Brown v. State

• Decision Date: 28 August 1987
• Docket Number: No. F-84-626,F-84-626
• Parties: Charles Enoch BROWN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 133

743 P.2d 133

Charles Enoch BROWN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-84-626.

Court of Criminal Appeals of Oklahoma.

Aug. 28, 1987.

Rehearing Denied Oct. 6, 1987.

Terry J. Hull, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

The appellant, Charles Enoch Brown, was tried by jury and convicted of First Degree Murder (21 O.S.Supp.1982, § 707.7(B)) in Creek County District Court, Case No. CRF-83-288, before the Honorable Don Thompson, District Judge. The jury set punishment at life imprisonment. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.

Briefly stated, the evidence showed that on the morning of October 5, 1983, Oklahoma Highway Patrol Trooper Leon Bench stopped a Subaru pickup being driven by the appellant one mile north of Sapulpa on State Highway 97. A driver's license check by Bench revealed that appellant's license had been suspended due to financial responsibility for a car accident. Trooper Bench requested a wrecker for impoundment purposes, and then advised the dispatcher that the appellant was in custody.

The appellant then exited the patrol unit, obtained his .44 magnum single action revolver from a clothes basket in the back of his pickup, and fired three shots at Bench. Two of the bullets passed through both the front and rear windshields of the patrol unit, and a third bullet passed through the base of the dome light on the roof. Bench later died as the result of one of the bullet fragments striking him in the forehead. An examination of the Trooper's service revolver, which was found on the pavement next to Bench, his backup weapon strapped to his ankle, and his Mini-14 rifle strapped to the inside of the driver's door, revealed that none of the weapons had been fired.

A passing motorist pursued the appellant, who left the scene in his Subaru truck, and obtained his tag number. The appellant's personal identification card was found on the dashboard of the patrol unit. Several troopers proceeded to the appellant's rural residence, discovered the Subaru truck abandoned, and noticed that the engine and radiator were still hot. The appellant emerged from the woods carrying a handgun and rifle, and when Lieutenant Nichols ordered him to stop, the appellant fired a shot at Nichols. Two of the troopers returned fire, but appellant disappeared into the woods. Following reports of a citizen sighting, the appellant was taken into custody on October 6, 1983. A tactical team tracked his footprints from the arrest scene and located a 30-30 rifle, a .45 Browning automatic pistol, and a .44 magnum revolver which was identified as the murder weapon.

Deputy Chief Medical Examiner Robert Hemphill testified that Trooper Bench died as the result of a single gunshot wound to the head. Trooper Ken Stafford testified that he had stopped the appellant on August 27, 1983, for failure to dim his headlights. Stafford subsequently arrested appellant for transporting loaded firearms, and confiscated a shotgun, a .45 Thompson semi-automatic, and a 9 millimeter Smith and Wesson pistol. A driver's license check revealed that the appellant was under suspension for financial responsibility.

At trial, the appellant admitted shooting at Bench, but claimed that he shot at him in self-defense after Bench had become angry, called him a liar and shot at him. Appellant also raised the defense of insanity. Appellant testified that he knew the difference between right and wrong, and that he believed it was wrong to shoot at someone. Dr. Jane Reudi, a psychologist at Eastern State Hospital in Vinita, Oklahoma, testified on behalf of the appellant at trial. Dr. Reudi diagnosed appellant as a paranoid having feelings of persecution. Dr. Reudi testified that although it was possible that appellant's paranoia could affect his ability to determine right from wrong, she did not make a determination of whether the appellant was sane at the time of the shooting.

In rebuttal, Dr. Mason Robinson, a psychiatrist at Eastern State Hospital, testified that appellant's paranoia was mild, and that in his professional opinion the appellant was sane at the time of the offense.

I.

In his first assignment of error, the appellant asserts that the trial court erred in refusing to grant a request for a change of venue on the basis of pretrial publicity. Although the motion for a change of venue was properly accompanied by the affidavits of three credible Creek County residents, in compliance with 22 O.S.1981, § 561, this is not dispositive. The affidavits merely raise a question of fact to the trial judge, whose ruling will not be disturbed absent a clear abuse of discretion. Walker v. State, 723 P.2d 273, 277-78 (Okl.Cr.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986). See also Jefferson v. State, 675 P.2d 443, 446 (Okl.Cr.1984). There is a legally rebuttable presumption that a defendant can receive a fair and impartial trial in the county in which the offense was committed and, consequently, the burden of persuasion is on the defendant. Robison v. State, 677 P.2d 1080, 1083 (Okl.Cr.1984), cert. denied, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). Under Robison, the defendant must show by clear and convincing evidence that he was prejudiced as a result of jurors being specifically exposed to adverse publicity. Id. A mere showing that the pretrial publicity was adverse to the defendant is not sufficient. Id.

In Walker, supra, this Court applied a two-pronged test for appellate review of alleged due process violations on the basis of prior knowledge by jurors and pretrial publicity, which was set forth by the United States Supreme Court in Murphy v. Florida, 421 U.S. 794, 798-99, 95 S.Ct. 2031, 2035-36, 44 L.Ed.2d 589 (1975). First, prejudice may be presumed where the fact pattern reveals that "the influence of the news media, either in the community at large or in the courtroom itself, pervaded the proceedings." Id. at 799, 95 S.Ct. at 2035. See, e.g., Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

In support of his motion for a change of venue, appellant claimed that an Assistant District Attorney commented that the appellant stated "that he would kill the next police officer he encountered." The record does not show the origin of this statement. Kim Hudson, a news reporter in Tulsa, testified during trial that she overheard a similar statement at the scene of the shooting, and that on October 6, 1983, she asked the appellant on camera "if he said he would shoot the next trooper who stopped him on a traffic citation?" (Tr. 1103) Appellant claims that he was prejudiced by his affirmative answer to that question. A videotape of this was introduced at trial as State Exhibit No. 73. The videotape was not included in the record on appeal, and appellant asserts in proposition five that reversible error occurred when the exhibit was lost or destroyed. Although counsel for appellant has submitted an affidavit showing that neither the Creek County Court Clerk nor trial counsel was in possession of the tape, and that appellate counsel contacted television station KJRH in Tulsa in an attempt to locate the tape, such attempt was not successful in determining whether a copy of the videotape was in existence. The affidavit further states that appellate counsel was advised that "a copy of the edited broadcast tape, if in existence, would not be made available without a subpoena." The affidavit does not relate any attempt to obtain a copy of the videotape, if in existence, by subpoena. It is the responsibility of the defendant to provide a sufficient record to allow review of alleged errors on appeal. Guthrie v. State, 679 P.2d 278, 280 (Okl.Cr.1984). We believe that the tape is not absolutely essential to the determination of this issue. Even agreeing that the videotape showed the foregoing, we find that the Appellant has failed to show how the facts in the instant case arose to the egregious level found to be presumptively prejudicial in Sheppard, Estes or Rideau, where the trial was utterly corrupted by press coverage.

Second, because the fact pattern is not sufficiently egregious to give rise to a presumption of prejudice, the so-called "totality of circumstances" must be examined to determine whether the defendant received a "fundamentally fair" trial. Murphy, supra, 421 U.S. at 799, 95 S.Ct. at 2036. A careful review of the voir dire examination shows that the trial judge "scrupulously excused those potential jurors who indicated they might not be able to set aside their knowledge or opinions of the crimes and impartially and fairly judge the appellant on the evidence presented at the trial." Moore v. State, 672 P.2d 1175, 1177 (Okl.Cr.1983). Each juror exposed to publicity concerning the crime through the news media indicated that they could render a fair judgment on the evidence in court. None of the jurors' comments suggested an impartiality that could not be laid aside. See Walker, supra, at 278. In short, appellant has failed to show that the trial setting was utterly corrupted by press coverage so as to be inherently prejudicial or that the jury selection process permitted an inference of actual prejudice. See Dobbert v. Florida, 432 U.S. 282, 302-03, 97 S.Ct. 2290, 2302-03, 53 L.Ed.2d 344 (1977); Walker v. State, supra, at 278-79 (Okl.Cr.1986), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1986).

Appellant further asserts that the trial court erred in not allowing each potential juror to be questioned on an individual basis. The appellant, however, has made no showing establishing that the trial court abused its discretion in this regard....