Summary
In Nobles v. State, 668 P.2d 1139, 1142 (Okla. Cr. 1983), citing to Sands v. State, 542 P.2d 209 (Okla. Cr. 1975), we stated that the determination of whether or not conduct or remarks of counsel will serve as a basis for reversal is contingent upon the effect which said remarks have on the rights of the defendant.
Summary of this case from Woodruff v. StateOpinion
No. F-82-621.
August 2, 1983. Rehearing Denied September 22, 1983.
An appeal from the District Court of Tulsa County; Richard V. Armstrong, District Judge.
Joel William Nobles, appellant, was convicted in Tulsa County District Court, Case No. CRF-81-3660, of Manslaughter in the First Degree, After Former Conviction of a Felony, was sentenced to forty (40) years' imprisonment, and he appeals. AFFIRMED.
Larry L. Oliver, G. Bruce Sewell, Tulsa, for appellant.
Michael C. Turpen, Atty. Gen., John O. Walton, Asst. Atty. Gen., State of Okla., Oklahoma City, for appellee.
MEMORANDUM OPINION
The appellant, Joel William Nobles, hereinafter referred to as the defendant, was convicted of Manslaughter in the First Degree, After Former Conviction of a Felony, in Tulsa County District Court, Case No. CRF-81-3660. He was sentenced to forty (40) years' imprisonment, and he appeals.
The defendant, Joel Nobles, had been drinking the afternoon of October 14, 1981. He entered the Concession Stand Lounge in Tulsa later on that night to see his girlfriend. He left the bar to get money to pay off a bet his girlfriend had just lost playing pool. After Nobles returned, he began arguing with her. The bartender asked them both to leave. The victim, Ben Wagner, a friend of the bartender, told Nobles to do as the bartender said. Testimony conflicted on whether the victim escorted the defendant outside and then hit him or whether the victim just walked him to the door. In any event, the defendant left the bar, returned with a gun within one to five minutes and shot and killed Wagner. The defendant testified that he could not remember coming back into the bar and shooting the victim.
In his first assignment of error, the defendant argues that the trial court improperly refused to grant his motion for a continuance. This contention is without merit. First, the attorney appointed to represent the defendant had more than four months to prepare the defendant's case before the commencement of trial. Secondly, we have held that a motion for continuance is addressed to the sound discretion of the trial court whose ruling will not be disturbed on appeal absent a showing of abuse. Richardson v. State, 600 P.2d 361 (Okla. Cr. 1979). The defendant's attorney made an oral motion for a continuance. The record reveals that the court was prepared to grant the continuance, and told the defendant that he should pay attention to his attorney's advice. Only after the defendant insisted that he desired to go to trial did the trial judge allow the trial to begin. Under the circumstances we cannot say that the trial court abused its discretion in overruling the motion for a continuance.
See Appendix.
His second assignment of error is closely related to his first. He argues that because the continuance was denied, he was denied effective assistance of counsel. He submits first, that his counsel failed to present the defense of unconsciousness and second, that his counsel did not obtain the testimony of a witness, who, the defendant asserts, would have been able to corroborate his testimony that the victim accompanied him outside the bar.
In Johnson v. State, 620 P.2d 1311, (Okla. Cr. 1980), this Court announced that the standard for determining whether a criminal defendant has been afforded effective counsel is whether the defense attorney has demonstrated the skill of a reasonably competent attorney. An appellate court should not, with perfect hindsight, attempt to second guess trial strategy which was viable. Johnson, supra, at 1313. This Court cannot say that defense counsel failed to demonstrate reasonable competence by not raising the unconsciousness defense; opting instead to present a defense of voluntary intoxication to lessen the first degree murder charge to first degree manslaughter.
Next the appellant argues that his counsel failed to obtain the testimony of Michael Turner, who testified at the preliminary hearing that he saw the victim go outside the bar with the defendant. Turner's testimony contradicted three of the State's witnesses who testified that the victim did not go outside the bar with the defendant. Turner's testimony would have helped corroborate the defendant's testimony that he was hit in the head after he was out of the bar. However, in order for Turner's testimony from the preliminary hearing to be admitted under the former testimony exception to the hearsay rule, the witness' unavailability must be shown. Thomas v. State, 620 P.2d 1321 (Okla. Cr. 1980). See also, 12 O.S. 1981 § 2804[ 12-2804]. Defense counsel was unable to show that Turner was unavailable and therefore properly did not attempt to introduce his testimony from the preliminary hearing. This demonstrates defense counsel's cognizance of the rules of evidence rather than his ineffectiveness.
In Smith v. State, 650 P.2d 904 (Okla. Cr. 1982), we held that the omission of an expert witnesses testimony reflected an extreme lack of diligence on the part of defense counsel to insure that defendant received a fair trial. In Smith, defense counsel made no effort to contact a psychiatrist, who had been subpoenaed by the State for the preliminary hearing, to ascertain what her testimony might be. In the present case, defense counsel did make an effort to find witnesses. Subpoenas were issued the week before the trial under the belief that the trial would actually start three weeks later. In sum, this Court cannot find a lack of due diligence on the part of defense counsel. Any shortcomings were not the result of counsel's lack of preparation, but rather were a result of the defendant himself, who demanded the commencement of the trial, knowing that his counsel was not prepared, and that some witnesses could not be found.
See Appendix.
In his third assignment of error, the defendant contends that the trial court failed to instruct the jury on the defense of unconsciousness. As the defendant correctly recognizes, jury instructions are left to the trial court's discretion and that court's judgment will not be interfered with as long as the instructions, when considered as a whole, fairly and accurately state the applicable law. Batie v. State, 545 P.2d 797 (Okla. Cr. 1976). The defendant's brief only asserts a bare conclusion that the trial court's instructions were insufficient. We are of the opinion that the evidence supported an instruction on voluntary intoxication and therefore conclude that the jury's instructions, as a whole, fairly stated the applicable law. Since the defendant opted for a voluntary intoxication defense, he did not specifically raise in error in his new trial motion the failure to instruct on unconsciousness. This waives the alleged error and fails to preserve it for appellate review. Nutter v. State, 658 P.2d 492 (Okla. Cr. 1983). See also, McDuffie v. State, 651 P.2d 1055 (Okla. Cr. 1982).
The defendant's fourth assignment of error is that the trial court admitted photographs of the victim to produce an emotional impact on the jury. The test for admissibility of allegedly gruesome pictures is whether the probative value of the evidence, as it relates to an issue in the case, outweighs the prejudicial effect. Glidewell v. State, 626 P.2d 1351 (Okla. Cr. 1981), citing Vierrether v. State, 583 P.2d 1112 (Okla. Cr. 1978). Exhibit No. 8, a black and white photograph, was admitted into evidence as it depicted from a distance, the victim and part of the crime scene. Therefore, this Court finds, as did the trial judge, that the complained-of photograph had probative value, outweighing the danger of prejudice.
In his final assignment of error, the defendant complains of alleged improper closing arguments by the State and improper cross-examination. We have carefully examined the entire cross-examination of the defendant and find that although some of the questions propounded were improper, the trial court correctly sustained objections thereto. In Sands v. State, 542 P.2d 209 (Okla. Cr. 1975), we stated:
The determination of whether or not conduct and remarks of counsel will serve as a basis for reversal is contingent upon the effect which said remarks have on the rights of defendant. We must keep in mind that the defendant's rights are of utmost importance and if remarks of the prosecutor, though inappropriate or rude, do not affect the rights of the defendant, then they shall serve no basis for reversal. In Kite v. State, 506 P.2d 946 (Okla. Cr. 1973) and Pickens v. State, 450 P.2d 837 (Okla. Cr. 1969), this Court held that for remarks of the prosecuting attorney to constitute reversible error they must be flagrant and of such a nature as to be prejudicial to the defendant. . . .
We are of the opinion that the prosecuting attorney's conduct in the cross-examination of the defendant was not so flagrant as to warrant reversal.
We turn now to the State's alleged improper closing argument which was objected to at trial and which was included in the defendant's motion for a new trial. The defendant objects to the portion of the State's closing argument that called him a "violent man" and a "convicted felon." We have consistently allowed closing arguments wide latitude, encompassing a wide range of discussion and argumentation. See, Frazier v. State, 607 P.2d 709 (Okla. Cr. 1980), and the cases cited therein. We have also held that the prosecutor may make any reasonable inference from the evidence offered at trial. Bryant v. State, 585 P.2d 377 (Okla. Cr. 1978). It is clear that the defendant, under cross-examination, admitted to a conviction of Assault and Battery with a Dangerous Weapon with Intent to do Bodily Harm. Therefore, we find his comments were reasonable inferences from the evidence.
Accordingly, the judgment and sentence is AFFIRMED.
CORNISH and BRETT, JJ., concur.