Van White v. State

CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
Citation752 P.2d 814,1988 OK CR 47
Docket NumberNo. F-84-557,F-84-557
PartiesSteven VAN WHITE, Appellant, v. The STATE of Oklahoma, Appellee.
Decision Date09 March 1988

PARKS, Judge:

The appellant, Steven Van White, was tried by jury in Okmulgee District Court, Case No. CRF-82-375, before the Honorable John Maley, District Judge. He was convicted of First Degree Malice Aforethought Murder (21 O.S.1981, § 701.7) (Count I), Assault and Battery With Intent to Kill (21 O.S.1981, § 652) (Count II), Robbery With a Dangerous Weapon, (21 O.S.Supp.1982, § 801) (Count III), and Attempted Rape, (21 O.S.1981, § 1114) (Count IV). The jury recommended sentences respectively of death, twenty (20) years, and two terms of life imprisonment. Judgment and sentence was imposed in accordance with the jury's verdict. We reverse and remand Count I for a new trial, and otherwise affirm. In light of our disposition of appellant's thirteenth assignment of error, which requires that Count I be reversed and remanded for a new trial, we find it unnecessary to address any other assignments of error relating solely to Count I.

Briefly stated, on the afternoon of December 22, 1982, the appellant followed Geraldine Dennis into a thrift store, pulled a steak knife from his pocket, and began stabbing her in the neck and face. The store clerk, Shirley Mann, came forward from the back of the shop and attempted to use the telephone. The appellant confronted Ms. Mann, she dropped the telephone, and the appellant resumed stabbing Ms. Dennis. Subsequently, Ms. Dennis observed the appellant force Ms. Mann down the hall at knifepoint. The appellant then stabbed Ms. Mann to death in a bathroom in the back of the store. Appellant admitted pulling Ms. Mann's pants and panties down to her knees in an attempt to have sex with her, but claimed that he changed his mind and did not do so. Appellant then struck Ms. Mann several times in the head with a bowling ball. Meanwhile, Ms. Dennis hid in a closet, but the appellant found her and began stabbing her again until she lost consciousness. Appellant exchanged his clothes for some in the store before he left. The State also presented testimony indicating that the appellant stole an undetermined amount of money from Ms. Dennis' purse and from the thrift store's donation box.

Larry Mullins, a fingerprint expert, identified prints taken from the store and a bowling ball in the store as belonging to the appellant. Kenneth Ede, a serologist with the OSBI, testified that blood found on a steak knife, a pair of coveralls, door scrapings, and the appellant's sweater, belonged to Ms. Mann. Blood samples taken from the appellant's tennis shoes were consistent with either Ms. Mann's or the appellant's blood type. Dr. Robert Hemphill, Deputy Chief Medical Examiner, testified that Ms. Mann died as the result of a stab wound to the neck which severed the left carotid artery, causing her to bleed to death. He stated that he found two or three slight abrasions at the entrance of Ms. Mann's vagina, which could have been caused by an attempt to insert a penis or by rubbing some rough object against that area. Dr. Hemphill found no sperm present in the victim's vagina, rectum or mouth.

The appellant was apprehended the next day when he was spotted in the downtown area of Okmulgee with blood-stained tennis shoes. After the appellant voluntarily accompanied the officers to the police station, he was read his Miranda rights. Officers observed a fresh cut across the appellant's hand. Thereafter, appellant confessed to stabbing the two women, claiming that he was high on paint fumes and that the devil made him do it.

Dr. Thomas Donica, a private psychiatrist, testified on behalf of the appellant at trial, that the appellant was brain damaged, that his judgment was so impaired that he could not form the wilful intent to kill, that he could not control his impulses and that he was insane at the time of the killings. On cross-examination, Donica admitted that he had not examined the appellant until nine (9) months after the homicide, and then only for a total of three (3) hours. Angela White, the appellant's mother, testified concerning appellant's prior history of paint sniffing, his two prior attempts to commit suicide, and his stabbing of his father and another man. Appellant testified that he was twenty-four years old, that the devil told him to do things, that he did not remember the killing of Ms. Mann, or being in a mental hospital or confessing to the crime.

Dr. Sandra Petrick, a clinical psychologist at Eastern State Hospital, testified in rebuttal that the appellant was competent to stand trial and that in her opinion he was not psychotic, but was malingering. Dr. Lance Portnoff, a neuropsychologist at Eastern State Hospital, testified that he did not believe the appellant was mentally ill, but that he was so acting in order to feign mental illness. Mary Williams, a cook at the Okmulgee County Jail, said that the appellant told her that he would be "in Vinita for three or four years and I will be right back out here; I'm going to kill alot of bitches."

I. Pre-Trial Issues

In his fourth assignment of error, the appellant claims that the trial court erred in denying appellant's motion for a second hearing on competency. Appellant was found incompetent to stand trial on November 22, 1983. On April 16, 1984, he was determined to be competent to stand trial. On May 4, 1984, appellant filed a second motion for a competency hearing. At the April 16, 1984, hearing in which the appellant was subsequently determined to be competent, the State presented the testimony of a social worker, a psychologist, and a psychiatrist, who had observed the appellant at Eastern State Hospital, and who all agreed that the appellant's "rocking" motions were part of his attempt to fake mental illness, and in their opinion he was competent to stand trial. The appellant presented the testimony of Dr. Thomas Donica, a private psychiatrist, who testified that the appellant had organic brain damage, that he could not assist his attorney, that he might possibly recover within three (3) years, and that it was doubtful that the appellant was malingering, although it was possible. In light of the foregoing, we find that the trial judge's finding is supported by competent evidence and, in the absence of a showing of an abuse of discretion, we will not disturb that finding on appeal. See Moore v. State, 672 P.2d 1175, 1177 (Okla.Crim.App.1983).


Issues Relating to Guilt-Innocence


In his sixth assignment of error, appellant argues that the failure of the trial court to provide him with funds for an expert witness deprived him of his sole defense. Dr. Thomas Donica, a private psychiatrist, testified at trial on behalf of the appellant that, in his opinion, the appellant suffered from organic brain damage, that such opinion was substantiated by a neuropsychological report done by Dr. Russell Adams, and that the appellant was insane at the time of the offense insofar as he could not understand the nature and consequences of his acts. Appellant claims that error occurred because he was unable to personally have Dr. Adams testify to the results of his neuropsychological exam. The appellant in fact presented expert testimony to support his insanity defense and the report made by Dr. Adams as a result of his evaluation of the appellant was admitted in its entirety as Defense Exhibit No. 2, for the jury's consideration. Accordingly, we cannot say that the appellant was denied of the basic tools of an adequate defense. The instant case is distinguishable from Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), where the defendant was denied access to a competent psychiatrist. We cannot say prejudice occurred in the denial of these funds. See Standridge v. State, 701 P.2d 761, 764 (Okla.Crim.App.1985). This assignment of error is without merit.


In his seventh assignment of error, appellant complains that the trial court exposed the jury to prejudicial hearsay by allowing Dr. Lance Portnoff testify to the conclusion of a scientific study. Under 12 O.S.1981, § 2703, an expert witness may rely upon facts or data which are not admissible in evidence, so long as the data is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject...." Although Dr. Portnoff did not testify that the Rosenhand report concerning faking mental illness was of a type reasonably relied upon by other neuropsychologists in diagnosing malingering, we note that the appellant failed to properly preserve this issue for review by specifically objecting on this ground at trial. See 12 O.S.1981, § 2104(A)(1). The Legislative History of Section 2703 clearly indicates that the rule was designed to broaden the basis for expert opinions, noting that most of the sources relied upon by expert witnesses would be admissible in evidence, "but only with the expenditure of substantial time in producing and examining various authenticating witnesses." See 1 L. Whinery, Guide to the Oklahoma Evidence Code, 245-46 (1985). An...

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