McDoulett v. State

• Citation: 685 P.2d 978
• Decision Date: 31 July 1984
• Docket Number: No. F-83-45,F-83-45
• Parties: Rodney Henry McDOULETT, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 978

685 P.2d 978

Rodney Henry McDOULETT, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-83-45.

Court of Criminal Appeals of Oklahoma.

July 31, 1984.

An Appeal from the District Court of Tulsa County; Joe Jennings, District Judge.

Rodney Henry McDoulett, appellant, was charged in separate counts with Burglary in the First Degree, Robbery with a Firearm and Rape in the First Degree. The jury returned a verdict of not guilty in Counts I and II and a verdict of guilty for Count III, assessing punishment at ten (10) years; imprisonment. The trial court sentenced the appellant accordingly and he appealed. Judgment and sentence of the trial court REVERSED and REMANDED for a new trial.

E. Terrill Corley, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., William H. Luker, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

The appellant, Rodney Henry McDoulett, was charged in separate counts, with Burglary in the First Degree (Count I), Robbery with a Firearm (Count II), and Rape in the First Degree (Count III) in Case No. CRF-81-4575 in the District Court of Tulsa County. The first trial resulted in a hung jury. At the second trial, the jury returned a verdict of not guilty for Counts I & II, and a verdict of guilty for Count III, assessing punishment at ten (10) years' imprisonment. The trial court sentenced the appellant accordingly and he appeals.

In the early morning hours of October 27, 1981, C.F. awoke to discover a man holding a gun to her head. As the overhead light was on, the man covered her eyes with his free hand and told her not to look at him. The assailant then took C.F. over to the bedroom dresser, where her jewelry box had been opened, and asked where she kept the rest of her jewelry. At this point, C.F. instinctively looked into the dresser mirror and saw the assailant's face. At trial she testified to seeing his reflection for five to ten seconds, but on a previous occasion testified that she looked at him for three or four seconds.

The assailant led C.F. around the house in search of valuable items, always remaining behind her with a gun to her head. He then raped her as she lay face down on the floor. When the assailant left her house, C.F. noticed he was wearing a flannel shirt, blue jeans and white jogging shoes, although she could not see his face.

Following the offense, C.F. described her assailant as a white male of medium build with brown curly hair and a scarred, pock-marked face. She, along with the assistance of the police officer, estimated the assailant's height and weight to be five feet ten inches tall and one hundred and sixty pounds.

Within a few days of the rape, C.F. underwent hypnosis with the aid of a police officer and gave a description substantially similar to the earlier one. A composite sketch was made, which was released to the public through the Crime Stoppers Program. As a result of that release, the appellant was arrested.

The appellant presented testimony from several witnesses that he was at another address at the time of the offense and that he did not own any clothes similar to the ones described as worn by the assailant, except for blue jeans. He testified that he is five feet eight inches tall and weighed one hundred and twenty-seven pounds at the time of trial.

The appellant has presented three alleged errors at trial which he claims require reversal of his conviction. This Court finds his first alleged error meritorious and reverses the conviction for first degree rape.

The appellant contends that the trial court erred when it refused to give his requested cautionary instruction regarding eyewitness identification. We have recognized in the past that there are times when such an instruction might be necessary and proper. See Pisano v. State, 636 P.2d 358 (Okl.Cr.1981); Hall v. State, 565 P.2d 57 (Okl.Cr.1977); Melot v. State, 375 P.2d 343 (Okl.Cr.1962). Extensive research has revealed that of the states which have dealt with this issue, the majority have also recognized that the potential for injustice in this area necessitates that an instruction be given under certain circumstances. See Brooks v. State, 380 So.2d 1012 (Ala.Cr.App.1980); Williams v. State, 652 P.2d 478 (Alaska Ct.App.1982); State v. Valencia, 118 Ariz. 136, 575 P.2d 335 (App.1977); People v. Hall, 28 Cal.3d 143, 616 P.2d 826, 167 Cal.Rptr. 844 (1980); State v. Harden, 175 Conn. 315, 398 A.2d 1169 (1978); State v. Pahio, 58 Hawaii 323, 568 P.2d 1200 (1977); State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981); Commonwealth v. Rodriguez, 378 Mass. 296, 391 N.E.2d 889 (1979); People v. Dyson, 106 Mich.App. 90, 307 N.W.2d 739 (1981); State v. Helterbridle, 301 N.W.2d 545 (Minn.1980); State v. Murphy, 415 S.W.2d 758 (Mo.1967); State v. Hart, 625 P.2d 21 (Mont.), cert. denied. 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 102 (1981); State v. Green, 86 N.J. 281, 430 A.2d 914 (1981); State v. Mazurek, 88 N.M. 56, 537 P.2d 51 (1975); People v. Gardner, 59 A.D.2d 913, 399 N.Y.S.2d 146 (1977); State v. Kinard, 54 N.C.App. 443, 283 S.E.2d 540 (1981); State v. Rovles, 41 Or.App. 653, 598 P.2d 1249 (1979); Commonwealth v. Mouzon, 456 Pa. 230, 318 A.2d 703 (1974); State v. Stinson, 88 S.D. 592, 226 N.W.2d 155 (1975); State v. Kasper, 137 Vt. 184, 404 A.2d 85 (1979); State v. Payne, 280 S.E.2d 72 (W.Va.1981).

Thus, in cases in which the eyewitness identification is a critical element of the prosecution's case and serious questions exist concerning the reliability of that identification, a cautionary instruction should be given which advises the jury regarding the factors to be considered. In the past, we have cited with approval the Pennsylvania Supreme Court's ruling in Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), wherein that court stated the following:

Where the opportunity for positive identification is good and the witness is positive in his identification and his identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimony as to identification need not be received with caution--indeed the cases say that 'his [positive] testimony as to identity may be treated as the statement of a fact.' For example, a positive, unqualified identification of defendant by one witness is sufficient for conviction even though half a dozen witnesses testify to an alibi.

On the other hand, where the witness is not in a position to clearly observe the assailant, or he is not positive as to identity, or his positive statements as to identity are weakened by qualification or by failure to identify defendant on one or more prior occasions, the accuracy of the identification is so doubtful that the Court should warn the jury that the testimony as to identity must be received with caution.

Id. at 424, 106 A.2d at 826 (citations omitted).

We applied the Kloiber test to the facts in Pisano, 636 P.2d 358, and in Hall, 565 P.2d 57, and found that a cautionary instruction was unnecessary. Applying the test to the case at bar, however, we conclude that a cautionary instruction was necessary as C.F.'s opportunity to observe the assailant did not meet the enunciated standard. An example of an instruction which adequately covers this issue is set forth in the Oklahoma Uniform Jury Instructions. ¹

C.F. testified at different times that she only viewed the assailant's face from three to ten seconds when she glanced up into a mirror and saw his reflection as he stood behind her. The only evidence connecting the appellant to this offense aside from her eyewitness testimony is appellant's blood type. According to the forensic chemist who testified at trial, the appellant, the assailant, and forty-five percent of the...