Carson v. State

• Decision Date: 03 December 1974
• Docket Number: F-73-410,Nos. F-73-112,s. F-73-112
• Citation: 529 P.2d 499
• Parties: Kenneth Russell CARSON, Jr., Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 499

529 P.2d 499

Kenneth Russell CARSON, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

Nos. F-73-112, F-73-410.

Court of Criminal Appeals of Oklahoma.

Dec. 3, 1974.

Rehearings Denied Dec. 17, 1974.

Wendell E. Wightman, Oklahoma City, for appellant in F-73-112 and F-73-410.

Larry Derryberry, Atty. Gen., Robert McDonald, Asst. Atty. Gen., for appellee in F-73-112 and F-73-410.

OPINION

BUSSEY, Judge:

Appellant, Kenneth Russell Carson, Jr., hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Oklahoma County, Cases No. CRF-72-1798, CRF-72-1799, CRF-72-1800, and CRF-72-1801, for the crimes of Taking Indecent Liberties with a Female Child Under the Age of Fourteen (14) Years (21 O.S.1971, § 1123); Rape in the First Degree (21 O.S.1971, § 1114); Oral Sodomy (21 O.S.1971, § 886); and Robbery with Firearms (21 O.S.1971, § 801), respectively, with each and every charge being After Former Conviction of a Felony. His punishment was fixed at sixty (60) years imprisonment; twenty-five (25) years imprisonment; twenty-five (25) years imprisonment; and ten (10) years imprisonment, respectively, and from said judgments and sentences, timely appeals have been perfected to this Court.

For purposes of writing this opinion, the above stated and styled cases have been consolidated by Order of this Court dated June 3, 1974. Case number CRF-72-1799 was tried separately and when necessary to refer to an assignment of error in this case only, we shall refer to it as Case No. F-73-112. The charges in Cases No. CRF-72-1798, CRF-72-1800, and CRF-72-1801 were consolidated for trial by one jury through stipulation by the State and the defendant and reference to this trial will be as Case No. F-73-410.

This Court ordered an Evidentiary Hearing to be conducted in this matter as to the conduct of the preindictment lineup and the photographic identification that preceded the lineup. Findings of Fact and Conclusions of Law from that Hearing were attached to the record.

The facts, briefly stated, are that on June 16, 1972, at approximately 5:00 a.m., a man knocked on the door of an apartment located at 804 N.W. 25th Street, Oklahoma City, Oklahoma, which was occupied by Sammy Knight, Paula Knight, and Tammy Clark. Paula Knight was asleep in the bedroom with Sammy when she heard the knock. Tammy Clark, Sammy Knight's eight year old sister, was asleep on the living room sofa. Paula put on her robe, went to the front door, looked out its window, and with the aid of the porch light, saw a man she had never seen before. She opened the door to ask the man what he wanted, whereupon he shoved open the door and stuck a gun in her stomach. The intruder told Paula not to move or he would kill her. He asked Paula who else was in the apartment, and she told him that her husband and his little sister were there.

The intruder made Paula wake Sammy and then forced them into the living room where he jerked the electrical cords out of the television set and the stereo. (It was at this point that Sammy Knight testified he got a look at the defendant's face, as he was only about a foot away from him.)

Sammy and Paula were then taken back into the bedroom where Sammy was ordered to lie face down on the bed and his hands and feet were tied behind him.

Paula was then taken into the living room, disrobed, and sexually assaulted. After this, the assailant went to the couch, lifted Tammy and laid her on top of Paula. The testimony of Paula Knight then related that the intruder was doing something to Tammy--"I don't know what it was, but she started whining."

Tammy was next taken to the bathroom where both she and the intruder remained for several minutes. The intruder came out alone and had intercourse with Paula a second time and then returned to the bathroom remaining there with Tammy for three or four minutes. The intruder again came out of the bathroom, tied Paula's hands behind her, had intercourse with her, and forced her to participate in an act of oral sodomy.

The prosecutrix further testified that after the intruder had intercourse with her a fourth time, Tammy was brought back into the living room from the bathroom and laid on the floor next to her. The intruder then asked where Sammy's billfold was and upon being told, proceeded to the bedroom and removed the billfold from Sammy's pants pocket. The money was removed from the wallet which was then dropped to the floor.

The prosecutrix then testified that just as the intruder was leaving their residence, he stated:

"Don't you all make a sound or turn on a light because I am going to stand outside the door for five minutes and if you turn the light on I'll come back in and kill you."

Medical testimony presented at trial established that as of 10:30 the morning of the incident, there was sperm present in the prosecutrix.

At trial, defendant asserted an alibi defense. In F-73-112, the defendant produced witness Dawn Batta, who testified that they were together on June 16, 1972, in their residence. In F-73-410, defendant produced witnesses to contradict the description given by the victims.

At trial, a discrepancy was brought out between the description given to police officers the morning of the incident and the actual physical characteristics of the defendant. Also, at trial, Paula Knight, Sammy Knight, and Tammy Clark identified the defendant as the intruder that had forced his way into their apartment on June 16, 1972. Testimony presented at the Evidentiary Hearing ordered by this Court (E.H. transcript 29, 30), indicated that the initial description given varied with that given by the witnesses when they were later interviewed.

Defendant asserts as error that there was improper conduct on the part of the trial court in Case No. F-73-410, in that the Court expressed that it would be necessary to complete the trial within the remainder of the week.

In looking to this statement by the trial court in its complete context, it appears that the statement was not coercive in nature, but served to notify the jurors of the possible length of the trial. As such, we find no merit to this proposition of error.

Defendant further asserts that there was error in the conduct of the trial (F-73-410) when the jury was forced to stay together in deliberation until 3:00 o'clock in the morning. This Court stated in the fourth paragraph of the Syllabus in Reed v. State, Okl.Cr., 335 P.2d 932 (1958):

"The length of time a jury is required to deliberate is within the sound discretion of the trial judge and his judgment is final unless there is a clear abuse of his discretion."

The record reflects no abuse of this discretion and, therefore, defendant's proposition of error is without merit.

Defense counsel requested that the rule of sequestration be invoked during the State's opening statement, in Case No. F-73-112. The trial court denied defendant's request, but granted the State's request to invoke the rule after finishing its opening statement. Defendant contends this is error.

Whether or not to invoke the rule of sequestration at all is a matter in the discretion of the trial court and not an absolute right of the defendant. Thompson v. State, 73 Okl.Cr. 72, 118 P.2d 269 (1941). The precise question here is whether it is an abuse of the trial court's discretion to wait until the prosecution's opening statement is completed before invoking the rule, over objection by defendant. We think not. As the Supreme Court of Idaho stated in State v. Lockhart, 18 Idaho 730, 111 P. 853 (1910):

"... While we think it would have been eminently proper to have excluded the witnesses prior to the statement by the prosecutor, we do not consider the action of the court an abuse of his discretion, and it certainly would not afford grounds for reversal."

As such, there was no error in the action of the trial court.

Defendant asserts error in that the trial court overruled objections to the opening statements of the State. This Court has held that the purpose of the opening statement is to advise the jury concerning the facts involved so that they are prepared for the evidence that will be presented. Ragland v. State, Okl.Cr., 404 P.2d 84 (1965). Also, in Ragland, supra, this Court stated that the early case of Shacklett v. State, 23 Okl.Cr. 4, 211 P. 1063 (1923) has consistently been followed. In that case, we stated:

"Ordinarily, error cannot be predicated upon the opening statement of a prosecuting attorney to the jury, specifically stating what facts he expects to develop in testimony, where later, for some reason, he fails to introduce evidence to support some of the narrative related in the opening statement, unless such unsupported portions of the opening statement were made in bad faith and were manifestly prejudicial."

From a careful consideration of the record before us, it is the opinion of this Court that the statements of the District Attorney were not such as would constitute bad faith or prejudicial error.

Defendant contends that the trial court committed reversible error when it excluded all testimony from Mr. Howard Devine, a polygraph examiner for the Oklahoma City Police Department. The court excluded Devine's testimony because one of the jurors knew of his employment as a polygraph expert. To completely exclude a witness for the defense comes dangerously close to violating an accused's Constitutional rights of due process; however, in this particular set of facts, those rights were not violated.

The results of polygraph examinations are inadmissible in Oklahoma. Mullins v. Page, Okl.Cr., 443 P.2d 773 (1968). Mr. Devine admitted that he possessed absolutely no knowledge of this case other then the result of the polygraph examination he conducted upon the defendant. Since he knew nothing which would be admissible for Mr. Carson's defense, it was not error to exclude him from the stand. Had Mr. Devine possessed competent information in regard to this...