Heavener v. State, F-83-406

• Decision Date: 05 September 1985
• Docket Number: No. F-83-406,F-83-406
• Citation: 706 P.2d 905
• Parties: John Leroy HEAVENER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 905

706 P.2d 905

John Leroy HEAVENER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-406.

Court of Criminal Appeals of Oklahoma.

Sept. 5, 1985.

Thomas J. Ray, Jr., Asst. Public Defender, Oklahoma City, for appellant.

Michael C. Turpen, Atty. Gen., Thomas L. Spencer, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

John Leroy Heavener was convicted in Oklahoma County District Court of Rape in the First Degree, Oral Sodomy, and Anal Sodomy. He received sentences of thirty years', ten years', and ten years' imprisonment, respectively.

Appellant was a neighbor of the victim, T.M., on the evening of July 1, 1982, and was allowed into T.M.'s apartment, where she lived alone, on the pretext of using her telephone book. T.M. testified that over a seven to seven and one-half hour period she was repeatedly raped and sodomized by appellant who wielded a knife. Appellant testified they had sexual relations, but with each other's consent.

Appellant claims his Fifth Amendment right to silence was violated when the prosecutor was allowed to inquire of a police detective, and also later of appellant, whether appellant ever told the officer of certain people he allegedly met and drank with after he left T.M.'s apartment. Each answered that he had not previously told the police of these people.

We note that appellant waived his right to remain silent and gave a statement to the police. When this is so, it is not improper to comment on a defendant's previous failure to disclose information later asserted at trial. Costilla v. State, 609 P.2d 788 (Okl.Cr.1980); Sands v. State, 542 P.2d 209 (Okl.Cr.1975). When a defendant has waived his right to remain silent, he may not later claim his right has been infringed when his silence as to certain facts is used to impeach his testimony.

Appellant complains that the State denied him the opportunity to interview the prosecutrix prior to trial. Immediately before T.M. was to testify, defense counsel moved to quash her testimony on this basis. The prosecutor advised the trial judge that the prosecutrix continually advised him that she did not want to speak with defense counsel.

One afternoon prior to trial, T.M. was in the prosecutor's office and defense counsel had the opportunity to speak with T.M. Defense counsel did not attempt to conduct an interview. The trial judge refused the defense motion to quash and also a motion for continuance. Instead, an interview of T.M. was allowed during a recess prior to her testifying at trial.

We find no error in the trial court's ruling. While it is true as argued by appellant that the State cannot deny the accused or his counsel the right to interview witnesses before trial, Broadway v. State, 494 P.2d 331 (Okl.Cr.1972), it is also true that a witness may not be compelled to submit to an interview, id. It does not appear that the State attempted to secrete T.M.'s testimony from the defense, as defense counsel readily admitted after interviewing her. In fact, she testified and was cross-examined at preliminary hearing and she later consented to the interview at trial. The State did not know T.M.'s address and refused to give the defense her telephone number because she had said she did not want to speak with defense counsel. As we noted in Broadway, if there is a danger of harm to the accused's defense in being denied an interview, a trial court may order the interview in its discretionary power.

The morning of the attack, T.M. went to the hospital where a rape examination was performed. The evidence collected was put into a sealed container according to the testimony of the examining doctor. The officer who picked it up from the hospital and delivered it to the crime lab for analysis did not testify at trial. Appellant contends that a proper chain of custody was not established for the rape kit evidence and it should not have been admitted into evidence. This assertion is based upon the failure of the transporting officer to testify of his handling and the examining doctor's failure to testify regarding the preservation of the specimen.

At trial, the examining doctor described collecting the samples and of having them put into a kit which was sealed. Officer Montgomery testified that his assistant, whose signature appeared on the kit, picked it up and delivered it to the crime lab. Janice Davis, a chemist at the crime lab, testified that she received the sealed rape kit and signed it herself. The kit with the signatures was introduced at trial.

To properly admit physical evidence the State must lay a foundation showing it is substantially in the same condition as at the time of the crime. Rudd v. State, 649 P.2d 791 (Okl.Cr.1982). Within a reasonable certainty, it must be shown that the evidence has not been altered or tampered with in any important aspect. However, "[t]he State is not required to exclude all possibilities of alteration." Id. at 795. The record in the present case sufficiently supports with reasonable certainty a belief that the integrity of the samples was maintained until trial. Though not excluding every possibility of tampering, there is nothing that suggests the evidence may have been altered.

In a prosecution for rape, evidence of the complaining witness' sexual conduct, except with the accused or in the accused's presence, is not admissible to prove consent. 22 O.S.1981, § 750. Appellant contends that the trial court erred in not allowing the same evidence in for another purpose, that is for impeaching the testimony of T.M. She testified that she was not emotionally involved with any men at the time of the attack. The medical history taken by the examining physician indicated T.M. had had sexual relations with someone one week prior to the incident.

We agree with the trial court's ruling that the evidence was irrelevant. The evidence was not probative of truthfulness, 12...