Tibbetts v. State, F-83-26

• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: PARKS; BRETT; BUSSEY
• Citation: Tibbetts v. State, 698 P.2d 942, 1985 OK CR 43 (Okla. Crim. App. 1985)
• Decision Date: 24 April 1985
• Docket Number: No. F-83-26,F-83-26
• Parties: Kenneth H. TIBBETTS, Appellant, v. STATE of Oklahoma, Appellee.

Page 942

698 P.2d 942

Kenneth H. TIBBETTS, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-26.

Court of Criminal Appeals of Oklahoma.

April 24, 1985.

An Appeal from the District Court, Comanche County; William M. Roberts, District Judge.

Kenneth H. Tibbetts, appellant, was convicted of Rape, Kidnapping, and Sodomy in the District Court of Comanche County, Oklahoma, Case No. CRF-81-660, sentenced to respective sentences of fifty-five (55), ten (10) and ten (10) years, and appeals. REVERSED AND REMANDED.

Sandra Kay Terrill and Ken Sue Doerfel, Terrill & Doerfel, Lawton, for appellant.

Michael C. Turpen, Atty. Gen., Mary F. Williams, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

PARKS, Presiding Judge:

On appeal from his conviction of Rape, Kidnapping, and Sodomy, Case No. CRF-81-660, and respective sentences of fifty-five (55) years, ten (10) years and ten (10) years imprisonment from the District Court of Comanche County, Oklahoma, the appellant, KENNETH H. TIBBETTS, hereinafter referred to as appellant, raises four assignments of error. We reverse.

As this case requires reversal, a complete statement of the facts is unnecessary, and only a discussion of the merits and the assignments of error will be addressed. The evidence adduced at trial revealed that twelve year old L.A. was kidnapped, raped and forced to commit oral sodomy at a wildlife refuge in Comanche County. By way of testimony from the prosecutrix and her companion, the appellant was identified as the perpetrator of the crime. The appellant was arrested by Lawton police detectives based on a physical description, clothing description and an automobile description given by the victim and her companion to authorities. The physical evidence linking the appellant to the crime consisted of clothing, his car and items recovered from him, including a wide blade knife. Also, blood tests and tire track photographs were introduced, albeit, inconclusively.

There appeared to be ample time for the victim to get a good look at the appellant. She also testified that he told her to turn away from him while he dressed, and not to identify him. She did fail to pick him out of a pre-trial line-up, but described her failure to do so as being caused by her nervousness.

Appellant's first assignment of error is that he was denied a fair trial guaranteed him by the United States Constitution and the Constitution and Statutes of the State of Oklahoma in that the jurors at his trial did not possess the necessary prerequisite of fairness and impartiality. Specifically, the appellant complains that, during voir dire examination, he was not informed that one of the prospective jurors and ultimate juror, Ms. Landrun, was the mother-in-law of a Comanche County deputy sheriff. Further, that Ms. Landrun's daughter was the victim of a previous indecent exposure. Also, that her son-in-law was attempting to gain employment with the District Attorney's Office at the time of the trial. The state responds to these arguments by asserting that defense counsel failed to exercise due diligence by failing to inquire into all matters during voir dire examination which might affect the qualification of the jurors, and thus waived his right to challenge the juror.

Ms. Landrun was selected to replace the appellant's second preemptory challenge, and an understanding of this assignment requires that the previous voir dire questions of the other jurors be examined.

On numerous occasions, jurors were asked, both individually and as a group, if any member of their family had been the victim of a crime similar to the case at trial. They were asked if they knew any of the witnesses, parties, attorneys or family members involved in the case. They were also asked if there was any reason they could not sit as a fair and impartial jurors, and they were asked by the court if any one of them had any "confessional" to give. Juror Landrun was specifically asked the following questions when she was selected from the jury panel by the District Attorney:

Q And do you know anybody in the District Attorney's office?

A No.

Q Do you have, and--just a moment. Okay, you understand, ma'am--you have been listening to all these questions that I have been asking so far this morning. You have a general idea of the type of questions I'm asking at this particular point and time?

A Right.

Q Do you have any questions over any of these things that have been brought up to this point?

A No.

And in response to questions from defense counsel, Juror Landrun responded as follows:

Q Okay. You've heard the question that I've asked some of the other potential jurors this morning. Would your answers be any different--

A No.

Q --to the general question?

A Right.

(Tr. p. 94).

In the very first part of the trial, the District Attorney inquired of the twelve jurors drawn first, but in the presence of Juror Landrun: "Now, has anyone had any dealings with the District Attorney's office, such as having been a witness in court or involved in any other manner in the last few years?" (Tr. p. 6).

It is clear from a review of the record that general questions were propounded to the jury panel. We agree with the State that defense counsel should have exercised greater care in examining prospective jurors. See Looper v. State, 381 P.2d 1018, 1023 (Okl.Cr.1963). This court has held that:

Counsel on voir dire examination should inquire into all matters within his knowledge which might affect the qualification of the jurors, and where this is not done, the right to challenge a juror or the jury panel, is considered to have been waived. Hamilton v. State, 79 Okl.Cr. 124, 152 P.2d 291.

However, the attorneys in this case inquired of the prospective panel in general terms as to their relationship with the witnesses, the District Attorney's Office, the Police Department and the Sheriff's Office. While no one specifically asked the panel if they had relatives in the Sheriff's Office, the general parameters of the voir dire examination should have elicited a response from Juror Landrun. The state argues that the general questions propounded to the jury were insufficient to elicit the information later learned about Juror Landrun's relationship with the Sheriff's office, and thereby any objection is waived. In Carr v. State, 65 Okl.Cr. 201, 209, 84 P.2d 42, (1938) and Manuel v. State, 541 P.2d 233, 236 (Okl.Cr.1975), this Court held:

... [A] waiver involves the idea of assent and assent is primarily an act of the understanding. It presupposes that the person to be affected has knowledge of his rights, but does not wish to enforce them. He cannot properly be said to waive that of which he had no knowledge. It...