Lowrey v. State , 87 Okla. Crim. 313 ( 1948 )

I find myself heartily in accord with most of the observations made in the opinion of the majority. In an effort to more thoroughly understand every phase of this case, I have read and reread the complete record. The more I have read it, the more I am thoroughly convinced of the defendant's guilt. The one obvious fact which cannot be eliminated from consideration in this case is the physical fact of the entry of the bullet and its exit. The entry and exist as shown by the testimony of the physician renders it a physical impossibility that the shot which snuffed out the life of this young girl could have been self-inflicted. By no manner of contortion could she have assumed a position to where the shot would have entered just left of the nipple on her left breast and come out in the lower part of her body on a vertical line beneath the right shoulder and about where a line from the middle of her back would intersect with a line drawn vertically down her right side from her right arm pit. To further illustrate the impossibility of the shot being self-inflicted, it should be borne in mind that the deceased was right-handed. The defendant lied and admitted he lied to the officers the night he brought the girl to the hospital. The only other time he has opened his mouth to discuss the killing he lied again. The circumstantial evidence without any question of a doubt shows that the shot which killed Juanita Butler was fired by some other person who was present, and the only other person who was present under the admitted facts was the defendant.

Under the statute on homicide, 22 O. S. 1941, § 745, upon a trial for murder where the state shows the commission of the homicide by the defendant, the burden of proving circumstances of mitigation or that justify or excuse it devolves upon the accused.

Instead of the defendant attempting to show circumstances in justification or mitigation of the homicide, he attempted to besmirch the character of this young Indian girl and assert that the shot which snuffed out her life was self-inflicted.

There is one matter in the record which I think is deserving of emphasis. Nowhere does there appear a blemish on the character of the deceased until the defendant himself takes the witness stand and attempts to destroy her character in order to escape punishment himself. So far as the record discloses, with the exception of the testimony of defendant, the deceased was a virtuous young Indian maiden, and I think it is a fair inference from the record that she was trying to defend herself from this brute defendant and that he became so drunk that he lost his head and shot her; that after he shot her he became partially sober and then drove with the body until he could devise in his own mind some scheme and explanation to tell the authorities and thus escape punishment for his acts. There was no odor of intoxicating liquor on or about the person of deceased, and if the evidence of her associates is to be believed, she was a quiet, unassuming, industrious girl. Only from the lips of defendant, who apparently would tell any falsehood to save himself, is there anything against her character.

I think Judge BRETT correctly disposed of each contention presented in the brief of defendant except one. This case is being reversed and remanded by the majority for a new trial on the sole ground that the act of the sheriff in entering the juryroom at the request of the bailiff to gather up the exhibits before the members of the jury panel had left the room to go eat their supper, constituted reversible error. With that part of the opinion I am in total disagreement.

In each of the cases cited in the majority opinion and relied upon as a basis for reversal of the judgment of conviction, there was an unauthorized communication to the jury during their deliberations. In practically all of the cases in which the unauthorized communication was discussed, there were other substantial errors which when considered together with the unauthorized communication were sufficient to convince the court that the cause should be reversed.

In a consideration of these cases, we find that two things must have concurred before a presumption of prejudice arises: First, there must be a communication to the jury by an unauthorized person; second, the jury at the time of the communication must be engaged in deliberating on their verdict. When these two facts are established, then, as is said in the cases cited in the majority opinion, a presumption of prejudice arises and the burden is on the state to show by clear and convincing proof that no prejudice could have resulted to the defendant by reason of the questioned incident.

As I view the record, the majority opinion is in error and the reason for their erroneous conclusion is because they first presumed that the defendant had introduced evidence to establish the two essential facts above mentioned and then further presumed that prejudice had arisen from the presumed facts. The majority agree that no actual prejudice to defendant is shown by the record, but they say there is a presumption of prejudice and they are basing their presumption of prejudice upon another presumption without requiring the defendant to first introduce evidence to prove an unauthorized communication made to the jury.

In every criminal trial, the burden of proof is upon the state to prove the guilt of defendant beyond a reasonable doubt. After the verdict is reached and judgment and sentence is pronounced, there is a presumption on appeal that all proceedings before the trial court were regularly conducted and the burden is on the defendant to establish prejudicial error. In Edwards v. State, 9 Okla. Crim. 306, 131 P. 956, 44 L. R. A., N. S., 701, this court held that the doctrine that error in the trial of criminal cases presumed injury is not recognizable in Oklahoma; that, on the contrary, the presumption is that all proceedings in a court of record are regular, and before a conviction will be reversed, the burden is on the appellant to show two things: First, that error was committed; second, that this error materially contributed to his conviction and deprived him of his legal rights. See, also, Anderson v. State,8 Okla. Crim. 90, 126 P. 840, Ann. Cas. 1914C, 314; Williams v. State, 17 Okla. Crim. 452, 190 P. 892; Harris v. State,18 Okla. Crim. 470, 196 P. 354; Wright v. State, 35 Okla. Crim. 83,249 P. 356; Denmark v. State, 71 Okla. Crim. 424, 112 P.2d 437,113 P.2d 608; Nowlin v. State, 65 Okla. Crim. 165, 83 P.2d 601.

I could do no better than to quote from the applicable language of Judge Furman wherein he states in Edwards v. State, supra [9 Okla. Crim. 306, 131 P. 963]:

"We very much doubt if an absolutely flawless trial from a technical standpoint was ever had in a hotly contested case when able counsel appeared for both sides. If convictions are to be reversed upon immaterial errors, the courts would no longer perform the duty of protecting society, but would find themselves practically the protectors of criminals. * * *

"Judges should always remember that laws are enacted to be enforced, and that penalties are prescribed to be inflicted upon those who violate the law, and that courts are established and supported by the people solely for the purpose of administering justice and protecting the people in their property and in their lives, and that it is a perversion of their powers and duties for courts to administer the law for any other purpose than that of the protection of society. An appellate court has no right to assume that the trial judge, the county attorney, and the jury (or the sheriff in the instant case) (Italics ours) have entered into a conspiracy to unlawfully deprive a defendant of his liberty. These persons are allofficers of the law and are acting under oath, and everypresumption must be indulged in favor of the regularity, goodfaith, and justice of their action.

"Before conviction a person charged with crime is presumed to be innocent. A defendant participates in the selection of the jury, and when a juror is accepted by a defendant he thereby vouches for the intelligence, integrity, and impartiality of such juror, and he is bound thereby unless the contrary affirmatively appears from the record. Therefore, after a jury has found a defendant guilty, the presumption of innocence is destroyed, and upon appeal the counter presumption prevails; that is, that the verdict of the jury is right and that the appellant is guilty. Appellate courts have no right to act as counsel for a defendant and hunt for excuses to set aside the verdicts of juries and the judgments of courts, and no case should be reversed unless it affirmatively appears from the record that the trial court committed material error to the injury of the appellant, or that the jury were influenced by improper motives, or that the verdict is contrary to the evidence. There should be an end to criminal trials, for it is the nearness and certainty of punishment which deters criminals and thereby protects society. This court is unalterably committed to the enforcement of these principles for the purpose of protecting property rights and making human life safe and sacred in Oklahoma."

Counsel for defendant in an attempt to establish facts from which a presumption of prejudice to defendant arises introduced the following evidence by the bailiff:

(1) The time for the evening meal having arrived, the jury decided to cease their deliberations and go to supper.

(2) The foreman of the jury notified the bailiff that they were ready to eat their supper. At the same time the foreman inquired of the bailiff as to who would take care of the exhibits while the jury were gone to supper, to which the bailiff replied, "that is the duty of the sheriff."

(3) After receiving the communication from the foreman of the jury, the bailiff returned to the courtroom and in open court, in the presence of counsel for defendant and the sheriff, notified the court that the jury wanted to be taken to supper.

(4) The court thereupon directed the bailiff to take the jury to their supper and after they had eaten to return them to their juryroom to resume their deliberations. At that time, while still in the courtroom, the bailiff asked the sheriff to come with him and take charge of the exhibits.

(5) The bailiff returned to the juryroom, followed by the sheriff and six or eight other men from the courtroom, among which was counsel for the defendant.

(6) When the bailiff arrived at the juryroom he knocked on the door and said, "cease your deliberations" (according to the testimony of the one juror who testified concerning this incident, the jury had ceased their deliberations when the foreman had first suggested they go eat supper and had prepared to leave the room to eat).

(7) After the bailiff had knocked on the door and said, "cease your deliberations" the bailiff opened the door of the juryroom and entered. He then turned to the sheriff who had not entered the room and said, "there are the exhibits, take them out." The sheriff thereupon entered the room, took the exhibits and immediately departed. He said no word, made no sign, and so far as disclosed by the record never looked at any juror.

(8) The door remained at least half open while the bailiff and sheriff were in the juryroom and they were in sight of counsel for defendant and six or eight other bystanders who were standing just outside of the juryroom.

In the majority opinion, it is stressed that the one juror who testified said he did not hear the sheriff or bailiff say anything and did not notice just what was done. This in itself to me seems important evidence as bearing on the question as to whether the act of the sheriff in entering the room was an incident which had an effect on the jury. It should be borne in mind that the bailiff had already notified the foreman that the sheriff was the proper person to take care of the exhibits. I agree with the majority opinion that the bailiff was misinformed on this point, but irrespective of that, the bailiff had informed the jury and undoubtedly the jury expected the sheriff to take charge of the exhibits as a part of his sworn duty as an elected official of that county. The testimony of the sheriff in the trial of the case, of course, was very important, but he was not giving evidence as a personal interested witness, but was giving testimony concerning evidence which he had obtained as a public official of Cherokee county.

At the conclusion of the hearing the record discloses the following:

"Mr. Bliss: Let the record show that the hearing on this motion has come at the conclusion of a jury term of court and that nearly all of the jurors have been discharged and permitted to go home and that Mr. Howe is the only juror in the Lowrey case now available to testify. The Court: I don't believe any other witnesses would be necessary. I don't believe there is any controversy about what the facts are in this connection. Mr. Bliss: Let the record further show that the sheriff, W. T. Thorne, is out of the county at the time of this hearing, which was first scheduled to be heard tomorrow, but by agreement has been heard today and that the sheriff is not available as a witness at this hearing today and that is the reason he has not been called. The Court: Anything further? Mr. Miller: That's all we have in present at this time. Mr. Bliss: That's all for the state."

I think the above quotation from the record is sufficient explanation as to why neither Mr. Miller as counsel for the defendant nor the county attorney chose to introduce any further evidence upon the incident in controversy. I agree with the trial court that the facts on this point are not disputed. Evidently, counsel for the defendant saw little dispute in the facts as the testimony of the bailiff showed that counsel for defendant was present in the courtroom when the bailiff entered the courtroom to notify the court that the jury was ready for supper and counsel was standing at the door of the juryroom when the sheriff gathered the exhibits and left. If counsel for the defendant had observed any other fact other than what was established by the testimony of the two available witnesses, he would undoubtedly have had himself sworn as a witness and would have testified concerning what he saw. The little regard held by counsel for defendant for this particular point, which the majority thinks is so important as to justify and require a reversal of the conviction, is shown by the fact that in a 53 page brief, only one page is devoted to a presentation of the facts and the law on this question. Counsel for the defendant did not move for a mistrial nor make any record on this proposition at the time the act was committed, but mentioned it for the first time in his motion for new trial. Most of the brief of the defendant was devoted to a discussion of two propositions of law which Judge Brett has fully and ably considered and decided adversely to him in the majority opinion, and counsel for defendant only incidentally mentioned the act of the sheriff in gathering the exhibits in connection with a presentation of the various points mentioned in their petition in error.

In the record before us, it is clearly apparent that the jury were not deliberating when the sheriff entered the room, and the sheriff did not communicate anything to the jury nor any individual member thereof. Counsel for defendant did not contend before the trial court and the contention is not made in his brief filed herein that the sheriff made any communication to the jury. As has been hereinabove noted, counsel for defendant was present at the time of the alleged misconduct and did not choose to testify or elaborate upon the testimony of the bailiff. I can agree that the sheriff should not have entered the juryroom and that if it was necessary for someone to guard the exhibits, the clerk or some other person might have been better in this particular case; but, as I view the record, the act of the sheriff did not influence the jury and was at most an irregularity which did not affect their deliberations.

It should be borne in mind that it is not every irregularity in the trial of a criminal case that justifies a reversal, but, all that justice in its solemnity requires is that the trial be in substantial compliance with the law governing the prosecution for the crime involved.

In my experience upon the appellate bench, I have found that it is often too easy to take a dead record and search for error and forget the living trial. It is my frank opinion that if this individual is tried 20 times, that in every trial some irregularity will creep into the case that would serve as an excuse for a reversal. We constantly find irregularity in the trial of every criminal case, especially where as in a case such as this there are able counsel on each side presenting their views. Complex questions and incidents often arise during a trial, but it is my opinion that an appellate judge should never use a mere technical irregularity which shows that it did not affect the outcome of the case as an excuse to reverse a conviction of a person who has committed a crime against the laws of this state.

Far too often able counsel (and this is not meant as a criticism of them) in their search through a dead record find an incident which appears as an irregularity to them and present it in such a manner that verily they make a molehill appear as a mountain. I am afraid that this molehill of relative unimportance has assumed mountainous proportions in the eyes of my colleagues.

I regret that my associates and I disagree upon the proper disposition of this appeal, but, I cannot find any substantial basis in the record upon which I can join them in reversing this case for another trial.

Dissenting opinions often serve very little purpose, and, of course, do not establish the law of the case, but, because of the great importance of the question involved, I have written the foregoing so as to partially explain the reasons for my dissent.