Selsor v. State, F--76--578

• Decision Date: 06 April 1977
• Docket Number: No. F--76--578,F--76--578
• Parties: Michael Bascum SELSOR, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 926

562 P.2d 926

Michael Bascum SELSOR, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--76--578.

Court of Criminal Appeals of Oklahoma.

April 6, 1977.

Richard A. Hoffman, Asst. Public Defender, Tulsa County, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Judge:

Appellant, Michael Bascum Selsor, hereinafter referred to as defendant, was charged in the District Court, Tulsa County, with the offenses of Armed Robbery, CRF--75--2183; Shooting With Intent to Kill, CRF--75--2182; and, Murder in the First Degree, CRF--75--2181, After Former Conviction of a Felony. A guilty verdict was returned as to all three charges, punishment being assessed at death for Murder in the First Degree; twenty (20) years' imprisonment for Shooting With Intent to Kill; and, twenty-five (25) years' imprisonment for Armed Robbery. The right to appeal the Armed Robbery conviction was waived by the defendant. From the remaining judgments and sentences, a timely appeal has been perfected to this Court.

Defendant was tried conjointly with co-defendant Richard Eugene Dodson. For a recitation of the facts see Dodson v. State, Okl.Cr., 562 P.2d 916 (1977).

In his first assignment of error, defendant asserts the unconstitutionality of Oklahoma's death penalty statute, 21 O.S.Supp.1973, § 701.3. With this we agree. See Riggs v. Branch (State), Okl.Cr., 554 P.2d 823 (1976).

Defendant's second and third assignments of error concern the failure of the trial court to either sever the two co-defendants' cases, or to grant outside counsel to one of the two co-defendants. This was necessary, the defense asserts, because of the conflicting nature of the defenses of each co-defendant.

The claim was made prior to trial that the defendant would plead simply not guilty, but that co-defendant Dodson would plead not guilty by reason of insanity; and, that these were inconsistent defenses in that defendant would seek to deny, and force the State to prove, any complicity on his part, whereas co-defendant Dodson, in order to establish his insanity defense, would have to admit his own involvement. Defense counsel asserts that they were put in an ethically untenable position by being forced to try both defendants conjointly, in that they had to decide which defendant they wished to defend with the most zeal. If co-defendant Dodson were put on the stand to establish his defense, then defendant would necessarily be implicated; if counsel did not wish to so implicate the defendant, then Dodson would be denied his defense. The severance or appointment of outside counsel, it is claimed, would have cured the problem.

Assuming for the sake of argument that this theory is correct, nevertheless it must be noted, however, that co-defendant Dodson wholly failed to produce any competent evidence by which he could establish his defense of insanity. The medical expert, Dr. Garcia, stated that he had no opinion regarding co-defendant Dodson's sanity at the time of the commission of the crime. Co-defendant Dodson did not take the stand in an attempt to establish the defense, and therefore any fears which counsel may have had of co-defendant Dodson implicating the defendant turned out to be groundless. Further, the defendant cannot complain that co-defendant Dodson was unable to establish or prevented from establishing his defense of insanity by the claimed 'turn around' in the testimony of Dr. Garcia. Any error in this regard would tend to vitiate co-defendant Dodson's conviction, not the defendant's. We are of the opinion that no prejudice was shown because of the failure of the trial court to grant severance or outside counsel.

In dealing with severance this Court said in Bowers v. State, Okl.Cr., 542 P.2d 950, 953 (1975):

'In consideration of the severance issue, the general rule is that the granting of a severance is discretionary with the trial court, and the Court of Criminal Appeals will not disturb the trial court's ruling, absent a showing that prejudice resulted therein. . . .' (Citations omitted)

Therefore, defendant's second and third assignments of error are without merit.

In his fourth assignment of error defendant complains of the admission into evidence of certain photographs depicting the body of Clayton Chandler, killed during the commission of the robbery. This assignment of error is without merit. The pictures are not gruesome or bloody, and they were admitted with the stated purpose of showing the position of the body. In any case, pictures of this sort are always useful in establishing the corpus delicti of a crime. The introduction of such photographs is a matter largely within the discretion of the trial court, and if such photographs have probative value which outweigh the danger of prejudice to the defendant, the evidence is admissible. Jones v. State, Okl.Cr., 542 P.2d 1316 (1975).

The defendant contends in his fifth assignment of error that the trial court erred by allowing the State to introduce into evidence State's Exhibit No. 14, certain lead particles found in the back area of the store where the robbery occurred. The defendant argues that Officer Tom Lewallen was not qualified as an expert, nor did he testify as to what factors led him to believe that the lead particles were actually expended bullets. We must disagree with both contentions. The record reflects that after testifying as to his qualifications concerning educational background and working experience, the following question was propounded by the prosecuting attorney:

'Q. And, will you tell this Court and jury, have you had an occasion to be qualified as an expert in firearms identification in the past in other courts?

'A. Yes, sir. I've offered expert testimony in Tulsa County Courts, Osage County Courts and Oklahoma County Courts.

'MR. SHAFFER: We would offer Officer Lewallen, Your Honor, as an expert in the field of firearms identification based on his experience as related in this court.

'BY THE COURT: You may proceed.' (Tr. 372)

The witness thereafter testified as to the test he performed on the lead projectiles and his conclusions therefrom, without objection by the defendant. We therefore find this assignment of error to be without merit. See, Box v. State, Okl.Cr., 541 P.2d 262 (1975).

In his sixth assignment of error defendant asserts that his confession, given to Santa Barbara Police Officer Evans, should not have been admitted into evidence because he was not properly informed of his constitutional rights. Defendant does not claim that there was a total failure to give such rights, but rather that considerable interrogation was had before the Miranda rights were given to him.

The entire conversation between Officer Evans and defendant was recorded on tape, and a transcript was prepared therefrom. We have examined this transcript and find that although defendant was not immediately given a Miranda warning, said warning was given before any actual interrogation was begun. The questions asked prior to the warnings being given were of a general sort, and did not pertain to the commission of any crime. Additionally, nothing that was said by the defendant prior to the giving of the Miranda warnings was in any way inculpatory, nor was it introduced into evidence.

Similarly, we find that there was no evidence that the confession was involuntarily given, although the officer who obtained it was a skillful interrogator. Thus, since the defendant voluntarily waived his constitutional rights, we find that his confession was properly admitted, and defendant's sixth assignment of error is without merit.

Defendant contends in his seventh assignment of error that the trial court erred in permitting co-defendant Dodson's confessions to be introduced into evidence. This is so defendant argues because the confessions made by Dodson seriously inculpated defendant as well, and they were thus violative of the rule in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), in that defendant was denied an opportunity to confront and cross-examine co-defendant Dodson.

However, a reference to the case of Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), shows that defendant's contentions are without merit. Schneble held, in essence, that the Bruton rule is subject to the harmless constitutional error doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See also, Breedlove v. State, Okl.Cr., 525 P.2d 1254 (1974).

In the present case,...