Plunkett v. State

Decision Date27 May 1986
Docket NumberNo. F-84-53,F-84-53
Citation719 P.2d 834
PartiesJimmy L. PLUNKETT, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

BUSSEY, Judge:

The appellant, Jimmy L. Plunkett, was convicted in the District Court of Garfield County, Case No. CRF-82-469, of Burglary in the Second Degree After Former Conviction of a Felony, Burglary in the First Degree After Former Conviction of a Felony, Murder in the First Degree, and Assault and Battery with a Dangerous Weapon After Former Conviction of a Felony. He received sentences of ten years', thirty-five years', life, and sixty-five years' imprisonment, respectively, and appeals.

The evidence shows that on October 29, 1982, in Enid, Oklahoma, between 7:45 to 8:20 p.m., the appellant committed a series of offenses, all within the same neighborhood. At some time shortly before 8:00 p.m., he entered the Stewart residence, which was unoccupied at the time, and took a pocket calculator and a set of keys. Soon thereafter he entered the Mitchell residence where he confronted their seventeen-year-old daughter in the basement. She followed him up the stairs and asked him not to go into the living room. She told him that she was going to get a robe or a pair of blue jeans, as she was only wearing a nightgown with an afghan wrapped around her. He told her she was not going anywhere and threatened if she did not calm down he would kill her. At that point she ran past him and escaped out the door. Both the Stewart and Mitchell residences were entered through unlocked doors. Shortly after 8:00 p.m., Johnny Just heard his storm door open, and then a rattling sound. His wife went to the door and saw a man whom she did not recognize. When Mr. Just went to the door, he saw no one at first, but when he stepped onto the porch, he observed the appellant in the shrubs. After asking him if he could help him and receiving no reply, he told the appellant to come onto the porch, which he did. The appellant upon being asked what he wanted, replied "Where's Paul?" Mr. Just told the appellant to leave. Both Just and Mitchell called the police. As a result of the description which was broadcast by the dispatcher, Officer David Pritchett subsequently stopped and arrested the appellant. He was then taken to the Mitchell residence for identification, where Ms. Mitchell positively identified him.

About 8:20 p.m. Captain Gary Hart of the Enid Police Department went to investigate a report of beatings at the Palecek residence where he found Mr. Palecek at the door of his residence with blood on his face and clothes. He reported someone had broken in, and had beaten him and his wife. Captain Hart found Mrs. Palecek lying face down in a pool of blood in the den of the home. She died as a result of her wounds.

Because the appellant had bloodstains on him, he was questioned, but stated he could not remember anything after leaving a bar earlier in the evening. He had several scratches on his chest, underneath his neck, and on his right hand. He also admitted wearing a green jacket. That coat was found in the proximity of the offenses in a drainage ditch under a bridge on the morning of November 1, contained the initials J.P. and had bloodstains on it.

Mary Long, a criminalist with the O.S.B.I., testified that the bloodstains found on the appellant and the jacket were consistent with the blood of Mrs. Palecek, and were inconsistent with the blood of the appellant. She further testified that from the tests she performed, she determined that blood with the characteristics of Mrs. Palecek's would only be found in .48% of the population.

For his first assignment of error, the appellant alleges that his arrest was illegal and therefore the evidence obtained as a result of that arrest should have been suppressed. David Pritchett, the arresting officer, testified that he heard the broadcast of the description of a prowler and about the same time observed the appellant, who fit the description and who had just turned off of the street which was named in the broadcast. Officer Pritchett stopped the appellant, and observed that he appeared to be intoxicated, so the officer arrested him for public drunk. Even when there is not probable cause to make an arrest, a police officer may stop an individual when there is some objective manifestation that the person stopped had been or was about to be engaged in criminal activity. Byrd v. State, 657 P.2d 183 (Okl.Cr.1983). Since the appellant fit the description of the prowler, and was in the vicinity of the house where the prowler was observed, Officer Pritchett was justified in making an investigatory stop. When the officer observed that the appellant appeared to be intoxicated, he was justified in making an arrest. See 22 O.S.Supp.1985, § 196(1). This assignment of error is without merit.

As his next assignment of error, the appellant argues that joining the four charges for trial was error. Appellant's motion to sever was overruled. He argues that although the crimes occurred in the same general neighborhood on the same evening, there are no other connecting factors and therefore the crimes cannot be considered part of the same transaction.

[J]oinder of separately punishable offenses is permitted if the separate offenses arise out of one criminal act or transaction, or are part of a series of criminal acts or transactions. Accord Johnson v. State, 650 P.2d 875, 876 (Okl.Cr.1982) (dicta).

Glass v. State, 701 P.2d 765, 768 (Okl.Cr.1985). " 'Transaction' is a word of flexible meaning. It may comprehend a series of many occurrences, depending not so much upon the immediateness of their connection as upon their logical relationship." United States v. Park, 531 F.2d 754, 761 (5th Cir.1976). In the case before us, all incidents occurred within one hour, all charges involved breaking into a residence, and all of the incidents occurred within a few blocks of each other. We therefore find that joinder of the charges was proper.

The appellant contends as his third assignment of error, that his in-court identification by Kimberly Mitchell should have been suppressed. He argues that her identification of him as the man who had assaulted her was tainted because it was based upon a one man showup on the night of the crime. The record reveals that after the police had arrested the appellant, they brought him to Ms. Mitchell's house for her to identify, which she did. Viewing a suspect alone in what is called a "one man showup," when this occurs near the time of the alleged criminal act, does not tend to bring about misidentification but rather tends under some circumstances to insure accuracy. Bates v. United States, 405 F.2d 1104 (D.C.Cir.1968). The witness stood face to face with the appellant for several minutes during the commission of the offense, he fit the description she gave to the police, they picked him up, and he was identified by her within thirty minutes of the crime. We therefore find that the trial court properly overruled appellant's motion to suppress his in-court identification.

The appellant, as his next assignment of error, asserts that the trial court erred in failing to order a change of venue because of pretrial publicity. Granting a change of venue is discretionary with the trial court whose decision will not be grounds for reversal unless there has been a clear abuse of that discretion. Such abuse is shown where a defendant was prevented from receiving a fair trial by an impartial jury. Andrews v. State, 555 P.2d 1079 (Okl.Cr.1976). The appellant, however, used only four of his nine peremptory challenges and stated in the record that he believed that those remaining jurors would do their best to give him a fair and impartial trial. His two attorneys stated that they were in agreement with that decision. Therefore, we find this assignment of error to be meritless.

Next, the appellant complains that he should have been provided with funds for expert witnesses. During a motion hearing, defense counsel argued that a state-appointed expert was needed to attack the reliability of testing for enzymes in bloodstains, to attack the techniques used by the State's expert in making her determination, and to test the evidence independently. Counsel also argued that the failure to appoint an independent expert hindered the ability of the defense to cross-examine the State's expert. We have frequently held that the State is not required to fund the defense of an indigent beyond providing him with counsel. Irvin v. State, 617 P.2d 588 (Okl.Cr.1980). The Supreme Court of the United States held in Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), that a State must provide an indigent defendant with access to "competent psychiatric assistance" to aid in the preparation of the defense if he makes a preliminary showing that his sanity will be a significant factor at trial. The rationale for this holding was that without such assistance "the risk of an inaccurate resolution of sanity issues is extremely high." Such a risk in other areas of scientific evidence is not necessarily present because the scientific expert is often able to explain to the jury how a conclusion was reached, the defense counsel can attack that conclusion, and the jury can then decide whether the conclusion had a sound basis.

In the case at bar, Mary Long, the expert who performed the blood enzymes test admitted that she was a technician and not a research scientist, she testified that the bloodstains found on the appellant's jacket and blue jeans were consistent with each other, inconsistent with the blood of the appellant, and consistent with the blood of the victim. She admitted that contamination could change the results of the tests she...

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