Stuart v. State

• Decision Date: 29 April 1974
• Docket Number: No. F--73--299,F--73--299
• Citation: 522 P.2d 288
• Parties: Larry STUART, a/k/a Larry Wayne Stuart, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 288

522 P.2d 288

Larry STUART, a/k/a Larry Wayne Stuart, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--73--299.

Court of Criminal Appeals of Oklahoma.

April 29, 1974.

Rehearing Denied May 29, 1974.

A. Francis Porta and James C. Bass, ElReno, for appellant.

Larry Derryberry, Atty. Gen., Michael Jackson, Asst. Atty. Gen., M. Joe Crosthwait, Jr., Legal Intern, for appellee.

OPINION

BUSSEY, Judge:

Appellant, Larry Wayne Stuart, hereinafter referred to as defendant, was charged, tried and convicted in the District Court, Canadian County, Case No. CR--72--44, for the offense of Manslaughter in the First Degree. His punishment was fixed at life imprisonment, and from said judgment and sentence a timely appeal has been perfected to this Court.

For several months defendant had lived in a house at 1509 East Rogers in El Reno, Oklahoma, with a woman by the name of Lewellyn Norton, the sister of the deceased. They were apparently happy together until the release from prison of her brother, Newell Winn Nye, the deceased. When Miss Norton asked defendant to allow her brother to move in with them, defendant strenuously objected to having an ex-convict reside with them. When Miss Norton brought her brother to the house to move in, defendant became so incensed that he moved out of the house. He, thereupon, went on a binge of drinking and pill-taking which lasted two or three days, up until the time of the homicide. Defendant testified that his last memory, before his arrest after the homicide, was that he pulled up a tree in front of the house on Tuesday night before the homicide. During the evening of January 19, 1972, defendant went to P.J.'s Bar in ElReno, where he met a friend, Ronnie Hicks. Hicks testified that the two drank beer and whiskey at P.J.'s and at another bar, the Reno Rancho, from that time until approximately 2:00 o'clock the next morning.

Shirley Smith testified that she had seen defendant at the Reno Rancho Club the evening of January 19, 1972, at around 8:00 p.m. She stated that defendant, on being asked a question about Miss Norton, said, 'I'm tired of her and her son-of-a-bitching brother,' and also, 'I'll get them.' In answer to Miss Smith's remark that defendant and Miss Norton could get back together, defendant replied, 'No, I'll get the sons-of-bitches if it's the last thing I do.' Miss Smith testified that it was her opinion that the defendant was not drunk at the time of the above conversation with her.

After leaving the clubs, defendant and Donnie White went riding around in defendant's pickup truck with defendant driving. They drove past the house at 1509 E. Rogers two or three times. Defendant drove Donnie White home without any guidance or assistance. At White's home, they finished off a pint of whiskey they had been drinking while driving, and shot out street lights with defendant's .22 rifle. Hicks identified State's Exhibit No. 11, the alleged murder weapon, as the same rifle. Defendant then took Hicks home around 3:00 a.m., indicating that he might return to Miss Norton's home.

Hicks testified that defendant was pretty drunk at that time, and in Hicks' opinion did not know right from wrong. The next occurrences were related in the testimony of Lewellyn Norton. She testified that she and her brother were awakened sometime on the morning in question, by a loud noise. She went into the living room and found defendant crawling through a hole which had been kicked in the front door. She stated that when defendant came through the front door he 'looked pretty mad'; his 'eyes looked wild' and his 'eyes looked funny like he was taking pills.' She also stated that during their relationship, they had both taken bennies.

After coming through the door, defendant knocked Miss Norton down with the back of his hand and, rifle in hand, went back to the bedroom where the deceased was staying. An argument ensued and she heard her brother say, 'You don't want to kill anyone.' Defendant returned to the living room and left by crawling back through the hole in the front door. The deceased, a carpenter, took his tool box and hammer and repaired the damage to the front door and decided to go ahead and dress for work, as it was near the time that he was to meet his ride. He and Miss Norton were talking when several shots came through the bedroom window. Miss Norton testified she heard a loud noise and looked into the living room to see defendant climbing in through the hole which had again been kicked in the front door. The deceased slammed the bedroom door shut and held it closed. As Miss Norton attempted to move toward the back bedroom, she heard 'firecracker noises' and other loud sounds. She then heard her brother say, 'Larry, you've shot me.' The reply was, 'And I'm going to shoot you again.' She fled through the back of the house and went to a neighbor's to call the police.

The next person to see defendant was Ronnie Hicks, who testified that he was awakened by defendant that morning. Defendant told him he had gone to Miss Norton's house and thought he might have shot her brother through the bedroom door. He gave the .22 rifle to Hicks at that time. Defendant then apparently went to his mother's house and went to sleep in a tin shed in the backyard. He was found there asleep several hours later by his brothers, Dennis and R. L. Stuart, who had been notified of the homicide and had received permission from the police department to bring in the defendant.

Dennis Stuart, a policeman at Tinker Air Force Base, testified that he had had experience in identifying people under the influence of drugs and alcohol on his job. He stated that the defendant did not appear to be conscious of what was going on around him when first aroused, and in his opinion, the defendant was at that time under the influence of either, or both, alcohol and narcotics. He further testified that he got the .22 rifle, mentioned above, at Ronnie Hicks' house and turned it over to defense counsel at his law office.

At the trial, defendant called as a witness, Dr. Sam Collins, a registered psychiatrist. He said that he had been seeing defendant for almost a year, commencing about two months after the homicide. It was Dr. Collins' opinion that defendant did not have the capacity to form the intent to murder at the time of the homicide. He based this opinion on what he termed a 'thinking disorder' which kept defendant from understanding the nature and probable consequences of his acts, or from knowing right from wrong.

After deliberation, the jury returned a verdict of guilty of Manslaughter in the First Degree and set punishment at life imprisonment. The court instructed the jury that this verdict form was not in conformity with the instructions earlier provided them. The jury was then asked to return to the jury room and bring back a verdict consistent with the instructions. After ordering the jury to return another verdict, the court decided it had been mistaken in not accepting the second verdict returned, which was a finding of guilty and a sentence of 99 years imprisonment, which was not recorded. The original verdict was then read and the individual jurors polled as to whether this was their verdict. All answered in the affirmative.

Defendant asserts ten propositions of error on appeal, which we shall discuss in the order in which they appear in his brief.

In his first assignment of error, defendant challenges the procedure followed by the District Court in drawing the names from the jury wheel. We will first review the applicable statutory language pertaining to the selection of jurors and then compare that language to the procedure which was actually followed in the instant case in order to determine whether there is any merit to defendant's assertion of error.

The procedure to be followed in drawing prospective jurors' names from the jury wheel is set forth in 38 O.S.1971 § 21, the pertinent part of which reads as follows:

'At such times as the chief District Judge or the available judge of a court of record of the county may order, the court clerk or one of his deputies and the sheriff or one of his deputies In open court and under the directions of the chief District Judge or the available judge of a court of record of the county shall draw from the wheel containing the names of jurors . . .' (emphasis added)

The pertinent part of 38 O.S. § 29, further provides:

'Substantial compliance with the provisions of this Chapter, shall be sufficient to prevent the quashing or setting aside of any indictment of a grant jury chosen hereunder, unless irregularity in drawing, summoning or empaneling the grand jury resulted in depriving a defendant of some substantial right, . . .' (emphasis added)

Thus, if defendant can show that either the procedure followed below was not in substantial compliance with 38 O.S.1971 § 21, or that it deprived him of some substantial right, his assignment of error has merit.

It appears that the jury drawing procedure-actually followed below was as follows: the district judge, court clerk, and sheriff met in the district courtroom. The court bailiff was posted outside the closed courtroom doors with orders to prevent anyone from entering while the drawing was underway. However, the drawing was visible to the public through the glass windows of the courtroom doors. There was no evidence at any time that the three officials involved were not acting in good faith, nor was there any suggestion of irregularity at the time of the drawing other than the fact that the public was physically excluded from inside the courtroom while the drawing was conducted.

Defendant's position is that the drawing was not 'in open court' as per § 21, nor was it in 'substantial compliance' as per § 29. Defendant further argues that the lack of substantial compliance relieves him of the burden prescribed in § 29 of showing that the irregularity deprived him of some substantial right. The State's...