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Hardin v. State8/10/1982
The opinion of the court was delivered by: 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.
Douglas 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 Wedgeworth, 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. 19
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