Stouffer v. State
| Decision Date | 18 May 1987 |
| Docket Number | No. F-85-443,F-85-443 |
| Citation | 738 P.2d 1349,1987 OK CR 92 |
| Parties | Bigler Jobe STOUFFER, II, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Bigler Jobe Stouffer, II, was tried by a jury and convicted in Oklahoma County District Court, Case No. CRF-85-509, of Shooting With Intent to Kill and Murder in the First Degree. He received sentences of life imprisonment and the death penalty, respectively.
Douglas Ivens and his girlfriend, Linda Reaves, were each shot in his home in northwest Oklahoma City the evening of January 24, 1985. They were each shot with a handgun Ivens owned. Reaves died within a matter of minutes, but Ivens survived his injuries with a lengthy hospitalization.
Five shots were fired. Ivens received three injuries: one to the arm; one to the chest; and, one in the face. The medical examiner testified that Reaves died from two injuries to the head. She received contact wounds two times on the head and another on the hand. The police investigator theorized that Reaves placed her hand on her head and received two contact wounds at one time. It also appeared that another bullet exited Reaves' head and entered her chest.
Ivens remained conscious following his injuries and advised the investigating police officers that Bud Stouffer had shot them. Stouffer was the boyfriend of Ivens' estranged wife, Velva Ivens, and he was arrested at her home later that evening. Initially, Stouffer denied knowing anything about the shootings. Three days later, however, he told the police that Ivens had pulled the gun on him and a struggle ensued. It was during the struggle that the gun must have fired, he thought. He knew nothing of Reaves being shot, he claimed he just saw her legs as she lay on the sofa.
At trial, Ivens testified that Stouffer came to his house asking for a gun alleging that someone was trying to break into Velva Ivens' home. Ivens' two young daughters lived at Velva's house. Ivens handed Stouffer a loaded .38 caliber gun. Stouffer turned to leave and then turned back around and shot Ivens in the chest and arm. He then walked over to Reaves and shot her through her hand she had put to her head as she said, "No." Another shot was fired, but Iven's did not see it. Stouffer then returned to Ivens and shot him in the face. Stouffer left and Ivens crawled to a telephone which he used to call the police.
The day following the shootings, Ivens' attorney filed a civil suit seeking damages for the injuries Ivens received and sought an attachment of Stouffer's property to pay damages. The case was assigned to District Judge Naifeh, the same judge later assigned to Stouffer's criminal trial. Appellant made a motion asking the trial judge to excuse himself prior to the criminal trial. The motion was denied and appellant claims he did not receive a fair trial because the judge was prejudiced against him. He lists a number of rulings by the trial judge which he claims were the result of the judge's bias against him.
The decision of a trial judge to disqualify himself from hearing a criminal case is within the sound discretion of that judge and this Court will not reverse the judge's decision absent a showing of abuse of that discretion. Filgueras v. State, 668 P.2d 1172 (Okl.Cr.1983); T.R.M. v. State, 596 P.2d 902 (Okl.Cr.1979); and, Lemmon v. State, 538 P.2d 596, 601 (Okl.Cr.1975). The party alleging an abuse of discretion must demonstrate that the trial judge harbored prejudice against him and that this prejudice materially affected the party's rights at trial. Hatch v. State, 662 P.2d 1377 (Okl.Cr.1983), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986); Castleberry v. Jones, 68 Okl.Cr. 414, 99 P.2d 174 (1940).
The actions of the trial judge urged by appellant as demonstrating prejudice simply were not ones which endangered appellant's rights at trial. We do not agree that appellant's rights were materially affected when the judge: referred to Ivens as a victim (the judge originally described Ivens as the "alleged victim"); froze the assets of Stouffer in the civil court case brought by Ivens (appellant was still able to retain private counsel); told the jury that "... if you find him guilty on either crime, you will receive instructions as to the punishment stage" (appellant contends this remark implied that they would find appellant guilty); did not remove for cause a juror who stated he didn't know if he would think about an incident wherein a close friend's life had been threatened, but otherwise stated he believed he could be impartial; stated the reason he sustained a State objection though the State did not articulate the basis of the objection; mentioned several times he wanted the trial to be conducted with dispatch; stated he didn't want to conduct the trial on Sunday; excused five veniremen without allowing the attorneys to voir dire them; allowed an off-duty sheriff's deputy who was also the District Attorney's son to escort a sick juror from the courtroom; had appellant stand up when introduced to the jury; mentioned that the District Attorney was elected and that the State was represented by him; mentioned that a portion of a tape recording would not be heard by them and then during second stage admitted it and another tape in their entirety (the section originally not allowed contained improper evidence of other crimes which was later proper in the sentencing stage); did not instruct the jury of any lesser included offenses to murder; allowed the State to cross-examine the appellant concerning a certain individual but did not allow the defense to cross-examine another witness about a different individual (the rulings were appropriate under the law); did not order a presentence report (22 O.S.Supp. 1986, § 982); and, did not make rulings on evidence or comments of the prosecutor requested by defense counsel.
We do not find the trial court's rulings in these matters erroneous or demonstrative of bias. Appellant simply has not shown ill will or bias on the part of the trial judge. Sawyer v. State, 73 Okl.Cr. 186, 119 P.2d 256 (1941). We find upon our review of the record a trial judge who went to great lengths to be fair and impartial to the parties. This assignment of error is without merit.
Appellant next contends that the trial court denied him the opportunity to present his defense at trial by rulings made denying the admission of certain testimony and various items of evidence.
Appellant testified at trial that Ivens had invited him to his home the evening of January 24, 1985. Once he arrived, he noticed a pungent odor in the dimly lit house and a woman's legs hanging off the sofa. Ivens asked him how much money it would take to get Velva Ivens to make a settlement he wanted in the divorce. Stouffer said he advised Ivens that she only wanted a fair settlement. Appellant said Ivens became more irate and asked Stouffer if he would "take them both out" for $25,000.00, referring he thought to Mrs. Ivens and her brother who was Mr. Ivens' business partner.
Appellant said he noticed that Ivens had a gun which he later pointed at Stouffer. The two started to wrestle for the gun and it fired once or twice, then Ivens shot himself in the chest. Ivens pulled the trigger again in the struggle. Finally, Ivens was on the floor and Stouffer said he got the gun and shot at what he thought was another weapon in Ivens' hand.
The defense advised the trial judge that their theory was that "there was a prearranged intent for Stouffer to call [at] Mr. Ivens' home while there was an injured person on the premises...." Stouffer believed he was set up to look like the killer of Reaves and the assailant of Ivens, but that in fact Ivens was shot when Stouffer acted in self defense and he didn't know when Reaves was shot.
Appellant urges that the trial court erred in not allowing him to introduce into evidence two financial statements of Ivens. The statements had been given to Ivens' bank and were made two weeks apart. They showed two different amounts for his net worth. We find the court correctly sustained the State's objection to their introduction based upon 12 O.S.1981, § 2608(B), which disallows the use of specific instances of conduct to impeach a witness' credibility.
Appellant yet argues that the statements were relevant to Ivens' motive to commit the crimes, i.e., preserving his assets. However, we do not agree that the discrepancy in Ivens' financial statements or even the size of his net worth tends to make more or less probable the fact that Ivens was the aggressor in the crime or participated in a conspiracy against Stouffer. 12 O.S.1981, § 2401.
Appellant complains that the trial court sustained the State's objection to defense counsel's question of Ivens whether he had had Stouffer's background checked. In his own Brief, however, he points out that the court later allowed the inquiry. This assignment is meritless.
Appellant was advised by the trial court that defense witness Paulette Newton would not be allowed to testify that early during the evening of January 24, 1985, she received an anonymous telephone call to the effect that an individual would be arrested that night for killing a school teacher and that that individual had been a suspect in her brother's murder. Reaves was a school teacher and appellant had served a prison sentence in the same prison with Newton's brother who was later killed. The court refused admission of the testimony because it was hearsay. Clearly this anonymous message was a statement made out of court, but offered in evidence to prove the truth of the matter asserted. 12 O.S.1981, § 2801(3). The declarant is not even known and we know of no exception to the hearsay rule which would...
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