Irvin v. State, No. F-77-378

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Writing for the CourtCORNISH; BRETT; BUSSEY; BRETT; BUSSEY
Citation1980 OK CR 70,617 P.2d 588
Decision Date29 August 1980
Docket NumberNo. F-77-378
PartiesWarner Houston IRVIN, Sr., Appellant, v. The STATE of Oklahoma, Appellee.

Page 588

617 P.2d 588
Warner Houston IRVIN, Sr., Appellant,
v.
The STATE of Oklahoma, Appellee.
No. F-77-378.
Court of Criminal Appeals of Oklahoma.
Aug. 29, 1980.

Page 591

An appeal from the District Court, Oklahoma County; Floyd Martin, judge.

Warner Houston Irvin, Sr., appellant, was convicted of the offense of Murder in the First Degree; was sentenced to death, and appeals. MODIFIED to life imprisonment and otherwise AFFIRMED.

Robert A. Ravitz, Asst. Public Defender, Oklahoma County, John M. Stuart, Kee, Kramer & Stuart, Duncan, for appellant.

Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Danny K. Shadid, Legal Intern, Oklahoma City, for appellee.

OPINION

CORNISH, Presiding Judge:

Warner Houston Irvin, Sr., was convicted in the Oklahoma County District Court, Case No. CRF-76-4351, of the offense of Murder in the First Degree. His punishment was fixed by a jury at death. Formal judgment and sentencing was imposed by the Honorable Floyd Martin, District Judge, on March 7, 1977. On appeal, the appellant urges 22 allegations of error.

Laws 1976, lst Ex.Sess., Ch. 1, § 7, now 21 O.S.Supp.1976, § 701.13, requires review of the propriety of every death sentence. Although this review is in addition to allegations of legal error by direct appeal, the court may and does hereby direct that the appeal and the sentence review be consolidated. Section 701.13 also provides for oral argument and submission of briefs by both the appellant and the State. Oral argument in this case was held on the 17th day of January, 1980.

The evidence at trial shows that the appellant and the victim, Robert Lynn May, were formerly co-employees of the Purolator Security Company. Prior to his termination of employment, the appellant had trained May as a Purolator driver for his route.

At approximately 5:30 p. m. on November 6, 1976, a Purolator van driven by May made a pickup at Casey's Food Mart on South Portland in Oklahoma City. May was met by the appellant outside Casey's. The van was then seen being driven to the north parking lot of Casey's, followed by a white Buick Riviera.

Subsequently, the van was seen with its right door open, and the Buick was observed with its open trunk containing "pillow cases or something." White money sacks were normally used by Purolator on pickups and deliveries. Soon thereafter,

Page 592

the van was engulfed by fire, and it was discovered that the money was gone from the van.

May's bullet-riddled body was found on November 21, 1976, in a barren field north of 63rd Street and Jerico in Oklahoma City. He had been shot five times. Abrasions were found on both wrists. This supported the State's theory that he had been bound in order for the appellant to carry out the murder without resistance.

I

DID THE TRIAL COURT ERR IN OVERRULING THE APPELLANT'S MOTION

FOR CONTINUANCE?

It is first argued that the trial court's order overruling the appellant's motion for continuance was violative of 22 O.S.1971, § 584, his constitutional rights to effective assistance of counsel, and a fair and impartial trial. Pursuant to § 584, the trial court, upon sufficient cause shown by either party, may direct postponement of a criminal trial. However, it is well settled that a motion for a continuance is addressed to the sound discretion of the trial judge, whose ruling will not be disturbed absent a clear showing of abuse of discretion. Bowman v. State, Okl.Cr., 585 P.2d 1373 (1978).

The appellant sets forth four propositions in support of this abuse of discretion. The first is that this would have been the first continuance granted to the appellant, and the State would not have been prejudiced thereby. This argument is unsupported by reasoning or authority and, thus, is without foundation. It is next argued that a continuance should have been granted because a material witness for the defense was absent from the jurisdiction. We find the trial court acted within its sound discretion as there was no showing that this witness would ever be found nor was any evidence offered as to this witness' whereabouts. Third, the appellant petitioned for a 30 day continuance because of a change in personnel at the Public Defender's Office of Oklahoma County. We note that while there was an administrative change in the Public Defender's Office, filled by Mr. Tom Elliott, the Assistant Public Defender, Mr. Bob Tudor was the attorney to whom the case was assigned. The record reflects it was Mr. Tudor who admirably represented the appellant and argued the case from the preliminary hearing until a verdict was reached. Only in the second stage of the bifurcated trial did Mr. Elliott argue the case to the jury, against effectively representing the appellant.

It is next urged that the trial court erred in failing to grant a continuance when the prosecutor failed to deliver discoverable material to the appellant until the day of the trial. This evidence pertained to statements given police offices involving the failure of a witness endorsed by the State to positively identify the appellant at the lineup and further related to the results of a polygraph test administered to the appellant. We find no prejudice relating to the polygraph test because the results thereof are inadmissible at trial for any purpose. This issue will be more thoroughly considered, infra, under the appellant's fourth assignment of error.

Moreover, the argument that additional trial preparation time was needed because this homicide was a case of first impression under a new statute is untenable. Although Laws 1976, 1st Ex.Sess., Ch. 1, § 1, now 21 O.S.Supp.1979, § 701.7, was adopted seven months prior to this trial, the substantive elements of the crime of Murder in the First Degree remained unchanged. The new statutory scheme was enacted only in compliance with rulings of the United States Supreme Court in dealing with the arbitrary and selective imposition of the death penalty.

Finally, error is urged in the court's failure to allow the appellant additional time to prepare for the second stage of the proceedings dealing with aggravation and mitigation. The Supreme Court cases relied upon by the appellant are not applicable. Furthermore, we fail to see how the appellant was prejudiced where, as here, the State put on no evidence whatsoever

Page 593

during the second stage of the proceedings, but only argued the evidence presented at the first stage of trial in support of aggravation. We, therefore, conclude the trial court did not abuse its discretion in overruling the appellant's motion for a continuance at the second stage of the proceeding.
II

DID THE TRIAL COURT ERR IN DENYING THE APPELLANT'S MOTION

FOR A CHANGE OF VENUE?

The appellant claims he was deprived of a fair and impartial trial by the trial court's denial of his motion for a change of venue. He states that there existed a widespread climate of public shock and adverse pretrial publicity which was unduly prejudicial.

This argument can be rejected on any one of several grounds. First, the appellant failed to comply with the statutory procedure for change of venue provided by 22 O.S.1971, § 561. 1 Second, the alleged error was not specifically incorporated in his motion for new trial or in the petition in error.

However, we have carefully reviewed the voir dire examination, and it reflects that the jurors were adequately screened and that the appellant challenged only five jurors. The appellant has failed to demonstrate to this Court by the record that the jurors did not render a decision based on the evidence presented. The request for a change of venue was properly denied.

III

DID THE TRIAL COURT ERR IN DENYING THE APPELLANT'S MOTION

FOR INDIVIDUAL VOIR DIRE OF PROSPECTIVE JURORS?

We deemed unnecessary a lengthy discussion of this claim of error. Relied upon are the American Bar Association Standards Relating to a Fair Trial and Free Press, and a number of cases, including Nebraska Press Association v. Stuart, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). 2 No authority, however, has been brought to the attention of this Court, nor have we found any, mandating that individual vior dire be allowed under any circumstances. To the contrary, this Court, when presented with the identical proposition of error, stated in Vavra v. State, Okl.Cr., 509 P.2d 1379 (1973), that the individual examination of prospective jurors was within the discretion of the trial court. We hold this case is dispositive of the issue.

IV

WAS THE APPELLANT DENIED A FAIR AND IMPARTIAL TRIAL AS A

RESULT OF MISCONDUCT BY THE PROSECUTOR IN FAILING

TO COMPLY WITH THE COURT'S RULING UPON

THE APPELLANT'S MOTION FOR DISCOVERY?

The appellant next reurges a portion of his earlier argument in support of his motion for continuance. He claims the prosecutor's late compliance with the trial court's order directing disclosure of certain evidence to the defense violated his right to a fair trial.

The complaint of nondisclosure relates to the lack of a positive post-arrest lineup identification of the appellant by State's witness Barbara Mitchell and the results of a polygraph test administered to the appellant. While the State submits it fully complied with the court's order, the appellant asserts the lineup and polygraph results were partially exculpatory and that the prosecution had an absolute duty to turn over all exculpatory evidence under Brady

Page 594

v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 3

The motion for discovery included a request for all evidence in the possession or within access of the prosecution and a general request for exculpatory evidence. The Court ordered copies of any and all oral or sworn statements obtained from the appellant or supporting witnesses. The State turned over copies of both sworn and unsworn statements made by witnesses to the police department. According to the appellant, it appeared the statements had been "cut and pasted," and where...

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81 practice notes
  • Mollett v. Mullin, No. 01-6403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 5, 2003
    ...doubt outweigh the defendant's evidence in mitigation." Dissent at ____ (citing Okla. Stat. Ann. tit. 21, § 701.11; Irvin v. State, 617 P.2d 588, 598 (Okla.Crim.App.1980)). The dissent implies that, because the jury here did not find the continuing threat aggravator beyond a reasonable doub......
  • Brogie v. State, No. F-80-553
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 2, 1985
    ...644 P.2d 1077 (Okl.Cr.1982); Goforth v. State, 644 P.2d 114 (Okl.Cr.1982); Maghe v. State, 620 P.2d 433 (Okl.Cr.1980); and Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). We observe that appellant was examined at a state mental facility prior to Under his fourth assignment of error, appellant c......
  • Nuckols v. State, No. F-83-153
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 19, 1984
    ...651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588...
  • Walker v. State, No. F-84-795
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 22, 1986
    ...651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588...
  • Request a trial to view additional results
81 cases
  • Mollett v. Mullin, No. 01-6403.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • November 5, 2003
    ...doubt outweigh the defendant's evidence in mitigation." Dissent at ____ (citing Okla. Stat. Ann. tit. 21, § 701.11; Irvin v. State, 617 P.2d 588, 598 (Okla.Crim.App.1980)). The dissent implies that, because the jury here did not find the continuing threat aggravator beyond a reasonable doub......
  • Brogie v. State, No. F-80-553
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • January 2, 1985
    ...644 P.2d 1077 (Okl.Cr.1982); Goforth v. State, 644 P.2d 114 (Okl.Cr.1982); Maghe v. State, 620 P.2d 433 (Okl.Cr.1980); and Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). We observe that appellant was examined at a state mental facility prior to Under his fourth assignment of error, appellant c......
  • Nuckols v. State, No. F-83-153
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • October 19, 1984
    ...651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588...
  • Walker v. State, No. F-84-795
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • July 22, 1986
    ...651 P.2d 703 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588...
  • Request a trial to view additional results

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