Davis v. State, No. F-86-530

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BUSSEY; PARKS
• Citation: 759 P.2d 1033
• Parties: Tony Lynn DAVIS, Appellant, v. STATE of Oklahoma, Appellee.
• Docket Number: No. F-86-530
• Decision Date: 12 August 1988

Page 1033

759 P.2d 1033 Tony Lynn DAVIS, Appellant,
v.
STATE of Oklahoma, Appellee. No. F-86-530. Court of Criminal Appeals of Oklahoma. Aug. 12, 1988.

Page 1034

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Tony Lynn Davis, was jointly tried with co-defendant, Donna Ray Harless, for the crimes of Injury to a Minor Child (Count I) and Murder in the Second Degree (Count II). The jury returned a verdict of guilty on both counts against appellant and assessed punishment at twenty (20) years imprisonment and life imprisonment, respectively, and he appeals. AFFIRMED.

Thomas E. Salisbury, Tulsa, for appellant.

Robert H. Henry, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Tony Lynn Davis, was jointly tried with co-defendant, Donna Ray Harless, for the crimes of Injury to a Minor Child (Count I) and Murder in the Second Degree (Count II) in Case No. CRF-84-3218, in the District Court of Tulsa County. The jury returned a verdict of guilty on both counts against appellant and assessed punishment at twenty (20) years imprisonment and life imprisonment, respectively, and he appeals. We affirm.

The facts of this case are set forth in Harless v. State, 759 P.2d 225 (Okl.Cr.1988).

For his first assignment of error appellant asserts that the trial court erred in overruling his motion to quash and demurrer. He alleges that the crimes with which he was charged in the information stemmed from a single act. We reject this contention under the facts of this case for

Page 1035

the reasons set forth in De Laune v. State, 569 P.2d 463, 467 (Okl.Cr.1977), wherein this Court held that, "if the two crimes charged each require the proof of at least one fact which is not required to be proved in the other, the defendant can be charged with more than one crime." Clearly, the elements of the crime of Injury to a Minor Child are distinguisable from the elements of Second Degree Murder. See 21 O.S.Supp.1982, § 843 and 21 O.S.1981, § 701.8(1). In this case, the State presented evidence of Injury to a Minor Child which included burns, bruises and broken bones; whereas, the evidence establishing the charge of Second Degree Murder was the abdominal trauma and subsequent lack of treatment. Since the crimes charged were separate and distinct and the two convictions were based upon different evidence, this contention is denied.

Appellant next contends that the trial court erred in refusing to strike all the testimony concerning the color photographic slides of the body of Eric Cole Harless since the photographs were taken after emergency care and extensive surgery were performed upon him. For the reasons set forth in Harless v. State, 759 P.2d 225 (Okl.Cr.1988), we find this contention is without merit.

In his third assignment of error appellant argues that the trial court erred in excusing several jurors for cause merely because they stated they might be financially inconvenienced by jury service.

This Court has consistently held that the manner in which voir dire proceedings are conducted rests within the discretion of the trial court. Van Woundenberg v. State, 720 P.2d 328 (Okl.Cr.1986). In the instant case, the trial court explained to the prospective jurors that if serving the next week posed a real serious problem or hardship such that it would be a problem for them to sit in the courtroom and listen, then it was an issue to be resolved. After the explanation, three prospective jurors stated that due to the serious hardship that they would suffer, they did not believe they could devote full attention to the trial. Therefore, the prospective jurors were discharged. We are of the opinion that the trial court properly discharged the prospective jurors under the facts presented. See Banks v. State, 701 P.2d 418, 424 (Okl.Cr.1985); 38 O.S.1981, § 28(A). Moreover, appellant has wholly failed to show how the trial court's actions prejudiced him in any way during trial. Agee v. Gant, 412 P.2d 155 (Okl.Cr.1966). This contention is without merit.

Appellant's fourth assignment of error is that the trial court erred in not granting him additional or separate peremptory challenges due to the contradictory and adversarial nature of the defense raised by co-defendant.

Title 22 O.S.1981, § 655 provides in pertinent part:

In all criminal cases the prosecution and the defendant are entitled to the following peremptory challenges: Provided, that if two or more defendants are tried jointly they shall join in their challenges; provided, that when two or more defendants have inconsistent defenses they shall be granted separate challenges for each defendant as hereinafter set forth....

This Court has held that for defenses to be inconsistent for purposes of § 655 the defenses of both defendants must be mutually antagonistic, pitting the defendants against one another. Murray v. State, 528 P.2d 739, 740 (Okl.Cr.1974); Cooks v. State, 699 P.2d 653 (Okl.Cr.1985); Wilhite v. State, 701 P.2d 774 (Okl.Cr.1985). Each defendant must exculpate himself and inculpate the other. Murray, 528 P.2d at...