Revilla v. State

• Decision Date: 22 April 1994
• Docket Number: No. F-87-993,F-87-993
• Citation: 1994 OK CR 24,877 P.2d 1143
• Parties: Daniel Juan REVILLA, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1143

877 P.2d 1143

Daniel Juan REVILLA, Appellant, v. STATE of Oklahoma, Appellee.

No. F-87-993.

Court of Criminal Appeals of Oklahoma.

April 22, 1994.

Rehearing Denied June 15, 1994.

An Appeal from the District Court of Jackson County, Paul C. Braun, District Judge.

DANIEL JUAN REVILLA, Appellant, was tried by jury and convicted of Murder in the First Degree (21 O.S.1981, § 701.7(c)), in Case No. CRF-87-18, in the District Court of Jackson County. The jury found the existence of two aggravating circumstances and recommended punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. AFFIRMED.

Joe Burch and Ray Jones, Altus, for appellant at trial.

Terry J. Hull, Asst. Appellate Public Defender, Norman, for appellant on appeal.

Steve Suttle, Dist. Atty., David Thomas and John White, Asst. Dist. Attys., Altus, for appellee at trial.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee on appeal.

OPINION

LUMPKIN, Presiding Judge:

Appellant Daniel Juan Revilla was tried by jury and convicted for the crime of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), Case No. CRF-87-18, in the District Court of Jackson County. The jury recommended the death penalty and the trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals.

Appellant was convicted of the child abuse murder of thirteen (13) month old Mark Gomez. On January 26, 1987, Appellant took his girlfriend, Michelle McElmurry, to the Jackson County Health Department for a checkup. The decedent, Michelle's son, was left alone at the house shared by Appellant and McElmurry. Approximately 40 minutes later, Appellant ran through the lobby of the county hospital carrying the decedent in his arms, yelling that he had swallowed his tongue and was not breathing. Subsequent attempts by hospital medical personnel were unsuccessful in reviving the unconscious infant. Hospital personnel noticed numerous wounds and injuries to the decedent's body, including bruises on his back, blisters on his chest, peeling skin on his chest and groin area, burns on his thighs and ear, and lacerations on his thighs and arms. The autopsy report showed a swelling and bleeding of the brain and the complete severance of his liver.

The Appellant denied causing the decedent's death and explained that when he returned home from dropping Michelle off at the clinic, he saw the decedent laying on the floor. The decedent was pale and appeared not to be breathing. Appellant attempted to revive the decedent by striking him in the abdomen. When the decedent gasped for air, Appellant struck him again. Unable to start him breathing, Appellant stated that he began to panic, grabbed the decedent, pulled his clothes off, rushed him into the bathroom, placed him in the tub, leaned over to turn on the cold water but accidentally turned on the hot water, scalding the infant. Turning the water off, he wrapped the decedent in a blanket, and in his rush out of the bathroom, struck the infant's head on the door frame. Exiting the house in a hurry, he tripped and fell on top of the decedent onto a concrete cellar. Appellant got up and rushed the decedent to the hospital.

JURY SELECTION ISSUES

In his first assignment of error, Appellant contends that the trial court erred in excusing a potential juror for stating that she could not fully consider the death penalty. A potential juror cannot be excluded for cause "simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Witherspoon v. Illinois, 391 U.S. 510, 522, 88 S.Ct. 1770, 1776, 20 L.Ed.2d 776, 785 (1968). The most that can be required of a potential juror is that they be willing to consider all the penalties provided by law and that they not be irrevocably committed before the trial has begun. Banks v. State, 701 P.2d 418, 422 (Okl.Cr.1985). We must look to the entirety of the juror's voir dire examination to determine if the trial court properly excused the juror for cause. Castro v. State, 844 P.2d 159, 166 (Okl.Cr.1992); Davis v. State, 665 P.2d 1186, 1194 (Okl.Cr.1983), cert. denied 464 U.S. 865, 104 S.Ct. 203, 78 L.Ed.2d 177 (1983). As the trial court personally observes the jurors and their responses, this Court will not disturb its decision, absent an abuse of discretion. Rojem v. State, 753 P.2d 359, 363 (Okl.Cr.1988).

In the present case, the prospective jurors were asked if they could consider both life imprisonment and the death penalty as possible sentences. Mrs. Powell stated "I'm afraid not". Upon further questioning by counsel for both the State and the defense, she stated that her personal feelings about capital punishment "might possibly" interfere with her ability to sit as a fair and impartial juror and that she "wouldn't want it on my conscience that I, to think that I might have cause someone's death". When asked by the trial court whether she could consider the punishments of both life imprisonment and death, Mrs. Powell at first responded "[I]t would be a terribly hard decision for me to have to make" and "I'd just rather not have to make that decision." When the trial court again asked Mrs. Powell if she could consider giving Appellant life imprisonment or death, she responded, "No, I'm sorry."

We find Mrs. Powell's answers showed that she was irrevocably committed to vote against the death penalty, regardless of the law, and that her views about capital punishment would have prevented, or substantially impaired, her performance as a juror. Therefore, the trial court properly dismissed her for cause.

Appellant contends in his second assignment of error that the trial court erred in failing to grant his request for individual voir dire of prospective jurors. He argues that such a procedure was necessary due to extensive pretrial publicity. This argument was rejected in Vowell v. State, 728 P.2d 854, 858 (Okl.Cr.1986), wherein we stated that "[t]he existence of extensive pretrial news coverage does not itself demand individual or sequestered voir dire.... The crux of the issue is whether defendant can receive fair and impartial jurors". In Sellers v. State, 809 P.2d 676, 682 (Okl.Cr.1991), we quoted to Foster v. State, 714 P.2d 1031, 1037 (Okl.Cr.1986), cert. denied 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173 (1986), noting that such practice may be allowed by a trial judge, but "it is an extraordinary measure" and "unless the danger of prejudicing the jurors by exposure to damaging information is a grave problem or some special purpose would be served, it is unlikely that individual voir dire would be justified".

In the present case, we find no error in not allowing the procedure. The record reflects an exhaustive voir dire was conducted and an apparently impartial jury was selected. Accordingly, this assignment of error is denied.

FIRST STAGE TRIAL ISSUES

In his fourth assignment of error, Appellant alleges the felony information failed to clearly state the offense with which he was charged and when combined with the jury instructions, allowed for a guilty verdict without a finding of intent. The felony information filed against Appellant read in pertinent part:

... Daniel Juan Revilla did commit the crime of Murder in the First Degree ... [by] unlawfully, willfully, wrongfully, intentionally, and feloniously without authority of law, effect the death of Mark Gomez by striking, torturing, hitting, burning, and beating about the head, body and abdomen, thereby inflicting injuries upon the said Mark Gomez, a child under the age of 18 years, to-wit: 13 months of age, and did then and there use unreasonable force upon and against said child, then and there and thereby inflicting certain mortal wounds in the body of said Mark Gomez, from which mortal wounds the same Mark Gomez did languish and die on the 26th day of January, 1987. (O.R. 1, 67).

Appellant argues that this information was flawed as it did not specify whether the child abuse he was charged with committing was a misdemeanor or felony. Title 21 O.S.1981, § 701.7(C), sets forth the offense of child abuse murder. It provides that a person commits first degree murder when the death of a child results from the injuring, torturing, maiming or use of unreasonable force by the defendant pursuant to Section 843 of title 21. By charging Appellant with first degree murder by the use of unreasonable force and the injuring and torturing of the victim, it is clear that the child abuse alleged is that of felony child abuse. Contrary to Appellant's next argument, it is not reasonable to presume that he was misled into believing that he was being charged with the first degree malice aforethought murder of Mark Gomez by the language that he "intentionally ... effect[ed] the death of Mark Gomez". By omitting any reference to the terms "malice aforethought" in the felony information, it is clear that Appellant was not charged under 21 O.S.1981, § 701.7(A).

Further, the instructions clearly informed the jury that Appellant was charged with the crime of child abuse murder. As such, the State was not required to prove the element of intent to kill, but was required to prove that Appellant "willfully" or "maliciously" injured, tortured, maimed or used unreasonable force upon the victim. See Drew v. State, 771 P.2d 224, 228 (Okl.Cr.1989) (mens rea element of 21 O.S.1981, § 701.7(C) supplied by 21 O.S.1981, § 843). Finding no error in the felony information or instructions warranting reversal, this assignment of error is denied.

Appellant next raises several challenges to the jury instructions. Initially, he alleges error in the trial court's refusal to give his requested instruction on the State's burden of proving that Appellant did not commit excusable homicide. The record reflects that Appellant requested three (3) instructions on the...