Noah v. State, F--76--220

• Decision Date: 12 April 1977
• Docket Number: No. F--76--220,F--76--220
• Citation: 562 P.2d 950
• Parties: Martin Emerson NOAH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 950

562 P.2d 950

Martin Emerson NOAH, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--220.

Court of Criminal Appeals of Oklahoma.

April 12, 1977.

Paul E. Blevins, Poplin & Blevens and William M. Thomas, Jr., Pryor, for appellant.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for appellee.

OPINION

BRETT, Judge:

Appellant Martin Emerson Noah, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Mayes County, Case No. CRF--75--224, of the offense of Murder in the First Degree, in violation of 21 O.S.Supp.1973, § 701.1. The sentence was fixed at death. From such judgment and sentence and death warrant, an automatic appeal has been perfected to this Court.

The State's case in chief revealed that on November 29, 1975, Mr. and Mrs. Melvin Rooker left Battle Creek, Michigan, in their 29 foot motor home. The deceased, Melvin Rooker, an amputee, having lost his right arm at an early age, had undergone open heart surgery two years earlier, from which he had never fully recovered. As a result of his heart condition, he and his wife decided to travel through the southern part of the United States to avoid cold weather which aggravated his heart condition. En route, they decided to go to Arlington, Texas, and they traveled through Illinois, spending the night in an out-of-the-way area near Wagoner, Illinois. Mr. Rooker, for security reasons loaded a rifle which he kept in the motor home. In Missouri, the Rookers picked up a hitchhiker, described by Mrs. Rooker as being a clean-cut individual and later identified as the defendant. The defendant, known to the Rookers as 'Marty,' told them that he had just recently been discharged from the service and that he was on his way to Texas to find work. Further, he related to them that both his parents were deceased. The defendant appeared to be fatigued and slept in the back of the motor home the rest of the afternoon. At approximately 6:00 p.m. on November 30, 1975, the Rookers parked their motor home in a lot near a truck stop in Chouteau, Oklahoma. After supper the defendant and the deceased walked to the truck stop to drink coffee, and then returned to the motor home to watch television. The Rookers retired for the night while the defendant continued to watch television. Some time later the Rookers were awakened by a loud noise, but were told by the defendant that he had slammed the door after having stepped outside to smoke a cigarette. Mrs. Rooker remained awake and soon observed the defendant's head and arm extending around the end of the curtain which separated their bed from the rest of the motor home. She awakened her husband who upon checking his trousers found that his wallet was missing. The couple scrambled into their clothes, pulled the curtain and found the defendant pointing the deceased's rifle at them. Mr. Rooker declared, 'Marty Why. We have been so good to you.' The defendant replied with a grin. Mr. Rooker then warned the defendant that the rifle had a hair trigger, to which the defendant replied that the gun did not make much noise either. The defendant proceeded to remove money and identification cards from Mr. Rooker's wallet, and stuffed the money into his boot. The defendant ordered Mrs. Rooker to pin the curtains closed and to draw the shades. He further ordered her to empty the cupboards and demanded rope with which to tie the couple. Not finding any rope, the defendant instructed Mrs. Rooker to take a sheet off the bed, and with the aid of a kitchen knife he cut a strip which Mrs. Rooker was later ordered to use to tie her husband's left arm to his belt. The defendant took some of the deceased's heart medication, specifically the pain pills, from Mrs. Rooker, who noticed that some of the pills were already missing. The Rooker's pleaded with the defendant to leave them and to take the Volkswagen in two behind the motor home, but defendant wanted the title to the motor home, explaining that he did not wish to go to jail. He told them that he had a $125.00 a week heroin habit and had no means of support. The defendant demanded two apples and some liquor, which the Rookers carried in their motor home. As the defendant ripped the wires from the CB radio, Mrs. Rooker lunged toward the door but was blocked in her escape when the defendant grasped her by the neck. She attempted to escape again but the defendant struck her, causing her glasses to fall off. Following the second attempt to escape, the defendant moved her to the rear of the motor home and proceeded to tie her feet with a strip of the sheet. As he was tying her, Mr. Rooker lunged at the defendant and knocked him to the floor, and Mrs. Rooker crawled out the door and screamed for help. After she had gone some distance she looked back and saw her husband stagger out of the motor home, clutching his chest, bleeding profusely, and repeatedly saying, 'I saved you.' As he dropped to the ground she noticed a kitchen knife near his body.

After this episode several persons came to the aid of the Rookers from the truck stop. Russell Dikes stated that while he was present Mr. Rooker cried, 'where are the police, that man stole $1,400.00 from me.' An employee of the truck stop, Randall Grossman, related that when he came upon the scene, Mr. Rooker declared that 'this guy had taken $1,400.00 of his money,' and that, 'the guy had stabbed him.'

Considerable testimony and exhibits introduced at trial linked the defendant with the stabbing of Mr. Rooker. A suspect, later identified as the defendant, was apprehended approximately two miles from the truck stop. Blood stains apparent on his clothing were later typed as belonging to blood group A. Blood taken from the deceased was also typed as belonging to blood group A. At the time of the booking, an inventory of the defendant's personal belongings revealed $1,400.00 in his right sock. An insurance card found at the scene of the crime contained latent fingerprints later matched to those taken from the defendant.

Dr. Robert Bissell stated that his examination of the body of the deceased revealed 15 wounds, three of which were possibly fatal.

Dr. Bissell further testified that one wound penetrated the chest wall and that this wound was large enough to allow insertion of two fingers. He stated that the large wound was probably inflicted with a large sharp instrument, similar to a butcher knife.

The defendant introduced testimony by his father, Carl Noah, concerning his son's past history of problems related to drug abuse. The defendant testified in his own behalf and corroborated his father's testimony concerning his problem with drugs. He further corroborated essentially all of Mrs. Rooker's testimony as to the events of November 30, 1975, up to the time that he removed the wallet from Mr. Rooker's trousers, and pointed a gun at the Rookers. The defendant remembered Mr. Rooker's lunging at him and a commotion following. The next thing the defendant remembered was waking up in the Mayes County jail. The defendant stated that he had taken Valium and Darvon, which he had found in the motor home. He also drank several drinks containing liquor and smoked approximately seven marihuana cigarettes.

The defendant also introduced testimony by Dr. Wayne Boyd, psychiatrist. Dr. Boyd testified that he interviewed the defendant nearly one month after the incident, and found his personality to be antisocial. Moreover, the doctor stated that a person's ability would have been significantly impaired had he consumed the amount of drugs and alcohol which the defendant stated he had consumed.

In rebuttal, the State introduced testimony by Dr. Garcia, Chief Forensic Psychiatrist at Eastern State Hospital, who testified that he had examined the defendant on December 2, 1975, and tests revealed no evidence of any confusion, mental disorder or psychotic disorder. He stated that in his opinion one who had consumed the quantity of drugs and alcohol such as defendant stated he had consumed would have had a residual effect, lasting for several days. Dr. Garcia found no such residual effect in the defendant. He further stated that in his opinion, consumption of such a large quantity of drugs and alcohol, which defendant described, would have caused a state of total intoxication, i.e., a comatose state.

The defendant asserts as his first assignment of error that the trial court erred in overruling defendant's motion for continuance. The defendant contends that he was denied adequate private consultation with his attorneys prior to trial, and because of that denial they were unable to adequately prepare for trial. The defense does not state that they were never allowed to consult with defendant, only that they encountered some difficulty on weekends in obtaining private facilities to consult with the defendant due to the understaffed Sheriff's Office.

This Court has considered the issue of continuance on many occasions and has often held that a motion for continuance on the ground of want of time to prepare for trial is addressed to the sound discretion of the trial court, and the ruling of that court will not be disturbed on appeal unless an abuse of discretion is shown. See, Hay v. State, Okl.Cr., 447 P.2d 447 (1968). The record reveals that there were 66 working days prior to trial in which counsel for defense could have prepared, yet no request for a hearing on a motion for continuance was made until March 5, 1976, only three days before the trial was scheduled to begin. The defense asserts that its failure to seek judicial relief sooner was based on its reliance on the District Attorney's Office to correct the visitation problem. However, the burden was on the defense to diligently pursue a remedy to the alleged problem. Moreover, the defense does not demonstrate how it was prejudiced by difficulties encountered in attempting to consult with defendant. The record indicates that the defendant received...