Harvell v. State
| Decision Date | 28 August 1987 |
| Docket Number | No. F-85-187,F-85-187 |
| Citation | 742 P.2d 1138 |
| Parties | Clyde Ray HARVELL, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Clyde Ray Harvell, appellant, was tried by jury and convicted of Second Degree Arson [21 O.S. 1981, § 1402], in case No CRF-84-161, in the District Court of LeFlore County, before the Honorable Ted Knight, Associate District Judge. The jury set punishment at fifteen (15) years imprisonment and a $20,000.00 fine. Judgment and sentence was imposed in accordance with the jury's verdict. We affirm.
Clyde and Robbie Harvell were twice married to each other. Their home was awarded to Mrs. Harvell as her separate property in the first divorce. After Mrs. Harvell filed for the second divorce, the appellant was ordered by the court to vacate the premises. On the evening of June 21, 1984, the appellant made several trips to the house in Mrs. Harvell's absence and removed his personal property. Early on the morning of June 22, the appellant returned to the house one more time, and the house burned down immediately following that last visit.
At trial, the appellant testified he returned to the house to remove his personal property after an evening of drinking beer. He testified that on his last trip to the house he got hungry and started frying chicken. Discovering he was out of beer, the appellant drove to a convenience store and bought more beer. When he returned to the house, he discovered the chicken, which had been left cooking on the stove in his absence, had caught fire. The appellant spilled the burning grease on the floor and the house, in turn, caught fire. The appellant then fled the house without calling the fire department. The alarm was turned in by a neighbor.
The Fire Marshall, a State chemist, and an insurance investigator all testified that the fire resulted from arson. The hottest part of the fire was in the living room at the opposite end of the house from the kitchen, the carpets in the living room and in two bedrooms had been drenched with an unidentified petroleum based accelerant, and the kitchen had not suffered fire damage, only smoke, heat and water damage. No frying pan was found on the floor, nor was there any evidence that the kitchen stove had burned.
Mrs. Harvell testified that the appellant told her she would never have any peace if she did not drop the divorce proceedings. On rebuttal, Mrs. Harvell testified she had no chicken in the house on the evening of the fire.
Mrs. Harvell's sister testified that the appellant, while drunk, subsequently confessed to her that he set the fire in Mrs. Harvell's house. Two neighbors, a mother and her son, testified they saw the appellant make several trips into the house on the evening in question. On the last trip, they saw him carry what looked like a gas can into the house. The mother testified that when the appellant left the house after carrying the container inside, she saw him throw a burning object into the house as he was leaving. Both witnesses testified the house was afire as the appellant drove away.
For his first assignment of error, the appellant asserts that he was deprived of a fair trial because the prosecutor made an extrajudicial statement to the press, which constituted misconduct, and by the attendant adverse pretrial publicity flowing from that statement. Mrs. Harvell's house burned on June 22, 1984. On July 17, the appellant's stepson, Tony, disappeared and was found dead on July 21. Tony had been shot in the head. On July 26, two articles appeared on the front page of the Poteau News & Sun. It was reported in the first article that the District Attorney had a key suspect in Tony Harvell's death. The identity of this suspect was not revealed. Juxtaposed to this article was another article which reported that the appellant had been charged with arson in connection with the house fire.
On August 5, 1984, the Poteau News & Sun reported on the front page that the appellant had been arrested for his stepson's death. The charges of murder and arson were intermingled in this article. The article further reported that District Attorney "Sullivan said Harvell was charged after he reportedly told a series of friends that he killed his stepson, but the DA would not reveal why the younger Harvell was murdered." The murder charges against the appellant were subsequently dropped.
The appellant did not seek a change of venue, nor did he raise the issue of pretrial publicity until time of sentencing, when he presented his Motion for a New Trial. The appellant asserts now, as he did at the hearing on his motion for a new trial, that the District Attorney disseminated a false story to the media that the appellant made an extrajudicial confession that he killed Tony Harvell. In support of this allegation of prosecutorial misconduct, the appellant offers the uncontradicted testimony of a reporter for the Poteau News & Sun, Mr. Bill Baggett, which was given at the hearing on the motion for a new trial, that he interviewed the District Attorney over the telephone, that the District Attorney gave Mr. Baggett the information concerning the appellant's confession quoted above, and that the District Attorney knew Mr. Baggett was a reporter.
Under the ABA Standards for a Fair Trial and Free Press, Standard 8-1.1 (1978), an attorney is subject to discipline if he or she reveals "the existence or contents of any confession, admission, or statement given by the accused, or the refusal or failure of the accused to make a statement," [Standard 8-1.1(b)(ii) ] if such communication would pose a clear and present danger to the fairness of a trial [Standard 8-1.1(a) ]. Under the ABA Standards on The Prosecution Function, Standard 3-1.3(b) (1979), the release of information in contravention of Standard 8-1.1 and of the Code of Professional Responsibility is unprofessional conduct. Likewise, under the Code of Professional Responsibility, DR 7-107(B)(3), an attorney is subject to discipline if he or she reveals "[t]he existence or contents of any confession, admission, or statement given by the accused or his refusal or failure to make a statement." 5 O.S.1981, Ch. 1, App. 3. The issue is whether the prosecutor's extrajudicial statement, albeit a violation of a disciplinary rule, deprived the appellant of a fair trial. This Court will neither condone nor tolerate any act by an officer of the court which has the potential of depriving a defendant of a fair trial, especially when that act is a clear violation of a disciplinary rule arising from the Code of Professional Responsibility. While we strongly disapprove of the prosecutor's extrajudicial statement made here, disciplinary rules merely establish standards which, if violated, subject an attorney to discipline. They do not establish the parameters of the constitutional right to a fair trial. State v. Wixon, 30 Wash.App. 63, 631 P.2d 1033, 1038 (1981). The intent of the prosecutor in releasing the statement to the press is not necessarily the determinative factor. What is important is the effect which may ensue and whether the comment and the attendant adverse pretrial publicity had a prejudicial effect on prospective jurors. In re Burrows, 290 Or. 131, 618 P.2d 1283, 1285 (1980). To resolve this question we turn to the record.
On voir dire one juror was excused for cause and ten were excused by peremptory challenge. Of the eleven jurors excused, four revealed they had generally heard something about the arson case and two admitted reading about the case in the newspapers, although the articles in question were not identified as the source of their information. Of the twelve jurors and one alternate who heard the case, two admitted to hearing something generally about the case and one admitted to reading something generally about the case in the newspaper, although,...
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