamentally fair trial. Id. at 1286. See also Brown v. State, 743 P.2d 133, 136 (Okl.Cr.1987), quoting Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975).
The trial judge in this case was careful to allow extensive questioning of prospective jurors. Prospective jurors are acceptable even if they have heard about a case through the media and even if they have formed an opinion about the case, provided they are willing and able to set aside their opinions and base their decisions in the case solely on the evidence presented at trial. Gregg v. State, 844 P.2d 867, 871 (Okl.Cr.1992); Kiser v. State, 782 P.2d 405, 409 (Okl.Cr.1989). The jurors in this case indicated on voir dire they could do just that.
To support his motion for change of venue Allen submitted three affidavits from Washington County citizens and testimony from an expert along with a public opinion survey performed by the expert. We are not persuaded by the affidavits, the testimony or the survey that Allen has met either prong of the Coates test. There was substantial publicity, but the publicity did not pervade the pretrial or trial proceedings. Moreover, after reviewing the entire transcript to determine if the publicity unfairly affected the trial, we find it did not.
Allen also complains he was prejudiced by the trial court's adverse rulings on his motion to require the State to cease testing by experts on the ball peen hammer and the motion in limine relating to the testing. Allen essentially argues it is fundamentally unfair to a defendant to permit the State, with all of its resources, to continue expert testing right up to the trial's commencement. The prosecution provided the defense the results of its final testing on June 18, 1991. Voir dire of the jurors in this case began on July 15, 1991, and the testimony began on July 22, 1991. Allen, therefore, had the results of the State's testing approximately one month before the trial began.
There is no question the test results were prejudicial to Allen. However, in any criminal case all or at least most relevant evidence offered by the State is prejudicial in that it tends to prove the case against the defendant. The prejudice against Allen, therefore, directly resulted from the evidence and not from the adverse rulings by the trial court. Moreover, under these circumstances we are not persuaded that one month prior to trial is too little time to have been furnished the test results.
In another proposition concerning discovery, Allen contends the trial court erred in refusing to order the State to provide him with work papers of its experts. Our decision in Allen v. District Court, 803 P.2d 1164, 1168 (Okl.Cr.1990), requires the prosecution to disclose "any reports or statements made by experts in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons."
In this case Allen was provided with the results of the prosecution's experts. He now asserts, however, that in certain instances, discovery of the conclusory reports alone is inadequate and urges this court to extend the discovery principles set forth in Allen. This Court has never allowed the discovery of prosecution witnesses' work papers. See Wing v. State, 490 P.2d 1376, 1382 (Okl.Cr.1971), cert. denied, 406 U.S. 919, 92 S.Ct. 1772, 32 L.Ed.2d 119 (1972); Smith v. State, 462 P.2d 328, 330 (Okl.Cr.1969). Although there is some merit to Allen's arguments concerning difficulties caused by production of the bare results or conclusions of experts, we decline at this time to expand the requirements set forth in Allen.
Allen next asserts error on the part of the trial court in failing to sustain challenges for cause to three specified jurors. The decision whether to disqualify jurors remains within the trial court's sole discretion. Workman v. State, 824 P.2d 378, 380 (Okl.Cr.1991), cert. denied, 506 U.S. 890, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992); Sherrick v. State, 725 P.2d 1278, 1282 (Okl.Cr.1986), cert. denied, 479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987). The decision should not be overturned in the absence of an abuse of that...
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