Lavicky v. State

• Citation: 632 P.2d 1234
• Decision Date: 03 August 1981
• Docket Number: No. F-80-424,F-80-424
• Parties: David LAVICKY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1234

632 P.2d 1234

David LAVICKY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-424.

Court of Criminal Appeals of Oklahoma.

Aug. 3, 1981.

Rehearing Denied Sept. 9, 1981.

An Appeal from the District Court of Alfalfa County; Joe Young, judge.

David Lavicky, appellant, was convicted of Larceny of an Automobile, Case No. CRF-79-7, in the District Court of Alfalfa County, was sentenced to serve three (3) years' imprisonment, and appeals. Judgment and sentence AFFIRMED.

Peter M. Keltch, Wright & Keltch, Cherokee, for appellant.

Jan Eric Cartwright, Atty. Gen., Charles S. Rogers, Asst. Atty. Gen., Deputy Chief, Criminal Division, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, David Lavicky, was convicted in the Alfalfa County District Court, Case No. CRF-79-7, of the crime of Larceny of an Automobile, a violation of 21 O.S.1971, § 1720. He was sentenced to three (3) years in the custody of the Department of Corrections.

At approximately one o'clock on the morning of January 19, 1979, a pickup truck belonging to Bruce and Ronnie Eckhardt was stolen from the front yard of the Eckhardt residence in Cherokee, Oklahoma. State's witnesses Jerry Coleman and Anthony Joslin testified in the State's case-in-chief that on the night of January 18, they and the appellant drove from Enid to Alva where they planned to go to a nightclub. After burglarizing a car in the parking lot of the nightclub, they decided to go back to Enid. As they drove through Cherokee, the appellant instructed the driver, Anthony Joslin, to turn down a particular street. They drove down the street, went around the block, and on the second time down the street, the appellant asked Joslin to stop. Appellant got out of the car, then walked over and got into the cab of a pickup truck in the front yard of the Eckhardt residence. Joslin and Coleman testified that, after the appellant got out, they drove down to the corner. They heard an engine start, turned their heads and saw the appellant drive the truck out of the front yard. Both witnesses testified that on the way back to Enid the appellant, driving the stolen truck, passed them on the highway and they did not see him the rest of the night. On rebuttal, however, both witnesses recanted their earlier testimony and admitted following the appellant to his home.

The State also called Gary Mootz who testified that he and the appellant stripped the stolen pickup, took it to a point a few miles north of Enid where they dumped it into a dry river bed and set the truck on fire.

Several witnesses identified various truck parts as parts they had bought from the appellant. These were identified by Ronnie Eckhardt as parts that came from his stolen truck.

In his first assignment of error, appellant asserts that the trial court erred in admitting the testimony of Lisa Kaiser because she was the appellant's common law wife and thus the appellant was entitled, under Oklahoma law, to assert the marital privilege.

Prior to the adoption of the new evidence code, 22 O.S.1971, § 702, made it clear that in all but a very narrow range of circumstances the marital privilege could be invoked to prevent one spouse from testifying against the other. In contrast, the new evidence code, 12 O.S.Supp.1980, § 2504(B) limits the marital privilege, in criminal cases, to "confidential communications." Although, 22 O.S.1971, § 702, has not been specifically repealed, basic rules of statutory construction, as well as the Evidence Subcommittee's Note to § 2504, indicate a general legislative intent to supercede all prior legislation on the subject. See also 14 Tul.L.J. 227 at 292 (1978).

Assuming the marital privilege applies only to confidential communications, the question arises as to whether the testimony of Miss Kaiser breached any confidential communications. Confidential communications between husband and wife are those made when they're alone, or are those expressly made confidential, or are of a confidential nature induced by the marital relationship, the disclosure of which are calculated to disturb the marital relationship. See 97 C.J.S. Witness § 268.

Communications are not confidential if made in the presence of third parties. DeWolf v. State, 95 Okl.Cr. 287, 245 P.2d 107 (1952). Since the statements of appellant to which Lisa Kaiser testified were made in the presence of third parties, this contention is without merit. See also Baker v. U. S., 329 F.2d 786 (10th Cir. 1964), and Hildebrandt v. State, 22 Okl.Cr. 58, 209 P. 785 (1922).

Raised in the second assignment of error is the issue of endorsement of witnesses. Miss Kaiser was not, until the day of trial, endorsed on the information as a witness, and the appellant argues that the trial court abused its discretion in refusing to grant a continuance when she was called as State's witness in rebuttal.

It has long been the rule of this State that a witness need not be endorsed on the information if the testimony is clearly in rebuttal, Martin v. State, 596 P.2d 899 (Okl.Cr.1979). Also Boydston v. State, 79 Okl.Cr. 172, 152 P.2d 701 (1944).

In Mills v. State, 594 P.2d 374 (Okl.Cr.1979), this Court held,

... rebuttal testimony may be offered to explain, repel, counteract, disprove, or destroy facts given in evidence by an adverse party, as well as to clarify a disputed point, notwithstanding that the same testimony might have been introduced in chief, and the introduction of such evidence is a matter of discretion for the trial court which will not be ground for reversal absent an abuse thereof. Schneider v. State, 538 P.3d 1088 (Okl.Cr.1975)

Clearly the testimony of Lisa Kaiser did directly rebut the alibi defense established by the testimony of the...