Maghe v. State

• Citation: 620 P.2d 433
• Decision Date: 14 November 1980
• Docket Number: No. F-79-646,F-79-646
• Parties: Donald Richard MAGHE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 433

620 P.2d 433

Donald Richard MAGHE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-646.

Court of Criminal Appeals of Oklahoma.

Nov. 14, 1980.

An appeal from the District Court of Okmulgee County, Henryetta Division; Kirk Woodliff, Judge.

Donald Richard Maghe, appellant, was convicted of Murder in the First Degree; was sentenced to life imprisonment, and appeals. AFFIRMED.

Laub & Stringer by Thomas H. Stringer, Jr., Henryetta, for appellant.

Jan Eric Cartwright, Atty. Gen. of Oklahoma, C. Elaine Alexander, Asst. Atty. Gen., Richard Parrish, Legal Intern, for appellee.

OPINION

CORNISH, Presiding Judge:

This is an appeal by Donald Richard Maghe from a conviction for Murder in the First Degree in the District Court of Okmulgee County, Oklahoma, Case No. HCRF-78-71. He is presently incarcerated serving a life sentence following the barroom shooting death of his estranged wife. The record reflects the appellant entered the crowded Cuban Bar in Henryetta, Oklahoma, on October 17, 1978, took deliberate aim, and twice shot his victim with a .22 caliber rifle.

I.

Presented as the first issue is whether the trial court erred in refusing to provide funds to the appellant for the purpose of independent psychiatric examination. It is the appellant's position that he was denied the right to a fair trial in light of his insanity defense and his past record of mental problems. He argues the right of an indigent criminal defendant to a psychiatrist at State expense is an integral and essential part of his constitutionally guaranteed right to counsel.

Admittedly, and as pointed out by the appellant, the assistance now sought at the State level is available to a federal indigent criminal defendant pursuant to subsection (e) of the Criminal Justice Act of 1964, as amended (18 U.S.C.A. § 3006A(e)).

However, as noted in Hardt v. State, Okl.Cr., 490 P.2d 752 (1971), State Legislators could appropriately provide impecunious defendants with this aid if deemed practicable and in the public interest. In the absence of enabling legislation, we know of no judicial precedent, constitutional mandate, or statutory authority in Oklahoma obligating this State, at its expense, to make available to the appellant, in addition to counsel, the full paraphernalia of defense.

Applicable to and dispositive of the appellant's contention is Bills v. State, Okl.Cr., 585 P.2d 1366 (1978):

With reference to the trial court's failure to provide funds for an investigator and an independent psychiatrist, this Court in Huitt v. State, Okl.Cr., 562 P.2d 873 (1977), recently reaffirmed its decision in Hardt v. State, Okl.Cr., 490 P.2d 752 (1971), that under the statutes of the State of Oklahoma trial courts are without authority to comply with such requests. See also Bias v. State, Okl.Cr., 561 P.2d 523 (1977).

See also Stidham v. State, Okl.Cr., 507 P.2d 1312 (1973); and Anno. 34 A.L.R.3d 1256 (1970).

II.

The appellant next complains the State was allowed to introduce improper rebuttal testimony. He relies exclusively on two citations to the Oklahoma Evidence Code but fails to cite any judicial precedent.

A review of the complained of testimony discloses two objections by defense counsel to repetitious matter regarding appellant's mental condition at the time of the homicide. This testimony was proper rebuttal due to the fact that the appellant's sanity was made an issue at trial during the defense's case in chief.

While the admission of improper evidence in rebuttal in a closed case might be grounds for reversal under Curcie v. State, Okl.Cr., 496 P.2d 387 (1972), similar evidence has more recently been held admissible where not prejudicial to the accused. Sam v. State, Okl.Cr., 523 P.2d 1146 (1974). We find the appellant was not prejudiced by this testimony.

III.

The appellant next contends that the evidence as to his insanity was uncontroverted and, thus, the verdict was contrary to the law and the evidence. The record does reflect that the appellant has a prior history of mental problems beginning in Korea in 1953, as well as two hospital commitments for alcoholic treatment. There was, however, additional evidence by the prosecution to show the appellant's sanity at the time of the shooting and his actions, from which his mental state could be inferred. This testimony includes that of the Otasco salesman who sold the appellant the murder weapon and several law enforcement personnel.

It is well settled that the question of sanity at the time of the commission of an alleged offense is a question of fact for the jury. Wilson v. State, Okl.Cr., 568 P.2d 1279 (1977). Evidently the jury was not persuaded by the self-serving statements of the appellant and his sister.

Although the appellant did not remember purchasing the rifle or shooting his wife, he did recall standing in the Cuban Bar with the rifle in his hands and having a conversation with his wife, during which she told the appellant she was leaving him for another man. Erratic behavior and mere loss of memory have been held insufficient to shift the burden of proving the appellant's sanity to the State. Garrett v. State, Okl.Cr., 586 P.2d 754 (1978). We find the jury was properly instructed, and there is sufficient evidence to support their finding of the appellant's sanity.

IV.

Relying on C. G. H. v. State, Okl.Cr., 580 P.2d 523 (1978), the appellant contends that it was error for the trial court to admit testimony by various law enforcement officers because the State failed to show that the appellant had knowingly and intelligently waived his right to remain silent. It is undisputed that the appellant was given the Miranda warnings and that the appellant thereafter made statements to the police at the time of and immediately following his arrest.

While there is some testimony tending to show that the appellant did not seem fully aware of what was going on around him (portions of the preliminary hearing transcript read into the trial record), there was a greater quantum of evidence reflecting that the appellant waived his right to remain silent. Testimony of Officer Copeland indicates that the appellant was read the Miranda rights and responded affirmatively when asked if he understood the rights. The testimony of other officers reflects the appellant was rational, his language was understandable and coherent, and "he seemed to know what he was doing." We conclude the appellant's argument is without merit.

V.

Complained of in the next assignment of error are two of the Court's Instructions, No. 2 and No. 6. The appellant asserts that Instruction No. 2 is misleading, confusing and unnecessary in that: (1) it fails to clarify the term homicide for the jury; and (2) the category of "aiding suicide" is surplusage. ¹

We first observe that the appellant failed to object to Instruction No. 2 at trial. It is the general rule that where a defendant fails to object to instructions given and does not submit requested instructions, and where the instruction given adequately covered the subject matter of inquiry, any error was waived. Kelsey v. State, 569 P.2d 1028 (1977). While we agree that the language "or of aiding suicide" is surplusage in this case, the appellant fails to demonstrate to this Court any prejudice thereby. Nor is there an affirmative showing that the jury was misled.

With reference to Instruction No. 6, ² the appellant argues its language defining insanity by the phrase a "perverted and deranged condition of the mental faculties" is a misstatement of the law. He asserts that this language is not contained in the M'Naghten Rule, which is the exclusive test to determine the question of sanity. Suits v. State, Okl.Cr., 507 P.2d 1261 (1973).

When considering instructions the reviewing court will review them as a whole and if, when so considered, the instructions...