Gregg v. State

• Decision Date: 04 December 1992
• Docket Number: No. F-90-1158,F-90-1158
• Citation: 844 P.2d 867,1992 OK CR 82
• Parties: Carroll Evans GREGG, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 867

844 P.2d 867

Carroll Evans GREGG, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-90-1158.

Court of Criminal Appeals of Oklahoma.

Dec. 4, 1992.

Rehearing Denied Jan. 11, 1993.

On Motion for Rehearing

An Appeal From the District Court of Oklahoma County; Charles L. Owens, District Judge.

Carroll Evans Gregg, appellant, was convicted of nineteen counts of Lewd or Indecent Acts, (Counts 1, 2, 4, 5, 6, 7, 9, 10, 11, 16, 19, 21, 23, 25, 27, 28, 30, 34 & 37) twelve counts of Forcible Oral Sodomy, (Counts 14, 15, 17, 26, 29, 31, 35, 36, 39, 40, 42, & 43) four counts of Second Degree Rape (Counts 32, 33, 38 & 41) and three counts of First Degree Rape (Counts 20, 22 & 24), in the District Court of Oklahoma County, Case No. CF-89-4690, sentenced to one hundred thirty one (131) years imprisonment, and appeals. Count 25 is REVERSED and REMANDED with instructions to DISMISS. All other counts are AFFIRMED.

C. Merle Gile and John Gile, Trial Counsel, Mac Oyler, Appellate Counsel, Oklahoma City, for appellant.

Barry Albert, Asst. Dist. Atty. Trial Counsel, Susan B. Loving, Atty. Gen., Steven S. Kerr, Asst. Atty. Gen., Appellate Counsel, Oklahoma City, for appellee.

OPINION

PARKS, Judge:

Carroll Evans Gregg, appellant, was tried by jury and convicted of nineteen counts of Lewd or Indecent Acts With a Child Under Sixteen, (21 O.S.Supp.1983, § 1123) (Counts 1, 2, 4, 5, 6, 7, 9, 10, 11, 16, 19, 21, 23, 25, 27, 28, 30, 34 & 37) twelve counts of Oral Sodomy, (21 O.S.1981 § 886) (Counts 14, 15, 17, 26, 29, 31, 35, 36, 39, 40, 42 & 43) four counts of Second Degree Rape (21 O.S.Supp.1984, § 1111; 21 O.S.Supp.1986, § 1114) (Counts 32, 33, 38 & 41) and three counts of First Degree Rape (21 O.S.Supp.1984, § 1111; 21 O.S.Supp.1986, § 1114) (Counts 20, 22, & 24) in Oklahoma County District Court, Case No. CRF-89-4690, before the Honorable Charles L. Owens, District Judge. ¹

On August 30, 1989, members of the Nichols Hills Police Department conducted a search, pursuant to a warrant, of appellant's residence. During the search officers found a video tape of appellant and a young girl engaged in various types of sexual activity.

In his first assignment of error, appellant contends that the trial court erred in refusing to grant his request for a change of venue. Appellant made a pretrial motion for change of venue based on pretrial publicity. The trial judge reserved ruling on the motion until after the jury was selected, at which time the motion was overruled.

In support of his motion for change of venue before the trial court, appellant submitted the statutorily required affidavits wherein each affiant expressed the belief that appellant could not receive a fair trial in Oklahoma County due to pretrial publicity. Additionally, appellant submitted numerous newspaper articles concerning the crime and appellant's arrest. In addition to the foregoing, appellant points to the fact that most of the potential jurors had heard or read about the case, and asks this Court to reverse his conviction.

A motion for change of venue is left to the sound discretion of the trial court and its decision will not be disturbed absent abuse. Shultz v. State, 811 P.2d 1322, 1329 (Okl.Cr.1991). Consistent with this standard of review, "[e]ven if sufficient reasons exist so that the trial court would have been justified in granting a motion to change venue, we will not reverse the lower court's decision unless the circumstances surrounding the trial compel it." United States v. Williams, 897 F.2d 1034, 1037 (10th Cir.1990).

There is a rebuttable presumption that the accused can receive a fair trial in the county in which the offense occurred and the burden of persuasion is on the accused, who must show actual exposure to the publicity and resulting prejudice by clear and convincing evidence. Merely showing that pretrial publicity was adverse to him is not enough. Price v. State, 782 P.2d 143, 146 (Okl.Cr.1989).

In the instant case, voir dire examination revealed that eleven of the twelve jurors had been exposed to pretrial publicity concerning the case. This fact alone is not dispositive of a motion for change of venue, as we have held that a defendant is not entitled to jurors who are completely ignorant of the facts. Wilkett v. State, 753 P.2d 383, 387 (Okl.Cr.1988). We note that all of the jurors who received pretrial exposure stated that they had not formed an opinion as to appellant's guilt or innocence. All jurors avowed they could fairly and impartially judge the case based on the evidence presented at trial. In those instances where a prospective juror harbored preconceived notions concerning appellant's guilt or appeared unwilling or unable to judge the case impartially, the trial judge excused the venireperson for cause. On this record, we find that appellant has failed to demonstrate prejudice and accordingly hold that the trial court did not abuse its discretion in denying appellant's motion for change of venue.

As part of this proposition, appellant contends that in the absence of a change of venue the trial court should have granted his motion to individually voir dire prospective jurors. As with a motion for change of venue, the decision with respect to individual voir dire is a matter left to the sound discretion of the trial judge. Glenn v. State, 749 P.2d 121, 126 (Okl.Cr.1988). The existence of extensive pretrial news coverage does not itself demand individual or sequestered voir dire. Vowell v. State, 728 P.2d 854, 858 (Okl.Cr.1986). The crux of the issue is whether appellant can receive fair and impartial jurors. Nauni v. State, 670 P.2d 126, 130 (Okl.Cr.1983). In light of the extensive voir dire conducted in this case, and with consideration given to the jurors apparent willingness to judge the case on the evidence presented at trial, we find no abuse of discretion in the trial court's refusal to allow individual voir dire.

Incorporated within this proposition of error, are appellant's assertions that he was denied a fair and impartial jury as a result of the conduct of the trial judge. Specifically, appellant alleges that certain comments from the trial judge caused jurors to "knuckle under" and become fearful of expressing their biases against appellant. The record does not support appellant's assertions.

During the course of voir dire, prospective jurors were informed that if selected it would be necessary for them to view sexually explicit evidence. The trial judge told the panel that "I certainly take distaste to jurors who just exercise some reason to avoid a jury simply because you find it a bit uncomfortable." (Tr. 19). We find that the trial judge's comments were designed to instill a sense of duty in jurors who were faced with the uncomfortable prospect of viewing sexually explicit material.

On several occasions prospective jurors stated that they had formed an opinion as a result of media accounts of the crime. In these instances the trial judge stressed the importance of an impartial jury and at one point told the panel that if anyone had preconceived notions that "I don't want any of you to be afraid to tell me.... I want to know that and [I will] let you be excused very promptly." (Tr. 47). We find nothing in the conduct of the trial judge which would have adversely impacted the selection of an impartial jury and accordingly deny this assignment of error.

In his second assignment of error, appellant contends that the trial court erred in overruling his Motion to Suppress. On the basis of five identical affidavits submitted by Officer Richard Mask, the magistrate issued warrants authorizing the search of the person of appellant, (O.R. 13) a 1977 Chevrolet Malibu station wagon, (O.R. 17) appellant's office, (O.R. 21) appellant's home, (O.R. 25) and a 1984 Lincoln Continental (O.R. 29). Each affidavit contained the following language:

On 5-13-89 this detective received the assignment to conduct a follow-up in reference to a possible Indecent Liberties with a Minor under 16 years of age case. On 5-17-89 this detective met with [J.H.] W/F 3-7-54 who advised that during the year of 1986 she found a video tape in the trunk of a vehicle belonging to Carroll Gregg and that upon viewing the tape she saw that it contained film of Carroll Gregg and a minor child named [S.S.] W/F 6-6-73 engaged in a sexual act. She stated that [S.S.] appeared to be approximately 12-13 years of age in the tape and that the subject Carroll Gregg was performing cunnilingus on [S.S.]. [J.H.] was employed by Carroll Gregg as a live in baby sitter for approximately ten years. She also stated that she has seen sexually explicit material at the subjects residence which had arrived in the mail. A check with U.S. Customs revealed that Carroll Gregg's name was found on the client list of a now arrested prominent west coast pornography specialist known as "Black Cathy". [J.H.] further advised that she herself had a sexual relationship with the subject Carroll Gregg beginning at the age of twelve which continued until she was approximately 22 years of age. She states that during this period the subject Gregg photographed her in the nude and sometimes in costume.

On 5-23-89 this detective interviewed [D.R.] W/F 10-28-57, this being Carroll Gregg's ex-stepdaughter who advised that her natural mother, [B.B.] W/F 10-28-57, was married to Carroll Gregg for two years when [D.R.] was approximately 7 to 8 years of age. She stated that during the time of her mother's marriage to Carroll Gregg, the subject Gregg would enter her bedroom at night and undress her while she pretended to be asleep. She further stated that Carroll Gregg would set up a camera on a tri-pod and photograph her in the nude. He would sometimes set the camera so that he could be in the photographs with her. She further advised that the subject Carroll Gregg attempted to push his penis into her mouth and on occasions would ejaculate onto her. [D.R.] advised that this...