Dyke v. State

• Decision Date: 01 April 1986
• Docket Number: No. F-83-659,F-83-659
• Citation: 716 P.2d 693
• Parties: James Edward DYKE, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 693

716 P.2d 693

James Edward DYKE, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-659.

Court of Criminal Appeals of Oklahoma.

April 1, 1986.

Elaine Meek, Asst. Appellant Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Robert W. Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

The appellant, James Edward Dyke, Jr., was charged, tried and convicted for two counts of Robbery with a Firearm, and one count of Unauthorized Use of a Motor Vehicle, in the District Court of Pittsburg County, Case No. CRF-81-313. The jury returned sentences of ten (10) years imprisonment for each count of robbery, and five (5) years imprisonment for the car theft. We affirm.

On Sunday, August 30, 1981, Lloyd Tucker, the manager of the Skyline Club in McAlester, and Diane Freeburg, a club employee, were robbed by three men who entered Ms. Freeburg's apartment with a gun. The club was owned by Joie and Barcley Humphrey. The evening before the robbery, and after the club had closed, Mr. Tucker had delivered the club's evening receipts to the Humphrey residence. The robbers asked Mr. Tucker about the club receipts, and were told he did not have them. After ransacking the apartment in search for the cash, the men were told by Mr. Tucker that he had delivered the funds the previous evening to Mr. and Mrs. Humphrey. The men asked for directions to the Humphrey residence. Mr. Tucker and Ms. Freeburg were bound, blindfolded and gagged before the men left the apartment. Ms. Freeberg heard the men drive away with Mr. Tucker's car. Neither Ms. Freeburg nor Mr. Tucker could identify the robbers.

Moments later, the appellant and a co-defendant entered the Humphrey home. They demanded the cash receipts, and bound and gagged the Humphreys. The men left with some jewelry and over $6,000 in cash receipts from the club. Both the Humphrey's were able to identify the appellant as one of the two robbers.

Several items of circumstantial evidence were admitted against the accused, including evidence that his fingerprints were recovered from a newspaper found at the scene of the Tucker-Freeburg robbery.

The appellant claimed the defense of alibi at his trial.

I.

For his first assignment of error, the appellant claims the trial court erred in failing to suppress an inked palm impression taken from the appellant by Texas authorities following his arrest. This inked impression was used by police to identify, as the appellant's, a latent palm print found on the newspaper at the scene of the Tucker-Freeburg robbery. Appellant argues his initial arrest by Texas officers was improper; therefore the inked palm impression, as the fruit of that illegal arrest, should have been suppressed, citing Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), as authority. See also Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969).

However, the appellant has failed to provide this Court with a sufficient record with which to properly review this claim. Furthermore, it is readily apparent from the record that an inked palm impression had previously been obtained from appellant by police in California, and was obtainable from those authorities; thus, even if the arrest was unlawful, the evidence--in this case the inked palm impression--would inevitably have been discovered and obtained by Oklahoma officials. See Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). This assignment of error is without merit.

II.

Next, appellant challenges the sufficiency of the evidence used by the State to convict him for the offense of Unauthorized Use of a Motor Vehicle. We reject this contention.

It is true, as appellant asserts, that the evidence used to prove this count was entirely circumstantial. However, we hold that the appropriate standard for reviewing the sufficiency of the evidence is whether a reasonably minded jury could conclude that the evidence is inconsistent with any reasonable hypothesis other than the defendant's innocence. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Smith v. State, 695 P.2d 1360, 1362 (Okl.Cr.1985). In making this assessment, we view the evidence in the light most favorable to the State, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942), accepting all reasonable inferences and credibility choices that tend to support the jury's verdict.

In this case, Ms. Freeburg heard Mr. Tucker's car being driven away just minutes after the robbery. She knew it was Mr. Tucker's car by its distinctive sound. Mr. Tucker confirmed that the car was discovered stolen from the apartment lot after he and Ms. Freeburg freed themselves from their restraints. Furthermore, although neither Ms. Freeburg or Mr. Tucker were able to identify the robbers, appellant was positively identified by Mr. and Mrs. Humphrey. Mr. Tucker testified he gave no one permission to take his car. Under these facts, and in light of the standard set out above, we find this assignment of error is without merit.

III.

In his third assignment of error, the appellant maintains the trial court erred in permitting joinder of the three charged offenses at one trial. We again reject the appellant's assertion.

Joinder of separately punishable offenses is permitted pursuant to 22 O.S. 1981, § 436 et seq. Dodson v. State, 562 P.2d 916, 923 (Okl.Cr.1977) (Brett, J., specially concurring). This statute permits joinder of separately punishable offenses allegedly committed by the accused "if the separate offenses arise out of one criminal act or transaction, or are part of a series of criminal acts or transactions." Glass v. State, 701 P.2d 765, 768 (Okl.Cr.1985). Separate offenses are part of the same series of criminal acts or transactions "where the counts so joined refer to the same type of offenses occuring over a relatively short period of time, in approximately the same location, and proof as to each transaction overlaps so as to evidence a common scheme or plan." Id. In the instant case, the robbery and auto theft involving Ms. Freeburg and Mr. Tucker were part of the same transaction, and were properly joined. The Humphrey robbery, although a separate transaction, was part of a series of criminal acts or transactions, within the meaning of 22 O.S. 1981, § 436, as construed in Glass v. State, supra. The Humphrey robbery, like the others, was a theft offense, and occurred in the same vicinity just shortly after the other offenses. Moreover, it is clear that the robberies were committed to facilitate the thieves' common plan to steal receipts from the Skyline Club. We therefore agree that the trial court properly permitted joinder of these offenses for a single trial.

IV.

In his fourth assignment of error, the appellant maintains error occurred when the trial court failed to exclude witness Tony Graham from the courtroom during the presentation of evidence, pursuant to 12 O.S. 1981, § 2615, the rule of sequestration. The State contended below, and argues before this Court, that Graham, an OSBI agent and one of two investigating officers for the State, fits into the exception to this rule of sequestration, and was properly allowed to remain in the courtroom at counsel table.

Title 12 O.S. 1981, § 2615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. The court may make the order of its own motion. This rule does not authorize exclusion of:

1. A party who is a natural person; or

2. An officer or employee of a party which is not a natural person designated as its representative by its attorney.

The rule excluding, or sequestering, witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion. I Wigmore, Evidence §§ 1837-38 (Chadvourn rev. 1976). See also I Whinery, Oklahoma Evidence 234 (1985). The authority of the trial judge to exclude witnesses is clear; equally certain is the right of either the prosecution or defense to require the exclusion of witnesses, upon proper request. No time limit is specified for making the request. Wigmore, supra, § 1840 at 470. The only exceptions to this mandatory rule of exclusion are the two listed in the statute.

The State argues that Agent Graham fell within the exception listed in subdivision two (2) of the statute, as Graham was the State's designated representative. We have not previously construed this section of the Evidence Code, although our pre-Code case law allowed the investigating officer to remain outside the scope of the sequestration rule. See Johnson v. State, 559 P.2d 466 (Okl.Cr.1977). In our interpretation of this statute, we are guided by the interpretation given the Federal Rules of Evidence by the Federal Courts "[s]ince the Evidence Code was patterned after the Federal Rules of Evidence with the intent that practice in both state and federal courts be uniform." Laske v. State, 694 P.2d 536, 538 (Okl.Cr.1985). Our Evidence Code provision is identical to Fed. R. Evid. 615, as it relates to this issue. ¹

The Federal Courts have uniformly applied the exception contained in their Rule 615(2), the word-for-word equivalent of our section 2615(2), in the context of federal law enforcement agents, and have permitted the exception. See, e.q., United States v. Butera, 677 F.2d 1376, 1381 (11th Cir.1982) (case agent clearly exempted); United States v. Perry, 643 F.2d 38, 53 (2d Cir.1981) (governmental investigative agent may be designated to sit at government's counsel table even though he is also a witness); United States v. Boyer, 574 F.2d 951, 955 (8th Cir.1978) (FBI agent need not be excluded as he fits under second exception); See also United States v. Parodi, 703 F.2d 768, 773-75 (4th Cir.1983). In light of this persuasive authority, and our pre-Code holding, we find that Agent Graham was properly excluded from the...