Bowman v. State

• Decision Date: 25 October 1978
• Docket Number: No. F-77-132,F-77-132
• Citation: 585 P.2d 1373
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Parties: Roy L. BOWMAN, Appellant, v. The STATE of Oklahoma, Appellee.

Page 1373

585 P.2d 1373

Roy L. BOWMAN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-77-132.

Court of Criminal Appeals of Oklahoma.

Oct. 25, 1978.

An appeal from the District Court, Comanche County; Jack Brock, judge.

Roy L. Bowman, appellant, was convicted of the offense of Murder in the Second Degree, was sentenced to ten (10) years to life imprisonment, and appeals. AFFIRMED.

Gerald F. Neuwirth, Lawton, for appellant.

Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., for appellee.

OPINION

BUSSEY, Presiding Judge:

Appellant, Roy L. Bowman, hereinafter referred to as defendant, was charged by information with the crime of Murder in the Second Degree, in violation of 21 O.S.Supp.1973, § 701.2. The defendant was tried before a jury in the Comanche County District Court, Case No. CRF-76-202, before the Honorable Jack Brock, District Judge. The defendant was convicted and sentenced to a term of imprisonment of not less than ten (10) years nor more than life, pursuant to 21 O.S.Supp.1973, § 701.4. From said judgment and sentence defendant has perfected this appeal.

A body was discovered by fishermen at about 4:15 p. m. on February 16, 1976, on the shoreline of Rush Lake in the Wichita Mountains Wildlife Refuge, in Comanche County, Oklahoma. The body was later identified as Michael J. Perkins, a private in the United States Army, stationed at Ft. Sill, Oklahoma. The medical examiner testified that death, in his opinion, was due to multiple blows to the head inflicted by a rod-shaped instrument.

The defendant and one Jessie Brown were later arrested and charged with the murder of Michael J. Perkins. A search of the defendant's car uncovered a tire tool in his trunk. A police officer testified that the tire tool was clean, while all other items in the trunk had a film of dust on them.

Renee Gallaway testified that on the night of February 15, 1976, the defendant and Perkins got into a fight near the Play Pen Lounge in Lawton, Oklahoma. The fight concerned the defendant's contention that Perkins was a narcotics informer. The defendant ordered Perkins into the defendant's car, and the two of them, with Gallaway and Jessie Brown, drove to Rush Lake. The witness further testified that the defendant forced Perkins out of the car, and that after the defendant and Brown beat him for a while near the shoreline, the defendant returned to the car and took a metal object from the trunk. The witness said she saw the defendant repeatedly swing the metal object downward, with the first four swings being followed by screams from Perkins. The defendant and Brown then returned to the car, the defendant wiping the metal object as he walked. The three then returned to Lawton.

The defendant admitted having had a scuffle with Perkins near the Play Pen Lounge in Lawton, but claimed that Perkins left in a blue Volkswagen automobile. He stated that he left with Jeannie Hinton and was asleep at Brown's apartment at the time of Perkins' death. The defendant testified that he did not leave Brown's apartment until after 10:00 p. m., when he went to another bar.

In his first assignment of error, the defendant asserts that he was denied the right to confront the witnesses against him. Prior to trial, the State filed a motion in limine to prevent defense counsel from inquiring into the juvenile record of the State's key witness, Renee Gallaway, who was a juvenile at the time of the trial. This request was granted in an order which states in pertinent part:

"IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the above named Defendant, Defendant's counsel, and Defendant's witnesses, and each of them, are hereby ordered not to mention, refer to, interrogate concerning, argue to, or attempt to convey to the jury in any manner, either directly or indirectly, any pleading, testimony, remarks, questions, exhibits, opening arguments or closing arguments, designed to inform the jury of any fact concerning evidence, if any, relating to prior arrests and/or adjudications had in the Juvenile Court regarding Renee' Gallaway, or any juvenile proceedings or records of any nature referring to said Renee' Gallaway, Without first obtaining permission of this Court outside the presence and hearing of the jury." (Emphasis added)

Immediately prior to the testimony of this witness, the following exchange occurred:

"MR. NEUWIRTH: (Out of the presence of the jury) We would enter an objection to the testimony by this witness for the reason that a previous order has been made by the court prohibiting us from cross examining this witness regarding her juvenile adjudications. We feel this is depravation (sic) of the Defendant's constitutional right to confront the witness, therefore we would object to any testimony by her.

"THE COURT: Overruled with exceptions."

It has long been the rule in this state that the juvenile record of any child shall receive special protection and shall not be disclosed in any civil, criminal or other cause or proceeding except in subsequent cases before the juvenile court against the same child. Title 10 O.S.Supp.1977, § 1127(a). Also see, Young v. State, Okl.Cr., 553 P.2d 192 (1976); Lauen v. State, Okl.Cr., 515 P.2d 578 (1973).

Furthermore, in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the United States Supreme Court recognized, without challenge, the interest a state might have in protecting the anonymity of juvenile offenders. However, the Supreme Court went on to rule in Davis v. Alaska, supra, that this policy must be limited insofar as it conflicts with the paramount interest of a defendant to confront the witnesses against him. The Supreme Court distinguished between a general attack on the credibility of a witness by the introduction of prior criminal convictions of a witness, per se, and a more particular attack directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. They found that cross-examination concerning the partiality of a witness is a necessary element of a defendant's right to confrontation, and as such is paramount to the policy of maintaining the anonymity of a juvenile's record. However, in the instant case there was no indication as to whether the defendant wanted to cross-examine the witness in question concerning her juvenile record merely for the purpose of a general attack upon her credibility by showing prior adjudications, or more specifically for the purpose of showing a possibility of partiality. Therefore, it was unclear whether the holding in Davis v. Alaska, supra, was applicable in this case.

An evidentiary hearing has since been held in this Court wherein counsel for the defendant admitted that he had no personal knowledge of any past juvenile record of this witness. Furthermore, affidavits have been received by this Court from Renee Gallaway, her mother, the custodian of the records for the Lawton Police Department, the District Court Clerk for Comanche County, and the Director of the Juvenile Bureau of Comanche County, Oklahoma, wherein each affiant states that Renee Gallaway has no juvenile record.

First, we note that the defendant failed to comply with the order of the court as emphasized above. The order in limine by the trial court did not strictly rule out evidence of the juvenile record, but merely required that permission be obtained from the court outside the hearing of the jury. Next, in view of the sworn affidavits that Renee Gallaway had no juvenile record, the defendant certainly has suffered no prejudice. Finally, we observe that when a motion in limine is sustained the party seeking to introduce the evidence must at trial but out of the hearing of the jury, make an offer of proof as to what the proper testimony would be, in order to give the trial court an opportunity to make a final ruling with respect to it. Teegarden v. State, Okl.Cr., 563 P.2d 660 (1977). For the foregoing reasons, the defendant's first assignment of error is without merit.

The defendant's second assignment of error is that the trial court erred in refusing to grant his motion requesting the court to order the State's witness, Renee Gallaway, to cooperate with the defendant and his counsel in allowing counsel to interview her. The defendant contends that this hampered his ability to adequately prepare for trial and, in effect, deprived him of due process of law.

Defendant admits that he can find no authority in support of this motion. In fact, the authority is to the contrary. In Broadway v. State, Okl.Cr., 494 P.2d 331 (1972), while we recognized that the defense should not be deprived of an opportunity to interview witnesses for the prosecution, we also recognized that such is subject to the witness' consent to said interview. See, 23 C.J.S. Criminal Law § 958, for a general discussion of this issue.

The defendant cites Kinney v. Lenon, 425 F.2d 209 (9th Cir. 1970), for the general proposition that due process requires that the defense have an opportunity to contact and screen for potential witnesses. However, that case in no way holds or implies that witnesses may be compelled to confer with counsel for the defense outside of court. In fact, in Byrnes v. United States, 327 F.2d 825 (9th Cir. 1964), the Ninth Circuit Court of Appeals ruled that while it is true that any defendant has the right to attempt to interview any witnesses he desires, it is also true that any witness has the right to refuse to be interviewed.

Finally, while it is true that as an investigative tool the District Attorney or any peace officer has the authority under 22 O.S.1971, § 749, to take the sworn statement of any person having knowledge of a criminal offense, this is offset by the right of the defendant to have a copy of such sworn statements. Therefore, the defendant's second assignment of error is found to be without merit.

The defendant's third...