Davis v. State

Citation759 P.2d 1033
Decision Date12 August 1988
Docket NumberNo. F-86-530,F-86-530
PartiesTony Lynn DAVIS, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

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 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 740.

Appellant has failed to demonstrate that the defenses presented by him and co-defendant were antagonistic. Neither party denied that the child was in appellant's care when the injuries were sustained. Appellant's defense was that the child's injuries were sustained through accidents. Co-defendant, on the other hand, claimed that she was not with the child when any of the injuries were sustained; however, she did not directly inculpate appellant during her testimony. Consequently, we uphold the trial court's ruling.

Next, appellant complains that the trial court erred in not granting a mistrial due to a remark by the prosecutor in closing argument which was an intentional and unequivocal request that the jury's verdict should speak on behalf of the victim. Appellant alleges that this single remark determined the verdict of guilt. For the reasons set forth in Harless v. State, 758 P.2d 225 (Okl.Cr.1988), we reject this contention.

Appellant finally urges that he was denied the right to be present at all proceedings of his trial, and that his entitlement to a twelve-person jury required the discharge of the jury when one of the jurors could no longer continue deliberations due to medical problems. After the jury retired to deliberate, one of the jurors became ill and was not able to continue deliberations, and the trial court subsequently met with trial counsel, without appellant or co-defendant being present. At that meeting, trial counsel waived any motion for mistrial based upon the entry into the jury room by the unauthorized persons when the juror became ill or the loss of one juror. Appellant argues that he was not consulted regarding this decision prior to trial counsel's agreement to waive the issue.

Absent a showing of incompetence, the appellant is bound by the decisions of his counsel, and mistakes in tactics and trial strategy do not provide grounds for subsequent attack. United States v. Nolan, 571 F.2d 528 (10th Cir.1978). Furthermore, appellant does not have an unconditional constitutional right to be present at all in camera discussions where his lawyer is present. See United States v. Jorgenson 451 F.2d 516 (10th Cir.1971), cert. den., 405 U.S. 922, 92 S.Ct. 959, 30 L.Ed.2d 793; See also Fillmore v. Crisp, 480 F.Supp. 310 (W.D.Okla.1978).

In the present case, the record clearly reveals that the attorneys for both appellant and co-defendant were in complete agreement to finish the trial with an eleven-person jury which is permitted by 22 O.S.1981, § 895. Also, the jurors assured the trial court that the incident would not affect any further deliberations in the case and that decisions on some of the verdicts had already been reached.

Since trial counsel in his professional judgment waived the right to a twelve person jury, and appellant has wholly failed to show how he was prejudiced by the waiver, we find no error. This assignment is groundless.

The judgment and sentences are AFFIRMED.

PARKS, Judge, dissenting:

I must respectfully dissent to the majority's treatment of the appellant's sixth assignment of error. The majority concedes that the appellant was not present at the hearing where the prosecutor and defense counsel agreed to waive a twelve person jury after one of the jurors became ill during deliberations and was unable to continue. Under Article II, section 19 of the Oklahoma Constitution, an accused has a fundamental constitutional right to a unanimous twelve member jury in all felony cases.

This Court has previously held that the trial judge has an affirmative duty to make inquiry of the accused to assure that such waiver was expressly and intelligently made. See Beck v. State, 626 P.2d 327, 328 (Okl.Cr.1981). The instant case is wholly distinguishable from Hatch v. State, 662 P.2d 1377, 1381 (Okl.Cr.1983), where this Court, in finding a...

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    • United States
    • U.S. District Court — Western District of Oklahoma
    • 2 Agosto 2011
    ...present at every in camera discussion between court and counsel, even during the trial itself. Davis v. State, 1988 OK CR 153, ¶ 12, 759 P.2d 1033, 1036. Nor does the statutory right to be present "at the trial" extend to in camera hearings or other matters outside the jury's presence. Reid......
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    ...by the decisions of his counsel and mistakes in tactic and trial strategy do not provide grounds for subsequent attack. Davis v. State, 759 P.2d 1033, 1036 (Okl.Cr.1988). To have also raised any type of mental disorder defense would have been inconsistent with a defense of actual innocence ......
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