Wacoche v. State

• Decision Date: 27 April 1982
• Docket Number: No. F-80-500,F-80-500
• Citation: 644 P.2d 568,1982 OK CR 55
• Parties: Allen WACOCHE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 568

644 P.2d 568

Allen WACOCHE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-500.

Court of Criminal Appeals of Oklahoma.

April 27, 1982.

An appeal from the District Court of Cherokee County; William H. Bliss, District Judge.

Allen Wacoche, appellant, was convicted of Rape in the First Degree, Case No. CRF-71-91. He was sentenced to thirty (30) years' imprisonment, and appeals. AFFIRMED.

Tim K. Baker, Tahlequah, for appellant.

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

OPINION

CORNISH, Judge:

The facts of this case reveal a most reprehensible criminal episode. On January 29, 1979, the victim, S.J., attended an evening class at Northeastern University. As she was walking to her car after class, she noticed a man walking to her left. Seconds after she started her car, the door on the driver's side flew open. The assailant, whom she later identified as Allen Wacoche told her to "get over." He then hit her on her left cheek with the butt of his pistol.

Once in the car, Wacoche ordered S.J. to remove her coat and shoes and place them in the back seat of the car. He drove the car from the university and demanded that she undress. He unzipped his pants and forced her to orally sodomize him before raping her. As the appellant continued driving, S.J. begged him to allow her to put her clothes back on. He told her that she could, but to leave her shoes and coat in the back seat. The temperature that night was below freezing.

On three different occasions the appellant stopped the car and ordered the victim to get out. Each time he made her walk in the snow without her shoes or coat. Each time he threatened to kill her. Only after pleading for her life was she allowed back into the car. The fourth time the accused stopped the car, S.J. was not so fortunate; the assailant ordered her to get out of the car and to walk to the edge of a cliff, and told her to "go on over." As she fell over the cliff she grabbed a branch of a tree, breaking her fall, and landed on a ledge.

As she laid on the ledge, the assailant shot her in the stomach. She remained there until she heard him drive away, and then somehow managed to climb back to the road and followed a path to a nearby house where she sought help. S.J. remained in the Tahlequah hospital for twenty-five days recovering from the gunshot wound.

I

The first allegation of error deals with the victim's identification of the appellant. The appellant alleges that the pre-indictment lineup was unnecessarily suggestive and tainted the victim's in-court identification. The State does not argue that the lineup was proper, but instead argues that the victim's in-court identification was independently reliable.

In Green v. State, 594 P.2d 767 (Okl.Cr.1979), this Court held that "although the pretrial confrontation may be needlessly suggestive, it does not strictly follow that the in-court identification must be suppressed." The trial court must look at the "totality of the circumstances" and determine whether there is a substantial likelihood of irreparable misidentification. Here, the trial judge ruled that the unconstitutional pretrial lineup did not taint the in-court identification. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).

The United States Supreme Court in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), held

the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

The trial court's ruling admitting the victim's in-court identification is supported by the record. Mrs. Jones spent approximately two and one-half hours with the assailant. During a substantial portion of this time she was as close as twelve inches from the appellant's face. Additionally, the car door was opened on several occasions, allowing her to observe the appellant while the interior car lights were on. Also, car instrumentation lights were on during this traumatic experience. On innumerable occasions the victim directly faced her assailant.

In the hospital the victim gave a description of the assailant, which generally matched the appellant's age, weight, height and hair length. The victim testified, "I see him here and I recognize his face. I will never forget it." She also testified that she identified the appellant from her recognition of his face on the night she was raped.

After reviewing the entire record, we hold that there was no substantial likelihood of misidentification. The victim's in-court identification was properly admitted.

II

Wacoche argues that he was denied due process of a fair and impartial trial. He claims that one of the jurors had spoken to the bailiff during the trial. The bailiff informed the trial judge that Juror Knight, during a recess, stated to him that the defendant "just went out and did the same thing" and that is how they caught him. The bailiff replied, "You can't consider that." Juror Knight then allegedly stated, "I know we can't consider it."

In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), the Supreme Court reiterated every defendant is entitled to have 'a panel of impartial, indifferent jurors.' The Murphy Court stated:

"To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in Court.' Supra, at 800, 95 S.Ct. at 2036; citing, Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642."

In Townley v. State, 355 P.2d 420 (Okl.Cr.1960), this Court was presented with a similar situation. In Townley, supra, at 431, there was testimony that an attorney was seen talking with two jurors. At the time, the two jurors were sitting on the criminal trial of the defendant. The attorney, in question, was representing the prosecuting witness in a civil action against the defendant. In Townley this Court affirmed the conviction holding that the defendant had not shown that he was prejudiced.

The Townley Court enunciated that a distinction is made between misconduct which occurs prior to submitting the case to the jury and misconduct which occurs after the jury has retired for deliberations. When the alleged misconduct occurs subsequent to the submission of the case to the jury, the misconduct is presumed to have prejudiced the defendant and it is incumbent upon the State to show that he was not prejudiced. However, where it appears that a juror converses with third parties during the trial and prior to deliberations, there must be a showing by the defendant that he was prejudiced. Parks v. State, 457 P.2d 818 (Okl.Cr.1969).

In this case, the trial judge ruled that Juror Knight knew he could not consider the extraneous evidence in the case and that he had promised at voir dire that he would only try this case on its merits. Additionally, every juror except one had indicated at voir dire that they had read or heard something about the case. The defense had an opportunity to voir dire each juror as to any impressions they might have obtained from these extraneous sources.

The trial judge has broad discretion in ruling on the issue of prejudice resulting from extraneous information being read or heard by the jury concerning the trial. McDonald v. State, 553 P.2d 171 (Okl.Cr.1976); citing, Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959). This is a very close issue, however, we find that the trial court did not abuse its discretion. The defendant has failed to show that he was prejudiced or that he was denied a fair and impartial trial. But see also Pulliam v. State, 491 P.2d 353 (Okl.Cr.1971) (finding that the trial court abused its discretion); and, Glasgow v. State, 370 P.2d 933 (Okl.Cr.1962) (upholding trial courts ruling).

We comment with consternation, however, on the motion for new trial hearing, which was conducted on December 6, 1979. At this hearing several jurors were called to relate to the trial court discussions which occurred during the jury's deliberation. The sanctity of the jury room cannot be invaded. Munn v. State, 459 P.2d 628 (Okl.Cr.1969). Jurors cannot impeach or contradict their verdict by affidavits or testimony after they have been discharged from the jury. Daniels v. State, 554 P.2d 88 (Okl.Cr.1976).

Title 12, Section 2606(B) provides:

Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify as to any matter or statement occurring during the course of the jury's deliberations or as to the effect of anything upon his or another juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes during deliberations. A juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. An affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying shall not be received for these purposes. 12 O.S.1981, § 2606.

In this case, the proper procedure would have been for the trial court to question Juror Knight in chambers at the time the parties became aware of the situation. The trial court could properly question the juror whether any extraneous prejudicial information was brought to his attention.

III

Wacoche complains that the State's closing argument...