Taylor v. State, F-80-643

• Decision Date: 28 January 1982
• Docket Number: No. F-80-643,F-80-643
• Citation: 640 P.2d 554
• Parties: Willie Homer TAYLOR, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 554

640 P.2d 554

Willie Homer TAYLOR, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-643.

Court of Criminal Appeals of Oklahoma.

Jan. 28, 1982.

An appeal from the District Court, Muskogee County; Hardy Summers, District Judge.

Willie Homer Taylor, was convicted of Murder in the Second Degree, in the District Court of Muskogee County, Oklahoma, Case No. CRF-76-64, was sentenced to fifty (50) years' imprisonment, and he appeals. AFFIRMED.

D. D. Hayes, Bonds, Matthews, Bonds & Hayes, Muskogee, for appellant.

Jan Eric Cartwright, Atty. Gen., Robert Cole, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Willie Homer Taylor, hereinafter referred to as the defendant, was convicted of Murder in the Second Degree in violation of 21 O.S.Supp.1973, § 701.2, ¹ in the District Court of Muskogee County, Case No. CRF-76-64, he was sentenced to fifty (50) years' imprisonment and he appeals.

On the night of February 17, 1976, Zanita Taylor was in Muskogee, Oklahoma, at the home of her grandmother, with whom she was staying while on leave from the Air Force Reserves to testify against the defendant in criminal proceedings pending against him. Ms. Taylor was married to the defendant when the crime was committed and at the time of the trial, but she had filed for a divorce. Later that night, she heard noises in the backyard and feared that the defendant might be outside. Cecil Collins, her brother-in-law, who was staying at the house, armed himself with a knife; and Darrell Abernathy, a visitor, armed himself with a crowbar. All the lights in the house, except one, were turned off. When Mr. Collins attempted to prevent the defendant's entry into the house through a back window, he was stabbed one time in the heart by the appellant, and died a few minutes later.

The defendant testified that he frequently visited Ms. Taylor at her grandmother's house, and that he always entered through the rear window in order to avoid disturbing the grandmother. He stated that he had his pocket knife out because the neighborhood was dangerous, and that when Collins began choking him he slashed at his hand so that he might free himself. He fled the scene and was apprehended some twenty (20) months later.

I.

As his first assignment of error, the defendant asserts that the trial court erred in allowing the appellant's wife to testify against him. 22 O.S.1971, § 702, creates a marital privilege which provides that one spouse may not testify against the other in a criminal prosecution. On October 1, 1978, the Oklahoma Evidence Code became effective, and 22 O.S.1971, § 702, is not specifically repealed in the repealer clause. However, a section of the new code does deal specifically with the marital privilege in criminal cases. Laws 1978, ch. 285, § 504, now 12 O.S.Supp.1980, § 2504, prohibits one spouse from testifying against another with regard to confidential communications.

In City of Sand Springs v. Department of Public Welfare, 608 P.2d 1139 (Okl.1980), the Oklahoma Supreme Court held that a statute may be repealed by implication only if there are irreconcilable conflicts between the statutes; where such a conflict exists, the latter statute modifies the earlier. The latter statute in this case would bar only testimony regarding confidential communication between spouses. Under 22 O.S.1971, § 702, any testimony by one spouse against the other, except in very limited areas above, is prohibited. In the evidence subcommittee's notes following Section 2504, it is stated that this section constitutes a substantial departure from existing Oklahoma law. Most significantly it limits the marital communication privilege from preventing a spouse in a criminal proceeding from testifying as to any confidential communications between the accused and the spouse. The intent of the Legislature to change prior Oklahoma law is evident.

The defendant further argues that since the crime was committed prior to the adoption of the Oklahoma Evidence Code in 1978, he should be governed by the earlier statute, and that he had an "accrued right" under the law then in force to prevent his wife from testifying against him. Similar arguments have been rejected in the past. In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), Mr. Justice Rehnquist, speaking for a majority of the Supreme Court, stated:

Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto. For example in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), as of the date of the alleged homicide a convicted felon could not have been called as a witness. Subsequent to that date, but prior to the trial of the case, this law was changed; a convicted felon was called to the stand and testified, implicating Hopt in the crime charged against him. Even though this change in the law obviously had a detrimental impact upon the defendant, the court found that the law was not ex post facto because it neither made criminal a theretofore innocent act, nor aggravated a crime previously committed, nor provided greater punishment, nor changed the proof necessary to convict. Id., at 589, 4 S.Ct. 202 (210), 28 L.Ed. 262.

In Thompson v. Missouri, 171 U.S. 380, 18 S.Ct. 922, 43 L.Ed. 204, (1898), a defendant was convicted of murder solely on circumstantial evidence. His conviction was reversed by the Missouri Supreme Court because of the inadmissibility of certain evidence. Prior to the second trial, the law was changed to make...