Oxendine v. State

• Decision Date: 12 November 1958
• Docket Number: No. A-12632,A-12632
• Citation: 335 P.2d 940,1958 OK CR 104
• Parties: Eddie OXENDINE (Alias Don Locklear), and James Spence, Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 940

335 P.2d 940

Eddie OXENDINE (Alias Don Locklear), and James Spence, Plaintiffs in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A-12632.

Criminal Court of Appeals of Oklahoma.

Nov. 12, 1958.

Syllabus by the Court.

1. In prosecution for murder, the showing of colored photo slides on screen to the jury, of victim's nude body as it appeared at the morgue after extensive autopsy surgery had been performed, in view of testimony that victim died instantly as the result of gunshot wounds, was prejudicial error, since they had no probative value in establishing any issue in the case, but were a mere appeal to passion and prejudice the jury.

2. If the principal effect of demonstrative evidence such as photographs is to arouse the passion of the jury and inflame them against the defendant because of the horror of the crime, the evidence must be excluded.

3. On the other hand, if the evidence has probative value with respect to a fact in issue that outweighs the danger of prejudice to the defendant, the evidence is admissible even if it is gruesome and may incidentally arouse the passions of the jury.

4. Where defendants admit all the allegations of the charge and no controversy exists as to the cause of death, weapon used, extent of wounds, location or any other material issue, it was error to exhibit such photos to the jury.

5. In the instant case it was error to instruct the jury that if they found defendants were so intoxicated as to be unable to formulate a specific intent to commit the offense charged, or any other offense, that they should find the defendants not guilty.

6. If there should be sufficient evidence to warrant such an instruction, it should be that one who commits a homicide while so drunk as to be incapable of forming a premeditated design to kill and had not formed such design before he became intoxicated is not guilty of murder but is guilty of manslaughter in the first degree.

Appeal from the District Court of Comanche County; Luther B. Eubanks, Judge.

Eddie Oxendine (Alias Don Locklear) and James Spence were convicted of the crime of Murder, sentenced to death, and appeal. Reversed and remanded for a new trial.

John W. Tyree, Lewis F. Oerke, Lawton, for plaintiffs in error.

Mac Q. Williamson, Atty. Gen., Sam H. Lattimore, Asst. Atty. Gen., for defendant in error.

PER CURIAM.

The plaintiffs in error, Eddie Oxendine (alias Don Locklear) and James Spence, hereinafter referred to as defendants, were charged by information in the District Court of Comanche County with the crime of Murder. They were tried before a jury who found them guilty and assessed their punishment at death by electrocution.

The record reveals that Reggie N. Zimmerman and Ruth Zimmerman, his wife, were living in an apartment above a war surplus store near Lawton where Mr. Zimmerman worked in the capacity of assistant manager. That about 9 p. m. on the night of the alleged murder, Mr. Zimmerman, after closing the store, climbed the outside stairs of the building which led to his apartment where his wife and 4 month old baby were waiting. The defendants, who were armed with pistols, were passing by and witnessed Mr. Zimmerman going up the stairs with a sack in his hand. They anticipated he was carrying money and decided to rob him. The defendant Oxendine, after climbing the stairs, tricked Zimmerman into opening the door of his apartment by telling him that he had a flat tire and wanted to borrow a jack. The door was slightly opened by the occupant and Oxendine, at pistol point, forced his way in. He was then joined by his companion Spence who forced Zimmerman to go downstairs with him and open the safe. After the money was taken from the safe, they returned to the apartment where the defendants bound and gagged the Zimmermans, put them in a closet and closed the door. Spence then requested Oxendine to open the door of the closet which he did. Spence then proceeded to empty his pistol into the bodies of Mr. and Mrs. Zimmerman. The husband was shot three times and was seriously injured. The two shots fired into the body of Mrs. Zimmerman produced her death. The defendants were later apprehended in New Mexico. They both made full and complete written confessions which were introduced in evidence and never repudiated. Upon the trial of the case, both defendants testified under oath and admitted all the details of the murder as was established by the state witnesses.

Defendants' appeal to this court is predicated chiefly upon the showing, upon a screen erected in the court room and to the jury five colored pictures of the nude body of the deceased. The pictures were taken the day following the death of the deceased and after an autopsy had been performed. The photo slides were in color and showed the incision of the autopsy. One incision started at the top of the left shoulder, came down the left side of the chest, under both breasts, up the right side of the chest, ending on top of the right shoulder. This incision was intersected in the mid-chest by another incision extending downward through the abdominal region. The incisions were crudely sutured with large thread being laced about every 1 1/2 or 2 inches. The incisions were not completely closed but appeared jagged and gapping apart in many places from 1/4 inch to 1/2 inch as to reveal the tissues beneath the surface. The defendant objected to the showing of these pictures on the grounds that they were taken and shown only in an attempt to enrage the jury against the defendant and contends for that reason they were inadmissible.

In support of the contention, the defendant argues that the pictures were of no probative value since there was no controversy as to the cause of death. That the defendant admitted the shooting and the testimony of the defendants was not in conflict with that of the state witnesses, and that there was no issue to justify the introduction of the pictures.

In consideration of this assignment of error by the court, it is proper to state that this court has held that the introduction of photographs taken subsequent to a homicide is largely in the discretion of the trial court and unless this discretion is abused it will not be cause for reversal. Mott v. State, 94 Okl.Cr. 145, 232 P.2d 166; Jackson v. State, 67 Okl.Cr. 422, 94 P.2d 851. So, we are now presented with the question of whether the trial court abused its discretion in permitting the colored photo slides to be shown to the jury over the objection of the defendant. A review of Oklahoma decisions produce no case squarely in point; however, other jurisdictions have passed upon identical cases that appear to answer the question in the case at bar. The Colorado Court in the case of St. Luke's Hospital Association v. Long, 125 Colo. 25, 240 P.2d 917, 922, 31 A.L.R.2d 1120, said:

'Error is predicated again on receipt in evidence as an exhibit of a picture of Davis's body, taken two days after the death, showing the incisions and sutures made in performing autopsies on the body. The only purpose of the exhibit, apparent or urged, was to show a mark on the lower cheek, which could have resulted from the catching of the head between the rods of the side rail. * * * Here, the cause of...