# Roubideaux v. State > Court of Criminal Appeals of Oklahoma · August 22, 1985 · 707 P.2d 35 URL: https://www.frixlaw.com/law-library/cases/9847294 ## Case - **Full name:** Jackie M. ROUBIDEAUX, A/K/A Jacqueline M. Roubideaux, Appellant, v. STATE of Oklahoma, Appellee - **Court:** Court of Criminal Appeals of Oklahoma - **Decided:** August 22, 1985 - **Citations:** 707 P.2d 35; 1985 OK CR 105; 1985 Okla. Crim. App. LEXIS 274 - **Precedential status:** Published - **Opinion:** Concurrence by Brett - **Judges:** Bussey, Parks, Brett - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9847294 ## How later opinions describe it (automated extraction) - concluding that expert witness's testimony concerning whether witness's memory of events was reliable properly admitted under section 2702 ## Opinion text BRETT, Judge, specially concurring. It is my opinion that the trial court erred in refusing to excuse Ellen Brock for cause. Arguably Brock comes within the purview of 22 O.S.1981, § 660(2), which lists persons who may be challenged for implied bias, as she was employed by the district attorney who instituted the prosecution. Unquestionably she falls within the spirit of the law that guarantees fair and impartial jurors to sit in judgment of an accused. It is true that Brock stated she could serve as a fair and impartial juror in the matter, but as this Court eloquently stated in Scrivener v. State, 63 Okl.Cr. 418 , 75 P.2d 1154, 1156 (1938): It may be possible that a juror may be so peculiarly constituted that [external factors] would have no influence upon his action in the [case], but this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men .... The competency of a juror is, under the statute, a question to be determined by the court in the exercise of a sound discretion. The discretion given, however, is not intended to deprive the defendant of his right of trial by an impar *42 tial jury, and the statute cannot be regarded as changing in any degree the essential qualifications which jurors must possess. The fact that these jurors stated on their voir dire that they had formed no opinion as to the guilt or innocence of the defendant and that they could and would act impartially and fairly upon the matters to be submitted to them, was wholly immaterial. They could not be the judges of their own impartiality. To expect a juror, in essence, to vote against her employer and then face him at work on a daily basis is senseless. Regardless of the type position she held, she was an employee of the prosecutor. While it is possible that Juror Brock’s relationship with the district attorney would not and did not influence her deliberation, she should not have been put in this potentially compromising situation. In the case of Thompson v. State, 519 P.2d 538 (Okl.Cr.1974) this Court held that the trial court erred when it refused to excuse a juror who was a brother to one of the prosecution’s witnesses in chief. The close relationship between the two made the juror subject to a challenge for cause. Judge Bussey wrote for the Court reversing the cause in Manuel v. State, 541 P.2d 233 (Okl.Cr.1975), because, unbeknownst to defense counsel until jury deliberations had begun, one of the jurors was the husband of the district attorney’s secretary, a relationship that “approached being a basis for challenge for cause.” Id. at 237 . These cases are closer to the one at bar than the case relied upon today by Judge Bussey, Allison v. State, 675 P.2d 142 (Okl.Cr.1983). The relationship between the prosecutor and the juror in that case was far more attenuated than in the present case. In the Allison case, a juror’s mother-in-law had worked as a legal intern in the district attorney’s office during a break of law school the summer before Appellant Allison was brought to trial. In this case the juror was a present employee of the district attorney. The rule that all doubts regarding juror impartiality must be resolved in favor of the accused, see, e.g., Tibbetts v. State, 698 P.2d 942 (Okl.Cr.1985), is intended to apply to trial courts as well as to this Court. It is my belief that the trial court should have applied this rule and excused Juror Brock for cause. To refuse to do so was an abuse of discretion. Nonetheless, I do not think reversal on this issue is in order since the appellant has not demonstrated the injury that must accompany an error to merit reversal. The appellant did exhaust her peremptory challenges but did not complain that there remained on the jury someone she would have removed had she still had the peremptory challenge she was compelled to use to excuse Juror Brock. See Thompson v. State, 519 P.2d 538 (Okl.Cr.1974). On the issue of the other crime evidence, I agree with Judge Bussey that the evidence of the Nima Carter murder was admissible, but in my opinion it was admissible only under the identity exception to 12 O.S.1981, § 2404(B). It is clear from reviewing the circumstances of the two homicides that whoever committed one probably committed both. The prosecutor pointed out fifteen similarities between the two cases: 1. Each victim was very young (one was three and one-half and the other one and one-half.) 2. Each victim was female. 3. Each victim was American Indian. 4. Appellant knew each victim and her family through baby-sitting. 5. Appellant had gone places with each victim’s family. 6. Appellant had access to each victim. 7. Each victim was taken from her home. 8. Appellant had been in each victim’s home within twenty-four hours of the victim’s disappearance. 9. Appellant was familiar with the layout of each victim’s home. *43 10. Appellant lived within walking distance and in the same neighborhood as each victim. 11. Each victim’s body was found in appellant’s neighborhood. 12. Each victim was found in an old abandoned house. 13. A refrigerator was the instrument of death in each case. 14. Each refrigerator was the old-fashioned lock-up type that predated the magnetic door. 15. The cause of each death was asphyxia. The prosecutor told the jury in closing argument that the evidence of the Carter homicide was introduced because, in light of all the similarities, the evidence surrounding that crime could be considered in determining whether the appellant killed Mary Elizabeth Carpitcher. The prosecutor reminded the jury that the appellant was not on trial for the death of Nima Carter. After carefully reviewing the record, I am persuaded that the evidence was helpful to determine whether the appellant locked Mary Carpitcher in the refrigerator. Thus, the evidence was logically relevant. And the evidence was more probative than prejudicial, so it was legally relevant. Like Judge Parks, I was particularly concerned about the fact that the Carter homicide occurred after the Carpitcher homicide. More troublesome is that the two acts were separated by so much time. The greater the distance of time between the incidents, the more similar the crimes must be to demonstrate that the probative value of the other crime evidence is so great that it outweighs the prejudicial nature. The prosecutor met that burden in this case. The two crimes are remarkably similar. In his dissent Judge Parks quoted the Selfridge v. State opinion wherein I stated the other crime evidence was cumulative and dangerously prejudicial since the victim had already identified the assailant. However, Selfridge, 617 P.2d 237 (Okl.Cr.1980), is distinguishable. In that case there was not a sufficient nexus to tie the crime charged to the incidents that occurred subsequently; the other incidents did not fall into any of the exceptions to the prohibition against other crimes; and most importantly, the young child identifying the assailant was able to testify within six months after the kidnapping. In the case at bar, the three-year-old was ten years old when the case finally came to trial. Among other things her story had taken on a sing-song quality, making her especially vulnerable to impeachment. The other crime evidence was therefore not needlessly cumulative on the issue of identity. For these reasons, I concur in the affirmation of the judgment and sentence. I would further hold that the State is now precluded from prosecuting the appellant for the death of Nima Carter for the reasons enunciated in Chaney v. State, 612 P.2d 269 (Okl.Cr.1980). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9847294. Public record. Not legal advice.