Wadley v. State

• Decision Date: 05 August 1976
• Docket Number: No. F--75--226,F--75--226
• Citation: 553 P.2d 520
• Parties: Paskel N. WADLEY, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 520

553 P.2d 520

Paskel N. WADLEY, Appellant, v. The STATE of Oklahoma, Appellee.

No. F--75--226.

Court of Criminal Appeals of Oklahoma.

Aug. 5, 1976.

Rehearing Denied Sept. 1, 1976.

Jack B. Sellers, Sapulpa, for appellant.

Larry Derryberry, Atty. Gen., James L. Swartz, Asst. Atty. Gen., Jahn D. Rohrer, Legal Intern, for appellee.

OPINION

BRETT, Presiding Judge.

Appellant, Paskel N. Wadley, hereinafter referred to as defendant, was charged in Case No. CRF--74--7 of the District Court, Pawnee County with the crime of Murder in the Second Degree in connection with the death of his wife. He was convicted after a trial by jury of the crime of Manslaughter in the First Degree and, in accordance with the verdict of the jury, was sentenced to serve a term of nineteen (19) years in the State penitentiary. He appeals.

At the time of Mrs. Wadley's death, the Wadleys had been married less than a year. They lived in a trailer house in the Edgewater Mobile Home Park in Pawnee County. Mrs. Wadley's 14-year-old daughter from a prior marriage lived with them. It is apparent from the record that their marriage was other than harmonious. On one occasion the violence of their fighting had forced the daughter to intercede by calling the police. There was testimony that shortly before his wife's death, Wadley had been suspicious about her relationship with another man and angry at the discovery that she maintained a secret and separate bank account.

In the early morning hours of January 29, 1974, Wadley summoned an ambulance to aid his wife. When the ambulance attendant arrived he found Mrs. Wadley dead and immediately notified law enforcement officials of his belief that her death was the result of homicide. Dean Taylor, a Deputy Sheriff of Pawnee County, arrived at the Wadley home at approximately 3:30 a.m. His investigation at the scene revealed blood stains on the living room carpet, and blood-stained bedclothes in the bathtub. Dr. Hickerson, a medical doctor summoned by the police, arrived at the trailer house at approximately 4:15 a.m. He examined the body and formed the opinion that Mrs. Wadley had died an hour and a half to two hours earlier. The doctor testified that he found numerous bruises on the face and upper arms and an abrasion on each knee. The doctor testified that the injuries of the deceased were not inconsistent with the type of injury which results from a fight. The pathologist who performed the autopsy, Dr. Leo Lowbeer, testified that he found numerous abrasions, bruises and scratches on the body. He found blood in the mouth and in the larynx. He testified that Mrs. Wadley died from suffocation caused by heavy bleeding.

The daughter, Vicki Williams, testified that on the evening before her mother's death she was baby-sitting for friends. At approximately 5:30 p.m. her stepfather came for her and insisted that she return home with him. He questioned the girl angrily about her mother's whereabouts and conduct. He told her that he knew her mother was guilty of adultery. At home, the defendant told Vicki she must be quiet because her mother was in bed asleep. Vicki left the trailer again at about 6:30 p.m. and returned about 8:00 p.m. She noticed an inquired about a wet stain on the living room rug next to the coffee table; the defendant told her that her dog was responsible for the stain. The remainder of the evening was unremarkable and she went to bed about 10:00 p.m. and slept until Wadley woke her to tell her than an ambulance was on the way because her mother had taken an overdose of pills. This witness also testified about fights between her mother and Wadley. She had heard them argue loudly and on occasion had heard 'somebody hitting somebody.' She also testified that she had heard her mother admit to the defendant that she had committed adultery with a Ron Mowry. The defendant took the stand in his own behalf and testified that his wife was capable of violent anger. The previous Thanksgiving they had, as the result of her infidelity, fought violently. On the afternoon of January 28, 1974, he testified, they had another fight for the same reason. Wadley testified that when his wife tried to attack him with a broken water glass, he pushed her away and she fell, striking her head on the coffee table. After her fall she was bleeding heavily from her nose and he helped her to the bedroom. In the bedroom they both fell and she struck her head again, this time on the bedpost. He testified that he asked her if she wanted a doctor and she declined. He put the blood-stained bedding in a bathtub of cold water and left his wife to sleep. When, many hours later, he found that his wife was breathing with great difficulty he called an ambulance. He testified that he had not struck his wife with any weapon or instrument and denied that he had intended to seriously injure her.

On appeal he contends first that he was unfairly convicted because the court admitted pretrial hearsay into evidence against him. Secondly, he contends that the court erred in instructing the jury on the lesser included offense of manslaughter in the first degree.

The latter contention is without merit. The gist of his argument in support is that the statute which defines the crime of murder in the second degree, 21 O.S.Supp.1973, § 701.2, includes every element of the crime classified as manslaughter in the first degree, and, consequently, operates to repeal the latter statute by implication. It is sufficient to say that the three circumstances defined a murder by Section 701.2 were not newly created by the State Legislature in 1973. The definitions of murder in that statute have been part of the Oklahoma statutory scheme defining grades and types of homicide since statehood. The statute is different only to the extent that certain specific circumstances have been carved from it and elevated to murder in the first degree.

Defendant's remaining contention, that he was denied a fair trial because the trial judge admitted into evidence against him prejudicial hearsay, concerns testimony given by Karen Sisk, a licensed practical nurse at the Cleveland Area Hospital, Dorothy Morton, a registered nurse at the Cleveland Area Hospital, Wilma Brewer, a ward clerk at that hospital, and Vicki Beatty, a patient at that hospital, who shared a room with Mrs. Wadley in November of 1973. Each of these witnesses testified that the deceased had made certain declarations to them about past conduct of the defendant toward her, specifically, that he had beaten her.

In addition, a Robert Williams, the father of Vicki, testified that he visited Mrs. Wadley in the hospital during that same period and observed that she had some hair pulled out and was badly bruised. He testified that the deceased had told him that Wadley had tried to kill her. Williams also testified that he talked to Wadley later that day and that the defendant admitted assaulting his wife stating 'I hit her good. . . . I knocked her out of the car.' (Tr. 302)

Most of this evidence was inadmissible because it concerned declarations by the deceased which referred to past acts of the defendant.

It is fully recognized that where hostile emotions at a particular time are to be proved in a case, the existence of the same emotion in the same person at another time is proper evidence. II Wigmore on Evidence, § 396 (3rd ed. 1940). And the conduct, attitude, and feelings of the accused and the deceased toward each other may be shown in a murder case to establish motive, malice or intent. I wharton's Criminal Evidence § 175. Evidence of prior assaults by the defendant upon the deceased is admissible in such a case even though such evidence constitutes evidence of another crime. II Wigmore on Evidence, § 363 (3rd ed. 1940). This Court has long recognized that rule. S...