Bruner v. State

• Decision Date: 24 June 1980
• Docket Number: No. F-78-205,F-78-205
• Citation: 612 P.2d 1375,1980 OK CR 52
• Parties: Erroll BRUNER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1375

612 P.2d 1375

Erroll BRUNER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-78-205.

Court of Criminal Appeals of Oklahoma.

June 24, 1980.

An appeal from the District Court, Oklahoma County; Joe Cannon, Judge.

Erroll Bruner, appellant, was convicted of the offense of Rape in the First Degree; was sentenced to fifty (50) years' imprisonment, and appeals. AFFIRMED.

Mary E. Bane, Oyler & Smith, Oklahoma City, for appellant.

Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty., Gen., Mary Bryce Leader, Legal Intern, for appellee.

OPINION

CORNISH, Presiding Judge:

This is an appeal from a conviction in the District Court of Oklahoma County, Case No. CRF-77-1748 for Rape in the First Degree. Punishment was set at fifty (50) years' imprisonment.

The prosecutrix and her boyfriend were hitchhiking on April 24, 1977, when picked up by the appellant on an interstate off-ramp in Oklahoma City about 8:00 p. m. The appellant, driving a silver and black Cadillac, took the pair to an abandoned grocery store, where he spoke to some friends, and then drove toward an old shack. Upon arriving, there, the driver said he would take the prosecutrix as payment for the ride. A struggle ensued in the Cadillac. The hitchhikers broke away and ran toward the nearby interstate. The appellant chased the pair and caught the prosecutrix; the boyfriend escaped. The prosecutrix was dragged back to the Cadillac and raped by the appellant while Sammy Graves held her down.

Following this act of intercourse the prosecutrix put her clothes back on and was taken to the back of a shack, thrown onto a mattress and forced to remove her clothes. Both there and inside the shack she again was raped by a group of the appellant's friends. The prosecutrix finally escaped, only to be caught by the appellant's companions and taken to a cubicle under a bridge. There, she was again forcibly raped. Ultimately, she escaped and struggled to the top of the bridge where she was rescued by passers-by. All of the aforementioned incidents took place in close proximity in time and constituted a continuous chain of events.

I

The prosecution elected to try the appellant for the rape that occurred in the appellant's car, but the trial court admitted evidence of other crimes. Therefore, the appellant alleges he was denied his right to a fair and impartial trial. Specifically complained of are (1) the admission of rapes that took place in the shack and in the cubicle under the bridge, subsequent to the rape in the Cadillac; (2) the testimony of Dr. Gary Septon who was allowed to testify that because oral sex was involved he had the prosecutrix chew on cotton balls to obtain an analysis; (3) evidence of the analyses of bedcovers, sheets and the carpet in the shack by a forensic chemist; and (4) evidence of the theft of the prosecutrix's purse.

It is argued that the admission of this evidence of other crimes was error because there was no evidence that the appellant had intercourse with the prosecutrix after the rape in the automobile, and the appellant was never charged with sodomy. The prosecutrix testified that she could not say the appellant was behind the shack when her clothes were removed or inside the shack when the other acts of intercourse occurred. But accomplice Sammy Graves, who was granted immunity from prosecution, testified that the appellant was one of the men who took the prosecutrix to the shack, and he further testified to the appellant's presence inside the shack.

We observe that the prosecutrix did affirmatively testify that the appellant was not present when she was taken to the cubicle under the bridge where the other rapes and/or sodomy occurred, and that the appellant did not participate at that time.

Although the prosecution was allowed to produce evidence of events later in the evening, the trial court admonished the jury as to how they should consider the evidence. By both oral admonishment and written Instruction No. 6, the jurors were told they could consider the alleged rapes inside the shack for the purpose of motive, intent, identification, plan or scheme. ¹

The rule is fundamental that evidence of separate and similar offenses is not admissible against an accused on trial for another separate and similar offense. Atnip v. State, Okl.Cr., 564 P.2d 660 (1977). However, there are five exceptions to this time-honored precept of law. Evidence of other offenses may be admissible where it tends to establish motive, intent, absence of mistake or accident, identity or a common scheme or plan which embraces the commission of two or more crimes so related to each other that proof of one tends to establish the other. Atnip v. State, supra.

In addition, this Court has held that where the offense charged is so connected with other offenses as to form a part of an "entire transaction" evidence of other offenses may be admissible to show the character of the offense charged. Miles v. State, Okl.Cr., 554 P.2d 1200 (1976). And, where there is a "logical connection" with the offense charged, evidence of separate and independent crimes may be admitted. Bray v. State, Okl.Cr., 450 P.2d 512 (1969).

More recently in Burks v. State, Okl.Cr., 594 P.2d 771 (1979), we reaffirmed our earlier rule that for "evidence of other offenses to be admissible, there must be a visible connection between the crimes," citing Roulston v. State, Okl.Cr., 307 P.2d 861 (1957). Applying these rules to the case at bar, we conclude that the extraneous criminal transactions have both probative value and a logical relevancy to the crime charged so as to be admissible. Clearly perceiving this visible connection, we hold that the trial court correctly admitted the evidence of other crimes.

II

The appellant next complains that a delay of nine days between commission of the alleged rape in the Cadillac and the retrieval of certain physical evidence (hairs and semen stains from the shack) was so tainted as to have been inadmissible, and rendered the testimony of the forensic chemist thereon inadmissible. Relying heavily on Conde-Hernandez v. State, Okl.Cr., 565 P.2d 705 (1977), the appellant argues that the State failed to adequately prove the chain of custody so as to warrant their introduction of the chemical analyses results into evidence. However, we must agree with the State that this is not a chain of custody issue. The protection afforded by chain of possession is to insure that between the time the evidence is found and analyzed there has been no tampering with the evidence. See Contu v. State, Okl.Cr., 533 P.2d 1000 (1975). The record before us is devoid of a finding of substitution or tampering with the evidence after it was found.

The question then becomes one of remoteness. Under somewhat similar circumstances in Rawls v. State, Okl.Cr., 226 P.2d 984 (1951), we said the lapse of time between the date of the alleged crime and the chemical analysis of physical evidence might affect the weight but not the admissibility of the evidence. ² We hold that the nine day lapse of time did not strip the evidence of its probative value and that it was properly admitted.

III

In seeking modification or reversal, the appellant next complains that three prosecution witnesses injected evidentiary harpoons into the case, thereby denying him the right to a fair and impartial trial. He concedes, however, that defense counsel failed to object at trial to the testimony of two of these witnesses. It is well settled that unless objection is made to evidentiary harpoons any errors are waived and cannot be raised for the first time on appeal. Webb v. State, Okl.Cr., 586 P.2d 78 (1978); Witherspoon v. State, Okl.Cr., 567 P.2d 993 (1977).

The only alleged harpoon properly preserved for review occurred when the prosecutrix testified regarding her boyfriend, "they told me they'd killed him." ³ Her statement refers to a remark made to her in a car by persons who caught her after she ran away from the shack a group from which she expressly excluded the appellant.

Defense counsel objected to this statement, and the trial court warned the prosecutor he would have to show its relevancy. After the prosecutrix explained the statement, the judge overruled the objection, admonishing the jury that the prosecutrix was only explaining her actions and conduct.

A review of the case law reflects the presence of certain features when this Court has found an evidentiary harpoon: (1) they are generally made by experienced police officers; (2) they are voluntary statements; (3) they are wilfully jabbed rather than inadvertent; (4) they inject information indicating other crimes; (5) they are calculated to prejudice the defendant; and (6) they are prejudicial to the rights of the defendant on trial. ⁴

While the appellant recognizes we have repeatedly condemned police officers for injection of evidentiary harpoons, he argues that the rule similarly should apply to a lay prosecution witness. While this Court does not disagree, we would observe that defense counsel opened up the subject of the appellant's search for the prosecutrix' boyfriend during cross-examination. Hence, the inquiry on redirect and the prosecutrix' response was within the scope of redirect. We fail to see how this testimony comes within the definition of an evidentiary harpoon because: (1) it was not voluntary, but was in direct response to a question by the prosecutor and was, in turn, prompted by defense counsel's cross-examination; (2) it was not specifically calculated by the prosecutrix to prejudice the appellant but, rather, was in explanation of her conduct; and (3) due to the overwhelming evidence of guilt it did not, in fact, prejudice the appellant. Therefore, this Court concludes that the appellant's argument is groundless.

IV

This Court will next consider the sufficiency of the evidence to support the conviction. The appellant asserts the only evidence supporting the charge was the testimony of the...