Snow v. State

• Decision Date: 31 May 1994
• Docket Number: No. F-89-638,F-89-638
• Citation: 876 P.2d 291,1994 OK CR 39
• Parties: Rocky Dale SNOW, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 291

876 P.2d 291

Rocky Dale SNOW, Appellant, v. STATE of Oklahoma, Appellee.

No. F-89-638.

Court of Criminal Appeals of Oklahoma.

May 31, 1994.

Appeal from Pontotoc County District Court, No. CRF-88-210; Ronald L. Jones, Judge.

Joe Wilson, Asst. Dist. Atty., Ada, Chris Ross, Asst. Dist. Atty., Seminole, at trial, and Susan Brimer Loving, Atty. Gen. of Oklahoma and A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, on appeal, for appellee.

W.B. Ward, Jr., Ada, at trial and Anne M. Moore, Appellate Indigent Defender, Norman, on appeal, for appellant.

OPINION

LANE, Judge:

Appellant, Rocky Dale Snow was tried by jury and convicted of the crimes Unauthorized Use of a Motor Vehicle, After Two or More Felonies; Assault and Battery With Intent to Kill; and Murder in the First Degree in Pontotoc County District Court, Case No. CRF-88-210. The jury recommended sentences of twenty (20) years, ninety-nine (99) years, and death respectively which the trial court imposed. We affirm.

According to the evidence presented at trial Appellant took a reddish-brown company pick-up truck from the Stallings Construction yard in Ada sometime between 10:00 and 10:30 a.m. on December 8, 1988. Appellant's brother, Allen, worked for Stallings. Appellant drove to the 12th Street Flea Market in Ada. He entered the office where proprietor Betty Bush, her brother-in-law Richard Newlund, and Wayne Russell, a flea market tenant, were warming themselves by a stove and asked to see bedding. Mrs. Bush took him to unit # 10 where bedding was kept. Shortly thereafter, Appellant returned to the office and asked Richard Newlund to come help them. As soon as Newlund stepped inside unit # 10 Appellant attacked him with a knife, slashing his neck, head and hand. Appellant ran away as Newlund called for help. Wayne Russell called the police at 10:47 a.m.. Russell and Newlund found Bush stabbed in the head and chest and wedged between a mattress and box springs. An ambulance arrived and the emergency medical technicians reestablished Bush's pulse and breathing. She never regained consciousness and died shortly thereafter. Newlund was hospitalized and recovered from his injuries.

The Stallings truck was seen speeding away from the flea market, running stop signs. Appellant bought himself new clothes and boots, and presents for his girlfriend's mother. He drove to McAlester to see his girlfriend. He arrived at approximately 1:30 p.m. and took her shopping for boots. After trying unsuccessfully to leave the Stallings truck with friends, he drove it to the Stallings yard in Hartshorne, wiped it clean of fingerprints, and left it.

On December 9, the day following the crime, eye-witnesses Newlund and Russell worked with a police artist to create a composite drawing of the attacker. They were consistent in their descriptions. Five days later, on December 13 each independently identified the same man at the police line-up: a Southeastern State University student who was at home with his wife at the time of the crime. The Ada Evening News ran articles on the murder December 14, 15, 16, and 18. Each article reported neither Newlund or Russell identified Snow, who had been picked up as a suspect in the crime. On December 20 the Ada Evening News ran an article with a picture of the appellant next to the composite drawing. The article reported in part:

... Authorities said [Snow] matches witnesses' description of the murder suspect and claim he stole a pickup which resembles the one the attacker drove in his escape from the murder scene.

Newlund and another witness were unable to identify Snow in a police line-up last week, but prosecutors claim Snow disguised his identity in the line-up ...

A few days later Russell told the police Snow was his attacker. Russell identified Snow at the preliminary hearing on the Unauthorized Use charge. After this identification the district attorney filed the murder charge. Both Russell and Newlund identified the appellant at trial. Russell admitted he had seen the December 20 article in the Ada News.

IDENTIFICATION ISSUES

Appellant challenges the line-up procedure, the admission of the in-court identification and the failure of the trial court to give a cautionary instruction sua sponte. He also argues defense counsel's failure to move to suppress the identification or request a cautionary instruction is evidence of ineffective assistance.

Defense counsel filed a motion to enjoin the police from conducting a line-up citing several grounds, including prejudice if the appellant's brother, Allen, were not included in the lineup. The trial court denied the motion. Appellant challenges the court's ruling, yet cites no authority to support his position that the trial court erred. Indeed, the authority supports the court ruling for a magistrate has no jurisdiction over police procedures pertaining to a lineup. Moss v. Hicks, 738 P.2d 155 (Okl.Cr.1987).

Appellant next argues his in-court identification was unreliable and should have been suppressed. Recognizing trial counsel did not object to admission of the testimony, or request a cautionary instruction, Appellant takes two tacks: that counsel's failure to object or request a cautionary instruction amounts to ineffective assistance of counsel and that the trial court should have given a cautionary instruction sua sponte.

Counsel's failure to request suppression of the in-court identification limits the review of this court to that of fundamental error only. Cole v. State, 766 P.2d 358, 359 (Okl.Cr.1988). An in-court identification tainted by unnecessarily suggestive pretrial identification procedures is admissible only if independent reliability under the totality of the circumstances can be established. Cole v. State, 766 P.2d 358, 359 (Okl.Cr.1988); Weatherly v. State, 733 P.2d 1331, 1338 (Okl.Cr.1987); Chatman v. State, 716 P.2d 258 (Okl.Cr.1986).

Only reliable eye-witness identifications are to get to the jury. Usually reliability is determined by the trial court in an in camera hearing upon objection by defense counsel. In the present case defense counsel did not object to eye-witness identification, and thus did not trigger trial court determination of reliability. Instead defense counsel cross examined the witnesses extensively to weaken their credibility. The failure to object appears to be trial strategy. As such it cannot be a grounds for a claim of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674 (1984).

Continuing his challenge of the in-court identification the appellant argues the trial court should have given the jury a cautionary instruction sua sponte. Appellant acknowledges counsel's failure to request the instruction waives the issue on appeal absent a substantial violation of his rights. Cole v. State, 766 P.2d 358, 360 (Okl.Cr.1988). Such a substantial violation will be found if there is a very substantial likelihood of misidentification. Newsom v. State, 763 P.2d 135 (Okl.Cr.1988); United States v. Aigbevbolle, 772 F.2d 652, 653 (10th Cir.1985). Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977).

Certainly the reliability of the in-court identification by both Newlund and Russell is weakened by the fact each failed to identify the appellant in the police line-up. However, where this fact was thoroughly brought out by cross-examination, each witness testified he identified appellant in-court based on his memory from the time of the crimes, and the jury was properly instructed it was the sole judge as to the credibility of the witnesses, and the circumstantial evidence supports the identification as well, we cannot say there is a very substantial likelihood the witnesses misidentified the appellant. The trial court did not err by failing to issue a cautionary instruction sua sponte.

ISSUES CONCERNING THE FIRST STAGE OF TRIAL

At the end of the State's case-in-chief the defendant lodged a demurrer which the trial court overruled. Appellant then put on his case. On appeal he argues the trial court erred by overruling the demurrer. By going forward with his case the appellant waived examination of the sufficiency of the evidence at the end of the State's case. Jones v. State, 772 P.2d 922 (Okl.Cr.1989); Doyle v. State, 759 P.2d 223 (Okl.Cr.1988); Clifton v. State, 737 P.2d 946 (Okl.Cr.1987). Rather the Court looks to the entire record to determine whether the evidence was sufficient to prove the crime charged. Clifton v. State, 737 P.2d 946 (Okl.Cr.1987); McLeod v. State, 725 P.2d 877 (Okl.Cr.1986); Clayton v. State, 695 P.2d 3 (Okl.Cr.1984).

When, as here, both direct and circumstantial evidence support the jury's verdict, the standard of review is whether the evidence is sufficient to allow a rational trier of fact to so hold. Drew v. State, 771 P.2d 224 (Okl.Cr.1989). The appellant was identified driving the pickup away from the Stallings yard. About a half hour thereafter the truck was seen speeding away from the flea market. Later that afternoon the appellant was driving the pickup in McAlester, tried to leave it with friends, and ultimately left it in the Stallings' yard in Hartshorne after wiping it clean of fingerprints. The two eye-witnesses identified appellant, though the identifications were discredited by a prior failure to identify. This evidence is sufficient to prove appellant was the man at the flea market.

Five color slides of the deceased body of Mrs. Bush were introduced at trial. Each showed a different stab wound. Appellant argues the introduction of these slides warrants reversal for they had no probative value and their purpose was only to inflame the jury. The slides in question corroborated the testimony of the medical examiner. As such they have probative value. Any emotional impact connected to the slides comes from the nature of the murder itself and not from gratuitous gore. The photos were properly admitted....