Romano v. State
| Decision Date | 19 December 1995 |
| Docket Number | No. F-93-75,F-93-75 |
| Parties | John Joseph ROMANO, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Kurt Geer and Regina Stephenson, Assistant Public Defenders, Oklahoma City, for Appellant at trial.
Jennifer Lee and Jaye Mendros, Assistant Public Defenders, Oklahoma City, for Appellant on appeal.
Lou Keel and Steve Deutsch, Assistant District Attorneys, Oklahoma City, for the State at trial.
Susan Brimer Loving, Attorney General and A. Diane Blalock, Assistant Attorney General, Oklahoma City, for Appellee on appeal.
Appellant, John Joseph Romano, was tried by jury in the District Court of Oklahoma County, Case No. CF-86-3920, before the Honorable Daniel J. Owens, District Judge. Appellant was convicted of Murder in the First Degree (21 O.S.1981, § 701.7). The jury found two (2) aggravating circumstances and recommended the death penalty. The trial court sentenced Appellant accordingly.
The facts of this case are set out in detail in Woodruff v. State, 825 P.2d 273, 273-274 (Okl.Cr.1992). Appellant's first trial resulted in a conviction and death sentence. The judgment and sentence was reversed for failure to sever his trial from co-defendant Woodruff's. Romano v. State, 827 P.2d 1335, 1338 (Okl.Cr.1992). Stated briefly, Appellant and David Woodruff 1 planned to rob Lloyd Thompson, decedent. They conned their way into decedent's apartment, turned up the stereo volume to mask the sounds of their attack and murdered decedent. After leaving the scene Appellant disposed of their bloody clothing and knives. Appellant and Woodruff each returned to their homes carrying several hundred dollars. Appellant cleaned up and left the next day on a family trip to Clovis, New Mexico, where he was arrested and questioned. In Appellant's retrial, witnesses for the State included: decedent's former neighbors Daniel Powell, Ollie Irvin and Diana Wickham; Woodruff's former girlfriend Denise Howe; the medical examiner Dr. Larry Balding; the officers who arrested and interviewed Appellant in Clovis, Deputy Guy Brown and Detective Eric Mullenix; and Captain Tom Bevel, a blood spatter expert. Appellant did not testify at trial. Other facts will be presented as they become relevant.
In his twenty-ninth proposition of error Appellant contends Oklahoma's method of summoning venire panels fails to present a fair cross section of the community and violates his sixth, eighth and fourteenth amendment rights. Appellant presents two arguments in his proposition: (1) that 38 O.S.1991, § 18(B)(1) impermissibly excludes from jury service distinct groups who do not possess driver's licenses; and (2) that 38 O.S.1991, § 28(a) impermissibly allows potential jurors over the age of seventy to voluntarily excuse themselves from the venire.
These arguments were recently addressed and rejected in Howell v. State, 882 P.2d 1086, 1089-1090 (Okl.Cr.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1968, 131 L.Ed.2d 858 (1995). We therefore find the summoning of the venire panel was constitutional and this proposition of error has no merit.
In his second, third, and fourth propositions Appellant contends the trial court erred in permitting Detective Mullenix to testify that Appellant made certain non-verbal reactions during questioning. Specifically, Appellant attacks two parts of Mullenix's testimony: (1) that, in response to the question whether he was really alone at decedent's apartment, Appellant trembled and dropped his head; and (2) that, in response to an accusation that he was guilty, Appellant nodded his head up and down. On direct examination the following exchange took place:
Q. Now with respect to the statement that [Appellant] made to you about being alone at the time that he went and changed [decedent's] flat and then went inside Lloyd Thompson's apartment, did you make any further inquiry about whether or not he had been in fact alone?
A. Yes. I then asked him again if he had been alone when he went to the victim's residence. When I said that I observed him to become visibly nervous. He trembled. His head--we had been making eye contact with each other and he dropped his head.
And when he did that I said, now come on, John, you and I both know that you
are guilty, and at that point he shook his head yes. Shook his head up and down and that terminated the interview.
(Tr. at 781-782, emphasis added).
Appellant argues the trial court erred in permitting this testimony because: (1) the trial court failed to determine adequately prior to Mullenix's testimony that Appellant's non-verbal reactions were adoptive admissions; (2) the testimony constitutes an improper comment on Appellant's silence; and (3) the testimony is more prejudicial than probative.
First, Appellant claims his non-verbal reactions are not admissible as non-hearsay adoptive admissions. 12 O.S.1981, § 2801(4)(b)(2). Appellant argues permitting Mullenix to testify to his non-verbal reactions without a specific finding by the trial court on the reliability of the evidence and without a limiting instruction violates his fifth, sixth and fourteenth amendment rights.
The first part of Mullenix's testimony Appellant challenges is the statement: "[Appellant] trembled ... and he dropped his head." The ability of non-verbal conduct, in general, to act as an adoptive admission is not in question. 2 We first must determine whether such conduct is an assertion. A "statement," for hearsay purposes, includes "nonverbal conduct of a person, if it is intended by him as an assertion." 12 O.S.1981, § 2801(1)(b). An assertion is "a statement of truth, a positive declaration." 3 Appellant's actions in trembling and dropping his head are too vague and ambiguous to be assertions. We accordingly find these movements are not adoptive admissions. However, Mullenix could properly testify to his direct observations of Appellant's conduct in reaction to the questioning. 12 O.S.1981, § 2602. Hager v. State, 665 P.2d 319, 324 (Okl.Cr.1983).
The next part of Mullenix's testimony Appellant challenges is the statement Appellant nodded yes when asked if he were guilty. Nodding one's head in response to a question or accusation is commonly understood to convey agreement and can be an adoptive admission. Gore, 735 P.2d at 578; Wright, 535 P.2d at 319. Both Appellant and the State agree a nod may be an adoptive admission. Once Appellant's action is determined to be capable of being an adoptive admission we must determine the proper standard for admission of post-arrest custodial adoptive admissions made during police questioning.
Appellant urges this Court to impose stringent standards of admissibility similar to those used in Village of New Hope v. Duplessie, 304 Minn. 417, 231 N.W.2d 548, 551-553 (1975). The State argues once conduct is determined to occur after a defendant knowingly and voluntarily waives the right to remain silent it is admissible as an adoptive admission and any ambiguities as to the meaning of such conduct should be left to the jury.
The trial court determined Appellant heard the accusation and appreciated the context in which it was made. By waiving his right to remain silent and participating in the interview Appellant could have either denied the accusation or become silent. That Appellant knew what his rights were and how to invoke them is evidenced by the fact that immediately after nodding his head he requested an attorney and the interview stopped. Moreover, defense counsel cross examined Mullenix about the head nod. Any ambiguity in its meaning was properly left to the jury to discern. Therefore, having applied the test prescribed in Ryan, we find Appellant's head nod was admissible as an adoptive admission. Id.
In his third proposition of error Appellant contends Mullenix's testimony constituted an impermissible comment on his silence. Comments on a defendant's post arrest silence constitute reversible error. Doyle v. Ohio, 426 U.S. 610, 619, 96 S.Ct. 2240, 2245, 49 L.Ed.2d 91, 98-99 (1976); Morgan v. State, 569 P.2d 474, 477 (Okl.Cr.1977). However, we find Mullenix's testimony was not a comment on silence but rather was admissible as a personal observation of Appellant's actions and Appellant's adoptive admission. Moreover, even assuming Appellant is correct that the testimony necessarily incorporated the inference he remained silent and refused to answer Mullenix, the testimony would still be admissible. Appellant contends permitting Mullenix's testimony allowed the State to indirectly comment on that which it...
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