Smith v. State, F-79-688

• Decision Date: 14 June 1982
• Docket Number: No. F-79-688,F-79-688
• Citation: 1982 OK CR 89,656 P.2d 277
• Parties: David Gordon SMITH, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 277

656 P.2d 277

David Gordon SMITH, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-79-688.

Court of Criminal Appeals of Oklahoma.

June 14, 1982.

As Corrected July 23, 1982.

Rehearing Denied Nov. 22, 1982.

An appeal from the District Court of Rogers County, Byron Ed Williams, District Judge.

David Gordon Smith, appellant, was convicted of Murder in the District Court of Rogers County, Case No. CRF-78-128. He was sentenced to life imprisonment and appeals. AFFIRMED.

E. Terril Corley, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., William S. Flanagan, Asst. Atty. Gen., Tomilou Gentry Liddell, Legal Intern, Oklahoma City, for appellee.

OPINION

BRETT, Presiding Judge:

The appellant, David Gordon Smith, was convicted of First Degree Murder, pursuant to Laws 1976, ch. 1, § 1, now 21 O.S.1981, § 701.7, in Rogers County District Court Case No. CRF-78-128. He was sentenced to life imprisonment and appeals.

On September 1, 1978, the Catoosa, Oklahoma, Tag Agency was robbed by two men identified as Jackie Ray Young and the appellant, David Gordon Smith. Catoosa Police Chief J.B. Hamby died of gunshot wounds sustained during an attempt to stop the robbery. It was later determined that Jackie Ray Young died at the scene of the crime from self-inflicted gunshot wounds.

The appellant was charged under the felony-murder doctrine for the murder of J.B. Hamby. He admitted to being present at the scene, but defended on the basis of being there under duress and participating in the robbery due to fear of imminent death from Jackie Ray Young.

Smith testified that Young was his neighbor at his apartment complex and that they had occasionally worked on cars together. He claimed that he was with Young on the morning of the robbery because he had agreed to help Young defraud an insurance company. This was to be accomplished by claiming Young's car was stolen, collecting the insurance money, and then selling the car. Smith further claimed that he agreed to help move the car because Young offered him five-hundred dollars ($500.00) which he needed to purchase an engagement ring for his fiance.

The appellant also testified that he first learned of Young's plan to rob the tag agency while he and Young were on their way to move the car. Young became very nervous and excited and pulled a gun when the appellant refused to participate. Each time Smith tried to talk Young out of the robbery, Young became increasingly agitated and upset, all the while keeping the gun on him. It was at this time that Young informed him of the details of the robbery.

When Smith and Young entered the tag agency, they pulled bandannas over their faces and ordered the two female clerks at gunpoint to lay on the floor. The appellant taped their hands behind their backs with silver duct tape. A customer who entered the office was ordered to join the two women on the floor. While the appellant and Young attempted to steal blank title registration forms and photographic materials, Police Chief J.B. Hamby drove up. Gunfire immediately ensued resulting in the death of Chief Hamby and Jackie Ray Young. The appellant, wounded in the right hand and thigh, ran out the door and escaped by car.

The appellant drove to the spot where Young had left another car, traded cars, and returned to his Tulsa apartment. He was subsequently transported by ambulance to the Oklahoma Osteopathic Hospital in Tulsa and arrested there later that day.

I.

The appellant first alleges that the trial court committed error by refusing to allow Dr. Bill Scott, a psychologist at Oklahoma State University, to testify as an expert witness about eye witness behavior and responses under stress. The trial judge determined that the jury could make their own determination as to the ability of a witness to recall facts.

This Court has held on numerous occasions that whether or not a witness is allowed to testify as an expert witness rests within the discretion of the trial court whose decision will not be disturbed on appeal unless the discretion has been abused. Riggle v. State, 585 P.2d 1382 (Okl.Cr.1978). The trial court allowed the defense counsel to make an offer of proof as to Dr. Scott's testimony. We find no abuse of discretion resulted from the trial court's decision that the testimony would not aid the jury in its determination. Therefore no error occurred due to the exclusion of Dr. Scott as an expert witness. See 12 O.S.1981, § 2702.

The appellant also contends that the trial court erred by admitting exhibits which purportedly traced the paths of the bullets fired in the tag agency and by recognizing Police Officer Freiburger as an expert witness to sponsor the exhibits. Before scientific evidence is admissible, there must be proof that the reliability of the tests used has gained general acceptance and recognition in the concerned scientific community. See Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495 (1951) (lie detector tests).

After review of the scientific literature on the subject ¹ it is apparent that the ability of an expert to determine the origin of a bullet's flight has gained general acceptance and recognition in the concerned scientific community. Therefore, the exhibits complained of concerned a proper topic upon which evidence is admissible. 12 O.S.1981, § 2702.

Testimony at the trial reveals Officer Freiburger had attended an F.B.I. sponsored advanced criminology school and a workshop on reconstruction presented by the Department of Public Safety in Texas. Much of his early training was in traffic which involved reconstructing scenes and he had worked in homicide for several years. On the basis of Officer Freiburger's qualifications, we find the trial court did not abuse its discretion by allowing Officer Freiburger to sponsor the exhibits portraying the paths of the bullets fired in the Catoosa Tag Agency. Barnhart v. State, 559 P.2d 451 (Okl.Cr.1977).

II.

Secondly, it is argued that error occurred when the trial court allowed the State to introduce, during cross-examination of the appellant, certain guns and ammunition taken from the appellant's apartment. However, the appellant, either through misjudgment or inadvertence, made the guns relevant to the trial by bringing them up when he took the stand in his own behalf. This Court has stated many times that complaints concerning cross-examination will not be heard if the subject is addressed or opened on cross-examination. Hill v. State, 589 P.2d 1073 (Okl.Cr.1979).

III.

The third proposition of error alleges that the appellant was denied a fair trial due to the misconduct of one of the jurors. It is first claimed that error occurred because Juror Wells misrepresented his ability to be unbiased during voir dire. This allegation is based on the appellant's observation that Juror Wells brought his wife to the trial each day where she appeared to be friendly with the victim's family. Further, at the hearing on the motion for new trial, both the appellant's mother and a friend of the appellant's family testified that they saw Juror Wells talking with members of the victim's family during a trial recess.

It is not apparent from the record that Juror Wells was untruthful on voir dire. The defense counsel had ample opportunity during voir dire examination to ask Mr. Wells whether he was acquainted with the victim's family. No attempt was made to inquire into such matters; the only questions asked were whether Mr. Wells knew the victim personally, and whether he knew any of the witnesses. The defense counsel did not attempt to challenge Juror Wells peremptorily or for cause.

This Court has repeatedly held that it is the appellant's duty on voir dire examination to inquire into all matters which are within his knowledge and which might affect a juror's qualifications, and if he fails to do so, he waives any objection on that point even though disqualification is unknown to him until after the verdict is rendered. Johnson v. State, 597 P.2d 340 (Okl.Cr.1979); Greathouse v. State, 503 P.2d 239 (Okl.Cr.1972). We find that the appellant waived his right to object to Juror Wells' service on the jury panel because of defense counsel's failure to thoroughly question Mr. Wells about his acquaintance with the victim's family.

Also, we can discern no error as a result of Mr. Wells' wife attending the trial and speaking to the victim's family. During voir dire Juror Wells stated that he was aware he could not discuss this case with his wife because he had previously served on a jury. He believed he could be open-minded in light of such a serious charge and that he would not discuss the case with others including his wife and children. Jurors are not required to be totally ignorant of facts and issues involved and it is sufficient if the juror can lay aside his impressions or opinion and render a verdict based on the evidence presented in court. Shapard v. State, 437 P.2d 565 (Okl.Cr.1967), cert. denied, 393 U.S. 826, 89 S.Ct. 89, 21 L.Ed.2d 97 (1967).

The appellant further argues that error occurred when the trial court refused to allow Juror Wells to testify at the hearing on Motion For New Trial because a juror is not allowed to impeach the verdict of a jury. Clearly, a juror may not impeach the jury's verdict by his own statement. However, impeachment of the jury's verdict means invading the sanctity of the jury room. It is not error for a judge to call a juror to testify as to alleged misconduct. Specifically, 12 O.S.1981, § 2606, states that "[a] juror may testify on the question whether ... any outside influence was improperly brought to bear upon any juror."

When the trial judge ruled that the juror could not testify, the defense counsel failed to cite relevant authority for his argument. Moreover, no other witnesses were called to testify in support of the allegation. The trial court's ruling barring Juror Wells from testifying did not prevent the appellant from calling members of the victim's...