Hardin v. State

1982 OK CR 124, 649 P.2d 799, 1982 Okla. Crim. App. LEXIS 322
CourtCourt of Criminal Appeals of Oklahoma
DecidedAugust 10, 1982
DocketF-81-539
StatusPublished
Cited by22 cases

This text of 1982 OK CR 124 (Hardin 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.

Bluebook
Hardin v. State, 1982 OK CR 124, 649 P.2d 799, 1982 Okla. Crim. App. LEXIS 322 (Okla. Ct. App. 1982).

Opinions

OPINION

CORNISH, Judge:

Jack Hardin, appellant, was charged in the District Court of Pottawatomie County with the crime of Murder in the First Degree, After Former Conviction of a Felony. At trial the case was only submitted to the jury on the lesser included offense of First Degree Manslaughter, After Former Conviction of a Felony, and the jury returned a verdict of guilty. Under the habitual criminal statute he was sentenced to forty (40) years’ imprisonment.

On September 10, 1980, appellant was invited to the home of Freeland Woods. Appellant, Mr. Woods and another guest had several rounds of drinks that afternoon. The party was interrupted when a fight ensued between Hardin and Mr. Woods.

[801]*801Douglas Lena came home from work that afternoon and found Mr. Woods sitting in a chair bleeding, but still conscious. Mr. Lena ignored Mr. Woods’ request not to seek medical attention, and an ambulance was called. Mr. Woods died at the hospital approximately nine hours later. An autopsy revealed that he died as a result of massive internal hemorrhaging caused by a blunt blow to the abdomen. Lacerations and abrasions were also found on Mr. Woods’ head, but the coroner testified that these wounds did not cause death.

Ronald Wedge worth, a Shawnee police officer, testified that Mr. Woods told him he had fought Hardin that afternoon. The appellant was then arrested and placed in the drunk tank. At Mr. Woods’ residence the police discovered two broken crutches. Hardin later identified one of the crutches as the instrument he used to strike Mr. Woods.

Early September 11, 1980, appellant was removed from the jail for questioning. The officers advised Hardin of his Miranda rights, he waived his rights and a cassette recording was made of his interview with the police. Within an hour, at approximately 4:00 a. m. that same morning, Hardin submitted to a second interview. At this interview a videotape recording was made of his statement. Both recordings were played before the jury. ' In each recording Hardin admitted to striking Mr. Woods with a crutch.

Other evidence was presented by the State, including blood and hair samples of the victim which were found on the appellant’s boots and clothing. Aside from the appellant’s testimony, the only evidence offered in defense was the testimony of Gayla Wapp, a counselor for the Pottawatomie Tribe, concerning Hardin’s character as a responsible worker.

I

The appellant contends that statements made by him in response to police questioning were involuntarily given and were not obtained as the result of an intelligent waiver of his Fifth Amendment rights. He asserts that he was suffering from a hangover and was not advised that he would be charged with Wood’s homicide. He further argues that the failure of the police to inform him that the interview was being videotaped rendered his statement inadmissible.

It must first be noted that appellant was advised of his Miranda rights prior to each interview. The record also reflects that he waived his right to remain silent and did not request the questioning to halt at any point during either interrogation. The issue of voluntariness is not to be decided by making a selective examination of the facts. The question must be decided by viewing the totality of the circumstances. See Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). In addition, when the appellant challenges the admissibility of a statement or confession, the burden is on the State to show that it was voluntary. Henson v. State, 522 P.2d 299 (Okl.Cr.1974). An examination of the record convinces this Court that the State has met this burden.

This Court has held that even though the accused may be to some extent under the influence of narcotics or alcohol, this fact alone does not conclusively establish the confession as involuntary. See McCoy v. State, 534 P.2d 1317 (Okl.Cr.1975); See also Walton v. State, 594 P.2d 794 (Okl.Cr.1979).

Hardin’s assertion concerning his level of intoxication at the time of interrogation is not supported by the record. He was arrested at approximately 4:00 p. m. on September 10, 1980. However, he was not questioned until after 2:00 a. m. the following morning, almost eleven hours since his last opportunity to drink. Officer Collins, the officer who conducted the initial interrogation, testified that appellant was sober. The appellant’s direct testimony was the only evidence offered to contradict his sobriety.1

[802]*802Prior to the first interrogation, Hardin was informed that the nature of the questioning would be in reference to the fight he had with Mr. Woods. His argument that he should have been informed of the exact charges against him is meritless. The decision concerning what charges will be filed against an accused lies in the discretion of the prosecutor, not the interrogating officers. Babek v. State, 587 P.2d 1375 (Okl.Cr.1978); Jenkins v. State, 508 P.2d 660 (Okl.Cr.1973). The police are not required to advise an accused of the specific charges to be filed against him, nor are they required to inform him of all material facts known to them. It is sufficient that the accused is advised of the nature of the questioning and of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Appellant also contends the video recording was taken without his knowledge and consent, therefore, his statement should have been suppressed. He cites no authority to support this conclusion. Hardin’s first interrogation was recorded on a cassette tape. The record indicates that Hardin was aware of the presence of the tape recorder. After being advised again of his rights, appellant submitted to a second interview, this time under the watchful eye of a videotape machine. It is evident from the record that no attempt was made to conceal the videotaping device from appellant, and the statement obtained from him was substantially the same during each interview.

In this case an in camera hearing was conducted and the trial court determined appellant’s statements were voluntarily given after he knowingly and intelligently waived his Fifth Amendment rights. The trial court had the opportunity to view the most competent evidence available on the issue of voluntariness, the tapes themselves, and concluded the appellant made the statements knowingly and voluntarily. Unlike a voice recording, videotape exactly reproduces the appellant’s demeanor and condition at the time of the statement. If he is hesitant, uncertain, or faltering such facts will appear, and if he has been fatigued by interrogation, physically abused, or in any other respect is acting involuntarily, the tape will show the same. Therefore, the ruling of the trial court will not be disturbed by this Court. Dennis v. State, 561 P.2d 88 (Okl.Cr.1977).

Law enforcement personnel generally should advise an accused of the use of mechanical recording devices. However, absent a showing by the appellant that the use of the video recording rendered his statements unknowing and involuntary, this Court cannot hold that the State’s failure to advise him of its presence constitutes reversible error.2 See United States v. James, 496 F.Supp. 284 (W.D.Okl.1977) and Jackson v.

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Bluebook (online)
1982 OK CR 124, 649 P.2d 799, 1982 Okla. Crim. App. LEXIS 322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardin-v-state-oklacrimapp-1982.