Vowell v. State, No. F-84-755

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
• Writing for the Court: BUSSEY; BRETT; PARKS
• Citation: 1986 OK CR 172,728 P.2d 854
• Parties: Kendall Wayne VOWELL, Appellant, v. STATE of Oklahoma, Appellee.
• Docket Number: No. F-84-755
• Decision Date: 19 November 1986

Page 854

728 P.2d 854 Kendall Wayne VOWELL, Appellant,
v.
STATE of Oklahoma, Appellee. No. F-84-755. Court of Criminal Appeals of Oklahoma. Nov. 19, 1986.
Rehearing Denied Dec. 22, 1986.

Page 855

Charles L. Hill, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Kendall Wayne Vowell was convicted in Cleveland County District Court of Robbery with Firearms, Burglary in the Second Degree, Arson in the Third Degree, each After Former Conviction of Two Felonies, and of Murder in the First Degree. He received sentences of thirty-five years', twenty-five years', thirty years', and life imprisonment, respectively.

Appellant and codefendant, Ron Hope, were tried together for the same four offenses occurring the evening of September 7, and the early morning of September 8, 1983. The two were charged with burglarizing the home of Dewey and Mary Miller in Norman, Oklahoma. During the course of the burglary, codefendants saw one of the owners return to the house and they hurriedly left, but ran out of gasoline in their automobile two to three miles away. They flagged down a motorist, Larry Ellis, who returned within a few minutes with fuel. He was shot numerous times and found dead by his wife later that evening in the bar ditch. His wallet and truck were missing. The truck was found later that same evening burning in a field in Cleveland County.

Early the next morning a convenience store in Norman was robbed and appellant and Hope were captured near the store a few minutes later. The weapons used to murder Ellis were used in the robbery and were found in their vehicle.

I

Appellant assigns as error the trial court's refusal to grant his request for continuance of the trial which he made December 16, 1983. A preliminary hearing was conducted December 7 and 8, 1983, and the trial was begun January 23, 1984.

Appellant's motion for continuance was not properly perfected as he failed to support it by affidavit. Tate v. State, 664 P.2d 1036 (Okl.Cr.1983). Nor did he offer evidence in support of his motion to the district court.

Appellant's counsel was appointed November 8, 1983, and, appellant remained in Cleveland County Jail until December 16, 1983. Continuances being a matter within the trial court's discretion, we find no abuse thereof by a denial of adequate opportunity for counsel to prepare for trial. Bowman v. State, 585 P.2d 1373 (Okl.Cr.1978).

II

Appellant charges that the trial court erred in failing to grant his motion for change of venue. Recognizing that the granting of denial of such a motion lies within the trial court's discretion, Robison v. State, 677 P.2d 1080 (Okl.Cr.1984), he contends the venire was prejudiced against him by extensive pretrial publicity and that the denial of his motion was improper. He attached to the motion the affidavit of three Cleveland County residents verifying the same in addition to some newspaper articles published concerning the crimes. However, after an extensive voir dire at trial, all jurors were excused but those who stated they could fairly and impartially judge the case on the evidence and had not previously formed opinions concerning guilt. We find that appellant has not overcome by clear and convincing evidence of actual prejudice the presumption that he was able to receive a fair trial. Robison, supra.

III

Appellant urges that the combination of the various offenses for trial was error under our joinder statutes, 22 O.S.1981, §§ 436-40, and that he was prejudiced by the presentation of evidence in one trial of so many offenses. Section 436

Page 857

provides for the joinder of offenses where they are charged on the basis of a series of acts or transactions. Dodson v. State, 562 P.2d 916 (Okl.Cr.1977) (Specially Concurring, J. Brett). We find in the present case that the offenses arose from a series of acts which were connected and were, therefore, properly joined.

This Court has encouraged the State to join for trial as many offenses as is permissible. Allison v. State, 675 P.2d 142 (Okl.Cr.1983); DeLaune v. State, 569 P.2d 463 (Okl.Cr.1977); Dodson, supra. Judicial economy is thereby promoted. Rather than forcing the State to isolate and prosecute single transactions, joinder of the offenses is extended to those arising from a series of acts or transactions. The acts herein were connected by time, proximity, and evidence. For comparable application of the term "series of acts or transactions," see the following cases: United States v. McClintic, 570 F.2d 685 (8th Cir.1978) and United States v. King, 567 F.2d 785 (8th Cir.1977).

Section 439 provides for severance of trial where the State or the defendant appear to be prejudiced. Appellant did not establish before trial the prejudice he would suffer by joinder. Nor do we discern actual prejudice from our review of the trial record. Indeed, he received the minimum sentence for Murder in the First Degree. All other offenses were sentenced as occurring after prior convictions for two felonies and required minimum sentences of twenty years' imprisonment. 21 O.S.1981, § 51. His sentences of thirty-five, thirty, and twenty-five years' imprisonment do not appear excessive under the circumstances of the case. This assignment of error is without merit.

IV

Appellant also urges that he was prejudiced by being tried with his codefendant Hope. At a pretrial hearing on his motion for severance, counsel argued that appellant would be prejudiced by introduction of codefendant Hope's statement to police which was accusatory of Vowell and also by being required to share peremptory challenges with codefendant during voir dire. However, we note from the pretrial hearing and trial transcripts that both of these problems were obviated by the State's voluntary concessions. It announced that it would not introduce the statement nor require the defendants to join in challenges. No error thereby...