Green v. State

• Decision Date: 09 October 1985
• Docket Number: F-81-798,Nos. F-81-797,s. F-81-797
• Citation: 713 P.2d 1032
• Parties: Michael Wayne GREEN and, Danny George Parker, Appellants, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1032

713 P.2d 1032

Michael Wayne GREEN and, Danny George Parker, Appellants,

v. STATE of Oklahoma, Appellee.

Nos. F-81-797, F-81-798.

Court of Criminal Appeals of Oklahoma.

Oct. 9, 1985.

Rehearing Denied Feb. 24, 1986.

Patti Palmer, Asst. Appellant Public Defender, Norman, for appellants.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

The appellants, Michael Wayne Green and Danny George Parker, were jointly tried by jury in the District Court of Pittsburg County, Oklahoma, Case No. F-81-120, for the crime of Murder In the First Degree. The jury returned a verdict of guilty and set punishment at death by lethal drug injection for each appellant. The trial court sentenced the appellants in accordance with the jury's verdict.

This case arose from the brutal stabbing death of inmate Arthur Lynn Mosier at the McAlester State Penitentiary on September 5, 1980. Evidence at trial revealed that the appellants, both of whom were serving lengthy prison terms, attacked Mosier in the west cell house and stabbed him seventeen times with a butcher knife and a "sticker," a home-made weapon apparently fashioned from a piece of wire. Mosier was stabbed in the chest and back, and his throat was brutally slashed. Two inmates witnessed the stabbing from their cells. One of the inmates testified the "sticker" was tossed into his cell following the attack, but that he quickly threw it back out onto the run. Moments later, Green appeared at his cell door and asked the inmate what he had seen. When the inmate replied he had seen nothing, Green walked away.

I. PRE-TRIAL ISSUES

Prior to trial, the appellants jointly filed a motion to dismiss, alleging that their rights under the Sixth and Fifth Amendments to the United States Constitution were violated by a delay of seven months between the time of the offense and the filing of charges by the State. This claim was disallowed by the trial court, and we agree with that ruling.

The facts relating to this issue are summarized as follows: Mosier was stabbed to death at the penitentiary on September 5, 1980. On September 15, 1980, the appellants were sentenced in a prison disciplinary proceeding to ninety (90) days solitary confinement as administrative punishment for the offense. After removal from solitary confinement, appellants were placed in administrative segregation, and the investigation was transferred from prison authorities to the Oklahoma State Bureau of Investigation. On April 16, 1981, appellants were charged in the District Court of Pittsburg County for the offense of Murder in the First Degree. Trial commenced on September 16, 1981, and concluded September 21, 1981.

We are, of course, concerned with the passage of seven months between the commission of this offense and the filing of charges by the State. However, appellants' reliance on the Sixth Amendment right to a speedy trial is unavailing. In State v. Edens, 565 P.2d 51 (Okl.Cr.1977), we held

the requirement of a speedy trial as protected by the United States Constitution and Oklahoma Constitution is not applicable in cases such as this, wherein pre-accusation delay is involved. The right to a speedy trial, protected by both the Sixth Amendment to the United States Constitution and Art. II, § 20, of the Constitution of the State of Oklahoma is limited in application, by express terms, to an "accused" and one is not an "accused" until an information or indictment is filed, or where the person is in actual custody or has been arrested in the course of prosecution of the offense in question.

Id. at 52-53. Accord United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). We held in Owens v. State, 588 P.2d 581 (Okl.Cr.1978), that an administrative lock-up of an inmate after the alleged commission of a crime does not constitute an arrest, so as to trigger the protections of the Sixth Amendment. Accord United States v. Duke, 527 F.2d 386 (5th Cir.1976).

Though the Sixth Amendment speedy trial guarantee does not extend to pre-accusation delays, "the due process clause may under some circumstances require dismissal of charges due to [oppressive] pre-accusation delay." Cooper v. State, 671 P.2d 1168, 1175 (Okl.Cr.1983) (emphasis added). Under due process analysis, the test is whether compelling an accused to stand trial after a governmental delay in filing charges violated "fundamental conceptions of justice which lie at the base of our civil and political institutions ... which define the community's sense of fair play and decency." United States v. Lovasco, 431 U.S. 783, 790, 97 S.Ct. 2044, 2049, 52 L.Ed.2d 752 (1977). These fundamental notions of justice are offended when the accused demonstrates actual prejudice from an unreasonable delay on the part of the State. ¹ Id. at 789-90, 97 S.Ct. at 2048. See also United States v. Taylor, 603 F.2d 732 (8th Cir.1979). The threshold requirement the accused must establish is, however, actual prejudice, for "proof of actual prejudice makes a due process claim concrete and ripe for adjudication." See United States v. Lovasco, supra 431 U.S. at 789, 97 S.Ct. at 2048.

Appellants allege prejudice from the disappearance of Richard Hayes, whom they characterize as a "material witness" to their case. They claim Hayes would have testified regarding their whereabouts during the time of the murder. It is asserted that Hayes was released from the penitentiary sometime between the murder and the filing of charges in Pittsburg County District Court. ² Subsequent efforts to locate Mr. Hayes proved unsuccessful, according to appellants.

We do not agree that actual prejudice was sufficiently established by appellants' evidence. First, there was no showing by appellants that the witness could have been obtained but for the pre-accusation delay. See e.g. Owens v. State, supra at 583-84. Second, the testimony of Mr. Hayes, according to the offer of proof submitted by the defense, would merely have constituted cumulative testimony of that offered by other prison inmates that appellants were in the yard at the time of the murder.

This claim of error has no merit.

II. ISSUES RELATING TO THE GUILT PHASE OF TRIAL

Appellants next argue the trial court committed reversible error by failing to issue a jury instruction on the defense of alibi. At trial, appellants attempted to support this defense with evidence that they were seen in the prison yard at the time of the murder. However, appellants offered no requested instructions regarding this issue, nor did they object to the instructions delivered by the trial court.

We have repeatedly held that

[if] counsel for defendant are of the opinion that additional instructions should be given to the jury, it is their duty to reduce them to writing, submit them to the trial judge, and request that they be given. If they fail to do this, a conviction will not be reversed unless [the Court of Criminal Appeals] is of the opinion in the light of the entire record, including instructions which were given, that the failure of the trial court to instruct the jury upon some material question of law, the defendant has been deprived of a substantial right.

Wolf v. State, 375 P.2d 283, 287 (Okl.Cr.1962), quoting, Sheehan v. State, 83 Okl.Cr. 41, 172 P.2d 809 (1946). See also York v. State, 40 Okl.Cr. 312, 320, 269 P. 323 (1928) (in the absence of a request, failure to give an alibi instruction is not error, unless it clearly appears the appellant was prejudiced thereby). The instructions herein adequately advised the jury on the essential elements of the offense, explained the presumption of innocence, placed the burden on the State to prove appellants guilt beyond a reasonable doubt, and were correct in all matters. The jury also was specifically charged that any reasonable doubt it held regarding guilt or innocence should be resolved in the appellants' favor. Furthermore, defense counsel was allowed full and unrestricted argument regarding this theory of defense. We, therefore, cannot say the instructions, as a whole, misdirected the jury, so that a failure to give an alibi instruction, absent a request, resulted in a miscarriage of justice or denial of a substantial right. See 20 O.S.1981, § 3001.1. This assignment of error is without merit.

III.

ISSUES RELATING TO THE MOTION FOR NEW TRIAL ON NEWLY

DISCOVERED EVIDENCE

On December 1, 1982, the appellants filed a joint motion for new trial based on newly discovered evidence. In the motion, they claim Frank Minister, an inmate in the penitentiary at the time of the murder, actually stabbed and killed Mosier with a butcher knife. The motion was supported by Minister's affidavit, in which he confessed to the crime. At an evidentiary hearing on December 21, 1981, Minister testified that he alone killed Mosier. Randy Collinsworth, another inmate, testified he saw Minister kill Mosier. The motion was denied by the trial court, and we affirm that ruling.

Title 22 O.S.1981, § 952, states, in pertinent part:

A court in which trial has been had upon an issue of fact has power to grant a new trial when a verdict has been rendered against a defendant by which his substantial rights have been prejudiced, upon his application in the following cases only:

* * *

* * *

Seventh. When new evidence is discovered, material to the defendant, and which he would not with reasonable dilligence have discovered before trial ...

Regarding the statute's requirement of materiality, we have held that the appellant must bear the burden of proving the existence of a probability that the newly discovered evidence, if presented at trial, would have changed the jury's verdict. See Smith v. State, 590 P.2d 687, 689 (Okl.Cr.1979). See also Robison v. State, 677 P.2d 1080 (Okl.Cr.1984). Appellants have failed to meet this burden.

In both the affidavit and at the evidentiary hearing, Minister testified that he alone stabbed Mosier,...