Harless v. State
| Decision Date | 12 August 1988 |
| Docket Number | No. F-86-387,F-86-387 |
| Citation | 759 P.2d 225 |
| Parties | Donna Raye HARLESS, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, Donna Raye Harless, was tried with co-defendant, Tony Davis, in the District Court of Tulsa County for the crimes of Injury to a Minor Child (Count I) and Murder in the Second Degree (Count II) in Case No. CRF-84-3218 and the jury returned a verdict of guilty on Count I and a verdict of guilty for the crime of Manslaughter in the Second Degree on Count II and set punishment at a five hundred dollar ($500.00) fine and three (3) months imprisonment in the county jail, respectively, and she appeals.
On August 25, 1984, a two year old child, Eric Cole Harless, was rushed into the emergency room of St. Francis Hospital in Tulsa, Oklahoma by appellant's husband, Tony Davis. The child, who displayed no pulse or heart beat, showed many signs of traumatic injury: a severely distended abdomen; numerous bruises; second degree burns on his hands and feet with bandages stuck to the burns; a third degree burn on the little finger of his left hand; and anemia. After the doctors determined that the child's abdomen was filled with blood, they operated and discovered a transected pancreas, some mild hermorrhage of the liver, inflammation of the stomach and colon, and old blood clots in the abdominal cavity. However, on August 31, 1984, Eric Cole Harless was pronounced dead, the cause of death being anoxic brain injury which resulted from a blunt injury to the abdomen.
The appellant and co-defendant, Tony Davis, were married on August 17, 1984, in Tulsa, Oklahoma. Prior to that time, they, along with appellant's two year old son, Eric Cole Harless, had been living together in Tulsa. Appellant testified that from August 17 until August 25, she worked from early morning until late evening every day and that Tony Davis was the primary caretaker for the child. At trial, Tony Davis offered explanations for the injuries suffered by the child, and appellant testified that Tony Davis told her about the child's fall and about his alleged accidental burning in hot bath water. Basically, appellant's defense was that the child did not show any unusual signs from his injuries other than the expected symptoms, and that since Tony Davis had received considerable first aid or paramedic training, they decided to treat the burns themselves. However, four doctors testified at trial that the injuries were inconsistent with the explanations given by appellant and Tony Davis, and at least one of the doctors testified that he believed the injuries would have been survivable had the child been treated immediately.
For her first assignment of error appellant asserts that she was erroneously convicted of Second Degree Manslaughter due to a jury instruction, Oklahoma Uniform Jury Instruction--Criminal 463, which misdefined culpable negligence. The instruction which the trial court gave contains the following definition:
The term 'culpable negligence' refers to the omission to do something which a reasonably careful person would do, or the lack of the usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions. (OUJI-CR 463).
Appellant contends that this definition is based upon a tort showing of ordinary negligence, and that the instruction does not require a finding of the appropriate degree of negligence prior to the imposition of criminal sanctions. Appellant's requested instruction at trial defining culpable negligence, provides that:
YOU ARE FURTHER INSTRUCTED that 'culpable negligence' is more than simple negligence. It is the failure to perform an act when the facts and circumstances justify certain action. It is negligence that evinces a carelessness and a recklessness amounting to a callous disregard for the life of the victim.
This Court has consistently upheld the definitional standard of culpable negligence which the trial court gave to the jury in the instant case. See Thompson v. State, 554 P.2d 105 (Okl.Cr.1976); Crossett v. State, 252 P.2d 150, 96 Okl.Cr. 209 (1952). Furthermore, the appellant's proffered instruction is not a proper instruction for the crime of Second Degree Manslaughter, rather it would be more appropriate in a case of Second Degree Murder. We hold, therefore, that the trial court properly instructed the jury. This assignment is groundless.
Appellant next alleges that the trial court erred in admitting prejudicial photographs of the victim into evidence. She argues that the fifteen (15) photographic slides, depicting the body of Eric Cole Harless, were taken after extensive surgery had been performed on him following his admission to the hospital, and the slides failed to accurately reflect his appearance at the time he was taken to the hospital.
We first observe that appellant interposed a timely objection to the introduction of the photographs. However, Dr. Gheen testified that there were visible bruises prior to the surgery and that these injuries alerted him to initiate a procedure for suspected child abuse. Also, Dr. Dunlap stated that while his surgical procedures would cause discoloration, the bruising would be minimal.
Appellant further claims that the most egregious example of prejudice involved State's Exhibit No. 4 which depicted the burn on the little finger of the victim's left hand. She argues that the photograph depicted the finger as being black, while Dr. Gheen clearly stated that the blackness was caused by the length of time that the child had not received oxygen and that when Cole arrived at the emergency room it was not black on the end but just red. We find that the doctor's explanation of the reason for the blackness as well as his explanations concerning the other photographs was sufficient to clarify within the minds of the jurors the extent of the injuries depicted in the photographs. Consequently, we find that the probative value of the photographs is not outweighed by the danger of prejudice to appellant. See Jacobson v. State, 684 P.2d 556, 560 (Okl.Cr.1984). The trial court did not abuse its discretion in admitting the photographs; thus, this assignment of error is without merit.
Appellant finally urges that a statement by the prosecutor at the end of her closing argument was an intentional and unequivocal request that the jury's verdict should speak on behalf of the victim in this case. Appellant alleges that this single remark determined or affected the verdict of guilt. We disagree.
When the prosecutor asked the jury, "Would [sic] ask you at this time to speak out on behalf of Cole Harless," defense counsel immediately objected, and the trial court sustained the objection and admonished the jury not to consider the statement. Considering the evidence in this case, we find that this isolated comment was cured by the trial court's admonition and did not determine the verdict. See Wimberli v. State, 536 P.2d 945 (Okl.Cr.1975); Elvaker v. State, 707 P.2d 1205 (Okl.Cr.1985). This contention is accordingly denied.
Finding no error warranting modification or reversal, the judgment and sentence is AFFIRMED.
I write separately to address the appellant's contention that the trial court's instructions defining "culpable negligence" were inadequate. The trial court used Oklahoma Uniform Jury Instruction No. 463, which is consistent with the definition approved by two members of this Court in Thompson v. State, 554 P.2d 105, 108 (Okla.Crim.App.1976). While this writer believes that culpable or criminal negligence should be specifically defined to require something more than mere ordinary or tort negligence, the Legislature has defined criminal negligence as "a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns." 21 O.S.1981, § 93. Consequently, I do not believe that this Court can redefine criminal negligence without improperly encroaching on the province of the Legislature. See Matthews v. Powers, 425 P.2d 479, 482-83 (Okla.Crim.App.1967). An analysis of the cases which attempt to apply the concept of culpable negligence reveals the frustration that prior members of this Court have experienced in attempting to develop a working definition, and is evidenced by the Commission Comment to OUJI-CR 463 that "[a]lthough the definition merely articulates the tort standard concerning duty of care, the cases evince a more pronounced degree of culpability where a conviction for manslaughter in the second degree is affirmed." Oklahoma Uniform Jury...
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...the ones Shelley received during the killing and were not in any way exacerbated by subsequent medical procedures. See Harless v. State, 759 P.2d 225, 227 (Okl.Cr.1988) (photo depicting victim's face as more swollen than it actually was after the injuries held inflammatory and prejudicial).......
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