Bowen v. State, F-81-315

• Decision Date: 30 November 1984
• Docket Number: No. F-81-315,F-81-315
• Parties: Clifford Henry BOWEN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1093

715 P.2d 1093

Clifford Henry BOWEN, Appellant, v. STATE of Oklahoma, Appellee.

No. F-81-315.

Court of Criminal Appeals of Oklahoma.

Nov. 30, 1984.

Richard Haynes, Haynes & Fullenweider, Jack B. Zimmerman, Houston, Tex., James Gotcher, Gotcher, Gotcher & Taylor, McAlester, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

Clifford Henry Bowen was charged with and convicted of the First Degree Murders of three men at the Guest House Inn in Oklahoma City on July 6, 1980. Following the convictions, he appealed; and prior to our decision being rendered, he lodged his second request for a new trial. The ground for retrial was newly discovered evidence, and we ordered the district court to conduct an evidentiary hearing to determine the merit of his motion. The district court heard the evidence and entered its findings of fact and conclusions of law denying appellant's motion. Appellant's motions for new trial lack merit, and his judgments and sentences should be AFFIRMED.

On July 6, 1980, at approximately 2:00 a.m., three people were killed as an executioner fired two shots into each of them with a .45 caliber gun. The victims were Ray Peters, whom the prosecution theorized to be the killer's desired victim, Marvin Nowlin, and Lawrence Evans. These three were the last to leave a poolside party at the Guest House Inn which started the evening of July 5, 1980. Sometime after midnight, a large man appeared in the area of the concession machines by the pool. Later, Mary Lee Chilton positively identified appellant as the man standing near the machines on the evening in question and whom she observed as she passed by on the way to her room prior to the shootings that morning. Carrie Pitchford also identified appellant as the man standing by the poolside concession machines whom she observed when she looked out three times from the window of her room in the motel.

Appellant was initially linked to the shootings because of his suspected connection to Harold Behrens. Behrens had visited Ray Peters, a drug dealer working for him, by the poolside on the evening of the killings. In an uncharacteristic gesture, Behrens put his hand on Peters' shoulder in plain view of the man standing by the concession machines as he left the gathering of people. Behrens had worked in the investigation of appellant by the Oklahoma City Police Department in 1975 as a police officer. Behrens suddenly resigned, and within a day or two, appellant dropped out of sight. A detective who had also worked in the investigation made the connection between Behrens and appellant when he heard the suspect's description. Both Chilton and Pitchford identified appellant in a photographic lineup and at an in-person lineup.

Appellant's defense at trial was alibi, as he produced a number of witnesses who testified he was at a rodeo in Tyler, Texas, until around midnight on July 5, 1980. The State theorized that appellant left Tyler, Texas, by jet and was able to reach the murder scene within 45 minutes.

On appeal, appellant's first assignment of error is that the trial court's instruction to the jury regarding circumstantial evidence was deficient in that it applied only to their finding of malice aforethought. He claims that all of the State's evidence concerning who committed the homicides was circumstantial and that our case law dictates that an instruction be given to the jury directing that the circumstances must each be consistent with one another and inconsistent with any reasonable hypothesis other than the defendant's guilt, citing Hager v. State, 612 P.2d 1369 (Okl.Cr.1980) and Roth v. State, 532 P.2d 1397 (Okl.Cr.1975).

Appellant's assignment lacks merit for several reasons. First, his trial counsel failed to request such an instruction.

We have consistently held that where counsel is not satisfied with instructions that are given, or desires the court to give any particular instruction, it is the duty of counsel to prepare and present to the court such desired instructions and request that they be given. In the absence of such a request, the Court of Criminal Appeals will not reverse the case if the instructions generally cover the subject matter of inquiry and there is no fundamental error.

Luckey v. State, 529 P.2d 994, 996 (Okl.Cr.1974). Further, we held in Knight v. State, 73 Okl.Cr. 107, 118 P.2d 255 (1941), that defense counsel's failure to request such an instruction will not stop this Court from reviewing this issue if the evidence presented at trial was wholly circumstantial and weak in nature. We find the evidence in the present case is neither.

At trial, the State presented the testimony of Chilton and Pitchford who identified appellant as the man who maintained a post by the concession machines near the pool immediately prior to the slayings. At approximately 2:00 a.m. the sound of gunshots rang through the motel. The manager of the motel and his wife testified they stepped to the office window to see some of the six blasts as they erupted, and later to see a large man flee the scene. After appellant was arrested in Tyler, Texas, and Oklahoma City Police interviewed him there in connection with the homicides, without being informed as to the subject of their investigation or of any details surrounding the killings, appellant volunteered that he couldn't have committed the crime as he was "too fat to run." The State's evidence was not so weak or wholly circumstantial so as to bring this case within our holding in Knight.

Additionally, though the trial court instructed the jury regarding circumstantial evidence in connection with its instruction concerning malice aforethought, the language of the instruction was sufficiently broad to encompass evidence of identity. The instruction includes the language:

To warrant a finding upon circumstantial evidence, each fact necessary to the conclusion sought to be established (that is malice aforethought) must be proved by legal and competent evidence beyond a reasonable doubt. Further, all the facts and circumstances proved must not only be consistent with such finding but consistent with each other and inconsistent with any other reasonable conclusion and sufficient to produce in your minds a reasonable moral certainty that the accused committed the offense charged against him with malice aforethought. (Emphasis added.)

Thus, the jury was properly instructed as to how it must determine each element to a reasonable moral certainty, including identity, though the evidence be circumstantial.

Next, appellant assigns as error the trial court's failure to instruct the jury that they had to find beyond a reasonable doubt that he acted jointly with co-defendant Behrens as charged in the information. Again it should be noted that no instructions were offered by defense counsel on this issue or any other issue. Therefore we will only determine whether the lack of the appellant's now proposed instruction constituted fundamental error. Fundamental error has been described by this Court as error which when considered "in view of the whole record, is so fundamentally wrong and prejudicial that it deprived the defendant of a substantial right." Jones v. State, 77 Okl.Cr. 285, 141 P.2d 109 (1943). Allegations and evidence of joint action taken with another person in the commission of the crime were certainly relevant matters to be addressed at trial. They were relevant to show motive but did not of themselves stand as essential or material elements of the crime of murder. Therefore, we do not find the lack of an instruction requiring the State to establish joint action to constitute fundamental error. Accordingly, this assignment of error is without merit.

Appellant alleges in his appeal and in his second motion for new trial that reversible error occurred when the prosecution failed to deliver exculpatory evidence to defense counsel. However, the record does not reveal that defense counsel made a formal request for exculpatory evidence, though trial counsel contends he made an oral pretrial inquiry as to the existence of other suspects to which the prosecution answered in the negative. He now asserts that the prosecution had a duty to make known to the defense the identity of three potential suspects.

One was William Wayne Simmons. He had been arrested after Chilton picked his picture from an array of photographs. There was hearsay evidence supposedly revealed to the prosecution that Simmons told a man named Thomas Upton, Jr. that he had been at the Guest House Inn on the night of the killings. But Simmons was subsequently released when the eyewitness told officers at a live lineup that the assailant was much larger in size than Simmons.

There was also evidence that one of the three victims, Marvin Nowlin, had recently been threatened with bodily harm by a man named Larry Lowell. Appellant asserts that if the jury had been exposed to this evidence, it would have created a reasonable doubt which did not otherwise exist, citing United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).

Subsequent to the trial of this matter, a statement was made to South Carolina police by Deana Burris, a roommate of Ray Peters' ex-wife, Patsy Peters. This statement implicated a man named Lee Crowe, the boyfriend of Patsy Peters, who was of similar stature to that of appellant and who was within the State of Oklahoma at the time of the killings. This statement, and a subsequent one given by Deana Burris forms the new evidence which appellant claims justifies a second trial and which will be discussed later in this opinion. Appellant maintains, however, that Lee Crowe had been a pretrial suspect of which the State had a duty to advise the defense.

Appellant asserts the suppression of the allegedly exculpatory evidence regarding these suspects denied him due process of law under the authority...