Vavra v. State

• Decision Date: 02 May 1973
• Docket Number: No. A--17516,A--17516
• Citation: 509 P.2d 1379
• Parties: Wendell Vernon VAVRA, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1379

509 P.2d 1379

Wendell Vernon VAVRA, Appellant, v. The STATE of Oklahoma, Appellee.

No. A--17516.

Court of Criminal Appeals of Oklahoma.

May 2, 1973.

James C. Langley, Tulsa, for appellant.

Larry Derryberry, Atty. Gen., Jeff L. Hartmann, Asst. Atty. Gen., for appellee.

OPINION

BLISS, Presiding Judge:

Appellant, Wendell Vernon Vavra, hereinafter referred to as defendant, was charged, tried, and convicted in the District Court of Tulsa County, Case No. CRF--71--1842, for the crime of Murder, arising out of the death of one Meraldine C. Blackley. He was sentenced to serve a term of life imprisonment in the State Penitentiary in accordance with the verdict of the jury, and a timely appeal has been perfected to this Court.

At the trial Earl Bullard testified for the State that on October 8 and 9, 1971, that he lived in apartment #1 at 24 1/2 East Fairview in Tulsa, Oklahoma; that he and one Betty Butler met the defendant on the way to the Western Union Office where the defendant received some money; and that the three returned to the Bullard apartment about midnight on October 8, 1971, where they met Louis Hogner, an Indian acquaintance of Bullard. The four of them began drinking wine, although Bullard was already intoxicated. Witness Bullard testified further that he had laid down and gone to sleep and sometime later he was awakened by loud noises. Thereafter, the defendant left his apartment and he could hear noises of someone breaking in the apartment above; Bullard went upstairs to find a man, dressed like the defendant in blue Levis, standing near the door of apartment #5. Bullard said he told the man to stop breaking in and that the man then hit him and dragged him towards the upstairs porch and this was the last he remembered until waking up in the hospital.

Betty Butler next testified and her testimony was substantially the same as witness Bullard, except witness Butler testified that after a discussion about Indians, a fight ensued principally between the defendant and Hogner. She also testified that the defendant chased her into the street, hit her and then ran back into the apartment building. Witness Butler then ran to a neighbor's house and telephoned the police.

Mark Blackley, the deceased's thirteen year old son, next testified. Mark testified that on the night in question he was living with his mother in apartment #5. He further testified that on the night in question he had been visiting a friend and returned home at approximately 1:00 or 1:30 a.m. and joined his mother, who was already asleep, in bed. He testified he was awakened about 2:30 a.m. by a crash at the living room door and then saw the defendant grab his mother, throw her down, kick her, then run out of the apartment. Mark and his mother fled down the front stairs but were chased back up the stairs by the defendant. Mark testified that the defendant caught his mother in the upstairs hall and she then told Mark to run and call the police. He ran back down the front stairs, jumped over Mr. Bullard's body, which was now lying on the front steps beneath the upstairs porch, and to a nearby house to call for help. On the way past apartment #1, Mark saw Louis Hogner lying on the couch, apparently asleep.

Howard Gibbs Smith, II, testified he was visiting in upstairs apartment #7 on the night in question and he heard scuffling and fighting in the upstairs hall accompanied by choking sounds. He saw an indistinguishable person dressed in blue Levis dragging someone in the hall about 1:15 a.m. Soon afterwards, Smith said the defendant kicked in the door to apartment #7, said he was the FBI, threw the TV in the floor and a pair of TV rabbit ears at Smith, then ordered Smith to leave, which he did. While leaving, Smith saw a body in the upstairs hall.

Witness Leroy Flynn testified he lived in apartment #6 upstairs and that a man kicked in his door early on October 9 and told him to leave his apartment, which he did.

Witness Frank McEniry testified he lived in apartment #8 on the night in question and he heard a commotion in the hall early that morning and had his door kicked but not broken open. When he left his apartment, he had to step over a body lying in the hall.

Police Officer Larry Dale Raulston testified he was employed by the Tulsa Police Department on the night in question. Upon arriving at the apartment house at approximately 3:01 a.m., he and other officers observed Mr. Bullard's body lying on the front steps and then went upstairs and found the deceased's nearly naked body lying in the hall; that the victim was bleeding from several wounds and had footprints and heel marks on her body. Two policemen subdued the defendant near the door to apartment #6 upstairs after the defendant had jumped from behind a stove and tried to run past the officers. Louis Hogner was discovered by the officers lying on the couch in the Bullard apartment downstairs, apparently asleep. The defendant was led out of the apartment building, carefully around the blood covering the front steps, and to the Tulsa Police Station where his clothing was taken and placed in jail.

An FBI lab technician testified that human blood of an undetermined grouping was detected on the right shoe of the defendant.

Dr. Leo Lowbeer, a pathologist, testified that an autopsy revealed that the victim had died from extensive bruises and wounds compatible with being kicked or stomped.

The defendant testified in his own behalf that he had noticed his wallet was missing after his fight with Louis Hogner; that Hogner appeared and said that he and someone upstairs had the wallet and would kill the defendant if he tried to get it back. Defendant admitted kicking Hogner, running downstairs, breaking in some apartment and hitting someone there. The defendant then testified he went downstairs to get his jacket and fought Louis Hogner on the way. He then went back upstairs to find his wallet, saw body in the hall and again fought with Hogner, who stated that he had killed the woman because she would not split the money taken from defendant. After fighting three or four people through the hall, defendant said he then hid in one of the apartments because he was afraid.

The defendant first contends that it was error for the trial court to allow the State to endorse witnesses less than forty-eight hours prior to trial.

The following record was made concerning the endorsement of witness Frank McEniry:

'THE COURT: At this time the Court wishes to announce that at the conclusion of the previous hearing the Court then offered a 48-hour continuance to the defendant, which apparently counsel for the defendant, you desire not to take the 48-hour continuance and to proceed and that the Court will permit the endorsement of the witness Frank McEniry and that you wish to save an exception on the right of the State to ever call this witness but since they have been given the right, that you will proceed at this time without availing yourself of the continuance to prepare for the witness' testimony, is that correct?

'MR. DALTON: That is correct, Your Honor, and for the purpose of the record, for whatever it may be worth, we would demur to the evidence of the State with reference to the application to endorse the witness.

'THE COURT: Allowed--denied.

'MR. DUNN: For the record, may it also be shown the defendant at this time has not withdrawn his announcement of ready nor has he asked the Court for a continuance nor has he shown the Court in any way that he would be prejudiced by this witness being endorsed and being allowed to testify.

'THE COURT: The record shows silence on behalf of the defendant in that regard and the Court then directs the clerk to summon the jurors to prepare for trial.' (Tr. 14--15)

In the case of Songer v. State, Okl.Cr., 464 P.2d 763 (1969) this Court held in Syllabus 1:

'If defendant's counsel is surprised by endorsement of an additional witness shortly before trial and such endorsement of an additional witness requires a production of further testimony by defendant, he should withdraw his announcement of ready for trial and should file a motion for a postponement or a continuance in which he should set out the facts constituting such surprise, and the other evidence, if any, he could produce to rebut the testimony of such additional witness if the trial of the case was continued. Where he fails to do this the error, if any, is waived.'

We therefore find the defendant waived any error by not accepting the 48-hour continuance offered to the defendant by the trial judge.

Later in the trial, the State sought to endorse witness Frank Vincent. The court overruled defendant's objection, finding that another witness had been inadvertently endorsed as the officer who had sent the clothing to the FBI lab.

In the case of McCollough v. State, Okl.Cr., 360 P.2d 727 (1961) this Court held in Syllabus 2:

'Permitting the endorsement of additional witnesses at the time of trial or just prior thereto is within the sound discretion of the court but that discretion should be exercised with the utmost precaution and only after a showing by the state as to their good faith and that non-compliance with the statute was not intentional but by virtue of Inadvertence or late discovery.' (Emphasis added)

The record reveals that witness Vincent was allowed to be endorsed by the State after the State had shown that another witness had inadvertently been endorsed. The record further reveals that defendant made no motion for continuance at this time nor a demonstration of material prejudice. We therefore find no merit in this proposition.

Under defendant's second proposition, the defendant contends the trial court erred in refusing to allow him to examine the jurors on voir dire individually rather than collectively.

In the case of Gonzales v. State, Okl.Cr., 388 P.2d 312 (1964) this Court held in Syllabus 3:

'The manner and extent of examination of jurors, touching their...