Weatherly v. State

• Decision Date: 25 February 1987
• Docket Number: No. F-84-798,F-84-798
• Parties: Harold Gene WEATHERLY, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1331

733 P.2d 1331

Harold Gene WEATHERLY, Appellant, v. STATE of Oklahoma, Appellee.

No. F-84-798.

Court of Criminal Appeals of Oklahoma.

Feb. 25, 1987.

Rehearing Denied April 6, 1987.

Gloyd McCoy, Asst. Appellant Public Defender, Norman, for appellant.

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

OPINION

PARKS, Judge:

Harold Gene Weatherly, the appellant herein, was convicted by a jury in the District Court of Oklahoma County, Case No. CRF-84-1101, for two counts of Assault and Battery with a Deadly Weapon with Intent to Kill. Punishment was assessed at twenty (20) years imprisonment on each count. The trial court imposed judgment and sentence in accordance with the jury's verdict and ordered that the sentences be served consecutively. We affirm.

The facts of this case reveal a criminal episode that was most brutal and reprehensible. On January 10, 1984, Ester Moctezuma got off work at the Moore Christian Pre-School, and drove to her father's home in southeast Oklahoma City. At around 4:00 p.m. she was talking to her mother on the telephone when the doorbell rang. She hung up the phone and went to the door where she saw the appellant, who explained his truck had broken down and asked if he could use the telephone. Ms. Moctezuma agreed and led him to a telephone in the kitchen. As appellant made his telephone call, Ms. Moctezuma walked to a desk and began looking at some mail. Suddenly she was attacked by the appellant, who had a knife. He began stabbing her in the shoulder, and his stabs to the chest and stomach knocked Ms. Moctezuma off her feet. Finally, the appellant stopped stabbing her, and Ms. Moctezuma fainted.

When she regained consciousness, Ms. Moctezuma went to the telephone to call for help. The appellant suddenly appeared, cut the wire to the telephone, and stabbed her hand. He then stabbed her repeatedly on the legs and sides until she again lost consciousness.

When she awoke a second time, Ms. Moctezuma remembered that the phone line had been cut, and went outside to seek help. She had been stabbed so many times that she had to hold her internal organs in her body with her arms. She found that she was unable to yell. She staggered back into the house and went to the hall phone, which she discovered had also been disabled. She began to feel cold, and prayed for God's assistance. Suddenly, a third phone rang in her brother's bedroom. She went to the phone and picked it up, but found no one on the line. She then called her sister for help. Ambulance attendants and police soon arrived on the scene and Ms. Moctezuma was taken to South Community Hospital. She had been stabbed forty times.

Aside from Ms. Moctezuma's identification of appellant as the man who attacked her, appellant was linked to the crime through fibers found on his tennis shoes, which were consistent with fibers on Ms. Moctezuma's clothing and in her father's house.

Appellant interposed the defense of alibi. He called as witnesses several persons who the appellant testified was cleaning out a shed on his brother's property at the time the attack on Ms. Moctezuma occurred. The witnesses also denied that the tennis shoes in question belonged to the appellant. However, a prosecution witness testifed on rebuttal that she had dated the appellant, and that the tennis shoes belonged to him.

I.

In his first assignment of error, the appellant raises an issue which is of much concern to this Court. Appellant asserts that evidence was admitted revealing that he had failed to pass a polygraph examination conducted by police as part of its investigation of this case.

The facts regarding this issue are as follows: At trial, defense counsel sought to collaterally impeach the testimony of Ms. Moctezuma by cross-examining a police detective with statements attributable to the victim as contained in an Arrest Warrant Application and Affidavit. Counsel also attempted to impeach the detective regarding information from others which he attested as true. The prosecutor then sought to introduce the Arrest Warrant Application and Affidavit, and the document was admitted without objection as State's Exhibit No. 57. At a hearing on appellant's post-trial motion for new trial, it was revealed that the third page of the exhibit contained information that the appellant "was being deceptive and was not telling the truth during the polygraph examination in reference to relevant questions concerning the case." All of the parties stated that during trial they did not realize the exhibit contained this information. Appellant moved for a new trial based on this disclosure. The prosecutor then called two jurors as witnesses. Both testified they were not aware of this information, and that the issue of a polygraph examination was never discussed by the jury during deliberations.

It is beyond dispute that admission of this information, with or without objection, constituted error. Jones v. State, 527 P.2d 169 (Okl.Cr.1974). This determination does not, however, end our inquiry. We have previously held, regarding this issue, that "unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required." Birdsong v. State, 649 P.2d 786 (Okl.Cr.1982). Our examination of this issue, therefore, centers around two considerations: First, was testimony by the jurors admissible to prove that the appellant was not prejudiced by this error, and, second, is there a reasonable possibility that the improper information contributed to the conviction?

A.

Our consideration of this first issue is governed by 12 O.S.1981, § 2606(B) of our Evidence Code, which states:

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.

Section 2606(B) was enacted as a rule of incompetency prohibiting jurors from testifying to the motives, methods or mental processes by which they reached their verdict, or failed to reach it. I.L. Whinery, Oklahoma Evidence 197 (1985). It applies only to inquiry after the verdict has been reached and recorded. Wacoche v. State, 644 P.2d 568 (Okl.Cr.1982). The policy reasons for such a rule have been explained in Keller v. State, 651 P.2d 1339 (Okl.Cr.1982):

It is not only against public policy, but it would be opening the doors of the courts to the practice of fraud and perjury. Litigants against whom verdicts had been rendered would be continually importuning jurors, and attempting to obtain from them statements and affidavits upon which such verdicts could be assailed. There would be no end to litigation. It would destroy the very purpose of trial by jury, and especially is this true in the trial of criminal cases.

... The jury will be subjected to influences after they have been dismissed from duty as jurors, to induce them to repent of their verdict and endeavor to revoke it. They would be liable to be tampered with. It would be difficult to place a limit to the corruption such a practice might engendre.

Id. at 1373, quoting Wheller v. State, 66 Okl.Cr. 127, 90 P.2d 49 (1939). Without the non-impeachment rule, juries would, in Learned Hand's phrase, "become Penelopes, forever engaged in unravelling the webs they wove." Jorgensen v. York Ice Machinery Corp., 160 F.2d 432, 435 (2d Cir.1947). Moreover, if jurors were permitted to impeach their verdict, "it would take from the court the power to grant a new trial and give it to the jury. Manifestly this would be inconsistent with the theory of our judiciary system, revolutionary in character, and contrary to public policy." Keith v. State, 7 Okl.Cr. 156, 161, 123 P. 174 (1912). The non-impeachment rule lends finality to judgments, rather than leaving finality to a change of mind or second thoughts by a juror. Accordingly, we have held that section 2606(B) barred consideration of a juror's testimony that she had a reasonable doubt as to the defendant's guilt, but "I was so tired, I just gave up and voted what the--with the rest of the jurors and I knew it wasn't right." Keller v. State, supra at 1342-43.

On the other hand, the Legislature has recognized that litigants must have a method by which to inquire into the existence of events calculated to exert improper influences on the verdict. Therefore, under section 2606(B), it is not error for a judge to permit juror testimony on the question of whether improper and prejudicial information was revealed to the jury or any outside influence was improperly brought to bear upon any juror. Smith v. State, 656 P.2d 277 (Okl.Cr.1982). The rule codifies the United States Supreme Court's long-ago statement that

[a] juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind.

Mattox v. United States, 146 U.S. 140, 148-49, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1982).

We believe that the Legislature, through enactment of section 2606(B), has drawn a line between subjective and objective events, rendering testimony concerning the former incompetent and the later admissible. The central focus of section 2606(B) is upon insulation of the manner in which the jury reached its verdict, and this protection extends to all of the components of deliberation....