Rushing v. State, F-81-206

• Decision Date: 24 January 1984
• Docket Number: No. F-81-206,F-81-206
• Citation: 676 P.2d 842
• Parties: Jerry R. RUSHING, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 842

676 P.2d 842

Jerry R. RUSHING, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-81-206.

Court of Criminal Appeals of Oklahoma.

Jan. 24, 1984.

Rehearing Denied Feb. 24, 1984.

An Appeal and Motions for New Trial upon Newly Discovered Evidence from the District Court, Garfield County; W.O. Green, III., Judge.

Jerry R. Rushing, appellant, was convicted of Murder in the First Degree, in the District Court of Garfield County, Oklahoma, Case No. CRF-80-13. He was sentenced to life imprisonment and appeals. Motions for New Trial OVERRULED and judgment and sentence AFFIRMED.

John L. Scott, Enid, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Presiding Judge:

In the summer of 1979 the appellant, Jerry R. Rushing, and Debra Yvonne Rushing were in the process of getting a divorce. Ms. Rushing had moved from Tulsa, where they lived, to Enid. From July 25, 1979 to August 8, 1979, Ms. Rushing and the three Rushing children were living in the Enid Option House, a home for battered women. On August 8, 1979, the appellant and Quanita Rena Washington kidnapped Ms. Rushing and took her to Tulsa.

After the kidnapping episode ended, the appellant and Washington were charged in the Garfield County District Court with Kidnapping. Ms. Rushing testified against them at the October 3 and 4, 1979, preliminary hearing on the matter. They were bound over to stand trial, and apparently released on bail pending trial. They were subsequently convicted of the kidnapping, and this Court affirmed their convictions in an unpublished opinion Rushing and Washington v. State, Nos. F-80-562 and F-80-563 (Feb. 16, 1982).

The present case concerns the fact that, on January 11, 1980, which was after the preliminary hearing, but before the trial on the kidnapping charge, Ms. Rushing was murdered.

The appellant was charged capitally in the District Court of Garfield County for her murder. He was convicted of Murder in the First Degree and sentenced to life imprisonment. He has perfected an appeal to this Court, alleging twenty-one assignments of error.

On August 28, 1982, he filed a motion for new trial based upon newly discovered evidence, the contents of which prompted this Court to remand the matter for an evidentiary hearing. Subsequent to the evidentiary hearing, but before this Court could rule, the appellant filed a second motion for new trial based upon newly discovered evidence, and a brief in support thereof. Oral argument was had upon all these matters on the 27th day of September, 1983.

The attorney presently representing the appellant, John L. Scott, of Enid, is the third attorney in this case. Mr. Scott was appointed by the district court to perfect an appeal for the appellant. The first attorney, Stephen Jones, was allowed to withdraw for the reason that the appellant wished to retain other counsel. George R. Briggs, of Pawhuska, was retained by the appellant to represent him at trial, and was discharged after the conviction.

I. EVIDENCE PRESENTED AT TRIAL

A. STATE'S EVIDENCE

The State's key witness, Jerry Pollard, testified in substance as follows: On January 7, 1980, she and Quanita Washington embarked upon a trip which she thought would take them to California to pick up a car. Instead, they drove from Tulsa to Enid and obtained a motel room under a false name. Over the ensuing three days, Pollard and Washington maintained intermittent surveillance on Ms. Rushing's home, the school the Rushing children attended, and the YMCA where the children often stayed.

On January 10, 1980, they telephoned the appellant and summoned him to Enid. The trio met at the motel where Washington and Pollard were staying. They drove past Ms. Rushing's home twice during the evening hours of January 10.

At approximately 1:00 a.m. on January 11, they returned to Ms. Rushing's house. Pollard was instructed by the appellant to go to Ms. Rushing's door and ascertain whether Ms. Rushing would speak to him and let him see the children. Pollard complied, knocked on the door and was invited inside by Ms. Rushing. Subsequently, the appellant burst into the house and began firing a gun at Ms. Rushing. Ms. Rushing returned fire, striking the appellant once. Pollard hid behind a chair when the shooting began, and after it stopped she and the appellant ran out of the house to the awaiting pickup.

The trio returned to the motel, where the appellant cared for his gunshot wound. Pollard then drove the pickup back to Tulsa, while the appellant and Washington went a different direction in the appellant's car.

Adolph J. Vogt, Jr., and Ruth Ann Lara both testified that, in January of 1980, they resided together in a house directly across the street from Ms. Rushing's residence. On January 11, at approximately 2:00 a.m., they were awakened by two loud noises, which they believed to be gunshots. They looked out of their window, and saw two persons emerge from Ms. Rushing's home, and run into the street. They then telephoned the Enid Police Department. Neither witness could identify the sex of the persons they saw fleeing.

The police officers who responded to the call testified they found the body of a deceased white female, whom they identified from a driver's license as Debra Yvonne Rushing, slumped on the living room couch inside the house. They also discovered a .38 caliber pistol tucked into the couch near the body. The pistol contained four expended shells.

One of the investigating officers had knowledge of the appellant's then pending charge for kidnapping Ms. Rushing. Based on this information, he broadcast over police radio the appellant's name, a description of his car and his license tag number, and directed that he be arrested.

Pursuant to that bulletin, the appellant and Washington were stopped at 2:44 a.m. on January 11, in Pond Creek, Oklahoma. The officer who stopped them first checked Washington's driver's license, and then approached the passenger's side of the car where the appellant was riding and demanded to see his driver's license. Upon ascertaining the identity of the appellant, the officer arrested both him and Washington.

Subsequent to having been given a Miranda warning, the appellant told the arresting officer that he had not been to Enid, but that he had been driving in the country hunting deer. His gunshot wound was discovered at the police station, but he refused to obtain medical assistance. The bullet was never removed from his hip.

The appellant's automobile was impounded and searched pursuant to a search warrant obtained after the arrest. A pair of green coveralls, a pair of brown gloves, a pair of blue jeans, a pair of underwear, a pair of socks and two rifles were found in the car. David Dixon, a criminologist for the OSBI testified that the coveralls and the blue jeans each had a hole in the right hip area. The blue jeans contained blood surrounding the hole, which was consistent with the appellant's blood type. A sample of hair taken from the coveralls was microscopically consistent with sample hairs taken from the head of Ms. Rushing. No gun powder residue was found on the gloves.

The preliminary hearing testimony of Ms. Teresa Sabo was read into evidence to establish that Ms. Rushing did own a gun; that she slept on the couch in the living room; that she kept the gun tucked inside the couch; that she did not often allow persons to come into the house late at night; and that the deceased stated she would use the gun to "defend herself" against the appellant.

Dr. Fred B. Jordan, Associate Chief Medical Examiner for the State of Oklahoma, testified that the autopsy performed on Ms. Rushing revealed she died of gunshot wounds to the head and neck. She had sustained between five and seven separate wounds.

Mr. Tom Jordan, Ballistics Specialist for the Oklahoma State Bureau of Investigation, testified that of eight bullet fragments delivered to him from the Medical Examiner's office, which were taken from Ms. Rushing's body, six were identifiable as being .38 caliber. He further testified the bullets had such dissimilar marking characteristics from test bullets fired from the gun found in the couch beside Ms. Rushing's body, he concluded they were not fired from that gun.

Evidence was adduced through photographs, diagrams and the testimony of investigating officers to demonstrate that a gun battle had occurred inside Ms. Rushing's home. Testimony was given concerning the officers' attempts to determine the trajectory of the bullets, and the angle from which the bullets were fired. It was determined that one of the bullets had been fired into Ms. Rushing's home from the outside. An expended bullet was found lying on the front porch.

Lastly, the State presented evidence that the appellant temporarily escaped from jail on the weekend before the trial began.

B. APPELLANT'S EVIDENCE

The appellant attempted to establish that Pollard killed Ms. Rushing.

William Ames testified that, approximately two weeks prior to the murder of Ms. Rushing, he had driven Pollard to Enid. Pollard asked him to do so, because she was going to shoot Ms. Rushing. Ames testified, however, that he saw no weapon in Pollard's possession throughout the trip. Upon arriving in Enid, they drove past Ms. Rushing's home, and returned to Tulsa. Pollard slept during most of the trip.

Quanita Washington also testified that Pollard drove to Enid with William Ames approximately two weeks prior to the murder for the purpose of shooting Ms. Rushing then. She further testified that she knew Pollard owned a pistol at that time. Washington also testified that on the day she and Pollard arrived in Enid (January 7), Pollard had a pistol in her possession. Pollard made the telephone call to the appellant, which resulted in his trip to Enid on January 10. Pollard then purchased a bottle of ammonia.

Washington further testified that the murder of Ms. Rushing occurred in...