Manning v. State

• Decision Date: 11 June 1981
• Docket Number: No. F-79-401,F-79-401
• Citation: 630 P.2d 327
• Parties: Cora Mae MANNING, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 327

630 P.2d 327

Cora Mae MANNING, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-401.

Court of Criminal Appeals of Oklahoma.

June 11, 1981.

An Appeal from the District Court, Beckham County; Charles M. Wilson, judge.

Cora Mae Manning, appellant, was convicted of Manslaughter in the First Degree in Beckham County, Case No. CRF-78-104; was sentenced to twenty-eight (28) years' imprisonment, and appeals. AFFIRMED.

Smith & Wright by Newell E. Wright, Jr., and Thomas B. Goodwin, Cheyenne, Burst & Dewart by Richard O. Burst, Sr., Guthrie, for appellant.

Jan Eric Cartwright, Atty. Gen., David W. Lee, Asst. Atty. Gen., Susan M. Otto, Legal Intern, for appellee.

OPINION

BRETT, Judge:

This is an appeal by Cora Mae Manning from a conviction for Manslaughter in the First Degree in the District Court of Beckham County, Oklahoma, Case No. CRF-78-104.

On November 25, 1978, the appellant was inside her home with two visitors, Dorothy Tiller and Ray Marshall, when, according to Marshall's testimony, the victim, appellant's husband, Jerry Manning, walked toward the house. At that same moment, Marshall testified, the appellant stepped in front of him, and both visitors heard a loud blast from within the house. When Cora Mae Manning turned around, she was holding a .243 caliber Revelation rifle. She then told both visitors to leave.

Shortly thereafter, Sheriff Billy Redmon found the victim lying on the front porch dead of a gunshot wound. In the house he found the appellant and the Revelation rifle which smelled of gunpowder. Dr. Nicholas Forbes performed an autopsy and concluded that, because of the large entry wound, a shotgun was the cause of death. However, after noting that neither wadding nor small pellets were found in the body, he revised his opinion to conform with that of the County Medical Examiner, Dr. Whinery; viz, that the deceased died of a gunshot wound which probably resulted from a high velocity rifle.

The first two assignments of error allege that there was insufficient evidence to bind the appellant over for trial and that, due to the insufficiency of the evidence, the trial court erred in overruling the appellant's Motion to Quash, Set Aside Information, and Dismiss. The appellant concedes that the State's burden at the preliminary hearing is to show that there is reasonable cause to believe both that a crime was committed and that the accused committed the crime. Baker v. State, 593 P.2d 100 (Okl.Cr.1978). At the preliminary hearing, the evidence submitted by the State showed that the victim was fatally shot and that the appellant was at the scene of the crime with a .243 caliber rifle in her hands when the shot was heard by the witnesses. Even though there was conflicting testimony regarding the type of weapon which caused the wound, there was sufficient probable cause to bind the appellant over for trial, and the trial court's overruling of the appellant's Motion To Quash was not an abuse of discretion. Turner v. State, 549 P.2d 1346 (Okl.Cr.1976), State v. Bell, 13 Okl.Cr. 664, 166 P. 451 (1917).

As her third assignment of error, the appellant argues that the trial court unreasonably restricted the voir dire examination by refusing to allow her counsel to inquire as to the jurors' understanding of the burden of proof in a criminal case. This Court has consistently held that examination of jurors for qualification cannot be determined by any definite, unyielding rule but remains within the sound discretion of the trial court. There is no abuse of this discretion so long as the voir dire questioning is broad enough to afford the appellant a jury free of outside influence, bias or personal interest. Stott v. State, 538 P.2d 1061 (Okl.Cr.1975); Henderson v. State, 385 P.2d 930 (Okl.Cr.1963); Payne v. State, 276 P.2d 784 (Okl.Cr.1954). In Oklahoma, the instructions given to the jury are the responsibility of the judge. Nichols v. State, 564 P.2d 667 (Okl.Cr.1977), Turman v. State, 522 P.2d 247 (Okl.Cr.1974). The issue of burden of proof is properly addressed in the trial court's charge to the jury and in opening and closing statements of counsel. The defense counsel's desired line of questioning was relevant to general instructions on the law, not to the proper scope and objective of voir dire, which is discovering any bias of the jurors. Thus the trial court did not abuse its discretion.

Fourth, the appellant alleges that she was denied the right to testify in her own behalf because the trial court declined to rule until she actually took the stand on whether a prior inconsistent statement could be used to impeach her testimony. The trial court ruled that the State could not use a statement the appellant had given to the district attorney's office during its investigation of the crime without first holding a hearing as to whether appellant had been given proper Miranda warnings. No hearing was held. The State agreed not to use the statement during presentation of its case-in-chief, but reserved the right to use the appellant's statement to impeach her testimony if she took the stand. The trial court then indicated that the admissibility of evidence of that statement would be determined when and if the appellant chose to take the stand.

The appellant claims that this deferment of a decision on the statement effectively denied her the right to produce testimony on her own behalf, a due process right guaranteed by both the Constitution of the United States and the State of Oklahoma. U.S.Const. Amends. VI and XIV; Okla.Const. art. 2, § 7. We disagree. Appellant was never barred from taking the stand in her own defense. The United States Supreme Court has held that even though evidence may be inadmissible against an accused during the prosecution's case-in-chief, it is not barred for all purposes, as long as the trustworthiness of the evidence satisfies legal standards. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). See, Sykes v. State, 572 P.2d 247 (Okl.Cr.1977); Wald v. State, 513 P.2d 330 (Okl.Cr.1973). The trial judge stated that the admissibility of the evidence would be determined when the appellant took the stand. Under these circumstances it does not appear that she was unreasonably deterred from testifying in her own defense by the failure of the court to rule on the disputed statement prior to her direct testimony.

The appellant urges, as her fifth argument, that admission by the trial court of testimony by the State's witness, Jody Allen, was erroneous and highly prejudicial. Allen testified that, approximately ninety minutes prior to the fatal shooting, the appellant asked him if he knew where her husband was. When he told her he had last seen him in Erick, she stated: "I ought to blow his god damn ass off."

The appellant argues that this statement could only have been introduced to prove her intent to shoot her husband, and that, since intent is not an element of first degree manslaughter, the statement was irrelevant. She further alleges that, even if the statement were relevant, its admission would be error because any probative value it might have would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, and misleading of the jury. This Court has long held that the issue of relevance is within the trial court's discretion, Noah v. State, 562 P.2d 950 (Okl.Cr.1977), and that the lower court will not be reversed absent a showing of severe prejudice or a breach of appellant's fundamental rights. Mills v. State, 594 P.2d 374 (Okl.Cr.1979). Further, a jury verdict of twenty-eight (28) years' imprisonment for Manslaughter in the First Degree does not reflect undue prejudice.

While it is true that intent is not an element of Manslaughter in the First Degree, the Oklahoma statute under which the appellant was charged defines manslaughter as homicide committed in the heat of...