Mahorney v. State

1983 OK CR 71, 664 P.2d 1042, 1983 Okla. Crim. App. LEXIS 242
CourtCourt of Criminal Appeals of Oklahoma
DecidedMay 24, 1983
DocketF-81-157
StatusPublished
Cited by58 cases

This text of 1983 OK CR 71 (Mahorney 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
Mahorney v. State, 1983 OK CR 71, 664 P.2d 1042, 1983 Okla. Crim. App. LEXIS 242 (Okla. Ct. App. 1983).

Opinion

OPINION

BRETT, Judge:

The appellant, Melvin Chad Mahorney was tried for the crime of First Degree Rape in violation of 21 O.S.1971 § 1114, in Tulsa County District Court Case No. CRF-80-1042. The jury found the appellant guilty of First Degree Rape After Former Conviction of Felonies pursuant to 21 O.S. Supp.1978, § 51, and set punishment at fifty-one (51) years’ imprisonment.

On the night of March 31, 1980, C.R. and her two small children retired for the evening at approximately 11:00 p.m. In the early morning hours of April 1, 1980, she awoke to the sound of a man’s voice whispering her name. On first glance she thought the man was her ex-husband, but then realized he was a stranger. The stranger, Melvin Chad Mahorney, climbed over C.R.’s sleeping daughter and told her he had seen her undressing earlier in the evening. The appellant told her to remove her bra and began to kiss her and then penetrated her. Once the intercourse began, the appellant displayed a knife to her. Afterwards, the appellant gave the knife to C.R. and ordered her to put it next to the bed. The appellant again began to kiss her and she begged him not to do so in front of her children. The appellant led C.R. to the living room where he placed a quilt on the floor and again had intercourse with her. After the intercourse, a conversation ensued and the appellant professed his love for C.R. After a short period of time, the appellant allowed C.R. to return to the bedroom while he slept on the living room floor. C.R. attempted to use the telephone but found it was inoperable. She climbed out the bedroom window and ran to a neighbor’s house. After she awoke her neighbor, she told her what had happened and asked her to call the police. Until the police arrived, C.R. watched her children through the open bedroom window. The police found the appellant sleeping on the living room floor and arrested him.

*1045 The appellant first contends that the statute under which he was convicted, 21 O.S.1971, § 1114, violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. He specifically claims that the statute is discriminatory based upon sex. This Court has addressed this identical issue and held the statute constitutional based on the U.S. Supreme Court decision of Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981), wherein the Supreme Court reviewed a California statute essentially identical to our own and found it constitutional. See Tubbs v. State, 631 P.2d 758 (Okl.Cr.1981). (This writer dissented in Tubbs on different grounds.) Accordingly this contention is meritless.

In his next assignment of error the appellant contends the prosecutor made prejudicial remarks during voir dire which warranted the trial court granting a mistrial. The incident assigned as error occurred when the prosecutor remarked: “The presumption of a person being innocent was designed to protect those persons who are indeed, not guilty of a crime. But was not intended to let those who are guilty escape justice.” The appellant cites Neal v. State, 597 P.2d 334 (Okl.Cr.1979), and Robinson v. State, 574 P.2d 1069 (Okl.Cr.1978), as authority for his contention. In both cases the prosecutors made comments regarding the presumption of innocence, which are similar to the comment in the present case. A review of those decisions shows, however, that reversal or modification was based on an accumulation of errors at trial, not merely a single comment. After reviewing the entire record in the case at bar, it is this Court’s opinion that the prosecutor’s statement, although unnecessary, did not aid the jury in determining the appellant’s guilt or innocence. The evidence herein was overwhelming. See, Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). Nor do we believe the comment caused the jury to assess a longer sentence as alleged by the appellant. The fifty-one year sentence is well within the statutory bounds provided by law, 21 O.S.1971, § 1115, and is not so excessive as to shock the conscience of this Court. Edwards v. State, 645 P.2d 528 (Okl.Cr.1982).

Over the appellant’s objection, the trial court allowed a witness, the neighbor of the victim, to testify regarding statements made by the victim to her immediately following the rape. The appellant claims the statements were hearsay, which is correct. However, the statements were properly admitted as excited utterances, an exception to the hearsay rule. 12 O.S.1981, § 2803(2).

Excited utterances relate or describe a specific event while the declarant is under the stress of excitement caused by the event or condition. Such statements are held to be reliable because the nearness in time to the stimulating event excludes the possibility of premeditation and fabrication. Bishop v. State, 581 P.2d 45 (Okl.Cr.1978). The words spoken by the prosecu-trix to the neighbor were definitely excited utterances as she had just been raped, climbed out the window leaving her attacker in the house with her children, and had gone to a neighbor to seek help. The neighbor described the prosecutrix as “hysterical” when she spoke to her. Thus, no error occurred when the testimony was admitted at trial.

The appellant’s fourth assignment of error is directed at four instances of alleged prosecutorial misconduct. The first two instances occurred during the cross-examinations of the appellant and his brother. The prosecutor asked the appellant a question to which no response was given. The jury was admonished to disregard it, which cured any error. Coats v. State, 589 P.2d 689 (Okl.Cr.1978). We also find no error in the question asked to the appellant’s brother on cross-examination since the question was invited by defense counsel’s line of questioning on direct examination.

The other two alleged errors occurred when the prosecutor referred to the appellant as a “good Samaritan” and a “dam wild man.” The right of argumentation encompasses a discussion of the evidence and any inferences therefrom. Wac- *1046 oche v. State, 644 P.2d 568 (Okl.Cr.1982). Although this Court will not condone such remarks, they were not so improper as to effect the jury’s verdict. See Cowles v. State, 636 P.2d 342 (Okl.Cr.1981). The appellant’s fourth assignment of error is without merit.

In his fifth assignment of error, the appellant alleges that the trial court erred in failing to grant a mistrial when the prosecutor asked the appellant if his prior conviction involved a woman. After defense counsel entered his objection, the trial court admonished the jury not to consider the question.

Error, if any, is usually cured by admonishing the jury unless the error appears to have determined the verdict. Jones v. State, 595 P.2d 1344 (Okl.Cr.1979). The evidence against the appellant was overwhelming. Any error which may have occurred was cured by the admonition.

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Cite This Page — Counsel Stack

Bluebook (online)
1983 OK CR 71, 664 P.2d 1042, 1983 Okla. Crim. App. LEXIS 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mahorney-v-state-oklacrimapp-1983.