Blevens v. State, A--15928

• Decision Date: 21 July 1971
• Docket Number: No. A--15928,A--15928
• Citation: 487 P.2d 991
• Parties: Robert D. BLEVENS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 991

487 P.2d 991

Robert D. BLEVENS, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--15928.

Court of Criminal Appeals of Oklahoma.

July 21, 1971.

Philip F. Horning Oklahoma City, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Marvin E. Spears, Asst. Atty. Gen., for defendant in error.

OPINION

BRETT, Judge.

Plaintiff in Error, Robert D. Blevens, was charged, tried and convicted by a jury in the District Court of Canadian County, for the crime of First Degree Burglary, After Former Conviction of a Felony. Plaintiff in Error, hereinafter referred to as defendant, was tried in a two-stage proceeding, and at the conclusion of the second-stage, he was given the minimum sentence of seven (7) years imprisonment under the direction and control of the Oklahoma State Department of Corrections. Judgment and sentence in District Court case No. 3316 was imposed on April 25, 1969; and from that judgment and sentence this appeal has been perfected.

Defendant was tried twice on this burglary charge. His first trial occurred on May 3, 1969, when he elected to represent himself with court appointed counsel sitting at the table with him. The jury returned a verdict of guilty, but because there was some question concerning defendant's competency, he was granted a new trial.

Defendant was represented at his second trial by Mr. Hugh Rinehart of El Reno, Oklahoma. At the conclusion of the trial, defendant discharged his attorney and again attempted to handle the proceedings himself. When the Motion for New Trial was heard, the trial court appointed Mr. J. L. Pazoureck, Public Defender for Canadian County, to represent petitioner at that hearing. Defendant's Motion for New Trial was denied, and judgment and sentence was imposed.

The Information filed herein alleged that on June 24, 1967, defendant committed the crime of Burglary in the First Degree, by unlawfully entering a certain dwelling house occupied by and in the possession of one Freeman Denwalt, in the Canadian Manor Apartment Building in Yukon, Oklahoma. In the specifications of the Information, it alleged that defendant committed the crime of First Degree Burglary, '* * * By unlocking an outer door by lifting a latch on said door and entering therein without the consent of said occupant, with the unlawful, felonious and burglarious intent then and there to commit the crime of assault and battery.' (Emphasis added)

Defendant testified in his own behalf at this trial and related that when he reached the Canadian Manor Apartment, the door to apartment No. 2 was open. He admitted having a tire tool in his hand, but denied that he had any intent to injure any of the parties in the apartment.

The Information was laid under the provisions of Title 21 O.S.1961, § 1431, which defines the offense of Burglary in the First Degree. In prosecuting this case, the State introduced the testimony of three witnesses, each of whom testified that they were present in the apartment on the night in question; that they were awaken by the defendant about 4:00 a.m., in the early morning hours of June 25, 1967; that the defendant had in his hand a tire tool and threatened to harm them bodily; that no one was harmed; that the defendant apologized to Mr. Denwalt and left after drinking a cup of coffee with two of the prosecution witnesses. Those witnesses were: Mr. Freeman Denwalt, the tenant who rented the apartment, and who was also a long time friend of the other two witnesses, Mrs. Jean Laverne, and her fifteen year old son, Larry Laverne.

The facts reveal that defendant was in the process of obtaining a divorce from his wife and had been living with Mrs. Laverne in her home in Oklahoma City for several months. They had a falling out and about 2:00 a.m., on the morning of June 25th, defendant followed Mrs. Laverne to the apartment of Mr. Denwalt. Some two hours later the defendant returned to the apartment house and entered Mr. Denwalt's apartment with a tire tool in his hand. He observed Larry sleeping on the divan, and went into the guest room and awakened Mrs. Laverne; he then went into Mr. Denwalt's room and woke him up, and then required all three persons to sit on the divan in the living room. Mr. Denwalt was the only one of the three witnesses to testify that there was any serious threats made against any of them. However, Mrs. Laverne stated that when he was in her room he asked her, 'what in the hell are you doing here?' She informed him that she was sleeping there. Later he slapped her a couple of times and pushed her back to a chair, because she was not getting dressed fast enough. However, after some conversation in the living room, defendant gave the tire tool to Mr. Denwalt; apologized to him for his misconduct; and then drank some coffee with two of the witnesses, before departing from the apartment complex. The incident occurred early Saturday morning, but was not reported to the police until the following Monday.

The facts reveal further that Larry Laverne and Mr. Denwalt watched television until Larrry went to sleep, and soon thereafter Mr. Denwalt went into his own bedroom and went to sleep. On direct examination he testified that he shut the front door and in response to the question 'Do you recall whether you locked the door or not?' he answered, 'Well, I thought I locked it. There was a little knob in the center of the door knob and you just pushed that in to lock it, and whenever I let Larry in I just shut the door with the hand behind me and my thumb on that little knob and I thought I had it locked.' (Emphasis added) The record reveals that at 2:00 a.m., when Mrs. Jean Laverne reached the apartment, the door was not locked, but shut. She testified that Mr. Denwalt was expecting her, and she shut the door to the apartment and pushed the lock on it, and then went to the gurst bedroom and went to sleep. Some two hours later defendant reached the apartment.

Defendant testified that the door to the apartment was open and whether or not the door was open when he reached it became the critical question at defendant's trial. As related, Mr. Denwalt thought he had locked the door; but when Mrs. Laverne reached the apartment the door was unlocked and she went in. The record is clear concerning the fact that if the door was not securely shit, with the latch in place, when the main front door to the apartment building was opened a vacuum condition was created which would force that apartment door open. This fact was testified to by the apartment manager, Mr. Walter Powers and Mr. Bob Luttrell, Deputy Sheriff for Canadian County, and by Officer Cary Thurman of the Yukon Police Department.

On order of the District Judge, the Deputy Sheriff took defendant on April 1, 1969, to Yukon and with the aid of the Yukon Police Officer went to the apartment complex and conducted tests in order to verify whether or not the apartment door would open if it was not latched in place, when the building door was opened. The result of their tests revealed that the vacuum condition would force the door open, if it was not securely closed. The Deputy Sheriff and the police officer used the term 'snugly closed.' The record reveals that the prosecutor was very perturbed over the fact that the Deputy Sheriff took defendant out to conduct the tests; and as a result, the District Attorney for Canadian County made very caustic remarks to Deputy Sheriff Luttrell in the hallway outside the courtroom, in front of the court clerk's office.

A hearing was held in the judge's chambers to ascertain how the question would be put to the jury to determine whether or not any of the members of the jury overheard the District Attorney's remarks. ¹ When court was reconvened, the jurors were asked to raise their hands if any of them heard any remarks made by either counsel in the hallway during the recess. None raised their hands indicating that they had heard remarks made by either the prosecutor or defense counsel.

After the jury returned its verdict, but before the hearing on the defense Motion for New Trial, it was brought to the defense attorney's attention that the prosecution had obtained and had in its possession, the lock from the door of the prosecuting witness's apartment. It seems apparent that the prosecuting attorney obtained the lock before the trial was commenced, and that it was in his desk-drawer during the time defendant was being tried.

In his brief defendant sets forth five propositions of error, as follows:

1. He was denied a fair trial because the prosecuting attorney illegally suppressed evidence favorable to him.

2. He was denied a fair trial because of the misconduct of the prosecuting attorney in making statements regarding the case in the presence of jury members during recess.

3. He was denied a fair trial due to the unresponsive and prejudicial remarks of a prosecution witness...