Phillips v. State

• Decision Date: 25 February 1982
• Docket Number: No. F-80-278,F-80-278
• Parties: Glynda Carol PHILLIPS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 556

641 P.2d 556

Glynda Carol PHILLIPS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-278.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 1982.

An appeal from the District Court of Tulsa County; Margaret Lamm, judge.

Glynda Carol Phillips, appellant, was convicted of Manslaughter in the First Degree in Tulsa County District Court, Case No. CRF-79-613. She was sentenced to twenty-five (25) years' imprisonment and appeals. AFFIRMED.

Charles S. Rogers, Deputy Appellate Public Defender, Cleveland County, Norman, for appellant.

Jan Eric Cartwright, Atty. Gen., Robert C. Smith, Jr., Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

Glynda Carol Phillips was tried for the crime of Murder in the First Degree in violation of Laws 1976, 1st Ex.Sess., ch. 1, § 1, now 21 O.S.Supp.1980, § 701.7, in the District Court of Tulsa County, Case No. CRF-79-613. The jury found the appellant guilty of Manslaughter in the First Degree, pursuant to 21 O.S.1971, § 711. Punishment was set at twenty-five years' imprisonment. From this judgment and sentence the appellant has perfected her appeal to this Court.

On March 3, 1979, at approximately 11:30 p.m., Glynda Carol Phillips and Leila Prock were driven by Mary Jo Byrd to the home of the victim, Stoddard Sullivan. Phillips and Prock entered Sullivan's residence where, according to Phillips, Prock and Sullivan began struggling over a logging chain that Prock had brought along. In order to try to stop Sullivan from striking Prock, Phillips testified that she hit Sullivan in the head with the butt of a pistol that she carried for protection. Sullivan struck Phillips several times with the chain, the last time the chain struck her hand that was holding the gun causing it to discharge and strike Stoddard. The two women then fled. The next morning, Stoddard was found dead due to a gunshot wound to the abdomen. Phillips specifically denied that she shot the victim either in self-defense or in defense of Prock.

Initially, the appellant entered a guilty plea to the charge of second degree murder and was sentenced to ten (10) years to life imprisonment. She later withdrew her guilty plea and the case was remanded for a preliminary hearing. At the preliminary hearing, the court granted the State's motion to amend the information so as to charge murder in the first degree. The appellant complains that she was deprived of due process of law when the State was allowed to amend the information to first degree murder after she withdrew her guilty plea to second degree murder. She asserts that because of the due process violation the trial court was without jurisdiction to try her. In support of her argument, the appellant cites Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), which held that upon appeal from a misdemeanor conviction entitling the convicted defendant to a trial de novo, the State of North Carolina denied due process of law by bringing a felony charge against him for the same conduct, unless the State could show that it was impossible to proceed on the felony charge at the outset.

The appellee points out the case of Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), rehearing denied, 435 U.S. 918, 98 S.Ct. 1477, 55 L.Ed.2d 511 (1978), where the United States Supreme Court, in construing the application of the principles announced in Blackledge, supra, held that the Due Process Clause of the Fourteenth Amendment is not violated when the state prosecutor reindicts the accused on more serious charges after he refuses to plead guilty on the original charge. It is this case which is dispositive of the issue raised and which allows us to find that no due process violation occurred by allowing the State to amend the information as provided by 22 O.S.1981, § 304.

Second, the appellant alleges error occurred because the jury was not instructed that they must unanimously agree on at least one theory of guilt even though multiple theories of guilt had been presented. Specifically, it is argued that because 21 O.S.1971, § 711(2), Manslaughter in the First Degree, is homicide "perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon...," two distinct theories for the homicide could have been relied on by the jurors. We find this argument to be totally without merit. Due Process requires that each element of a crime be proven. Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). The State established that the victim died approximately six hours after being wounded by a gunshot. Therefore the jurors could find either the victim died in a cruel and unusual manner or by means of a dangerous weapon. There is no requirement in Oklahoma that the jury must indicate the factual basis upon which the finding of guilt was made. James v. State, 637 P.2d 862 (1981). Therefore, the court did not err in failing to instruct the jury that they must unanimously agree on one theory of guilt.

Next, it is alleged that Instruction No. 16 ¹ was prejudicial because the trial court failed to state that the proof presented by circumstantial evidence must exclude "every reasonable hypothesis except that of guilt" and the proof was "not sufficient if it raised only a suspicion or mere probability of guilt." The appellant has cited no authority, nor did a thorough search of the case law reveal any instances where this Court has made mandatory the use of these exact words in a case based purely on circumstantial evidence. Further, this case is not based wholly on circumstantial evidence. The appellant took the stand in her own defense, therefore the jury was not presented with a one-sided view of the alleged occurrences. Moran v. State, 555 P.2d 1085 (Okl.Cr.1976). The instructions given correctly informed the jury of the law regarding proof of facts by circumstantial evidence. Nichols v. State, 418 P.2d 77 (Okl.Cr.1966).

The appellant also contends that the instruction created a mandatory presumption citing Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979) and County Court of Ulster County v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979), as authority for her argument. Instruction No. 16 in the present case is readily distinguishable from the instruction in Sandstrom. The contested portion of Instruction No. 16, taken alone or in conjunction with the rest of the instructions, created only an opportunity for the jury to consider circumstantial evidence in their determination and in no way mandates a presumption of the ultimate fact.

In addition, the defendant did not object to Instruction No. 16 at trial, nor did she submit alternative instructions for the trial court to consider, which results in a waiver of any objection to the instruction. Lane v. State, 572 P.2d 991 (Okl.Cr.1978).

The fourth proposition of error asserts that the trial court erred by overruling the defendant's demurrers to the State's evidence both at the close of the State's case-in-chief and at the close of the evidentiary phase of the trial and by instructing the jury as to the elements of Murder in the First Degree.

This Court has consistently held that where there is any competent evidence tending to...