Stott v. State, F--75--218

• Decision Date: 09 July 1975
• Docket Number: No. F--75--218,F--75--218
• Citation: 538 P.2d 1061
• Parties: Stanley R. STOTT, Appellant, v. The STATE of Oklahoma,
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1061

538 P.2d 1061

Stanley R. STOTT, Appellant, v. The STATE of Oklahoma,

No. F--75--218.

Court of Criminal Appeals of Oklahoma.

July 9, 1975.

Douglas W. Sanders, Poteau, for appellant.

Larry Derryberry, Atty. Gen., Robert L. McDonald, Asst. Atty. Gen., Byron L. Wilhite, Legal Intern, for appellee.

OPINION

BLISS, Judge:

Appellant, Stanley R. Stott, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, LeFlore County, Case No. CRF--74--168, for the offense of Escape From Penitentiary in violation of 21 O.S.1971, § 443. His punishment was fixed at a term of two (2) years' imprisonment and from said judgment and sentence a timely appeal has been perfected to this Court.

The State's first witness at trial was Clay Costner who testified he was employed as a classification and records officer for the Ouachita Training Center near Hodgens, Oklahoma, in LeFlore County. He identified the training center as being a part of the Department of Corrections in the State prison system. He further testified that in his professional capacity he knew the defendant, whereupon he identified State's Exhibit No. 1 as being a certified copy of a judgment and sentence from Oklahoma County styled State versus Stanley Robert Stott, for the offense of Forgery in the Second Degree, After Former Conviction of a Felony and a term of ten (10) years' sentence. He then testified that on the 2nd day of December, 1974, the defendant was being held pursuant to this judgment and sentence.

John S. Wilson testified he was employed as a corrections officer at the Hodgens Certer and that part of his duties at the center included conducting bed counts during the night and one before breakfast at approximately 6:45 a.m. He further testified that on the 2nd of December, 1974, he conducted a bed count at dormitory number 4, where the defendant resided at approximately 11:30 p.m., and later at the second bed count at approximately 1:30 a.m. he observed two beds empty. Pursuant to a procedural head count, the defendant and one inmate named Torez were found to be missing. He also testified the defendant did not have permission to exit or leave the dormitory.

Efton L. Godsby testified that he was employed with the Oklahoma Department of Corrections at Hodgens and that part of his duties as a Dormitory Officer included assignments to find escapees. He related that on the 3rd day of December, 1974, he received a call at home at approximately 3:00 a.m. regarding two escapees. He stated he proceeded to Hodgens where he assisted one Officer McDonald in commencing a search for the two missing inmates. He testified they were found approximately three and one half miles from Hodgens in a community social building at Zoe, Oklahoma. He related that one of the inmates was the defendant.

The State then rested its case-in-chief.

Defendant took the stand to testify in his own behalf. He related to the court his criminal and social background and, further, he admitted to being a homosexual. He testified he was billed into Hodgens in August, after which he had to borrow money from inmates who were loan sharks and also 'sold his body' on several occasions in order to acquire money for personal supplies. He further stated that certain physical threats were made to him concerning his failure to repay the borrowed money and that he left Hodgens on the night of December 2, 1974, because he had been told he would be killed following the 11:30 bed count.

The defendant's first proposition asserts the trial court committed prejudicial and reversible error in overruling the defendant's motion for mistrial based on certain statements made by the prospective juror Moore during voir dire examination. The defendant contends that the prejudicial statements which occurred are represented by the conversation transcribed on pages 18, 19 and 20 of the transcript. The defendant fails to indicate with specificity as to which statement is that of which he now complains, and we will thus carefully examine the specific pages of the transcript, beginning at page 17, which state:

'MR. SANDERS. Mrs. Shupert, I am sure that you have observed my client sitting in the courtroom. Mr. Stott is a homosexual. He is not ashamed of it. He is proud of it. I would ask you ma'am to search your contience (sic) and tell me whether or not anything about him being what he is today would cause (you) to feel any animosity or prejudice against this man?

'MRS. SHUPERT: No, I thing this is a very personal thing with each individual.

'MR. SANDERS: Mr. Moore, the same question, sir?

'MR. MOORE: I spent twenty years in the army and I am used to men.

'MR. SANDERS: Well, of course I am sure that you know as do I that the army does not tolerate homosexuality?

'MR. MOORE: I am afraid that I would go along with the army.

'MR. SANDERS: I beg your pardon.

'MR. MOORE: I am afraid that I would have to go along with army.

'MR. SANDERS: Then I would assume that you do feel some prejudice or animosity toward him?

'MR. MOORE: Yes, sir.

'MR. SANDERS: If the court please, we would ask that Mr. Moore be excused for cause.

'THE COURT: Any objection? Does the State have any objection?

'MR. WARREN: Yes, your honor, we would like to Voir dire him a little more on this.

'THE COURT: Alright, sir.

'MR. WARREN: Mr. Moore, you understand that we are not trying whether or not that he is a homosexual?

'MR. MOORE: That is right, sir.

'MR. WARREN: And the only thing that this jury is going to be determining is whether or not on the 2nd day of May he left the penitentiary down at Hodgens, do you understand that?

'MR. MOORE: I could answer the question but I don't think I could give him a fair shake on it.

'THE COURT: Alright, Mr. Moore, that is good enough for the court. Mr. Moore, you can be excused permanently, sir, and thank you for your services during this term and the clerk will mail you a check in a few days.

'MR. MOORE: Thank you, sir.

'COURT CLERK: Herbert Perkins.

'MR. SANDERS: If the court please, may I make a record?

'THE COURT: Yes, sir, let's get Mr. Perkins up there first. Alright, Mr. Sanders. Mr. Warren, would you get up there and see what Mr. Sanders is stating, sir?

'MR. SANDERS: Comes now the defendant, Stanley Stott, and respectfully moves for a mistrial based upon the statement just made by the juror who was just dismissed for cause. It is the position of this defendant that the statement made in open court by said juror will influence the jury panel to a degree that it would be impossible for him to receive a fair and impartial trial.

'THE COURT: Now, would you come and tell me what you have just dictated, please?

'(Conference at bench)

'THE COURT: Overruled. Let's go on with the case.

'MR. SANDERS: Exception, please.' (Tr. 17--20)

This Court has held on numerous occasions that the manner and extent of the examination of jurors, touching their qualifications, cannot be prescribed by any definite, unyielding rule, but rests to a large extent in the sound discretion of the trial judge. In the examination such latitude should be given the parties as will enable them to procure a jury free of outside influence, bias, or personal interest. See, Vardeman v. State, 54 Okl.Cr. 329, 20 P.2d 194 (1933); Payne v. State, Okl.Cr., 276 P.2d 784 (1954) and Henderson v. State, Okl.Cr., 385 P.2d 930 (1963). Regarding appellate review of the competency and qualification of jurors, this Court in Rice v. Emerson, 181 Okl. 51, 72 P.2d 498 (1937), adopted the language of the Supreme Court of Oklahoma in Bradford v. Territory of Oklahoma ex rel. J. H. Woods, 2 Okl. 228, 37 P. 1061, 1062, which reads as follows:

'Under this section the court must be satisfied that the juror will act fairly and impartially, and in passing upon this question he must act judicially on the facts before him; and the conduct and appearance of the juror, his manner, and apparent candor or impartiality, are all to be considered by the court, together with his actions, in determining his fitness as a juror. * * * A very large discretion is vested in the court, in determining the competency and qualifications of jurors, and its action should never be disturbed by an appellate court unless an abuse of such discretion is clearly apparent.'

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