Frye v. State

• Decision Date: 17 January 1980
• Docket Number: No. F-77-823,F-77-823
• Citation: 606 P.2d 599
• Parties: Dorothy Collins FRYE, and Richard Frye, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 599

606 P.2d 599

Dorothy Collins FRYE, and Richard Frye, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-77-823.

Court of Criminal Appeals of Oklahoma.

Jan. 17, 1980.

An appeal from the District Court, Murray County; G. Dixie Colbert, judge.

Dorothy Collins Frye, and Richard Frye, appellants, were convicted of the offense of Murder in the First Degree; were sentenced to life imprisonment, and appeal. Judgment and sentence of appellant Richard Frye is AFFIRMED; judgment and sentence of appellant Dorothy Collins Frye is REVERSED.

George Miskovsky, Sr., and John Paul Johnson, Miskovsky, Sullivan & Miskovsky, Oklahoma City, for appellants.

Larry Derryberry, Atty. Gen., Ross N. Lillard, III, Asst. Atty. Gen., for appellee.

OPINION

CORNISH, Presiding Judge:

The appellants, Dorothy Collins Frye and Richard Frye, hereinafter referred to as Collins and Frye, appeal from a conviction in the District Court, Murray County, Case No. CRF-77-18, for Murder in the First Degree. Punishment for both appellants was set at life imprisonment.

The State's case rested upon evidence that Frye and Collins were having a love affair and successfully contracted for the murder of Collins' husband, Wayne Collins, so they could marry. The conviction of Richard Frye is affirmed, but because of the State's failure to connect Dorothy Collins Frye to the conspiracy to murder, her conviction is reversed.

I

The appellants contend the trial court erred by refusing to grant their motion for change of venue in view of widespread, adverse pretrial publicity. Because the case involved the alleged illicit affair between a minister and a parishioner in a small town, the appellants assert that a circus-like atmosphere prevailed in the courtroom.

A timely motion for change of venue was filed by the appellants. Attached thereto were affidavits of local residents who did not believe the appellants could obtain an impartial jury in Sulphur, Oklahoma. During voir dire the appellants challenged jurors for cause and exercised all their peremptory challenges. The trial court held a separate hearing on the motion and reserved its ruling until completion of the voir dire, during which 24 veniremen were excused for cause, after stating they had formed opinions as to guilt in the case.

The transcript reflects that the members of the jury panel selected were extensively questioned by both counsel for the State and defense, as well as by the court. Though many of them had heard or read of the case, each juror affirmatively stated that he or she could render a verdict based solely upon evidence presented at trial. We do not believe that the statements of those veniremen who indicated that they had formed opinions of guilt and were excused prejudiced those remaining on the panel. Nor do we find that the trial court exceeded its discretion in denying additional peremptory challenges. A review of the record also fails to substantiate the claim that a circus-like atmosphere prevailed during the trial.

It is axiomatic that a granting of a change of venue is within the sound discretion of the trial court, whose ruling will not be disturbed absent an abuse of discretion. Hammons v. State, Okl.Cr., 560 P.2d 1024 (1977); Sam v. State, Okl.Cr., 510 P.2d 978 (1973). On numerous occasions this Court has applied the rule set forth in Irvin v. Dowd, 366 U.S. 717, 723, 81 S.Ct. 1639, 1642-43, 6 L.Ed.2d 751 (1961), wherein the United States Supreme Court stated . . . To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. . . ." (Citations omitted)

See also Anderson v. State, Okl.Cr., 551 P.2d 1155 (1976), and Shapard v. State, Okl.Cr., 437 P.2d 565 (1967).

Having carefully reviewed the record before us, we find no indication that the jurors did not reach a verdict based solely on the evidence presented. We hold the trial court properly overruled the motion for change of venue.

II

The appellants next contend that the trial court erred in admitting prejudicial evidence of adultery. Briefly stated, such evidence consisted of the following: In 1971 appellant Frye was forced to resign his ministry in the Assembly of God Church because of a rumored love affair with appellant Collins; Collins and Frye were seen meeting for out-of-the-way rendezvous on numerous occasions in 1971 and 1972; in 1975 Frye told his accomplices he wished Wayne Collins killed so he could marry appellant Collins. In September, 1975, Frye introduced appellant Collins to accomplice Thurman Overfelt and his daughter, Claudette Damron, as his fiancee; and Frye and Collins were together from immediately after the murder on November 21, 1975, until their marriage in May, 1976.

We are aware that evidence of a clandestine affair between a minister and a parishioner in a small town would tend to excite the prejudices and passions of the jurors. It is equally obvious, however, that such a relationship would be relevant to prove motive for the murder. It is particularly useful where the evidence is wholly circumstantial. Upchurch v. State, 59 Okl.Cr. 412, 60 P.2d 395 (1936).

The appellants point out that adultery is a crime pursuant to 21 O.S.1971, § 871, and as a general rule where a defendant is put upon trial for one offense he or she is to be convicted, if at all, by evidence which shows that he or she is guilty of that offense alone. The admission of evidence of other crimes, either prior or subsequent to the offense for which he or she is on trial, is inadmissible. Wing v. State, Okl.Cr., 579 P.2d 196 (1978); Atnip v. State, Okl.Cr., 564 P.2d 660 (1977). However, evidence of separate and similar offenses is admissible when it is material and proper to show motive, intent, absence of mistake or accident, identity of persons charged with commission of the crime for which an accused is put on trial, or a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other. Galindo v. State, Okl.Cr., 573 P.2d 1217 (1978); Burks v. State, Okl.Cr., 568 P.2d 1311 (1977). The appellants argue that adultery is not similar to murder and does not come within the exception. This is an incorrect interpretation.

Where evidence of an offense is admitted to prove absence of mistake or accident or identity of the accused, similarity of offenses would often be necessary for the offenses to be relevant. However, the other crime need not be similar to the crime charged to be probative of motive. In Jones v. State, Okl.Cr., 542 P.2d 1316 (1975), evidence that a defendant had earlier pled guilty to robbery was admissible to prove motive for commission of a dissimilar offense, murder. In order to avoid imprisonment for the robbery, the defendant burned his murder victim and planted his own identification on the body so that he, the defendant, would appear to be the victim.

Furthermore, we disagree with the appellant's contention that the evidence improperly reflected upon the character of the appellants before they first raised the issue. Such argument is refuted by Garrett v. State, 95 Okl.Cr. 44, 239 P.2d 439 (1951), a homicide prosecution in which this Court held that proof of a relationship between an unmarried female defendant and a married male victim was admissible to prove motive, notwithstanding it might incidentally tend to reflect on the character of the accused.

The appellants also contend the evidence lacked probative value to prove an affair and particularly that evidence of an affair in 1971 was too remote in time to be relevant to the trial issues. Wide latitude is permitted in the admission of evidence to establish motive, however, and the fact that the evidence is weak and inconclusive goes to its weight, a jury question, rather than its admissibility. 22A C.J.S. Criminal Law § 614. Likewise, evidence will not be rejected because of its alleged remoteness where it appears relevant to the offense charged and its admissibility rests in the sound discretion of the trial court. Dickey v. State, 97 Okl.Cr. 28, 257 P.2d 319 (1953). Here, it was not an abuse of discretion to admit evidence logically tending to prove the appellants' relationship originated as early as 1971. Furthermore, contrary to the appellants' assertion, it was not necessary that the State prove adultery by a preponderance of the evidence as is required in the divorce jurisdiction of the state; whether the evidence was sufficient to prove a motivating relationship whether or not it established adultery.

III

In the first and third assignments of error, the appellants argue that the evidence against appellant Collins was not sufficient to sustain a verdict of guilty, and that she should have been granted a continuance. This Court held in Hubbard v. State, 71 Okl.Cr. 373, 112 P.2d 174 (1941), that love letters between the defendant and the alleged killer of her husband were admissible to establish a motive for the crime of murder, but reversed her conviction because the evidence was insufficient to prove "a conspiracy on her part to commit the murder or any overt act on her part to carry it into effect." The theory advanced by the State is that there was sufficient circumstantial evidence to prove that appellant Collins committed an overt act aiding and abetting the murder plot, thus rendering her a principal in the crime under 21 O.S.1971, § 172.

The State's case, in addition to proof of motive, rests primarily upon numerous statements made by Frye to his accomplices in the course of the alleged conspiracy. During the summer of 1975, Frye told Thurman Overfelt, an associate, that he was in love with Collins who would not divorce her husband...