Hall v. State, F-83-576

• Decision Date: 01 April 1985
• Docket Number: No. F-83-576,F-83-576
• Parties: Edward Lyle HALL, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 33

698 P.2d 33

Edward Lyle HALL, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-576.

Court of Criminal Appeals of Oklahoma.

April 1, 1985.

An Appeal from the District Court, Pittsburg County; Wesley Brown, Associate District Judge.

Edward Lyle Hall, appellant, was convicted of Second Degree Murder, in Pittsburg County District Court, Case No. CRF-77-102, was sentenced to life imprisonment and appeals. AFFIRMED.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Hugh A. Manning, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Edward Lyle Hall, hereinafter referred to as the defendant, was convicted of Second Degree Murder, in Pittsburg County District Court, Case No. CRF-77-102, was sentenced to life imprisonment and he appeals.

The testimony at trial centered on the brutal stabbing death of Albert Cox, the farm supervisor at the Oklahoma State Penitentiary at McAlester, in the prison's chicken house on March 5, 1977. Warden Richard Crisp stated that he received a report on that day that the defendant inmate and Cox were missing. Crisp searched the chicken house, unstacked several 50 pound sacks of chicken feed and discovered Cox's bloody body.

Medical testimony established that Cox had been stabbed 13 times in the chest and neck areas and sustained a large skull fracture over his left ear. Dr. Merlin Dean Bellamy, who performed an autopsy on Cox, stated that he believed Cox had been stabbed on the feed sacks because of the large quantity of blood on the sacks.

Frank Ritter and his then eleven-year-old son, Vernon, were fishing near Ravia on the day in question when the defendant approached them. Frank Ritter testified that the defendant grabbed Vernon, put a knife to his throat and stated, "I'm a desperate man, I killed someone getting out of McAlester." (Tr. 151). On rebuttal, the son corroborated his father's testimony.

The defense was that another inmate, Shelton Sealy, killed Cox. Guard Joe Kirkpatrick testified that he thought something was wrong when he saw Sealy exiting the chicken house in clean white clothes because usually if an inmate is working there his clothes become dirty. He also stated that Cox, a longtime friend, had told him that Sealy had threatened to kill him.

Inmate Jerry Hamilton testified that he overheard Sealy confessing to the killing to another inmate, but admitted he did not come forward with this information because he did not want to become involved.

Sealy testified that while he was in the chicken house, he saw Cox lying on the ground and then the defendant hit him four or five times and dragged him to the feed bin.

The defendant, serving 15 years for three armed robbery convictions, testified that when he entered the chicken house, he noticed Cox's body and that when he left the chicken house, Sealy was inside. Defendant stated that he was scared someone would report the body and that he would be beaten so he dragged the body to the feed sacks and covered him up. He took Cox's pickup and when he came upon the Ritters, he testified that he told them, "I'm a desperate man. There's been a man killed in McAlester and I'll probably be accused of it." (Tr. 261).

I.

Defendant initially asserts that the prosecutor improperly cross-examined his character witness, Bill Bailey. Defendant argues that it was improper for the prosecutor to attempt to elicit Bailey's opinion of the type of man who would commit an armed robbery; however, the record reveals a failure to contemporaneously object. This alleged error has been waived. Hanna v. State, 560 P.2d 985, 989 (Okl.Cr.1977).

We have long held that a trial court should allow cross-examination into matters which tend to explain, contradict, or discredit any testimony given by the witness or which tests his accuracy, memory, veracity or credibility. Campbell v. State, 636 P.2d 352 (Okl.Cr.1981), cert. den., 460 U.S. 1011, 103 S.Ct. 1250, 75 L.Ed.2d 479 (1983). The extent of cross-examination rests in the sound discretion of the trial court and this Court will reverse only if that discretion is clearly abused, resulting in manifest prejudice to the accused. Hickerson v. State, 565 P.2d 684 (Okl.Cr.1977).

Defendant asserts as error a hypothetical question to Bailey that if the defendant killed Cox, would he change his opinion about the defendant's good character. Admittedly, this question was irrelevant, but the defendant suffered no prejudice as Bailey firmly replied that although his opinion would change he did not believe the defendant killed Cox.

Additionally, the defendant contends that it is improper impeachment of a character witness to cross-examine regarding specific instances of conduct, citing 12 O.S.1981, § 2608. ¹ To this we agree, but the specific instances of misconduct in the instant case regard the defendant's escape, not the witness' and therefore, this contention misses the remark.

After reviewing the entire cross-examination of Bailey, we are unable to say the defendant suffered prejudice or that the trial court abused its discretion and thus, this assignment of error is without merit.

II.

Next, the defendant argues that the trial court erred in permitting three witnesses to "rehash" in rebuttal, the State's case in chief. Defendant objects to the testimony of Jack Brannon, Vernon Ritter and Shelton Sealy; however, his motion for new trial omits Sealy in this respect and hence this issue regarding Sealy has been waived. Nutter v. State, 658 P.2d 492 (Okl.Cr.1983).

To both Brannon's and Ritter's testimony we observe the defendant's failure to pose a timely objection to any of the rebuttal testimony. Rather than interposing an objection prior to the State's first question on rebuttal, defense counsel waited until the State completed its examination, objected and then proceeded to thoroughly cross-examine them. Again, we emphasize the need for a timely objection. Hanna, supra at 989. Such a policy enables the trial court to rule before the defendant is prejudiced and also prevents the defendant from "laying behind the log."

The admission of testimony in rebuttal is a matter within the sound discretion of the trial court and will not be grounds for reversal absent an abuse thereof. It may be offered to explain, repel, disprove, or contradict facts given in evidence by an adverse party, regardless of whether such evidence might have been introduced in the case in chief or whether it is somewhat cumulative. Wooldridge v. State, 659 P.2d 943 (Okl.Cr.1983) and cases cited therein. Here, the testimony of Vernon Ritter contradicted the defendant's testimony that he told the Ritters, "someone's been killed," and not that "I killed someone." Brannon's testimony refuted the testimony of Kirkpatrick that Cox had told him (Kirkpatrick) that Sealy had threatened to kill him. Brannon's testimony on rebuttal was that Cox, a close friend, never mentioned that he had had problems with Sealy. Having found no abuse of discretion, this assignment of error is meritless.

III.

As his third assignment of error, the defendant complains that three photographs depicting the discovery of Cox's body lying in the chicken house were erroneously admitted into evidence as they were more prejudicial than probative. We disagree.

Where photographs, because of their subject matter, carry a danger of prejudice they are still admissible unless the possibility of prejudice outweighs the probative value and this decision is a basic judicial determination of relevance. Chaney v. State, 612 P.2d 269 (Okl.Cr.1980); Harger v. State, 665 P.2d 827 (Okl.Cr.1983). The admissibility of photographs lies within the sound discretion of the trial court. Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983). The photographs are probative of an issue in the case whether Cox was stabbed before or after he was put on the feed sacks. Further, the photographs served to corroborate and illustrate Dr. Bellamy's testimony about the location of the head in relation to the blood on the wall and the feed sacks and that the position of the body was consistent with being stabbed on the sacks. This assignment of error is without merit.

IV.

As his fourth assignment of error, the defendant maintains that the trial court erred in admitting evidence of other crimes committed by him other than the murder with which he was charged.

Specifically, the defendant excepts to the Ritters' testimony about the events near Ravia as depicting evidence of assault, kidnapping and intent to steal their car.

As a general rule, evidence of other crimes is inadmissible and one is to be convicted, if at all, by evidence which shows one guilty of the offense charged. Blackwell v. State, 663 P.2d 12 (Okl.Cr.1983); Mitchell v. State, 659 P.2d 366 (Okl.Cr.1983). We view such evidence as part of the entire transaction occurring immediately after the homicide. The testimony of Frank Ritter would likely have confused the jury without permitting Ritter to testify to the circumstances surrounding his encounter with the defendant.

As stated in Walker v. State, 608 P.2d 1156 (Okl.Cr.1980), evidence of the evasive tactics and force used by the defendant in attempting to elude law enforcement authorities and avoid capture is admissible as an exception to the general rule which excludes evidence of other crimes.

Finally, the defendant was not prejudiced as the jury was instructed that it could not consider evidence of other offenses the defendant allegedly committed as in any way tending to prove him guilty of Second Degree Murder. (O.R. 78). This assignment of error is without merit.

V.

In his fifth assignment of error, the defendant argues that the double jeopardy provision of the United States Constitution barred the State from prosecuting him for Second Degree Murder because the State continued to rely on the evidence of escape to support its case. In Hall v. State, 650 P.2d 893 (Okl.Cr.1982), ...