Smith v. State

• Decision Date: 19 May 1987
• Docket Number: No. F-84-506,F-84-506
• Citation: 737 P.2d 1206
• Parties: Phillip Dewitt SMITH, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1206

737 P.2d 1206

Phillip Dewitt SMITH, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-506.

Court of Criminal Appeals of Oklahoma.

May 19, 1987.

Rehearing Denied June 22, 1987.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Hugh A. Manning, Asst. Dist. Atty., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Phillip DeWitt Smith was convicted by a jury in Muskogee County District Court of Murder in the First Degree. The jury found the existence of three aggravating circumstances in accordance with 21 O.S.1981, § 701.12 and recommended that the death penalty be imposed. The sentence was assessed accordingly by the trial court.

The residents of a four unit apartment complex were awakened in the early morning hours of November 4, 1983, to sounds of groaning and what sounded like people struggling. It was not until that afternoon that the body of Matthew Taylor was found in his apartment. He had been savagely beaten with what the medical examiner who autopsied the victim described as a blunt object, which had both round surfaces and a squared surface. The State theorized, and certain evidence indicated, that the murder weapon was a hammer.

A great deal of circumstantial evidence connected appellant to the homicide including the testimony of the individual who drove Smith to the deceased's apartment at the approximate time of the murder. Also, two friends of appellant testified to lending him a hammer within a few hours prior to the crime. Appellant made admissions indicating he knew when arrested and interviewed that the victim had been killed with a hammer. He admitted being at the victim's apartment during the same evening but prior to the homicide. At that time, Taylor had given him twenty dollars to purchase a bag of marijuana which he never delivered.

Appellant was arrested several months after the crimes. He left Oklahoma a few days after Taylor's murder. While awaiting trial, he told a fellow inmate that he had killed Taylor when robbing him. He stated that he had outstanding criminal charges and needed to leave the State.

I.

Appellant makes a number of assignments of error, one of which is that he was denied due process of law because the judge presiding over his preliminary hearing was the brother of the district attorney representing the State. He indicates that the conflict resulted in prejudice to him because several defense witnesses were mistakenly dismissed before they were able to testify. Appellant contends that this error was made by an employee of the district attorney.

Appellate counsel fails to acknowledge the express waiver of any conflict made by appellant and his counsel in open court prior to the beginning of the preliminary hearing. We are not informed why this waiver would be invalid. Willis v. State, 650 P.2d 873 (Okl.Cr.1982). The incident alleged to have prejudiced appellant appears to have been more a misunderstanding than an intentional wrong, and was without serious consequence. This assignment is without merit.

II.

Appellant contends that certain photographs of the victim were not properly admitted because there was insufficient probative value to outweigh the danger of unfair prejudice. Those photographs of which appellant complains depict: the victim's head portraying loss of hair; two black and white photographs showing the victim's hands which received defensive wounds; three black and white photographs showing extensive wounds to the shaved head, one of which shows the skull after the overlying skin had been peeled back; and, one photograph of the victim's body indicating his pants pockets had been turned inside-out.

For photographs to be admissible, their content must be relevant and their probative value must outweigh their prejudicial effect. Glidewell v. State, 626 P.2d 1351 (Okl.Cr.1981). The fact that the pictures are gruesome does not of itself cause photographs to be inadmissible. In fact, most homicide cases include photographs of the victim and the death scene which express the nature of the attack and other gruesome but pertinent facts of which a jury is properly informed. ¹ To exclude relevant evidence from a jury's consideration only because it is repulsive would be to say that juries cannot fairly consider evidence of crimes and this would be a betrayal of our jurisprudential system. It is not when photographs are gruesome that they should be excluded. Rather, it is when their relevance has become secondary to their prejudicial effect. 12 O.S.1981, § 2403.

The appellant relies on this Court's holding in Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958), to support his assertion that the trial court herein abused its discretion in admitting the photographs of the victim's injuries which were taken prior to and during the autopsy. It is the opinion of a majority of this Court that Oxendine and other cases of this jurisdiction clearly support the admissibility of the photographs.

Oxendine involved the shooting death by two defendants who testified at their trial and "admitted the crime in intricate detail." Id. at 943. The trial court allowed into evidence color photographs of the victim's nude body which had been autopsied and grossly sutured. There was no evidentiary purpose in admitting the photographs, in contrast to those of the present case.

Other than the photographs in this case, there was no direct evidence ² that the weapon used on the victim had a rounded surface. While the medical examiner could suggest the probable configuration of the object used to beat the victim, the photographs more conclusively demonstrated it. The photograph of the bare skull showed the round hole in it. The evidence was material in identifying the instrument of death and the killer. It was known that appellant borrowed a hammer, which was never found, a short time before the murder. The photographs were also material in establishing the intent of the culprit; in this case, malice aforethought.

This Court held in Oxendine:

In the case at bar there was no reason for the introduction of the colored photo slides. There was no issue nor controversy as to the cause of death. The defendants admitted the crime in intricate detail. The photos could not possibly lend assistance in the determination of defendant's guilt. It was admitted. Had there been a conflict as to the shooting or cause of death or location of the wounds, or an issue to which the photos were relevant, then and in that event, they would have been admissible had they been taken prior to the performance of the autopsy. But the autopsy was not the handiwork of the defendant and could, under the circumstances, serve no other purpose than to arouse the emotions and passion of the jury. This Court feels that the photos were wholly inadmissible in the form presented and their admission was an abuse of the trial court's discretion. If the photographs had been limited to the area showing the points of entrance and possible egress of the bullets without showing the gruesome incisions incident to the autopsy, the action of the court in the admission of such cumulative evidence could not be held to be reversible error, but the pictures of the nude body of this young woman showing the stated visual results of the autopsy cannot help but shock the viewer. The whole procedure seems to have been so unnecessary and was highly prejudicial and forces a reversal. (Emphasis added.)

Id. at 943.

In the present case, the wounds were the handiwork of the defendant, not the medical examiner. In order to show the nature of the injuries and of the weapon used, the head had been shaved by the medical examiner and in one photograph, the scalp pulled back after the skull cap had been incised and lifted. The photographs were critical in the chain of circumstantial evidence linking Smith to Matthew Taylor's death.

This case is further distinguishable from Oxendine in that Smith did not confess to the crime; he did not describe it in "intricate detail" to the jury. Nor could the medical examiner conclusively describe the murder weapon. The photographs were of significant probative value, and their gruesomeness was secondary to their evidentiary worth. Therefore, this Court should not interfere with the trial court's rulings. Cooper v. State, 661 P.2d 905 (Okl.Cr.1983). Compare Newbury v. State, 695 P.2d 531 (Okl.Cr.1985) (photographs admissible to prove State's theory that defendant struck victim on head with a hammer, slashed her with a knife, and ran over her with a pickup truck); Cooper v. State, 671 P.2d 1168 (Okl.Cr.1983) (black and white photographs of dismembered corpse admissible to prove destruction of evidence, corroborating partial confessions of testified to by others, and illustrating and corroborating other significant evidence); DeVooght v. State, 722 P.2d 705 (Okl.Cr.1986) (photographs of badly injured murder victim admissible as probative of location and extent of victim's wounds, force of rape, and location of body).

III.

Appellant assigns as error the admission into evidence of a claw hammer which resembled the one loaned to appellant the evening before the homicide. He argues that he was unable to receive a fair trial as a result of the prejudice this caused to him.

Clifton Stewart testified that sometime around midnight November 3, 1983, appellant had knocked on his door asking for a hammer with which to repair a battery post on a car. Appellant had promised to return the hammer and never did, later claiming he had left it in someone's automobile. Stewart was given money by the prosecutor to buy a hammer like the one he had given to the appellant. He did, and it was this one which was introduced into evidence at trial.

We held in Foster v. State, 714 P.2d 1031 (Okl.Cr.1986), cert. denied, 479 U.S. 873, 107 S.Ct. 249, 93 L.Ed.2d 173, that it was not error to introduce a bat which was like the one that had been used to beat the victim....