Fisher v. State

• Decision Date: 04 May 1987
• Docket Number: No. F-83-546,F-83-546
• Citation: 1987 OK CR 85,736 P.2d 1003
• Parties: James FISHER, 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 1003

736 P.2d 1003

James FISHER, Jr., Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-546.

Court of Criminal Appeals of Oklahoma.

May 4, 1987.

Rehearing Granted June 8, 1987.

Thomas G. Smith, Jr., David Autry, Asst. Appellate Public Defenders, Norman, for appellant.

Robert H. Henry, Atty. Gen., Terry J. Jenks, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Judge:

James Fisher, Jr., the appellant, was tried by jury and convicted of First Degree Murder under 21 O.S. 1981, § 701.7, in Oklahoma County District Court, Case No. CRF-83-137, before the Honorable William Kessler, sitting as a visiting judge. The jury sentenced the appellant to death. Judgment and sentence was imposed in accordance with the jury's verdict.

Briefly stated, the evidence presented by the State showed that on the evening of either December 11 or 12, 1982, Terry Neal, a bisexual man, traveled to downtown Oklahoma City looking for a male sexual companion. He ultimately picked up the appellant and F.J., who was a fifteen-year-old male prostitute. After stopping to purchase some liquor, the trio drove to Neal's apartment in suburban Oklahoma City. F.J. testified that after Neal and the appellant engaged in oral sex and other homosexual acts, the appellant suddenly grabbed the liquor bottle, slammed it over Neal's head, and then twisted the neck of the broken bottle deep into Neal's neck. F.J. said he complied with a request from the appellant to take Neal's television set, and the two departed in Neal's car. Eventually, a buyer was found for the television, but F.J. denied receiving any of the money. After asking F.J. for directions to Tulsa, the appellant dropped off F.J. near his home in Oklahoma City. Neal's car was found abandoned the next morning outside Jenks, Oklahoma.

The appellant was subsequently arrested at the home of his parents in Buffalo, New York. Detective Gerald Dove testified that after giving the appellant his Miranda rights, the appellant admitted that he had hit a guy named "Terry" upside the head with a bottle in Oklahoma City. F.J. was arrested in Houston, Texas, and murder charges filed against him were later dropped when his status was changed to that of a material witness. Dr. Fred Jordan, Chief Medical Examiner for the State of Oklahoma, testified that Neal died from a stab wound to the right side of his neck which completely severed the carotid artery. He recovered a small fragment of green glass from the wound, which penetrated almost to the spine. Dr. Jordan also found an abrasion and a cut on the top of the victim's head, as well as several defensive wounds on his arms and hands.

Appellant testified that he was in Coffeyville, Kansas, on the evening of December 12, 1982. He denied having sex with Neal or stabbing him with a broken bottle. He denied making an inculpatory statement to Detective Dove. On cross-examination, appellant admitted that he was in Oklahoma City in December of 1982, and that he could not remember which day he left to go to Coffeyville.

I. ISSUES RELATING TO JURY SELECTION

Appellant contends that he was denied a fair trial by an impartial cross-section of the community due to the exclusion of potential jurors solely because they were opposed to capital punishment. He claims that such juries are guilt-prone, exclude identifiable groups, and that questioning panel members at the beginning of trial unduly focuses the minds of the jurors on the sentencing phase. This Court has adopted the United States Supreme Court's recent decision in Lockhart v. McCree, --- U.S. ----, ----, 106 S.Ct. 1758, 1770, 90 L.Ed.2d 137 (1986), which rejected such a position. See VanWoundenberg v. State, 720 P.2d 328, 331-32 (Okl.Cr.1986). Accordingly, this proposition is wholly without merit.

II.

ISSUES RELATING TO GUILT-INNOCENCE

A.

Appellant complains that the trial court erred by failing to follow the proper statutory procedure in answering questions submitted by the jury during deliberations. The trial court returned the questions to the jury noting that the court could not answer them. The State concedes, and we agree, that the trial court failed to follow the provisions of 22 O.S. 1981, § 894, requiring the trial court to call the jury back into the courtroom in the presence of, or after notice to, the district attorney and defense counsel. Any presumption of prejudice is overcome, however, as we are convinced that on the face of the record no prejudice to the appellant occurred. See Givens v. State, 705 P.2d 1139, 1142 (Okl.Cr.1985).

B.

Next, appellant asserts that the trial court erred in admitting certain 5"" X 7"" color photographs depicting the victim and the crime scene. The photographs accurately illustrated the wounds of the victim, the position of his body, the crime scene, and corroborated the findings of the medical examiner. We cannot say that the photographs are so gruesome or that their probative value is substantially outweighed by unfair prejudice, as to render them inadmissible. See Thompson v. State, 711 P.2d 936, 937 (Okl.Cr.1985); Nuckols v. State, 690 P.2d 463, 470 (Okl.Cr.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2050, 85 L.Ed.2d 323 (1985). See also 12 O.S. 1981, § 2403. The trial court did not abuse its discretion in admitting the exhibits. This assignment of error is without merit.

C.

Appellant claims that he was prejudiced when the trial court denied his motion requesting a continuance for one afternoon. After the State rested its case about 11:30 a.m., defense counsel asked that a recess be granted, asserting that his client had taken two tablets of Mellaril to control his anxiety, that he was unable to think clearly, and that eating lunch would alleviate his condition. The trial court agreed to the request, and recessed until 1:30 p.m., at which time defense counsel requested a continuance until the following morning, stating that the appellant's condition had not improved as expected.

In an in camera hearing, appellant testified that he had "saved" two Mellaril tablets from several evenings before, and that he took them between 6:00 and 8:00 a.m. that morning. He said that the medication made him drowsy, unable to think clearly, and that he felt intoxicated. Dr. Don Chumley, chief physician for the Oklahoma County jail, prescribed one tablet of Mellaril to be administered to the appellant in the evenings. In Dr. Chumley's opinion, the appellant could not have "stockpiled" the medication in view of the strict dispensation procedures followed by jail personnel. Dr. Chumley said that even assuming that the appellant had taken two of the Mellaril tablets that morning, the medication would have reached a peak strength within two hours after ingestion, and the effects would have tapered off until they were completely worn off in six (6) hours. Two witnesses testified that the appellant acted no different on this day than on previous occasions, and that he did not appear to be under the influence of drugs. The trial court overruled the request, finding that even if the appellant had taken the medication, it had not hampered his ability to think or communicate. Appellant then testified coherently in his own behalf before the jury. On the foregoing record, we cannot say that the trial court abused its discretion in denying the continuance. See Behrens v. State, 699 P.2d 156, 158 (Okl.Cr.1985); White v. State, 607 P.2d 713, 714 (Okl.Cr.1980).

D.

Appellant next contends that the trial court committed fundamental error in failing to give instructions sua sponte covering three issues: (1) the defense of alibi; (2) the need to exercise caution in evaluating the testimony of an informant; and (3) the existence of lesser included offenses. We disagree. Initially, we note that defense counsel failed to object on these grounds, and that he failed to submit written requested instructions to the trial court. Therefore, unless the failure to instruct resulted in a miscarriage of justice or deprived the appellant of a substantial right, no reversible error occurred. See Millwood v. State, 721 P.2d 1322, 1325-26 (Okl.Cr.1986); 20 O.S.1981, § 3001.1.

1.

Regarding the failure to instruct on alibi, we note that the trial court did not deny the appellant the opportunity to fully explore this defense. Moreover, the jury was properly instructed on the essential elements of the offense, the presumption of innocence, and the State's burden to prove the elements of the offense charged beyond a reasonable doubt. The jury obviously disbelieved the appellant's claim to have been elsewhere at the time of the offense. Appellant's own bald assertions are woefully inadequate to establish that, at the very time of the offense, he was so far away that he could not have participated in its commission. Indeed, appellant conceded on cross-examination that he could not remember what day he left Oklahoma City. Compare Henderson v. State, 716 P.2d 691, 693 (Okl.Cr.1986) (insufficient evidence to support alibi instruction); State v. Elisondo, 103 Idaho 69, 644 P.2d 992, 995 (Ct.App.1982) (defendant's mere denial that he was at the place where the crime was committed insufficient to support alibi instruction). In the instant case, the record strongly supports the conclusion that the victim was killed sometime between 4:00 p.m. on December 11, 1982, when his wife last saw him alive, and 8:00 a.m. on the morning of December 12, 1982, when the victim's car was found abandoned near Jenks, Oklahoma. Thus, even assuming that appellant was actually in Coffeyville, Kansas, on the evening of December 12, 1982, as he testified, he has failed to establish that he could not have participated in the homicide. Therefore, on this record, we are persuaded that the failure to instruct on alibi did not result in a miscarriage of justice or deprive the appellant of a substantial right. This assignment of error is without merit.

2.

We are also convinced that the appellant was not deprived of a...