Householder v. State

OPINION BUSSEY, Presiding Judge: Appellant, David Lee Householder, hereinafter referred to as defendant, was charged, tried and convicted in the District Court of Oklahoma County, Oklahoma, for the offense of Kidnapping for Purposes of Extorting a Thing of Value or Advantage; his punishment was fixed at ten (10) years imprisonment, and from said judgment and sentence, a timely appeal has been perfected to this Court. At the trial, Nelda Denning testified that on August 29, 1969, she was employed as a real estate broker in Oklahoma City. At approximately 7:00 p.m. she returned home and found a note to the effect that a man wanted to see a house at 71st Street and MacArthur. She arrived at the address at approximately 7:30 p. m. and unlocked the house. She checked the other houses in the block and proceeded to the company field office. After making a telephone call home, she left the office and observed a man in a white Ford parked behind her car. The man, whom she identified in court as the defendant, got out of his car and told her that he wanted to look at two of her houses on Comanche Avenue. They looked at several houses, each driving their own car. The defendant suggested that they return and look at the house at 71st Street and MacArthur. It was still daylight as they arrived, she parking in front and the defendant in the driveway. They examined the interior of the house and the defendant suddenly started hitting her about the face. He then tripped her, sat on her and tied her hands behind her back. He told her to stand in the corner of the bedroom and not to make a sound. He left a “split instant” and, returning with sheet strippings and rags, retied her hands, blindfolded her and stuffed rags down her throat. He took her to the garage, dragging her part of the way. He then proceeded to tie her legs and carried her to his car where she was placed in the trunk. They drove for some time on a pavement and then on what she thought was a dirt road. Defendant stopped the vehicle and placed her in the back seat of the car and drove a very short distance where the car became stuck. Defendant cut the cords from her legs and cut the seams of her panty hose with some type of sharp instrument. He then proceeded to bite the elastic around the legs of her underpants and then “sexually attacked me.” (Tr. 31) He then removed her from the vehicle- and, after going several steps, she and the defendant fell down a ravine. The defendant then attacked her again. The defendant then cut a leg from her panty hose and wrapped it around her neck, choking her until she passed out. The next thing she remembered was hearing a lot of commotion and she managed to get her hands loose and pull down her blindfold. She climbed up the bank and encountered Mr. Nemecek and some boys. She was taken to the Police Station in Yukon and from there to the hospital. She testified that she had “a broken nose, crushed nose, a cracked jaw, a broken palate and just black and blue from the top of my head to the tip of my toes.” (Tr. 38) On cross-examination it was established that some police officers brought a bunch of pictures to her in the hospital and that she was taken to the police station to view a lineup. On re-direct examination, she testified that she recognized the defendant from the scene of the crime, rather than from the lineup identification. Orville Denning testified that he was the victim’s husband. He identified certain pictures which he took of his wife at the — 1114 — hospital on August 31, and September 2, 1969. John Conner, Jr. testified that on the evening in question he, John Diehl and Allen Novy were going to Piedmont. On a detour, they observed a white 1965 Ford just after dusk partially stuck in a ditch. A man appeared and asked them to help him out. As they were pushing the car, Mr. Nemecek drove up and stopped. They got the car unstuck and the driver took off and proceeded about a quarter of a mile, whereupon he turned around and came back. He had a short conversation with Nemecek and “then took off again.” He heard some noise in the bushes to his left and discovered Mrs. Denning. Her hands were tied, her clothes were torn and her face was “really swollen up.” He identified the defendant in court as the driver of the Ford automobile. On cross-examination he testified that he was shown pictures of possible suspects which contained the defendant’s picture prior to viewing a lineup. He testified that he was “pretty sure that it was him. I’m not — absolutely sure.” (Tr. 109-110) John Diehl testified that he was with Novy and Conner on the evening in question. He testified that he saw a 1965 white Ford off the left side of the roadway. He testified that the defendant stepped from the side of the car and asked if they would help get him out. They managed to get the defendant unstuck and the defendant took off down the road. Defendant returned, had a short conversation with Mr. Nemecek and then took off again. On cross-examination he testified that he obtained a tag number from the Ford automobile, which was given to the police; that he was shown pictures of various suspects, which included a picture of the defendant, prior to viewing a lineup. He further testified that the tag number was only a partial number. Levi Nemecek identified the defendant as the driver of the white Ford. His testimony did not differ substantially from the account of Witnesses Conner and Diehl as to what had transpired. He estimated that they found Mrs. Denning between 9:00 and 9:15 p.m. For the defense, Kenneth Smith testified that he was furnished a partial tag number by one of the witnesses and attempted to trace it but was unsuccessful. He testified that he showed the State’s witnesses pictures of the defendant along with pictures of other persons prior to a police lineup and that none of the pictures were persons appearing in the lineup except defendant. Howard Blair testified that he was Mrs. Denning’s employer. He testified that another employee, Allen Prince, had a white 1965 Ford. Duane Prince was called by the defendant and testified that he owned a 1965 white Ford which he drove to work. To his knowledge, no one else had driven the automobile. Detective Shimmels testified that he was involved in the investigation of the alleged rape-abduction of Mrs. Denning. He talked to the defendant who sent him to talk to certain persons at Clark Motor Company. He searched defendant’s house and found “nothing.” (Tr. 211) John McWethy testified that on August 29, 1965 he was employed as a car salesman at Clark Motor Company used car lot. The defendant came to the used car lot at approximately ten minutes before nine on the evening in question. The defendant was driving a blue Malibu Chevrolet and looked at used cars for approximately fifteen minutes. He testified that he remembered the date because he was questioned by a police officer shortly thereafter. The defendant testified that on the evening in question he went to Hollies Drive-In in downtown Oklahoma City at approximately 8:00 p.m. From Hollies Drive-In he went to the Clark Motor Company, arriving at approximately 8:40 p.m. He remained at the motor company for approximately twenty to twenty-five minutes and returned to Hollies Drive-In. He further testified that he was not in the 5900 block of Northwest 71st Street and had not seen — 1115 — Mrs. Denning prior to first observing her in a courtroom. He denied ever having or driving a white Ford automobile and denied being near Piedmont on the evening in question. He admitted a prior conviction for assault. Dr. Reynolds testified that on the night of August 29, 1969 he examined Mrs. Den-ning at the Baptist Memorial Hospital. He testified that there were no bruises or abrasions in the pelvic area and a sperm test was negative. On cross-examination he testified that it was apparent that she had been beaten up because of the bruises about the eyes and face. He testified that he did find sand and grass in the genital area. Because of her age, it was not possible to determine whether she had recently had sexual intercourse unless there were bruises or marks about the vagina or unless there was sperm in the vagina. Defendant’s first proposition asserts that the verdict is not supported by the evidence. We have consistently held that where there is competent evidence in the record from which the jury could reasonably conclude that defendant was guilty as charged, the Court of Criminal Appeals will not interfere with the verdict, even though there is a strong conflict in the evidence and different inferences may be drawn therefrom since it is the exclusive province of the jury to weigh the evidence and determine the facts. Jones v. State, Okl.Cr., 468 P.2d 805. The next proposition contends that the punishment is excessive. Suffice it to say that the punishment imposed was the minimum provided by law and certainly does not shock the conscience of this Court. The next proposition asserts that the prosecution made improper and prejudicial arguments to the jury. Defendant first objects to opening statement of the prosecuting attorney wherein he stated that the defendant committed oral sodomy upon Mrs. Denning. ,We need only to observe that the opening statement of the prosecuting attorney was not taken by the reporter and was not made a part of the record before this Court. In Crane v. State, Okl.Cr., 461 P.2d 986, we stated: “* * * In considering (a), that the trial court erred in failing to grant a mistrial because of a variance between the Information and opening statement of the prosecuting attorney, we observe that this question is not properly before us for the reason that the opening statement of the prosecuting attorney was not incorporated in the record and we will not presume error from a silent record. See also Potter v. State, Okl.Cr., 473 P.2d 337. Defendant next objects to three remarks made by the prosecuting attorney in his closing argument. We observe that the record does not reflect that any objections were imposed to the alleged improper remarks, nor were exceptions taken to the court’s ruling, nor was there a request made for a mistrial nor was the same argued in the motion for new trial. In Overstreet v. State, Okl.Cr., 483 P.2d 738, we stated: “ * * * We have previously held that if counsel wishes to preserve the record during closing argument of the State, that when an objectional statement is made by the prosecuting attorney, it should be called to the attention of the court by timely objection, together with a request that the jury be instructed to disregard the improper statement and in the event that the objection is overruled, an exception should be taken to the ruling of the court, preserved and argued in the Motion for New Trial. When this is not done, the matter cannot be presented for the first time in the Motion for New Trial and in the Petition in Error and briefs on appeal. In the event counsel for the defendant considers the remarks so fundamentally prejudicial that the court cannot, by instructions to the jury, correct such error, counsel for defendant should move for a mistrial and preserve this in the Motion for New Trial. Wal — 1116 — ters v. State, Okl.Cr., 455 P.2d 702. See also Robison v. State, Okl.Cr., 430 P.2d 814.” We, therefore, find this proposition to be without merit. Defendant’s next proposition contends that there was misconduct of the jury. The record reflects the following transpired: “THE COURT: On this 13th day of February, 1970, Mr. Jess Horn, attorney, has requested to see me in the company of two women alleging certain possible irregularities in connection with a jury trial which was tried before Judge La-Fon this week in which the defendant, David Lee Householder, was convicted of the crime of kidnapping. “Now what is it you want to tell me? “MR. HORN: Judge, I don’t know, and this lady, I don’t even know her name, but it has to do with the fact that she heard a statement that a juror made in the coffee shop I believe on Monday. “MRS. WILLIAMS: Tuesday. “THE COURT: That is the coffee shop on the ground floor of the Courthouse ? “MRS. WILLIAMS: The new side on the ground floor in the coffee shop. “THE COURT: And what statement did you overhear ? “MRS. WILLIAMS: She talked to me about the case. “THE COURT: Were you a member of the jury? “MRS. WILLIAMS: No, sir, I had not been called on a case until that morning later. “THE COURT: Was this woman who talked to you about the case a juror on the case? “MRS. WILLIAMS : Yes, sir. “THE COURT: Do you know her name? “MRS. WILLIAMS: No, sir, but I observed some of the trial and I know where she sat on the witness stand, on the jury box. “THE COURT: Where did she sit in the jury box? “MRS. WILLIAMS: Toward the wall on the end near the door, the outgoing door. “THE COURT: In other words, that would be in the second row on the end nearest the door ? “MR. HORN: I have that name if that would help you. “THE COURT: Who was sitting there ? “MR. HORN: L. P. Killough, 208 West Glenhaven Drive, Midwest City, Oklahoma. “THE COURT: And on this Tuesday which was the 10th of February, 1970, what did this juror say to you? “MRS. WILLIAMS: Do you want all of the conversation or just what she said to me? “THE COURT: Well, what you overheard that you think was relevant to this Householder trial. “MRS. WILLIAMS : She said this lady got up and said he chewed on her panties and he committed sodomy and I asked her what that was and she kind of looked at me and smiled, and I said Oh, I think I know- — no, she told me to get out my dictionary and look it up, and I said I think I know, and she patted her finger and said and he raped her twice, and that’s all. “THE COURT: And what time of the day did this occur ? “MRS. WILLIAMS: It was about eight-fifteen. “THE COURT: In the morning? “MRS. WILLIAMS: In the morning. “THE COURT: And was this apparently evidence that she had heard in the case? “MRS. WILLIAMS: She had heard that woman the day before, Monday. “THE COURT: What else, if anything, did she tell you relating to the case ? — 1117 — “MRS. WILLIAMS: Well, she told me he bound and gagged her and took her to this deserted place and proceeded to do all these horrible things. “THE COURT: Well, in other words, this witness was relating the testimony she had heard; is that correct ? “MRS. WILLIAMS: Yes, sir, right. “THE COURT: And what is your name? “MRS. WILLIAMS: Patricia Williams. “THE COURT: You were also on this jury panel? “MRS. WILLIAMS: No, sir, I wasn’t. “THE COURT: I mean on the entire panel. You were not sitting as a juror in the case ? “MRS. WILLIAMS: Right. “THE COURT: And what is your address ? “MRS. WILLIAMS: 4844 Woodview Drive in Del City. “THE COURT: Mr. Horn, is there anything else you think the Court should be advised about relating to the matter? “MR. HORN: I didn’t know what was going to be said. I found out at the same time you did, but I would like to ask the lady if there was any indication from what the lady said if she had had her mind made up about the case ? “MRS. WILLIAMS: Yes, I think she did. “THE COURT: When did this trial start, Mr. Horn ? “MR. HORN: It started Monday morning and ended Wednesday evening at around five o’clock, Monday, the 9th of February, and went to the jury for their deliberation the 11th which would have been Wednesday at around two forty-five in the afternoon I believe. “THE COURT: Very well, I am going to have this transcribed and see that the Judge who tried the case is apprised of the statements that have been made in my chambers relating to the case.” (Tr. 407-411) The record further reflects that a transcript of the above proceedings in Judge Myers’ chambers was read to the trial judge, Judge Ben LaFon, prior to the sentencing hearing on February 16, 1970. Defendant did not subpoena any of the jurors, including Mrs. Killough, nor did he request a continuance to subpoena the jurors. In Muller v. State, Okl.Cr., 456 P.2d 903, we stated in the first syllabus: “In a criminal case where misconduct of the jury is alleged, if the misconduct occurred before the case is finally submitted to the jury, the burden is on the defendant to show that the alleged misconduct was prejudicial to him. Where the alleged misconduct occurs after the case is finally submitted to the jury, prejudice is presumed, and the burden is on the state to show that no injury could have resulted therefrom to the defendant.” In the instant case, the alleged misconduct occurred before the case was submitted to the jury, thus placing the burden on the defendant to show that the alleged misconduct was prejudicial to him. Defendant has totally failed to meet this burden. The evidence on behalf of the defendant in its best light reflects an unsworn statement that a juror related the testimony she had heard the previous day to another member of the entire jury panel and that, in the opinion of the other panel member, the juror had her mind made up about the case. We are of the opinion that this evidence is not sufficient to meet the burden placed on the defendant to show that the alleged misconduct was prejudicial to him. We, therefore, find this proposition to be without merit. The final proposition concerns the in-court identification of the defendant. Defendant candidly states in his brief that: “Notwithstanding the absence of any hearing by the trial court as contemplated in Thompson,1 supra, no error would — 1118 — seem to appear here, since trial counsel’s effort was directed toward impeachment of the witnesses by reason of having seen the pictures rather than any improper lineup as such. * * * ” We therefore, find this proposition to be without merit. In conclusion, we observe the record is free of any error which would justify modification or require reversal. The judgment and sentence is affirmed. BRETT, J., dissents. SIMMS, J., specially concurs. Footnotes [1] Thompson v. State, Okl.Cr., 438 P.2d 287.