Castleberry v. State
This text of 1974 OK CR 83 (Castleberry v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinions
OPINION
BLISS, Presiding Judge:
The appellant, Kenneth Ray Castleberry, hereinafter referred to as defendant, was charged by Information with the crime of Murder in Case Nos. CRF-72-3S9, CRF-72-360, and CRF-72-361 in the District Court of Tulsa County, Oklahoma. All three cases were consolidated and tried before a jury with said trial commencing on March 12, 1973. On March 22, the jury returned a verdict of guilty as charged and penalty was assessed at three (3) concurrent life sentences, and from said judgment and sentence, a timely appeal has been perfected to this Court.
The State first called Barbara Biles, a next door neighbor of the Castleberrys. Mrs. Biles testified that she had had a conversation with Mrs. Castleberry on the 14th day of February, 1972, wherein they discussed money and sex, Mrs. Castleberry complaining that her husband would not seek a better paying job or part-time employment and that her husband did not enjoy sex as much as she did. Mrs. Biles stated that neither she nor her husband had seen or heard anything unusual from the Castleberry home on the evening of the 15th of February. On the 16th day of February, 1972, she first observed the defendant sitting on his front porch. Approximately 15 to 20 minutes later she saw the defendant at her front door. When she opened the door the defendant, appearing white and shaken, staggered in and stated that his family was dead. She and the defendant then went to a neighbor’s home to call an ambulance. While they were walking the defendant was mumbling that the family was happy and that he didn’t know who could have killed her. Mrs. Biles and Leona Wilson subsequently went over to the defendant’s house where she saw blood in the hallway and Mrs. Castle-berry’s body in the kitchen. She did not touch anything and noticed that the furniture in the front room did not seem to be disturbed.
The State next called Mrs. Grace Stear-man who stated that at approximately 6:00 p. m. Mrs. Biles and a man came to her home to use the telephone to call an ambulance. She could not identify the man because he kept his face covered with his hands and made no sounds. When they left, she called her sister, Leona Wilson.
Leona Wilson then testified that upon receiving the call she went to the defendant’s house. She and Mrs. Biles entered and saw Mrs. Castleberry’s body lying on the floor of the kitchen. Nothing was touched and upon the arrival of the police she and Mrs. Biles left.
[260]*260Patrol Officer Kenneth Mosier of the Tulsa City Police then testified that at approximately 6:15 p. m. on the 16th he arrived at the Castleberry house where he discovered the body of a female lying on the floor in the kitchen and a body lying on the bed in each of two bedrooms. The back door was kicked in and the screens and windows of the home were secure. He later had a conversation with the defendant in his patrol car, describing his demeanor to be calm, emotionless and cool, or, as he noted on cross-examination, possibly in shock. The defendant stated that he left home on the 16th at about 7:05 to 7:10 a. m., worked all day, had no calls, returned at about 5:15 p. m. and found the house locked. His wife had mentioned that she might go visiting that afternoon so he didn’t think anything about it at the time. About 6:00 p. m. he became upset, went to the back and kicked in the back door to gain entrance.
Officer James Brown testified that he saw the defendant in the detective division on the 17th of February, 1972, at approximately 5 :30 p. m. where he obtained the defendant’s fingernail scrapings. No injury was done to the defendant’s hands during the process.
Detective Sgt. Roy Hunt then testified that he arrived at the scene at approximately 6:35 p. m. and found the scene properly preserved. Three bodies were found in the house, Mrs. Castleberry lying in the kitchen on her back, Richard Castleberry, age 2,' on a bed in the southwest bedroom and Brenda Castleberry, age 5, on a bed in the middle bedroom. He touched each of the victims at the chin and noticed that they were all set and fixed. He then identified numerous photographs and slides depicting the condition of the home, the positions of the bodies and some pools and apparent trails of blood. He stated that it was apparent that Mrs. Castleberry’s legs had been separated after the blood had started to dry on her body. One slide depicted what Sgt. Hunt described as a small palm print and an outline of an ear on the floor. He testified that from the pattern he could determine it was compatible with the blood located on Brenda’s right cheek and right ear area. Other pictures depicted a trail of blood toward the bed where Richard’s body was found. On cross-examination Hunt stated that a purse had been found which contained no money and that a photograph of the master bedroom depicted that the pillows had certain indentations, with one pillow having a greater indentation than the other. It appeared to him that Mrs. Castleberry had been moved after the attack.
William Caveny, a forensic chemist with the Oklahoma State Bureau of Investigation testified that he examined and analyzed certain exhibits including the fingernail scrapings taken from the defendant and that the scrapings appeared to contain blood. He was unable to determine whether the blood was animal or human or its age and origin. He conducted an examination of fluid taken from the kitchen sink, and it contained blood and what appeared to be epithelial cells, identical to those found on the outer layer of skin. He further identified and typed certain human blood samples found in the home.
Thereafter, Caveny was called as a witness for the defendant and stated that he analyzed eleven knives recovered from the Castleberry kitchen. His analysis of each was negative for blood. It was then stipulated that the work clothes the defendant said he wore on the 16th and the lunch pail which was recovered on the front steps were submitted for analysis, the results being negative for blood or skin.
Detective James Carr then testified that he took a statement from the defendant at approximately 7:15 p. m. on the 16th at the police station. Said statement concerned what the defendant had found at his home when he returned from work. Prior to taking the statement the defendant said that the person who had committed the crimes was possibly sick and in need of hospital treatment. The defendant read and signed a printed rights waiver.
[261]*261Officer Dale Michael Cheever then testified that he first saw the defendant at approximately 12:50 a. m. on the 17th. The defendant was briefly interviewed and related that when he awoke on the morning of the 16th his wife and two children were asleep, with his son Richard sleeping in the master bedroom with his mother. At approximately 7:00 o’clock a. m. his ride arrived and he went to work. He returned home at approximately 5:00 p. m. on the evening of the 16th and found all doors locked. The defendant waited in front for about an hour before he went to the back and forced the rear door open. Officer Cheever observed that throughout the interview the defendant’s “responses were collected, he was rational, he knew where he was at, he knew who I was, fairly collected in every response to me.”
Thereafter, Dr. Robert Fogel testified as an expert on behalf of the State. Dr. Fo-gel related that on the 16th day of February, 1972, he was serving as a Deputy Medical Examiner for Tulsa County, Oklahoma, and had occasion to go to the Cas-tleberry home at approximately 2:00 p. m.
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OPINION
BLISS, Presiding Judge:
The appellant, Kenneth Ray Castleberry, hereinafter referred to as defendant, was charged by Information with the crime of Murder in Case Nos. CRF-72-3S9, CRF-72-360, and CRF-72-361 in the District Court of Tulsa County, Oklahoma. All three cases were consolidated and tried before a jury with said trial commencing on March 12, 1973. On March 22, the jury returned a verdict of guilty as charged and penalty was assessed at three (3) concurrent life sentences, and from said judgment and sentence, a timely appeal has been perfected to this Court.
The State first called Barbara Biles, a next door neighbor of the Castleberrys. Mrs. Biles testified that she had had a conversation with Mrs. Castleberry on the 14th day of February, 1972, wherein they discussed money and sex, Mrs. Castleberry complaining that her husband would not seek a better paying job or part-time employment and that her husband did not enjoy sex as much as she did. Mrs. Biles stated that neither she nor her husband had seen or heard anything unusual from the Castleberry home on the evening of the 15th of February. On the 16th day of February, 1972, she first observed the defendant sitting on his front porch. Approximately 15 to 20 minutes later she saw the defendant at her front door. When she opened the door the defendant, appearing white and shaken, staggered in and stated that his family was dead. She and the defendant then went to a neighbor’s home to call an ambulance. While they were walking the defendant was mumbling that the family was happy and that he didn’t know who could have killed her. Mrs. Biles and Leona Wilson subsequently went over to the defendant’s house where she saw blood in the hallway and Mrs. Castle-berry’s body in the kitchen. She did not touch anything and noticed that the furniture in the front room did not seem to be disturbed.
The State next called Mrs. Grace Stear-man who stated that at approximately 6:00 p. m. Mrs. Biles and a man came to her home to use the telephone to call an ambulance. She could not identify the man because he kept his face covered with his hands and made no sounds. When they left, she called her sister, Leona Wilson.
Leona Wilson then testified that upon receiving the call she went to the defendant’s house. She and Mrs. Biles entered and saw Mrs. Castleberry’s body lying on the floor of the kitchen. Nothing was touched and upon the arrival of the police she and Mrs. Biles left.
[260]*260Patrol Officer Kenneth Mosier of the Tulsa City Police then testified that at approximately 6:15 p. m. on the 16th he arrived at the Castleberry house where he discovered the body of a female lying on the floor in the kitchen and a body lying on the bed in each of two bedrooms. The back door was kicked in and the screens and windows of the home were secure. He later had a conversation with the defendant in his patrol car, describing his demeanor to be calm, emotionless and cool, or, as he noted on cross-examination, possibly in shock. The defendant stated that he left home on the 16th at about 7:05 to 7:10 a. m., worked all day, had no calls, returned at about 5:15 p. m. and found the house locked. His wife had mentioned that she might go visiting that afternoon so he didn’t think anything about it at the time. About 6:00 p. m. he became upset, went to the back and kicked in the back door to gain entrance.
Officer James Brown testified that he saw the defendant in the detective division on the 17th of February, 1972, at approximately 5 :30 p. m. where he obtained the defendant’s fingernail scrapings. No injury was done to the defendant’s hands during the process.
Detective Sgt. Roy Hunt then testified that he arrived at the scene at approximately 6:35 p. m. and found the scene properly preserved. Three bodies were found in the house, Mrs. Castleberry lying in the kitchen on her back, Richard Castleberry, age 2,' on a bed in the southwest bedroom and Brenda Castleberry, age 5, on a bed in the middle bedroom. He touched each of the victims at the chin and noticed that they were all set and fixed. He then identified numerous photographs and slides depicting the condition of the home, the positions of the bodies and some pools and apparent trails of blood. He stated that it was apparent that Mrs. Castleberry’s legs had been separated after the blood had started to dry on her body. One slide depicted what Sgt. Hunt described as a small palm print and an outline of an ear on the floor. He testified that from the pattern he could determine it was compatible with the blood located on Brenda’s right cheek and right ear area. Other pictures depicted a trail of blood toward the bed where Richard’s body was found. On cross-examination Hunt stated that a purse had been found which contained no money and that a photograph of the master bedroom depicted that the pillows had certain indentations, with one pillow having a greater indentation than the other. It appeared to him that Mrs. Castleberry had been moved after the attack.
William Caveny, a forensic chemist with the Oklahoma State Bureau of Investigation testified that he examined and analyzed certain exhibits including the fingernail scrapings taken from the defendant and that the scrapings appeared to contain blood. He was unable to determine whether the blood was animal or human or its age and origin. He conducted an examination of fluid taken from the kitchen sink, and it contained blood and what appeared to be epithelial cells, identical to those found on the outer layer of skin. He further identified and typed certain human blood samples found in the home.
Thereafter, Caveny was called as a witness for the defendant and stated that he analyzed eleven knives recovered from the Castleberry kitchen. His analysis of each was negative for blood. It was then stipulated that the work clothes the defendant said he wore on the 16th and the lunch pail which was recovered on the front steps were submitted for analysis, the results being negative for blood or skin.
Detective James Carr then testified that he took a statement from the defendant at approximately 7:15 p. m. on the 16th at the police station. Said statement concerned what the defendant had found at his home when he returned from work. Prior to taking the statement the defendant said that the person who had committed the crimes was possibly sick and in need of hospital treatment. The defendant read and signed a printed rights waiver.
[261]*261Officer Dale Michael Cheever then testified that he first saw the defendant at approximately 12:50 a. m. on the 17th. The defendant was briefly interviewed and related that when he awoke on the morning of the 16th his wife and two children were asleep, with his son Richard sleeping in the master bedroom with his mother. At approximately 7:00 o’clock a. m. his ride arrived and he went to work. He returned home at approximately 5:00 p. m. on the evening of the 16th and found all doors locked. The defendant waited in front for about an hour before he went to the back and forced the rear door open. Officer Cheever observed that throughout the interview the defendant’s “responses were collected, he was rational, he knew where he was at, he knew who I was, fairly collected in every response to me.”
Thereafter, Dr. Robert Fogel testified as an expert on behalf of the State. Dr. Fo-gel related that on the 16th day of February, 1972, he was serving as a Deputy Medical Examiner for Tulsa County, Oklahoma, and had occasion to go to the Cas-tleberry home at approximately 2:00 p. m. He found the body of Marie Castleberry in the kitchen, the body of Richard Castleber-ry in the southwest bedroom, and the body of Brenda Castleberry in the middle bedroom. He then explained to the jury the phenomena of rigor mortis and postmortem lividity and stated that in all three bodies rigor mortis was complete and postmortem lividity fixed. The bodies were removed at approximately 1:15 a. m. on the 17th to the Oklahoma Osteopathic Hospital where autopsies were performed and blood types determined.
With regard to Marie Castleberry, he found twelve stab wounds on the entirety of her body including four stab wounds in the back. No food material was found in the stomach. Cause of death was the direct result of multiple stab wounds.
During the course of his autopsy, Dr. Fogel took swabs tests for the presence of sperm and seminal fluid. Only one of the swabs from the vagina was positive for sperm. He stated sperm would remain detectable within the vaginal cavity for perhaps 72 hours; however, that he had no way of knowing when she last had intercourse.
With referene to Brenda Castleberry he found numerous stab wounds, one of which extended across the major portion of her neck and another that proceeded directly into the vaginal area. No food content was found in the stomach. He stated that the cause of death was related to the asphyxiation which occurred as a result of the slash wound across the windpipe.
With respect to Richard Castleberry, he observed five stab wounds including a large one across the neck. In his opinion the cause of death was a combination of asphyxiation due to the slash of the windpipe as well as exsanguination. It was his opinion that the instrument used in the killings was a knife with a single cutting edge, and that the blade was at least 3%ths inches in length and %ths of an inch in width.
Concerning the probable time of death, Dr. Fogel stated that he used a number of factors in trying to project the time or probable time of death. These factors included the degree and the presence of rig- or mortis; the degree and the presence of postmortem lividity; the degree and presence of putrefaction; the cooling of the body; the actual drop in temperature of the body; known data as to when last seen alive; and an examination of the posterior chamber of the eye to determine the level of potassium in the vitreous humor. Dr. Fogel went on to explain the significance of each of these factors and how he used them. In answer to a hypothetical question concerning the probable time of death of Marie Castleberry he stated “that the time of death was somewhere between midnight of 2-16 and a twelve hour period going to twelve noon of 2-16; twelve noon back to twelve midnight.” Thereafter, the following questions were propounded and the following answers were given:
“Q. BY MR. DUNN. Dr. Fogel, based on your observations at the scene, [262]*262your observations at Oklahoma Osteopathic Hospital, the tests that you conducted with regard to Marie llene Castleberry and your experience in this field, sir, are you able to form a conclusion as to the time of death of Marie llene Castleberry in relation to 7:00 a. m. on February 16, 1972?
A. A probable conclusion, yes, sir.
Q. And what is that, please, sir ?
A. That the death of Marie Castleber-ry occurred prior to 7:00 a. m. of the date.”
The same questions were then propounded regarding the deaths of Brenda Castleberry and Richard Castleberry, and he responded that their deaths in “all probability” occurred prior to 7:00 a. m.
On cross-examination Fogel admitted the possibility of a sexual assault on the two female victims, that the deaths could have occurred between 7:00 a. m. and as late as 12:00 noon on the 16th, that another knife could have been used in the attacks, that two or more of the subjects could have sustained wounds at the same time, and that the subject of time of death was indeed a very controversial field and cannot be employed with any degree of 100 percent scientific certainty or reliability.
The State next called Detective Sgt. Larry Johnson who testified that at approximately 1:30 p. m. on the 17th he contacted the defendant and brought him to the police station for questioning concerning his general background. The defendant told him that he had been born and raised in Kansas, had been married approximately 5 years, that he and his wife had two children, Brenda age 5, and Richard age 2, that they had moved to Tulsa in 1969, that he worked for Needham Tire Company, that he had lived at his present residence for approximately two weeks prior to the date of the incident, and that his family did not have many close friends in Tulsa, their closest being Claude Johnson, a fellow employee, and his wife.
The defendant related that on the evening of the 15th Claude Johnson and his wife had come over to visit and left at approximately 10:00 p. m. He then locked the doors, went to bed in the southeast corner bedroom and slept until 6:15 a. m. The defendant stated that his wife normally stayed up later to read or watch television. At approximately 7:00 a. m. on the 16th Claude Johnson arrived and the defendant walked back to kiss his wife good-bye. She told him to be quiet and not wake the little boy sleeping next to her and to hurry home that evening. He then looked in on his daughter and proceeded to work with Johnson. After a normal workday Johnson brought him back home at approximately 5:00 p. m. He observed the car in the driveway and found both the front and back doors locked. He placed his lunch pail and mail on the front porch, and took a basketball, which he had taken to work to get patched, around to the back and played basketball for a few minutes. Thereafter, he kicked in the back door. The defendant proceeded into the kitchen and found his wife lying on the floor all covered with blood. He ran down the hallway and observed Brenda and Richard lying in their beds in the same condition. He then ran out the front door to get to a telephone. The defendant stated that at no time did he touch any of the bodies.
Johnson further related that during their conversation on the 17th, the defendant stated that he and his wife got along fairly well. The only problems that they had were over finances, having declared bankruptcy in the latter part of 1971, and sex, Mrs. Castleberry continually telling the defendant he wasn’t aggressive enough.
At the end of the conversation the defendant was asked if he would submit to having his fingernails scraped and being fingerprinted. The defendant agreed and the procedures were completed. Johnson further stated that he observed little emotion on the part of the defendant except for “moist” eyes.
Johnson had no further contact with the defendant until the 23rd when Johnson was [263]*263advised of a phone call from the defendant and, as a result of said call, Johnson and Sgt. Hunt went to the apartment where the defendant was staying at approximately 6:00 p. m. When the defendant was asked if he wished to see them he responded in the affirmative. The trio then proceeded to the car to talk. Johnson reiterated the defendant’s Miranda rights but the defendant stated that he had already heard and understood the same. When they arrived at the police car the witness again reiterated the defendant’s Miranda rights. After general conversation the defendant stated that he recalled on the 17th mentioning to Johnson the matter of seeing a minister at a later date and that Johnson had told the defendant that he would go with him if he desired. Johnson then asked the defendant “Do you want to see a minister?” The defendant stated “Yes, that there were some things that he would like to talk about.” Johnson then asked the defendant if he had any minister in mind. The defendant stated that he had none. Johnson then said, “Well, Kenneth, I attend regularly at Carbondale Assembly of God Church over on the West side of town, I have a minister out there who I have confidence in, he is a good man, he is a good minister; would you like to talk to him?” The defendant replied that he would.
Johnson called Rev. Harley Pieratt to make arrangements and they then proceeded to the church. When they arrived the defendant asked Johnson to go in with him. They went to the minister’s study and after a brief conversation Rev. Pieratt started talking to the defendant and opened his Bible. Johnson walked outside and after a few moments returned to find the defendant and the reverend completing a prayer. Johnson did not remember specifically whether the minister left the study at that time but he did recall asking the defendant if that satisfied what he wanted. The defendant stated that it did, that he had had things on his mind ever since they had talked on the 17th and that the reason he had wanted to come back after the funeral was to talk to Johnson further regarding what was on his mind. Johnson then asked what was on his mind, and the defendant stated, “that in his mind he felt as though he had taken the lives of his wife and children but he did not recall the details of how he had done it.” Johnson immediately went to the police car and returned with Sgt. Hunt, and the defendant repeated the statement. Hunt or Johnson then asked the defendant if he would be willing to go back to the residence and go over what he knew, and the defendant acquiesced.
On the way the defendant recalled that the Johnsons had been at his home until approximately 10:00 p. m. He stated that afterward Brenda went to bed and then the defendant and Richard went to bed together in the southeast corner bedroom while his wife remained up. He had no more than gotten off to sleep when Mrs. Castle-berry came in and started arguing with him about their financial condition and stated that the defendant should get an extra job. The defendant related that such arguments had taken place before and that soon he became quite angry. The next thing he remembered was that “he got up out of bed and some type of engagement occurred.” That is the last thing he remembered. The next morning at approximately 6:15 a. m. the defendant arose and walked to the kitchen and observed his wife lying on the floor covered with blood. He then discovered his daughter and son and “fear and panic gripped him.” He didn’t know what to do so he proceeded to work. After returning from work he proceeded to the front door knowing “what was on the inside.” After waiting outside for a while he went to the back door and kicked it in, entered and observed the family in the same position. He then proceeded to the home of Barbara Biles in search of a telephone.
When the trio arrived at the Castle-berry residence they went in and the defendant described where and how he found his family. Officer Johnson then asked the defendant certain hypothetical questions about a knife and what his actions [264]*264would be if he realized that he was bloody. Thereafter, they left the residence to go to the office of the District Attorney and arrived at the Tulsa County Courthouse at approximately 9:00 p. m. Shortly thereafter District Attorney Fallis and Major Sol-lars, Chief of Detectives, arrived. Johnson also stated that Dr. Robert Fogel was present during the ensuing interrogation.
On the following morning, the 24th Johnson again advised the defendant of his Miranda rights and told the defendant that if there was any chance that he didn’t perpetrate the crime he should so advise Johnson and Johnson would work on the case until he was able to prove the defendant’s guilt or innocence. The defendant responded “Mr. Johnson, I know in my heart I did it, I know I did it, I will just have to face whatever is coming to me.”
On cross-examination Johnson admitted that on the initial interview on the 17th he and the defendant had discussed the defendant’s personal belief in God and that Johnson had asked the defendant if he would like to confer with a minister or any other person at that time. In response to that question the defendant had stated “No, not at this time but maybe later.” Johnson also admitted talking to Dr. Fogel on numerous occasions prior to the defendant’s arrest.
After Pat McGavock, a secretary for the Tulsa Police Department, testified as to receiving calls from the defendant for Officer Johnson on both the 22nd and the 23rd, Detective Sgt. Roy Hunt was recalled to the stand. Hunt testified that on the afternoon of the 22nd, as a result of a telephone call from the defendant, he proceeded to the residence of one of the defendant’s relatives where the defendant indicated that he would like to talk. They then proceeded to the police station where they talked for up to an hour and forty-five minutes.
Hunt further testified that on the 23rd at approximately 6:00 p. m. he and Sgt. Johnson again contacted the defendant at the apartment as a result of Johnson’s conversation with the defendant. They talked to the defendant’s father for a few minutes and then the defendant and the officers proceeded to the police car. As they were driving the defendant initiated a conversation with Johnson concerning a minister. Johnson asked the defendant if he still wished to see a minister, and the defendant said he did. The defendant had no minister in mind, and Johnson offered his, saying that Rev. Pieratt was a qualified minister and a fine man. The defendant stated that that would be fine with him. When they arrived at the church the defendant asked Johnson to accompany him. Johnson subsequently returned to the car for a moment and then returned to the church. Ten minutes later Johnson came back to get Hunt and they both proceeded to the pastor’s office. Johnson then asked the defendant to repeat what he had earlier stated and the defendant said that “he felt like in his heart and in his mind that he had taken the lives of his wife and his two children.” Hunt asked him if he was sure and what made him feel that way. The defendant dropped his head and said “I really don’t know, but I know that I did it.” Outside the church the defendant was arrested and again advised of his rights to an attorney. The defendant stated “No, sir, I don’t want an attorney, I just want to get it straightened up.” They then proceeded to the defendant’s house as a result of the defendant’s response to the detectives’ suggestions that it might help him recall the events. On the way to the residence the defendant related that he had gone to sleep on the evening of the ISth and that his wife had awakened him to argue about getting another job. He recalled worrying about his son awakening, arose from the bed, grasped his wife and a struggle ensued. The defendant stated that that was the last thing he remembered until he woke the next morning and discovered the bodies of his family. Sgt. Hunt’s testimony thereafter resembled the testimony of Sgt. Johnson concerning the events leading up to the interrogation in [265]*265the District Attorney’s office during the late evening hours of February 23, 1972.
The State next called Tulsa County District Attorney S. M. Fallís who testified that on February 23rd he went to the courthouse at approximately 9:00 to 10:00 p. m. to meet Officers Johnson, Hunt and the defendant. He then identified and described the tape recorder that was used that evening. He related that he took a recorded statement from the defendant and that the machine exhibited at the trial was the same one he used. He described his experience with the machine and how he tested the same to ascertain that it was functioning properly. After the statement was taken, he marked the tape box and placed the same in a vault. He then related that there were no changes or deletions on the tape from the original taping. The tape was then admitted into evidence and played for the jury over the objection of the defendant. The taped statement contained essentially the same matters as heretofore set out by the defendant in his oral statements to Johnson and Hunt.
On cross-examination it was elicited that the defendant was present in the District Attorney’s office for a period of approximately two hours prior to the taping of the statement and that there were a number of individuals present in the room during interrogation, including Dr. Fogel.
Dr. Robert Fogel was then recalled by the defendant and subjected to intense, able and very competent cross-examination concerning the reliability of the factors he used to determine the approximate time of death. The State then rested.
The defense then called four fellow employees of the defendant, including Claude Johnson. They all testified that the defendant had a good reputation for truth and veracity and that his conduct during working hours on the 16th was normal. One of the witnesses, Gerald Logan, the defendant’s superior, further testified that the defendant was his very best worker, that he was rather quiet and unemotional, that he was to some extent easily influenced by others and that the witness had never seen the defendant in a fight or argument with any of his fellow employees.
Claude Johnson also testified that he and his wife left the Castleberry home at approximately 10:05 p. m. on the 15th and that he picked the defendant up at approximately 6:55 a. m. on the 16th. He related that the defendant appeared normal that morning and that when they made the return trip that evening the defendant did not act unusual or seem hesitant about wanting to go home.
The defense then called Reverend Clarence Lee Henline, an ordained elder in the Church of Jesus Christ of Latter Day Saints, who testified that he had known the defendant for approximately 2 ½ years and that the defendant and his wife were subsequently baptized. He stated that the defendant’s children apparently trusted and loved him, and that he was not a very aggressive person. Henline stated that he observed the defendant on the 16th at police headquarters and that he seemed to be very shaken, was white, had been crying and had difficulty in standing. He further stated that the defendant had a good reputation for truth and honesty and that he was not aware of the defendant’s financial difficulties, although taking bankruptcy is grounds for “disfellowship in our church.” He further stated that the defendant was very susceptible to suggestion.
Harley D. Pieratt, minister of the Car-bondale Assembly of God Church, then testified that Officer Johnson was a member of his congregation. He stated that around February 23rd he received a call wherein Officer Johnson asked if he could bring an individual out to see Pieratt since the individual had requested to see a minister. Pieratt agreed and he met the parties in his office not knowing the purpose of said meeting. Pieratt talked to the defendant and read scripture to him concerning the confession of sin, and they then prayed. After the prayer, the officers were invited back in whereupon Johnson asked the defendant some questions. The [266]*266only statement Pieratt could recall being-made by the defendant was “If I did kill my family, I do not remember it.”
The defendant’s father, Alva H. Castle-berry, then testified that the defendant had never had problems with the law. On February 16 the witness came to Tulsa and first saw his son about 2:00 a. m. on the 17th. The defendant was asleep and seemed to be quivering. He first talked to his son on the morning of the 17th at approximately 9:00 a. m. at which time the defendant stated “Daddy, I don’t believe it happened.” At the time the defendant looked like he was in a daze and seemed to be staring into open space. After making arrangements for the funeral in Kansas, the police were contacted and the defendant given permission to attend. After the funeral he brought the defendant back to Tulsa. On the 23rd when Officers Hunt and Johnson came to the apartment, Johnson advised the witness privately that the police felt the defendant committed the crime and that he had a split personality. He next heard from his son at the police station, and the defendant told him “I am pretty sure I didn’t do it.”
Kenneth Ray Castleberry then took the stand to testify on his own behalf and related as follows: On February 17, Officer Johnson and another came to his ex-sister-in-law’s apartment and took the defendant to the police station. On the way a general conversation was had concerning the defendant’s background and family. Upon arriving at the detective bureau fingernail scrapings were taken and Officers Johnson, Hunt and several others discussed with defendant his activities on the night before, his general background, and if the defendant had any possible suspects. On the way home the defendant advised an unknown officer who was driving the car that he belonged to the Mormon Church. The defendant later went to the police station to get permission to go to the funeral and Officer Johnson advised him to contact him when he got back to town. Following the funeral, the defendant returned to Tulsa and stayed with Joanne Castleber-ry. The defendant called the police station to talk to Johnson and upon learning he was not in, talked to Officer Hunt. Hunt came to his residence and the defendant left with him. En route to their destination, Officer Hunt advised the defendant that they had no suspects and stated that “a person has a certain mental capacity” and “up above that he just goes so high and then he goes kind of temporarily insane.” Hunt also talked about the time of death and asked the defendant if he wanted to go to the house. The defendant did not want to go but went anyway. The defendant showed Hunt how he got into the house on the 16th, and the defendant and Hunt walked around and observed blood on the kitchen floor. The defendant responded to Hunt’s questioning that he did not remember blood on the morning he left for work. The two inspected the remainder of the house and observed blood in various locations. He stated that he had no blood on his person when he awoke that morning nor had he washed any off. The two then proceeded to the police station and Hunt advised the defendant that he was the only one who could have committed the crime because he was the only one at home during the time of death. The defendant noted that at the police station, Hunt asked defendant to “pray to God.” Hunt then left the room, and shortly another man entered and said they were going “easy on the defendant up to now” but “that they were going to start getting rougher.”
The defendant related that the next evening Johnson and Hunt returned and asked the defendant if he would leave and talk to them. The defendant responded that he wanted to help them collect more evidence and in the automobile Johnson asked the defendant if he would like to see a minister. The defendant said “It didn’t make me no difference.” Officer Johnson recommended his minister and stopped and made a phone call and they proceeded to the church. Sgt. Johnson mentioned temporary insanity and told the defendant that he was the only one who could have done it. The defendant stated that they went [267]*267inside the minister’s office and after exchanging greetings the minister stated that the defendant could believe in Larry, that he was a good Christian, and that defendant could trust Larry. The defendant did not recall if Johnson was in the room at that time or not and added that he spent most of the time alone with the minister. The defendant testified that the minister read several passages from the Bible and that both recited a prayer. Shortly, the officers came in and Johnson asked the defendant if he felt better and the defendant responded that he did. The defendant did not recall making any statements in the church.
Thereafter, they proceeded to the car and the defendant added that he believed in the officers and trusted them. The trio proceeded to the police station and they kept saying they knew the defendant had committed the crime as he was the only one there at the time of death. Upon arriving at the police station the officers stopped the car and Johnson stated that “We won’t show you the pictures, we’ll just go out to the house.” They then proceeded to the defendant’s house and on the way the officers stated they were going to make sure nothing happened to him and that he could “maybe get a couple of years at Vinita.” Officer Johnson turned on a tape recorder and read defendant his rights. The defendant answered the questions posed to him, the same all being apparently recorded. The defendant again proceeded into the house as he had done on the previous evening. Once again the spots of blood were observed and, as a result of the “repetition”, the defendant became confused, stating that they made him believe he did it. After going through the house, all got in the car and proceeded to the District Attorney’s office where they waited until the District Attorney arrived. Thereafter, Captain Sollars and Dr. Fogel came in. Various questions were asked of the defendant before the tape recorder was turned on. Defendant testified that he had heard the tape at trial, that he had said those things because Johnson was going to help him and that he trusted Johnson because he was a police officer. After making the taped statement, the defendant was booked and jailed.
Concerning the death of his family, the defendant related that Claude and Wynona Johnson stayed at the residence until approximately 10:00 p. m. Upon their departure, the defendant locked all the doors, kissed his daughter good-night and the defendant went to bed with his little boy, his wife staying up to watch television. The defendant stated that he did not say anything else to his wife and that when he woke his wife and boy were in bed with him. Defendant got out of bed, got dressed, secured his lunch pail and dirty uniform, and then Claude Johnson picked him up to take him to work. He testified that Claude brought him home that evening whereupon the defendant went to the front door and discovered the same to be locked. The back door was locked also and the defendant sat down on the back porch and then played a little basketball. He later went in the house after kicking in the back door to clean up in order that he might be ready when his wife got home. He figured that she was out shopping. He observed his family upon entering the house and ran out the front door.
The defendant testified that a Dr. Heaver hypnotized him approximately six times. The defendant stated that he is susceptible to suggestion and that the officers convinced him he saw his wife and children dead in the house. However, he stated that he won’t believe just any suggestion. The defendant added that he would not have confessed if he had not trusted the officers.
Dr. Salvatore Russo, qualified as an expert in psychology, was the last witness to testify for the defendant. Dr. Russo testified that he had experience as a prison psychologist and had dealt on a number of occasions with people accused of crimes, more specifically, hundreds of persons accused of violent crimes and 12 to IS accused of murder. Russo stated that he conducted an analysis of the defendant and [268]*268ran a number of psychological tests on him. The witness concluded that the defendant was a “quiet, soft-spoken, shy individual with average intelligence who was somewhat passive, dependent and submissive, who did not give any evidence of hostility or violence of sexual preoccupation and who was not neurotic, psychotic, or psycopathic.” Over strenuous objection by the State the witness also testified that it was his opinion that it was highly unlikely a person of the defendant’s personality would commit this type of crime. This ended the testimony on behalf of the defendant.
On rebuttal the State called Tom Con-seen who testified that he saw the defendant about noon on the 18th of February at a local grocery store. At that time Con-seen had a conversation with the defendant wherein the defendant revealed that he had been at the police department all morning. The defendant informed Conseen that the police were trying to “pin it on him” and that they had taken fingernail scrapings from him.
The defendant’s first proposition in error urges that the trial court committed reversible error in overruling the defendant’s objection to the admission of certain statements made by the defendant which are alleged to have been involuntary. In support of this proposition the defendant contends that the admissions and confessions were psychologically induced and therefore rendered involuntary.
In support of this contention defendant cites Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037, wherein the Supreme Court of the United States held as follows, to-wit:
“Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. (Citations omitted) The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.”
See also In re Pate’s Petition, Okl.Cr., 371 P.2d 500 wherein this Court discusses the applicability of Culombe, supra, and holds in its second syllabi as follows, to-wit:
“A confession is inadmissible if obtained under any form of compulsion, so that to receive it in evidence would violate the defendant’s constitutional privilege against self-incrimination and is inadmissible if made under such circumstances of hope or fear as to create a fair probability of its testimonial untrustwor-thiness.”
However, in Culombe, supra, a 33-year-old mental defective with an I.Q. of 64 and a mental age of 9½ years was detained in effective custody by the police for a period of four days. He saw only his accomplice, the police, and his wife who prevailed upon him to confess. He was never informed of his Miranda rights, and his request for counsel was consistently frustrated. In the instant case the defendant was a mature adult of average intelligence. Although questioned on numerous occasions by the police, he was not detained in effective custody until after he advised Detectives Hunt and Johnson that in his mind he believed that he had killed his family. He was free to come and go as he so desired until the 23rd. He was informed of his rights on numerous occasions beginning on the 17th day of February and stated more than once that he did not desire to consult with an attorney.
In Pate, supra, the accused’s ailing mother and 16-year-old twin brothers were in the same jail where the defendant was incarcerated. The accused was interrogated every day for a week with the State admitting that the sheriff and six to eight officers had interrogated the accused for 6 to 7 hours using the platoon system. The confession was obtained in the “wee hours” of the morning.
[269]*269The defendant further cites Brown v. State, Okl.Cr., 384 P.2d 54, wherein this Court held that a voluntary statement must proceed from the spontaneous suggestion of a person’s own mind, “free from the influence of any extraneous, disturbing cause.” However, in that case the accused had been subjected to severe beatings by members of the Texas Rangers to whom the Oklahoma sheriff had surrendered control. It is therefore the opinion of this Court that Culombe, Pate, and Brown are all certainly distinguishable on the facts.
A reading of the lengthy record reflects that the defendant’s motion to suppress was heard and, after the defendant had introduced evidence in support of his contention, overruled by the trial court. Thereafter, and at the conclusion of the trial, the trial judge again overruled defense counsel’s motion to suppress. The issue of voluntariness was then presented to the jury under thorough and exhaustive instructions, and the jury by its verdict found the admissions to have been voluntary. The record clearly reflects that the defendant was properly advised of his Miranda rights on numerous occasions, that the defendant did not desire counsel and that his subsequent statements were voluntary and made with the full knowledge and understanding of his right. This Court will not disturb the trial court’s ruling permitting the introduction of a confession if supported by sufficient evidence that the defendant knowingly and intelligently waived his rights and understood the consequences of said waiver. Warren v. State, Okl.Cr., 495 P.2d 837.
The defendant, however, urges that he was psychologically coerced by Detectives Johnson and Hunt who relied on the defendant’s obvious susceptibility to suggestion, trust in said individuals and those in authority, and strong religious beliefs. We do not agree. There is sufficient evidence to support the trial court’s determination that the defendant initiated the chain of events which led to his visiting with Rev. Pieratt in the privacy of his study. It is therefore the opinion of this Court that the actions of the trial court in overruling the defendant’s motions both prior and after trial were both correct and proper. As the United States Supreme Court stated in Cu-lombe, supra,:
“ a confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally borne of remorse, or relief, or desperation, or calculation.”
The defendant next contends that the arresting officer did not have sufficient reasonable cause to arrest the defendant and, therefore, the subsequent statements made by the defendant were inadmissible. To support this contention the defendant cites Embree v. State, Okl.Cr., 488 P.2d 588, wherein this Court held that an arresting officer’s information that a suspect was “involved” in some marijuana “without further details and specifics” did not constitute requisite reasonable or probable cause for belief that the accused had committed a felony authorizing a warrantless arrest.
However, in the instant case the arresting officer was apprised of “further details and specifics.” He had extensively investigated the scene and knew that there were no signs of violence other than the blood and the bodies, and that there was no forcible entry into the home other than that admitted by the defendant. The officer knew that the defendant and his wife had engaged in prolonged arguments about financial matters and that the defendant had remained outside of his home for a relatively long period of time before breaking in the door. The officer also knew the relationship of the defendant to the victims and had just been advised by the defendant that he believed he killed his family.
In Stidham v. State, Okl.Cr., 507 P.2d 1312, this Court held as follows, to-wit:
“This court set forth the standard by which facts allegedly constituting ‘reasonable cause’ are to be measured in [270]*270Cudjo v. State, Okl.Cr., 489 P.2d 1101, 1105, as follows:
‘ * * * If the facts are such that a reasonably prudent man would have believed the accused guilty, and would have acted upon that belief, a police officer is justified in making an arrest without a warrant (for a felony). * * * ’
“See State v. Chronister, Okl.Cr., 353 P. 2d 493. There need not be absolute, irrefutable cause. Welch v. State, 30 Okl.Cr. 330, 236 P. 68.”
It is therefore the opinion of this Court that the arrest was proper under the circumstances of the instant case.
The defendant next urges that the trial court erred in admitting the tape recorded statement taken by District Attorney Fallís on the evening of the 23rd for the reason that the rights recited by Fallís to the defendant on said recording did not advise the defendant that he had a right to counsel prior to any questioning. In support of the defendant’s argument he cites Breedlove v. State, Okl.Cr., 516 P.2d 553. In Breedlove this Court recently held that warnings which failed to advise an accused that he has a right to the presence of an attorney during any questioning are fatally defective and no evidence obtained as a result of subsequent interrogation can be used against him.
However, in Moreno v. State, Okl.Cr., 504 P.2d 1241, this Court held that where a defendant had been advised of his rights immediately upon arrest and within one day prior to the complained of statement, the statement was admissible. In the instant case the defendant had been repeatedly and properly advised of his Miranda rights throughout the course of the investigation and on the 17th of February had signed a written waiver of same. The record reflects that after the statement made at the church and prior to the taking of the statement in the office of the District Attorney, Officer Hunt again asked the defendant if he wanted an attorney and the defendant stated “No, sir, I don’t want an attorney, I just want to get it straightened up.”
It is therefore the opinion of this Court that the defendant had been thoroughly, properly and repeatedly advised of his Miranda rights, including his right to have an attorney prior to any questioning, that the defendant had voluntarily waived his right, and that the tape recorded statement was properly admitted. See also Maguire v. United States, 9 Cir., 396 F.2d 327.
The defendant’s next proposition in error urges that the trial court erroneously overruled the defendant’s motion for a new trial based on newly discovered' evidence. In Stevenson v. State, Okl.Cr., 497 P.2d 1114, this Court, citing Taylor v. State, Okl.Cr., 286 P.2d 730, set out those elements which the trial court should consider in passing upon a motion for new trial on the basis of newly discovered evidence as follows, to-wit:
“1. In determining whether a motion for new trial on the ground of newly discovered evidence should be sustained, the trial court should consider these questions: 1. Is the evidence material? 2. Did the accused or his counsel exercise due diligence to discover the evidence before the trial? 3. Is it cumulative? 4. Is there a reasonable probability that if the newly discovered evidence had been introduced at the trial, it would have changed the result ?
“2. The granting of a motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court.”
In the instant case the trial court held a lengthy hearing, 490 pages of typed transcript, on the motion at which time the defendant presented five witnesses and the State called six witnesses. During said hearing the defendant attempted to show that one Jackie Dean Tandy could have committed the crimes for which the defendant had been convicted and, therefore, there was a reasonable probability that the original trial would have ended in an acquittal or a hung jury. A complete exami[271]*271nation of said portion of the transcript reflects that the defendant through his very-able counsel was granted every reasonable opportunity to examine both his witnesses and the witnesses for the State. It is also apparent that the trial court gave defense counsel much latitude in examining his own witness Jackie Dean Tandy-.
During the course of said hearing the defendant attempted to introduce through the testimony of one James Lee Mize a purported statement made to him by Tandy sometime in January, February or March of 1972. The State immediately objected that the statement was hearsay and the trial court sustained the objection. The defense then made an offer of proof reciting the hearsay statement by Tandy to be as follows, to-wit:
“Jim, I need to talk to you and my dad said it’s all right, go ahead. He said I had been over at Kenneth’s house and I was going to get it and I got in some trouble. My dad asked him Kenneth who? And he said, Castleberry. And he said, I need to get out of town. So, dad told him to get in the car.”
Defense counsel urged that the hearsay statement should be admitted as a declaration against penal interest.
In support of the defendant’s argument that said statement should have been admitted he cites the recent United States Supreme Court case Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed. 2d 297. In the Chambers case one McDonald had been placed at the scene of a murder with a gun in hand by many witnesses. McDonald had subsequently made a sworn confession in writing and confessed responsibility for the crime on three other occasions to friends. During the trial Chambers called McDonald as his witness and McDonald repudiated his confession and offered an alibi. The Mississippi trial court refused to allow Chambers to cross-examine McDonald as a hostile witness since the Mississippi rules of evidence restrained a party from impeaching his own witness. Chambers then attempted to introduce through other witnesses testimony of McDonald amounting to a confession and further attempted to introduce the sworn confession in writing. Again the Mississippi court refused, holding that the law of that State had always been that a declaration against penal interest was not an exception to the hearsay rule. The U. S. Supreme Court reversed Chambers’ conviction holding that the hearsay statements were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability. The Court further held that the testimony rejected by the trial court bore “persuasive assurances of trustworthiness.” The Court then stated as follows, to-wit:
“We conclude that the exclusion of this critical evidence, coupled with the State’s refusal to permit Chambers to cross-examine McDonald, denied him a trial in accord with traditional and fundamental standards of due process. In reaching this judgment we establish no new principles of constitutional law. Nor does our holding signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures. Rather, we hold quite simply that under the facts and circumstances of this case the rulings of the trial court deprived Chambers of a fair trial.”
The Chambers case is distinguishable from the instant case on the facts. In Chambers, McDonald’s confession was made spontaneously to a close acquaintance shortly after the murder. Each confession was corroborated by some other evidence in the case, i. e., McDonald’s sworn confession, the testimony of any eyewitness to the shooting, the testimony that McDonald was seen with the gun immediately after the shooting and his subsequent purchase of a new weapon.
In the instant case, although Tandy was called as a defense witness, defense counsel was given reasonable latitude in his examination of Tandy. Mize could not remember when the statement was made, it being [272]*272made sometime in January, February or March. A reading of the transcript of the hearing also reflects that the trial court found that there were no “persuasive assurances of trustworthiness,” it being established that Mize’s father had earlier been implicated in a burglary by Tandy.
The defendant further argues that in the recent case of Howard v. Jessup, 519 P.2d 913, the Oklahoma Supreme Court modified our rules of evidence to include a declaration against penal interest as an exception to the hearsay rule. In so doing the Court held as follows, to-wit:
“The rule that where one is not available as a witness, his declarations against interest are admissible in evidence, is not limited to statements where the adverse interest is of a pecuniary or proprietary nature, and applies where his declarations show him to have committed a crime and his testimony is not available because he has refused to testify on the ground that his testimony would tend to incriminate him.”
However, in the instant case Tandy was available and did testify on behalf of the defendant and the defense was given reasonable latitude in its examination of the witness.
It is therefore the opinion of this Court that the trial court afforded the defendant every reasonable opportunity to show that new evidence had been discovered which in all reasonable probability would have changed the results of the trial. It is further our opinion that the trial court did not abuse its discretion in holding that the defense had failed in its burden of proof and, therefore, defendant’s proposition is without merit.
The defendant’s next proposition in error urges that the trial court committed reversible error in admitting incompetent, irrelevant and prejudicial expert opinion evidence concerning the testimony of William Caveny, forensic chemist, and Dr. Robert Fogel, pathologist.
In support of his proposition concerning the testimony of the chemist, the defendant contends that, since the expert was unable to determine the age and origin of the blood found in the fingernail scrapings taken from the defendant and was further unable to determine whether the blood was of human or animal origin, his opinion left his testimony so open to conjecture and fraught with peril as to unduly prejudice the defendant in the eyes of the jury. With this contention we cannot agree. The witness was submitted to extensive cross-examination on the part of the defendant, and it was then up to the jury as the trier of fact to weigh the evidence as presented. In Toms v. State, 95 Okl.Cr. 60, 239 P.2d 812, this Court outlined the functions of and the weight to be given expert testimony quoting from People v. Tucker, 1948, 88 Cal.App.2d 333, 198 P.2d 941, 944, as follows:
“ ‘ * * * expert testimony is admissible where the conclusions to be drawn by the jury depend on the existence of facts which are not common knowledge and which are peculiarly within the knowledge of men whose experience or study enables them to speak with authority thereon, and in those cases in which the conclusions to be drawn from the facts stated, as well as knowledge of the facts themselves, depend upon professional or scientific knowledge or skill not within the range of ordinary training or intelligence. In such cases not only the facts but the conclusions to which they lead, may be testified to by qualified experts. * * * The law makes no distinction in weighing evidence between expert testimony and evidence of other character. * * * It is for the jury and not the reviewing court to determine the weight to be given such evidence.’ ”
See also 32 C.J.S. Evidence § 546(70).
To support his proposition concerning the pathologist, the defendant urges that Dr. Fogel’s testimony amounted to a guess based upon his belief that the defendant was guilty. The defendant points out that, of all the factors considered by Fogel, the last time the victims were seen [273]*273alive was the most important. On redirect examination Fogel stated that the evidence that the victims were last seen alive between 10:00 p. m. and 11:00 p. m. on the 15th was “reasonably valid.” On recross-examination Fogel was then asked:
“Q: Dr., if there were a person who had seen these people alive at 7:00 o’clock a. m. on the 16th day of February, would that affect your conclusion in this courtroom today ?”
“A: If a reliable witness has seen them alive at 7:00 o’clock a. m., is that your question?
Q: Yes, sir.
A: A reliable witness ?
Q: Yes.
A: I would have to say yes.”
The defendant, therefore, concludes that the doctor was presuming the defendant’s guilt since the defendant had made statements that he had last seen his family alive at 7:00 a. m. on the morning of the 16th.
The State contends that Dr. Fogel was an eminently qualified pathologist who had performed approximately 1,600 autopsies and testified in many homicide cases. Fo-gel arrived at the scene at approximately 8:00 p. m. on the 16th, inspected all the bodies and subsequently performed extensive examinations of same. Based upon all reliable evidence before him, he then arrived at his opinion that in all probability the deaths occurred prior to 7:00 a. m. on the 16th. The State contends that such expert testimony is regularly received into evidence and that it was then within the province of the jury to determine the weight to be given such evidence.
Although there are no Oklahoma cases concerning expert testimony fixing time of death, such testimony is generally admitted in other jurisdictions. See People v. Johnson, 203 Cal. 153, 263 P. 524; Moya v. People, 88 Colo. 139, 293 P. 335; State v. Netherton, 133 Kan. 685, 3 P.2d 495; and Commonwealth v. Vaughn, 329 Mass. 333, 108 N.E.2d 559. It is therefore the opinion of this Court that a properly qualified expert can give his opinion as to the time of death.
In the instant case Dr. Fogel was submitted to grueling cross-examination concerning the basis of his opinion that the victims “in all probability” died before 7:00 o’clock a. m. on the 16th. Fogel’s opinion was based upon his knowledge, expertise, experience, and the evidence and data available to him. The expert must by definition be able to make a determination as to what evidence he believes to be controlling in order to arrive at his opinion. Claude Johnson was a neutral witness called by defendant, and the doctor is justified in basing his opinion, in part, on same. The jury was cognizant of the fact that the pathologist had testified on numerous occasions in other cases on behalf of the State and had been called as a State’s witness in the instant case. Although there was no indication in the record of any bias or prejudice in favor of the State on the part of Dr. Fogel, the jury, as trier of fact, is the sole judge as to the weight and the credibility to be given to his testimony. See Yellow Cab Transit Co. v. Bethel, 183 Okl. 219, 81 P.2d 667.
The defendant for the first time in his brief urges that Dr. Fogel’s opinion was based, in part, on hearsay since the only way Fogel would have known when the victims were last seen alive was through a third party. However, during the trial when the doctor was enumerating the factors he considered in arriving at his opinion, no objection was made concerning the factor requiring hearsay evidence. Therefore the defendant waived any objection to hearsay, and it cannot be raised for the first time on appeal. However a reading of the record as a whole reflects that the defendant himself testified that Mr. and Mrs. Claude Johnson were in his home for a visit around 10:00 p. m. on the 15th. The defendant then called Claude Johnson as his witness and the visit was again confirmed. Johnson was a neutral witness called by the defense, and the doctor is [274]*274justified in basing his opinion, in part, on his testimony.
It is therefore the opinion of this Court that the trial court committed no error in permitting Dr. Fogel to testify as to his expert opinion of the probable time of death.
The defendant next contends that the trial court committed reversible error in denying the defendant’s request to excuse a juror for breaching the rule of sequestration. When trial commenced, the jury was ordered sequestered for the duration of the trial. During the first weekend recess prior to the defendant’s presentation of evidence, Juror Norcum fell ill and was sent to the hospital unaccompanied by a bailiff. Once the separation was discovered, the trial court interrogated Norcum who testified that during his two hour visit to the hospital no one at all discussed the merits of the case with him. Norcum further stated that he informed the doctor that he was on a jury in a very serious case and the doctor made no response. After the interrogation the trial court found that Norcum would be an impartial juror and ordered him to return to the jury.
In Cox v. State, Okl.Cr., 283 P.2d 545, this Court in paragraph 7 of its syllabus stated as follows:
“Before the final submission of a case the legal presumption is that the jurors performed their duty in accordance with the oath they have taken, and that presumption is not overcome by proof of the mere fact that during an adjournment of the trial the jurors were permitted to separate. The defendant must affirmatively show that by reason thereof he was denied a fair and impartial trial, or that his substantial rights were prejudiced.”
In the instant case the defendant made no attempt to show any prejudice. Therefore the defendant failed to sustain his burden set out above and said proposition is without merit.
Defendant’s next proposition urges that the trial court erred in admitting certain gruesome photographs. With this contention we cannot agree. During the trial the trial court examined certain photographs and slides and culled out those which the court found to be objectionable. The trial court then admitted the other photographs and slides as being probative in value.
In Abel v. State, Okl.Cr., 507 P.2d 569, this Court, citing Pate v. State, Okl.Cr., 361 P.2d 1086, held as follows, to-wit:
“ ‘Although it is error to receive in evidence gruesome photographs of a homicide victim, designed primarily to arouse the passion of the jury, such photographs are admissible; when they are relevant to the issues before the court and their probative value is not outweighed by the danger of prejudice to the defendant.’ ”
In Abel this Court pointed out that the pictures in that case were not taken after extensive autopsy surgery and were not gruesome. They clearly depicted the various bruises on a child’s body and their probative value was not outweighed by the danger of prejudice to the accused.
In Vavra v. State, Okl.Cr., 509 P.2d 1379, this Court held that certain photographs which showed the location of the body and corroborated a pathologist’s testimony concerning loss of blood were of probative value. The same holding is applicable in the instant case. The pictures and slides objected to depicted the location and position of the bodies and blood stains found in the home. The witnesses who identified the photographs stated that they were faithful reproductions of the scene, and the record reflects that the pictures tended to corroborate the testimony of other witnesses.
The pictures in the instant case are relevant to the issues before the court, and their probative value is not outweighed by the danger of prejudice to the defendant. Therefore .it is the opinion of this Court [275]*275that the defendant’s proposition concerning same is without merit.
Defendant next urges that the trial court committed reversible error in allowing improper and highly prejudicial rebuttal testimony. As a rebuttal witness the State called Tom Conseen who testified that on the 18th of February he had a conversation with the defendant wherein the defendant stated that the police “were trying to pin it on him.” The defendant urges that the question of the defendant’s trust of the police in general on the 18th day of February is a collateral issue since he had very little contact with the police until the 22nd. To support his proposition the defendant cites Moon v. State, Okl.Cr., 475 P.2d 410 which holds as follows, to-wit:
“Though the rule is well established in this state that where a defendant takes the stand in his own behalf, he becomes a witness on cross-examination, subject to all the rules applicable to other witnesses, when a defendant as witness is cross-examined on a matter purely collateral to the issue, his answer is conclusive, and he cannot be subsequently contradicted by way of impeachment by the party putting the question.”
However, the question of the defendant’s trust of the police is not a purely collateral matter. Trust and susceptibility to suggestion are both material parts of the defense theory. In Higgins v. State, Okl.Cr., 506 P.2d 575, this Court recently held that rebuttal testimony going directly to the defendant’s theory of defense could not be considered collateral.
It is therefore the opinion of this Court that the trial court did not abuse its discretion in allowing the rebuttal testimony of Tom Conseen in the instant case. See An-neler v. State, 93 Okl.Cr. 437, 229 P.2d 238. The defendant’s contention concerning this issue is therefore without merit.
The defendant next contends thát the trial court committed reversible error in refusing to admit the results of a polygraph examination administered the defendant for purposes of attacking the vol-untariness of his alleged incriminating statement. The defendant argues that, although the general rule is that results of polygraph examinations are not admissible into evidence unless a stipulation is entered into, in the instant case due process requires that the results of said examination be admitted for the sole purpose of attacking the voluntariness of the incriminating statements.
In an effort to prove the reliability of the results of polygraph examination a hearing was held on January 30, 1973, wherein the defendant called as an expert witness in the field Lynn P. Marcy, former executive director of the American Polygraph Association and a well-known author and lecturer on the subject of polygraph examinations. Mr. Marcy testified that on January 6, 1973, he administered a polygraph examination of the defendant and that the results of said examination reflected no deceptive responses on the part of the defendant concerning certain questions asked about his alleged incriminating statements. Marcy further stated that in his opinion the defendant did not have conscious knowledge of who killed his family. The trial court, however, held that the results of said polygraph tests were inadmissible and subsequently, after an offer of proof, held the results inadmissible during trial.
The defendant in his brief cites numerous articles and authority for the proposition that the results of polygraph examination when conducted by qualified examiners are ninety-five (95) percent correct. However, this Court is not swayed by the defendant’s argument and authority. In the case of Henderson v. State, 94 Okl.Cr. 45, 230 P.2d 495, this Court set out those factors which occasion the chief difficulties in the diagnosis of deception as follows, to-wit:
“‘(1) Emotional tension — /‘nervousness” —experienced by a subject who is innocent and telling the truth re[276]*276garding the offense in question, but who is nevertheless affected by
(a) fear induced by the mere fact that suspicion or accusation has been directed against him, and particularly so in instances where the subject has been extensively interrogated or perhaps physically abused by investigators prior to the time of the interview and testing by the lie-detector examiner; and
(b) a guilt complex involving another offense of which he is guilty.
(2) Physiological abnormalities, such as
(a) excessively high or excessively low blood pressure;
(b) diseases of the heart;
(c) respiratory disorders, etc.
(3) Mental abnormalities, such as
(a) feeblemindedness, as in idiots, imbeciles, and morons;
(b) psychoses or insanities, as in manic depressives, paranoids, schizophrenics, paretics, etc. ;
(c) psychoneuroses, and psychopathia, as among so-called “peculiar” or “emotionally unstable” persons — those who are neither psychotic nor normal, and who form the borderline between these two groups.
(4) Unresponsiveness in a lying or guilty subject, because of
(a) lack of fear of detection;
(b) apparent ability to consciously control responses by means of certain mental sets or attitudes;
(c) a condition of “sub-shock” or “adrenal exhaustion” at the time of the test;
(d) rationalization of the crime in advance of the test to such an extent that lying about the offense arouses little or no emotional disturbance;
(e) extensive interrogation prior to the test.
(5) Unobserved muscular movements which produce ambiguities or misleading indications in the blood pressure tracing.’ ”
In Hayes v. State, Okl.Cr., 292 P.2d 442, this Court held that the results of a polygraph examination are inadmissible for any purpose. See also Vetter v. State, Okl.Cr., 506 P.2d 1400.
The State in its brief points out that the polygraph examination was conducted approximately one year after the incriminating statements were made. During the interim period the defendant was under psychiatric supervision and was hypnotized at least six different times. The State suggests that if the defendant is in fact susceptible to suggestion, then during the year of treatment that followed there were many opportunities to reverse the suggestion of guilt. Therefore the tests would be of little value. We think this point is well taken.
Therefore for all the reasons set out above it is the opinion of this Court that defendant’s proposition in error concerning the admissibility of the polygraph examination results is without merit.
The defendant next contends that his substantial rights were prejudiced by the statement of Dr. Fogel that the evidence of the time that the victims were last seen alive was “reasonably valid.” In support of his proposition the defendant urges that this was an infringement upon the province of the jury and, therefore, highly prejudicial to the defendant. However, as discussed above, we cannot agree. The expert witness, by definition, must be able to weigh that data which he believes to be controlling. The statement made by the expert in the instant case informed the jury of one of the reasons for his conclusion concerning the time of death. It still remained the sole responsibility of the jury to weigh the evidence presented. Therefore defendant’s contention is without merit.
The defendant next urges that the following question asked Claude Johnson by the Assistant District Attorney, to-wit:
“ Q: Claude, if Kenneth had confessed to killing his wife and children he [277]*277would be telling the truth, wouldn’t he? We would have to assume that?”
was improper cross-examination as it invaded the province of the jury. However, an examination of the record reflects that as soon as the question was asked, and before it was answered, the defendant objected to same. The objection was immediately sustained by the court, and the jury was admonished to disregard same. As the question was never answered and the jury immediately admonished, it is the opinion of this Court that no substantial right of the defendant has been prejudiced and defendant’s contention is without merit. See Barber v. State, Okl.Cr., 388 P.2d 320.
The defendant next contends that the trial court committed error in admitting the tape recorded statement taken by Mr. Fallis since the State did not lay the proper predicate by showing that all requirements of Brewer v. State, Okl.Cr., 414 P. 2d 559, had been met. In Brewer this Court held as follows:
“Sound recordings, if relating to otherwise competent evidence, are admissible into evidence providing the proper foundation is laid, as follows: (1) A showing that the' recording device was capable of taking testimony, (2) A showing that the operator of the device was competent, (3) Establishment of the authenticity and correctness of the recording, (4) A showing that changes, additions, or deletions have not been made, (5) A showing of the manner of the preservation of the recording, (6) Identification of the speakers, and (7) A showing that the testimony elicited was voluntarily made without any kind of inducement.”
In support of the said contention the defendant urges that the State failed to show that no changes, additions or deletions had been made as there appeared to be a time discrepancy. We do not agree. The record reflects that at the end of the recorded statement Mr. Fallis made the following statement:
“MR. FALLIS: It is now approximately five minutes after 12:00 midnight. Excuse me. Was I wrong with the time there? I should correct that and say by my clock it is now five minutes after 12:00 midnight on this same date. Apparently the corrected time would be 12:25 a. m. on the date of the 24th of February, which means that my clock is approximately 25 minutes off. This will conclude the statement of Kenneth Castleberry.”
When the taped statement commenced Mr. Fallis recited that the time was 11:35 p. m. on February 23, 1972. The defendant is arguing that the statement began at 11:35 p. m. and was completed at 12:25 a. m., or approximately 50 minutes later. However it is obvious from the record that the watch Mr. Fallis wore was approximately twenty minutes slow.
Prior to the admission of the tape recorded statement the trial court held a hearing outside of the presence of the jury to determine if all requirements of Brewer, supra, had been complied with. This is the proper procedure outlined in Brewer as follows:
“When the counsel for defense objected to the introduction of the tape recording, the better practice would have been for the judge to withdraw the jury; listen to the arguments of counsel; hear the tape recordings; and determine if all the recording is admissible and should be heard by the jury. If not, it should have been excluded.”
The trial court then made the following finding, to-wit:
“THE COURT: One second. I think that all of the rules in the Brewer v. State cited at Oklahoma Criminal 414 P.2d, 559, have been met and the time element, as I took the time, was definitely in accordance with the timing that was made at the time of the recording.”
In other words, the trial court made a judicial determination that no deletions or additions had been made to the tape. The [278]*278defendant submits no proof otherwise, and it is, therefore, the opinion of this Court that the trial court did not abuse its discretion in admitting the tape recorded statement into evidence. No substantial right of the defendant had been prejudiced and his contention concerning said tape recorded statement is without merit.
The defendant next contends that the trial court committed error in exercising his procedural discretion regarding rules of evidence in favor of the State and prejudicially towards the defendant. With this contention we cannot agree. A complete examination of the trial transcript reflects that the trial court conducted the trial in the most competent manner. The trial judge, the prosecuting attorney, and defense counsel should all be commended. It is therefore the opinion of this Court that the trial court did not exhibit prejudice or bias in the conduct of the trial, did not abuse its discretion concerning the scope and latitude of cross-examination, and no substantial right of the defendant was prejudiced.
The defendant last contends that the court committed error in not requiring the State to allow inspection of police investigation reports or other evidence in its possession which was favorable to the defendant. Again, we do not agree.
The defendant argues that it should be the duty of the courts, instead of the prosecutor, to ascertain whether or not the prosecution had evidence favorable to the accused. The defendant also contends that if he had access to all police reports then the lengthy hearing on the motion for a new trial might have been averted. However, no abuse of discretion has been shown on the part of the trial court. The only limitation of the defendant’s discovery was the trial court’s refusal to allow defendant the “work product” of the law enforcement officers.
In State ex rel Fallis v. Truesdell, Okl. Cr., 493 P.2d 1134, this Court held as follows :
“An accused is not entitled to discovery and inspection of unsworn statements of a prosecution witness in the possession of the State, of the transcript of the statement of a prosecution witness taken by a prosecutor or peace officer during an investigation or preparatory to trial, or of the ‘work product’ of the State consisting of unsworn statements signed by others than the accused.
“The State’s ‘work product’ shall include reports compiled by a law enforcement agency in the course of its investigation into a criminal offense and statements obtained by prosecuting attorneys and peace officers from various witnesses, for the State, without regard to whether such statements or reports are later sought for the purpose of cross-examination or impeachment.”
It is therefore the opinion of this Court that the trial judge abused no discretion concerning discovery and that no substantial right of the defendant has been prejudiced. Defendant’s last proposition in error is without merit.
From a consideration of the lengthy record as a whole, we do not find that the defendant has been deprived of any substantial right, but that the issues were fairly presented to the jury, and defendant received a fair and impartial trial. The verdict and judgment appealed from is, accordingly, affirmed.
Related
Cite This Page — Counsel Stack
1974 OK CR 83, 522 P.2d 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/castleberry-v-state-oklacrimapp-1974.