Sallee v. State

• Decision Date: 17 December 1975
• Docket Number: No. F--75--95,F--75--95
• Citation: 544 P.2d 902
• Parties: Earl Junior SALLEE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 902

544 P.2d 902

Earl Junior SALLEE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--95.

Court of Criminal Appeals of Oklahoma.

Dec. 17, 1975.

Rehearing Denied Jan. 26, 1976.

As Amended Feb. 27, 1976.

Richard James, Stroud, for appellant.

Larry Derryberry, Atty. Gen., Frank Muret, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

Appellant, Earl Junior Sallee, hereinafter referred to as defendant, was charged, tried before a jury and convicted in the District Court of Lincoln County, Case No. CRF--74--1, for the offense of Murder in the Second Degree. Punishment was assessed at an indeterminate sentence of ten (10) years to life imprisonment. From said judgment and sentence he has perfected this timely appeal to this Court.

Briefly stated, the evidence adduced at trial is as follows: Lincoln County Deputy Sheriff Ted O'Donnell testified that on December 30, 1973, at approximately 10:50 p.m. he was dispatched to the Earl Sallee residence located in Sparks, Lincoln County, Oklahoma. Upon arrival, he and Highway Patrol Trooper Pierce were met by defendant who motioned them inside and advised them that his wife was seriously hurt. Upon walking into the bedroom, he observed Mrs. Sallee lying in the bed. Her head was profusely bleeding and she was gasping for breath. A Chandler ambulance arrived simultaneously and she was placed on a stretcher and transported to a hospital. In the doorway between the bedroom and kitchen Pierce found a hammer with traces of blood and hair on it. O'Donnell described the defendant as being nervous, concerned about his wife, cooperative and not intoxicated. After being advised of his rights, the defendant made a statement wherein he related that he woke up standing beside his wife's side of the bed, that there was a hammer on the bed and that he then proceeded across the street to call an ambulance and the Sheriff.

Trooper Gary Pierce of the Oklahoma Highway Patrol then related substantially the same sequence of events as O'Donnell adding further that defendant stated that approximately thirty minutes after going to bed his youngest daughter, who was sleeping in the same bed as he and his wife, woke him and that he took her to the bathroom, and then returned to bed. The next thing he recalled he was standing by his wife's side of the bed and a hammer was lying on the bed beside her.

Robin Melott, the twelve year old step-daughter of the defendant testified that on the above date she returned home from church at approximately 8:30 p.m., found the family watching television and joined them. Shortly thereafter the family went to bed and she heard both her mother and the defendant snoring. She twice heard someone enter and leave the bathroom and then heard her mother gasp. Following the gasp, the defendant entered the living room where she was sleeping on the sofa and stated that he must have taken the hammer from the bathroom and struck her mother on the head while walking in his sleep. After telling her not to touch anything because his prints were on the hammer, he went to a neighbor's home to call the police and ambulance. On cross-examination she further related that on the day in question the whole family was at home and there were no arguments. On re-direct she related that approximately two weeks earlier her mother and step-father had an argument during which he threatened to kill all of them. She further stated they only argued when the defendant was drinking and he had not been drinking on the 30th. However, she then stated that on earlier occasions she had observed bruise marks on her mother caused by the defendant.

Fred B. Jordan, forensic pathologist and medical doctor, then testified he performed an autopsy on the deceased on December 31, 1973, and determined that her death came as a result of trauma to the head caused by a blunt instrument. He further stated that the hammer in question could have caused the wounds.

Katherine Graham, a neighbor, testified that on December 20, 1973, she observed defendant and Mrs. Sallee fighting in front of their residence and overheard him threaten to kill her and the family. The following morning the deceased was in her home and the witness observed bruises on her chest. The deceased told her that she feared defendant and was concerned about the safety of herself and her children. On cross-examination the witness stated that 'you couldn't ask for a nicer man' when the defendant wasn't drinking. She further stated that the deceased told her the defendant was drunk on the night of the 20th and that he had threatened to kill them all 'before the year was out.' The State then rested.

Goldie Tidswell testified that she was defendant's mother and that as a child he had a history of sleepwalking. She related incidents where defendant, apparently in a state of sleepwalking, struck his brother, broke a window with a stick of firewood, and in August of 1973 beat on the head of his bed with his fists. He did not have recollections of the incident afterward. She further stated that her other children had walked in their sleep.

Bobby Sallee, defendant's brother, then related several instances where defendant struck him during the night while apparently in a state of sleep. On another occasion the defendant attempted to crawl out of a second story window in his sleep. The defendant had no recollection of the incidents after he awoke.

Defendant then testified in his own behalf stating that he was thirty-five years old, had a seventh grade education and married the deceased in 1968 after his first marriage ended in divorce. He then stated he had no recollection of the sleepwalking incidents mentioned by his mother and brother. He then testified concerning the argument with the deceased on December 20, 1973, stating that he was intoxicated and that drinking was the cause of all their domestic quarrels. He and his wife made up on the 21st and had no subsequent disagreements. He could not recall making threats to kill the family.

The defendant then related that on the night of the 30th he, their five year old daughter, Alice, and the deceased slept in the same bed as usual. Shortly after they went to bed he took Alice to the bathroom and then returned to bed and went to sleep. The next thing he recalled was awakening while standing next to his wife's side of the bed. There was a hammer lying on the bed next to her and she was bleeding and breathing hard. He then got the children up and went to notify the police and call an ambulance. He then waited in the bedroom with his wife until help came. He further testified he loved his wife and had no recollection of anything after putting Alice back in bed and going to sleep until he woke up standing by the bed.

Dr. Moorman Prosser, a specialist in psychiatry, then testified he conducted two examinations of the defendant subsequent to December 30, 1973, as well as numerous tests. As a result of the tests he determined the defendant had a hysterical personality, the type of personality which is consistent with sleepwalking.

Jay Talmadge Shurley, a medical doctor who specializes in psychiatry and has done research in the area of sleep disorders, testified that on May 31, 1975, he conducted an all night polygraph examination of defendant. Dr. Shurley concluded that defendant was a sleepwalker. He further testified that somnambulism or sleepwalking is a disassociative state wherein an individual performs motor acts without waking consciousness. He further stated that a sleepwalker could perform intricate maneuvers while asleep and could commit acts of violence, although such occurrences were rare.

The defendant's first assignment in error urges that the misconduct of the juror, Marion Wright, and the witness, Kate Graham, prevented the defendant from obtaining a fair and impartial trial. The record indicates that Marion Wright was next to the last juror drawn to complete the panel the tried the defendant. Sometime prior thereto Kate Graham, who subsequently testified as a witness on behalf of the State, talked to Mr. Wright in the courtroom. Mr. Wright related the conversation as follows, to-wit:

'Q. What did he say to you there before he came in the courtroom?

'A. Well, she said he was on dope, and she told me to notice his eyes when he came in. Said he was--said they looked glassy or something to this effect, anyway. And I told her I was going to get excused for the next week. And she told me to try to stay if I could, and get him convicted.'

'Q. Was there any statement made about a hammer?

'A. Oh, yes. She said that he had put the hammer there the night before, before her death.

'Q. Did she say where he had put it?

'A. I think she said under the pillow or under the bed. I'm not sure where she did say now.

'Q. And she made that statement to you whenever you were sitting there--before you had been called as a juror?

'A. Yes.'

The record further reflects that Mr. Wright failed to divulge this information to the Court on voir dire examination and that defense counsel was unaware until after the trial. The defendant, having no reason to challenge Mr. Wright for cause, then exercised his last peremptory challenge against Wright and a new juror was drawn and qualified. Neither the record nor the brief indicates that defense counsel was forced to accept an incompetent juror or that he was forced to accept a juror he knew would be prejudiced towards the defendant. The record is silent as to the identity, qualifications or opinions of the last juror.

In the recent case of Thompson v. State, Okl.Cr., 519 P.2d 538, this Court held in a case similar to the one at hand that not only must there be error but there must also be injury. The burden is upon the defendant to establish he...