Nauni v. State, F-81-87

Citation1983 OK CR 136,670 P.2d 126
Decision Date19 September 1983
Docket NumberNo. F-81-87,F-81-87
PartiesRita Silk NAUNI, Appellant, v. The STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma


Rita Silk Nauni was convicted in Oklahoma County District Court by a jury of Manslaughter in the First Degree and Shooting with Intent to Kill, and was sentenced to one hundred (100) years' and to fifty (50) years' imprisonment, respectively. The convictions arose out of a shooting incident in which one airport police officer was killed and another was wounded.

Appellant arrived at Will Rogers World Airport in Oklahoma City with her 10-year-old son on the morning of September 19, 1979 from Los Angeles, California. Appellant wished to travel to Lawton, Oklahoma, and decided to set out on foot. As she and her son traveled north of the airport on South Meridian Avenue, they discarded some clothes to lighten their baggage. Airport police officers Garland Garrison and Teresa Wells were dispatched to investigate a littering complaint. After they approached the appellant and her son, the officers exited their vehicle to further investigate the ownership of the discarded clothing. The testimony is conflicting as to whether the appellant and her son tried to run from the officers, but it is in accord that the officers attempted to place them in the vehicle.

Officer Wells testified that appellant was placed under arrest for assault on a police officer after she began swinging her arms at Officer Garrison and started cursing, spitting and trying to bite both officers. A scuffle ensued and as Officer Wells tripped into a ravine, the strap securing her service revolver broke. Appellant kicked Officer Wells in the stomach and got control of the gun. Again the testimony is conflicting as to the order of the shootings, but appellant proceeded to shoot Officer Garrison in the chest, and Officer Wells in the leg, and then left the scene in the officers' vehicle. She was later stopped and arrested by Oklahoma City police officers. Officer Garrison bled to death from his wounds.

The appellant argues that the trial court erred in overruling her challenge to the jury panel. Section 633, Title 22 of the Oklahoma Statutes, 1981, provides:

A challenge to the panel can be founded only on a material departure from the forms prescribed by law, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn, from which the defendant has suffered material prejudice.

The burden is upon the defendant to show that the illegality or wrong which is the basis of the challenge has caused the defendant to suffer material prejudice. Henderson v. State, 95 Okl.Cr. 342, 246 P.2d 393 (1952) (quoting Houston v. State, 63 Okl.Cr. 49, 72 P.2d 526, 528 (1937)). See also Toosigah v. State, 464 P.2d 942 (Okl.Cr.1969); Moore v. State, 461 P.2d 1017 (Okl.Cr.1969), and Wolfchief v. State, 461 P.2d 949 (Okl.Cr.1969).

Appellant has failed to demonstrate material prejudice. The affidavit of appellant's attorney attached to her motion in the trial court states that while racial minorities constitute 17% of the Oklahoma County population, less than 5% of such minorities serve on juries in Oklahoma County. We are unable to glean from the record, however, the racial composition of the jury panel called to try appellant's case. Notably, defense counsel exercised a peremptory challenge to exclude the one person who claimed in the record to be part Indian, the same race as appellant.

Even assuming that the allegations of the affidavit were true, the fact that the venire and jury roll do not mirror the racial composition of the community does not constitute material prejudice. Bennett v. State, 448 P.2d 253 (Okl.Cr.1968) (relying on Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759, (1964)). Appellant was not entitled to access to the Court Clerk's jury records under 22 O.S.1981, § 638, having failed to present a sufficient challenge under the statute. We hold that the trial court did not err in overruling appellant's motion.

Appellant next asserts as error the trial court's refusal to allow individual voir dire of jurors out of the presence of the other jurors. Appellant contends that due to the extensive media coverage of the shootings, and in light of the fact that the shootings involved police officers, the death penalty was sought by the State, and the appellant is a Native American, individual voir dire was necessary in order to expose the bias of potential jurors. Appellant's motion was bolstered by the summary testimony of an expert witness in her offer of proof.

We said in Palmer v. State, 532 P.2d 85, 88 (Okl.Cr.1975) that:

The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for either actual or implied bias and to permit an intelligent exercise of peremptory challenges. (Citations omitted.)

We held in Morrison v. State, 619 P.2d 203 (Okl.Cr.1980), that whether private individual voir dire should be conducted is a matter within the discretion of the trial court. We hold that the trial court did not abuse its discretion in this case. An extensive and lengthy voir dire examination was permitted. The transcript of voir dire amounts to nearly 870 pages of the record. Each juror sworn stated that he or she could be fair and impartial. Jurors are not required to be totally ignorant of the facts and issues. It is sufficient that the jurors can declare under oath that they are able to act impartially and fairly upon the matters submitted to them. 22 O.S.1981, § 662; Shapard v. State, 437 P.2d 565 (Okl.Cr.1967).

Furthermore, while appellant was tried for murder in the first degree, she was convicted of manslaughter in the first degree, a lesser included offense. Appellant has failed to demonstrate that she was prejudiced by the denial of her request for individual voir dire.

The appellant next contends that the trial court erred in unduly restricting the type of questions her counsel was allowed to ask potential jurors on voir dire. We stated in Jones v. State, 508 P.2d 280, 282 (Okl.Cr.1973) that:

[T]he trial court has broad discretion to rule on questions to be asked on voir dire of jurors which are subject to essential fairness. The forms of the questions put to the prospective jurors on voir dire examination is a matter within that discretion and it will not be interfered with on appeal where no prejudice is shown.

See also McFatridge v. State, 632 P.2d 1226 (Okl.Cr.1981).

As noted earlier, the court allowed an extensive and lengthy voir dire examination. Appellant lists in her brief the "most glaring" examples of restrictions alleged to have prejudiced her. Upon a review of the record, and in particular these examples, we find that defense counsel were only restricted when their questioning became repetitive, irrelevant or regarded legal issues the trial court had to instruct the jury upon. There was not an abuse of discretion by the trial court.

Appellant's fourth assertion of error is that the trial court committed error in holding voir dire late into the evening. On the second and third day of the trial, voir dire began at 9:00 a.m. and ended at 10:00 p.m. and 9:30 p.m. respectively. She complains that her attorneys' weariness caused her to be deprived of effective assistance of counsel, thus depriving her of a fair trial and due process of law.

In Bingham v. State, 82 Okl.Cr. 5, 19, 165 P.2d 646, 654 (1946), this Court stated:

The question of procedure to be followed during the trial; including the time of starting and recessing each day is necessarily a matter resting in the sound discretion of the trial court, and, before this court would interfere to set aside a verdict because certain of the evidence had been received at a night session, there must clearly be shown that such action of the court resulted prejudicially to the defendant and constituted an abuse of judicial discretion.

Defense counsel objected to continuing voir dire into evening. His objection was that appellant had an ulcerous stomach, and being in court long hours would worsen her condition. The record fails to demonstrate that her condition did worsen or that she was unable to be present and assist counsel.

Counsel also complained of his own tiredness, which he claims prevented him from providing effective assistance of counsel. To the contrary, the record reflects that defense counsel did a commendable job, despite the long hours, and the trial court complimented his work. In Gamble v. State, 576 P.2d 1184 (Okl.Cr.1978), a case in which the actual trial was continued into the evening hours we noted that defense counsel could not reasonably contend that his client was not properly defended when the job performed was in fact commendable. Appellant notes also that one of the jurors complained of tiredness. But the record reveals that the trial court adjourned court soon thereafter. This argument must fail.

Appellant next contends that the trial court erred in editing certain hospital records admitted into evidence. At trial, defense counsel sought to introduce the hospital records in their entirety. The trial court allowed them into evidence, but required that all psychiatric opinions and diagnoses be omitted by literally cutting them from the pages. The trial court reasoned that the opinions and diagnoses of...

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