Wills v. State

• Decision Date: 10 November 1981
• Docket Number: No. F-80-416,F-80-416
• Citation: 636 P.2d 372
• Parties: John Franklin WILLS, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 372

636 P.2d 372

John Franklin WILLS, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-416.

Court of Criminal Appeals of Oklahoma.

Nov. 10, 1981.

An Appeal from the District Court of Tulsa County; Raymond W. Graham, judge.

JOHN FRANKLIN WILLS, appellant, was convicted of Manslaughter in the Second Degree, After Former Conviction of a Felony in Tulsa County District Court Case No. CRF-78-3382. He was sentenced to nine years' imprisonment and appeals. AFFIRMED.

James W. Fransein, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Reta Strubhar, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, John Franklin Wills, hereinafter referred to as the defendant, was convicted in Tulsa County District Court, Case No. CRF-78-3382, of Manslaughter in the Second Degree, After Former Conviction of a Felony, was sentenced to nine (9) years' imprisonment, and he appeals.

On December 23, 1978, while residing at the Tulsa YMCA, the defendant and James Rogers became involved in a heated exchange of words. Rogers had made homosexual advances toward another resident of the YMCA, Bruce Flick, who was in a leg cast at the time and could not physically defend himself against Rogers. Flick requested assistance from the defendant who responded by confronting Rogers and trading insults with him. Flick, a witness to the event, testified that the defendant struck the victim two or three times and kicked him in the head and stomach as he lay on the floor. Approximately one hour later the defendant encountered the victim again, knocking him to the floor and repeatedly kicked him in the head and stomach. Flick also observed this second encounter, which left the victim unconscious, and Flick placed the victim in his room where he was later discovered dead.

An autopsy, performed the following afternoon by the Tulsa County Medical Examiner, revealed that the death of Rogers was caused from lacerations to his spleen which had resulted in internal hemorrhaging.

In one of several assignments of error the defendant contends that the prosecutor informed the jury of his prior conviction for robbery by reading to the jury both pages of the information at the beginning of trial. The defendant alleges that he was prejudiced thereby, since the existence of a prior conviction should not have been conveyed to the jury until the second stage of the trial.

It is entirely clear from a reading of the record that the defendant had, sometime prior to trial, waived a bifurcated proceeding and agreed to stipulate to his former conviction. ¹

In Jones v. State, 527 P.2d 169 (Okl.Cr.1974), we held that it is within the trial court's discretion to allow a defendant to waive bifurcated proceedings, and to try, in a single stage, an offense charged after a former conviction of a felony, and we reaffirmed that holding in Avants v. State, 544 P.2d 539 (Okl.Cr.1976). The defendant, having agreed to a one stage proceeding and having failed to voice an objection to the prosecutor's charge to the jury at the beginning of the trial, waived any error resulting therefrom.

This brings us to the defendant's contention that his prior conviction was void since he received a sentence which was less than that allowed by statute. This argument is frivolous and totally without merit. It is well settled in this State that a defendant will not be heard to complain of errors which are made in his favor and are harmless to him. See Cornett v. State, 40 Okl.Cr. 172, 267 P. 869 (1928), and the cases cited therein.

In his next assignment of error the defendant argues that the prosecutor commented on his right to remain silent, in violation of his constitutional guarantee under the fifth amendment to the United States Constitution. The allegedly improper reference was simply, as revealed by the record, a well taken objection to an improper question posed by the defense counsel. The trial court sustained the objection thereto and we do not find that a direct or indirect reference to the defendant's right to remain silent occurred. ² See Hays v. State, 617 P.2d 223 (Okl.Cr.1980); and, United States v. Bennett, 542 F.2d 63 (10th Cir. 1976).

In his next assignment of error the defendant argues that the court erred in admitting evidence that he had paid $100.00 to witness Flick to leave the State and be unavailable for trial. He contends that the admission of such evidence violated 12 O.S.Supp.1980, § 2404 of the Oklahoma Evidence Code and Burks v. State, 594 P.2d 771 (Okl.Cr.1979).

The precise question here presented has never been directly addressed by this Court and it must therefore be resolved by reviewing the disposition of similar but not identical issues by this Court, and by the decisions of our sister states. Evidence of a defendant's flight has long been held admissible as tending to show consciousness of guilt. Farrar v. State, 505 P.2d 1355 (Okl.Cr.1973). A defendant's attempt to hide his identity has been held admissible as a circumstance bearing on consciousness of guilt. Almerigi v. State, 17 Okl.Cr. 458, 188 P. 1094 (1920). A number of jurisdictions have held that efforts of an accused to influence, bribe, or cause the absence of a witness' attendance at trial is admissible as a relevant circumstance tending to show guilt. See Staggs v. State, 51 Ala.App. 203, 283 So.2d 652 (1973); State v. Carter, 16 Ariz.App. 380, 493 P.2d 926 (1972); People v. Casper, 25 Mich.App. 1, 180 N.W.2d 906 (1970); State v. Russell, 62 Wash.2d 635, 384 P.2d 334 (1963). In State v. Stufflebeam, 260 N.W.2d 409 (Iowa 1977), it was held that an attempt by a defendant to improperly influence a witness has independent probative value on the issue to be tried. Actions by a defendant, such as flight to avoid arrest, procuring perjured testimony, attempts to destroy evidence and attempts to cause the absence of a witness from appearing at trial, are admissible as tending to establish the guilt of the accused. In the case of Smith v. State, 142 Ga.App. 1, 234 S.E.2d 816 (1977) it was stated:

"The defendant contends that the trial court erred in overruling objections and motions for mistrial as to testimony concerning the defendant's threats which were made in an attempt to prevent certain witnesses from testifying. There was no error in the judge's rulings, however. Evidence of an act by an accused, intended to obstruct justice or avoid punishment for the crime for which he or she is on trial, is admissible if the act constitutes an admission by conduct." (citations omitted).

An admission by conduct is a separate and distinct concept. An attempt by a party to improperly, even illegally, influence a witness is thought to be an admission by conduct. Such an admission does have independent probative value on the issue to be tried. See State v. Stufflebeam, supra. We hereby adopt the rule of our sister states that an effort by an accused to directly or indirectly suppress or destroy evidence is relevant as a circumstance tending to show guilt. It may be shown that an accused attempted to influence, bribe, or cause the absence of a witness' presence at trial. The trial court did not err in permitting the testimony of Mr. Bruce Flick concerning the payment to him of $100.00 by the defendant, so that he would be unavailable at trial. However, we emphasize that it is appropriate, in admitting such evidence, to give a cautionary instruction to the jury regarding its limited purpose. We note that such an instruction was not given in the instant case, but assume no error occurred since no such instruction was requested. If a defendant wishes evidence admitted for a single purpose to be limited solely to such purpose, he must ask for an instruction so limiting it. Stedman v. State, 568 P.2d 350 (Okl.Cr.1977); Barnhart v. State, 559 P.2d 451 (Okl.Cr.1977).

The defendant also claims that the trial court erred in admitting the testimony of Bruce Flick, for the reason that notice to him was not given as required under this Court's decision in Burks, supra. This evidence was newly discovered by the prosecution and was made known to the defendant immediately. ³ The defendant did not challenge the district attorney's claim that the evidence was newly discovered, rather, to the contrary, he admitted the same. Thus, there was no violation of the Burks rule in this case.

The defendant's final enumeration of error is that an accumulation of irregularities in the trial of this case, when considered as a whole, deprived him of a fair proceeding. In Haney v. State, 503 P.2d 909 (Okl.Cr.1972), we held that if the previous assignments of error are without merit then the final contention that there was an accumulation of error is without merit. We stated in that case "... Inasmuch as we have found the first three assignments of error to be without merit, it follows that the fourth assignment is similarly without merit."

Also see: Ramsey v. State, 558 P.2d 1179 (Okl.Cr.1977); and Washington v. State, 554 P.2d 1194 (Okl.Cr.1976).

The record being free of any error which would justify modification or reversal, the judgment and sentence appealed from is affirmed.

We do however direct the trial court to enter an order nunc pro tunc correcting the judgment and sentence on file in this case to coincide with the verdict returned by the jury, to-wit, Manslaughter in the Second Degree, After Former Conviction of a Felony.

BRETT, P. J., concurs in results.

CORNISH, J., concurs.

1 "MR. BURNS: Your Honor, the district attorney, of course, has...