Sherrick v. State
| Decision Date | 23 September 1986 |
| Docket Number | No. F-84-308,F-84-308 |
| Citation | 725 P.2d 1278 |
| Parties | David E. SHERRICK, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
The appellant, David E. Sherrick, was convicted in the District Court of Washington County, Case No. CRF-83-39, of two counts of Murder in the First Degree for which he received a sentence of life imprisonment on each count, to be served consecutively. He appeals and raises eleven assignments of error.
On the morning of January 17, 1983, the bodies of Russell and Neva Holden, husband and wife, were discovered in their home east of Bartlesville. Each had more than ninety puncture and stab wounds which the forensic pathologist testified were inflicted by at least two different weapons. Furthermore, Mr. Holden's right ring finger had been severed. Police arrested Mrs. Holden's daughter, Neva Christine Graham, and Graham's boyfriend, the appellant. While incarcerated, the appellant wrote letters to a friend. In one letter, the appellant admitted his presence during the robbery and murders, but stated that Ms. Graham committed the murders, which were unplanned. During his testimony at the trial, he admitted his presence during the murders, but stated that he was under the influence of drugs and was too frightened to stop the murders. However, his testimony was very detailed, including a description of the precautions he took to avoid leaving evidence of his presence at the crime.
For his first assignment of error, the appellant alleges that the trial court erred during voir dire by not removing two prospective jurors for cause who stated that they had preconceived opinions concerning the appellant's guilt. Both, after being questioned concerning those opinions, stated that they believed they could set aside those opinions and reach a verdict based only upon the evidence presented during the trial. After the trial court refused to dismiss the two prospective jurors for cause, defense counsel used peremptory challenges to dismiss them. Whether or not a juror is able to serve in an objective, unbiased manner, as required by law, is necessarily an inquiry within the discretion of the trial court, which will not be disturbed unless an abuse is evident. Grizzle v. State, 559 P.2d 474 (Okl.Cr.1977). Having examined the voir dire of the two prospective jurors we find no abuse of that discretion. This assignment of error is without merit.
As his next assignment of error, the appellant complains that the trial court refused to voir dire the jury on matters such as the State's burden of proof, and defendant's presumption of innocence, and refused to give introductory instructions to the jury after voir dire. Appellant cites no authority which would require that the trial judge voir dire the jury on these matters.
We have repeatedly held that an appellant must support his allegations of error by both argument and citations of authority; when this is not done, and it is apparent that appellant has not been deprived of any fundamental rights, this court will not search the books for authorities to support mere assertions that the trial court erred.
Perez v. State, 614 P.2d 1112 (Okl.Cr.1980). As authority for his argument that the trial court must give introductory instructions, appellant cites 12 O.S.1981, § 577.2 which provides:
Whenever Oklahoma Uniform Jury Instructions (OUJI) contains an instruction applicable in a civil case or a criminal case, giving due consideration to the facts and the prevailing law, and the court determines that the jury should be instructed on the subject, the OUJI instructions shall be used unless the court determines that it does not accurately state the law....
He argues that because OUJI-CR contains introductory instructions, such instructions must be given at the time of voir dire as these instructions are mandated for use whenever applicable. We disagree. Although instructions may be required at different times during the trial to correct problems as they arise, or may at the discretion of the trial court be used to clarify issues which would tend to confuse the jury, 22 O.S.1981, § 831 which prescribes the order of trial proceedings, mandates the use of instructions after the evidence is concluded. The record reveals that both the State and defense counsel included questions concerning the State's burden of proof and the defendant's presumption of innocence, and the trial court included instructions on these matters at the close of the evidence. We find no error.
The appellant asserts, as his third assignment of error, that the trial court erred in preventing defense counsel from cross-examining witnesses for the State concerning the circumstances surrounding the State's obtaining a letter written by the appellant. The trial court ruled that defense counsel was precluded from questioning any witness concerning whether or not the letter was obtained legally, as the court had previously ruled that it was obtained legally. We have held that while the permissible scope of cross-examination is broad, it has limits. Unless an appellant can show that the trial court abused its discretion by unduly restricting the extent of cross-examination, no claim of error will lie. Bishop v. State, 581 P.2d 45 (Okl.Cr.1978). After examining the testimony during the preliminary hearing in which defense counsel cross-examined concerning how the letter was acquired, and after reviewing the balance of the record, we do not find any abuse of discretion in the trial court's order, as the testimony would have covered a strictly legal matter which would not be relevant to determine the guilt of the appellant.
As his fourth assignment of error, the appellant argues that the trial court erred in refusing to allow him to call Neva Christine Graham to the stand or to explain why she was not available as a witness. The record reveals that the trial judge conducted a hearing in camera in order to confirm the notification of Ms. Graham's attorney that she intended to invoke the Fifth Amendment if called to the stand. After she made that confirmation, the trial judge refused to allow her to be called before the jury, and ordered that her absence was not to be mentioned. He reasoned that the jury could make improper inferences. The issue before us is whether a codefendant who has previously stated at a hearing in camera that she intends to invoke her right against self-incrimination may be compelled by her codefendant to take the stand and invoke this constitutional right before the jury. The appellant cites no authority on point. Although an accused has a right to compulsory process for obtaining witnesses in his behalf (Okla. Const. art. 2, § 20), he does not have the right to compel that witness to testify when that testimony could violate the rights of the witness against self-incrimination. Bryant v. State, 434 P.2d 498 (Okl.Cr.1967). The appellant cites Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) which holds that a state may not arbitrarily deny an accused the right to put a witness on the stand who is physically and mentally capable of testifying to events that he has personally observed, "and whose testimony would have been relevant and material to the defense." 388 U.S. at 23, 87 S.Ct. at 1925. However, no proper inference could have been made from Ms. Graham's refusal to testify, nor can such a refusal properly be called evidence, as there is no testimony. Under such circumstances, the order of the trial judge was proper. This assignment of error lacks merit.
The appellant urges as his fifth assignment of error, that the trial court allowed the State to present improper rebuttal evidence. The prosecutor asked the appellant questions during cross-examination concerning prior statements he made to police investigators which were inconsistent with his previous testimony. The appellant replied that he did not remember making the statements, but if he did they were false. During rebuttal the State called three investigators who testified concerning the content of their conversations with the appellant which contradicted portions of his testimony. The trial court ruled that the rebuttal was admissible because it attacked the credibility of the appellant's testimony relating to whether or not the killings were premeditated. We agree.
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