*1 may regarded interest be as a "claim ment expense" policy terms of the within the
suit, investigation, from the de- It arises lawsuit,
fense, appeal of a whose conduct solely by controlled the insurer. We need question. the second address
[ HARGRAVE, WATT,V.C.J., C.J. and
OPALA,KAUGER, SUMMERS and
WINCHESTER, JJ., concur; LAVENDER, J., concurs in result. BOUDREAU, J.,
1 15 dissents. HODGES, J., disqualified.
T 16
Steven Oklahoma, Appellee.
STATE of
No. F-98-188. Appeals
Court Criminal of Oklahoma.
May 2001.
Rehearing July Denied *8 Attorney, Susan Macy, H. District
Robert Caswell, Loftis, Assistant District Lyan L. OK, Attorneys City, for Attorneys, Oklahoma at trial. the State Indigent System, Faulk, Paul Defense daughter the natural Stephanie of Abshier Appellant, Lynn Steven Norman, OK, Attorney Abshier. for Defendant at tri- al. Stephanie Appellant married around June of By 1998. the fall of the three were Sanders, OK, City, Anita Oklahoma Attor- Eufaula, living in Stephanie Oklahoma. ney for Defendant at trial. McDonalds, working Appellant at nor Lockard, Perry James H. W. Hudson Nor- mally stayed home Ashley. Stephanie man, OK, Attorneys Appellant appeal. on did not drive and was completely dependent Edmondson, Drew Attorney upon W.A. Appellant General to drive her' to and from work, and to care Ashley take of while she Oklahoma, Whittaker, Robert Assistant Attorney General, OK, was work. City, Oklahoma Attor- - neys Appellee appeal. Casey, T8 Sherrie the mother of a friend Appellant testified that she saw the Abshi- OPINION every ers days two or three in Eufaula and grandmother Once, felt like a Ashley, in LILE, JUDGE: Appellant, fall she saw Casey's Lynn € 1 Steven by jury Abshier was tried yard, grab Ashley by front the arm and then in January 1998 for the crime of First De enough kick her hard to knock her down. gree Murder of a Child in violation of 21 response to Casey placed incident an 701.7(C) ©.8.1991,§ in the District Court of anonymous telephone Department call to the County, CF-95-2194, Oklahoma Case No. be report Human Services to the abuse she McElwee, fore the Honorable Roma District Appellant had seen Ashley. inflict on Judge. jury The guilty returned a verdict of T4 Another appeared Appellant time it and found the existence of two aggravating may pushed Ashley have hit or while he was beyond cireumstances a reasonable doubt: wife, arguing with knocking Ashley his out of (1) heinous, "The murder especially atro- the car into the Casey's street front of clous, cruel," (2) or "The existence of a house where she skinned her Casey face. probability that the defendant would commit wasn't certain pushed that he hit her or her criminal acts of violence that would constitute time, Ashley, she saw who was continuing society." threat set Stephanie Appellant, between climb over punishment at death. February On him and fall out onto the street while the 1998, the trial court sentenced Abshier parents arguing. This would have been death in jury's accordance with the verdict. only Appellant time she saw abuse Ash- From Judgment this and Sentence Abshier ley presence Stephanie, but she was perfected appeal has to this Court. not sure it was Appellant abuse that time. Casey once whip told he would Ash- beat FACTS ley until she learned how to use the toilet. case, Ashley The victim in this Nicole T appear 5 It did not to her that the De- Abshier, May was born partment 1998. At responded of Human Services had 30, 1995, time she call, was murdered on March to her first so she follow-up made a call (22) being twenty-two find out what was she was done about the months old and weighed twenty-two pounds. She was abuse. 1. February was sentenced Stephanie charged 1998. 2. Abshier was with First De- His Petition in 31, July Error was filed in this Court gree County Murder in Oklahoma Case No. CF- Brief was filed March permitting resulting 95-2194 for child abuse 1999, Appellee's July Brief was filed daughter. against death of her She testified *9 Appellant's Reply August and Brief was filed her husband at his trial in 1998. She had been Argument January 1999. Oral was held jail years in almost three at the time and had a evidentiary hearing 2000. An on Sixth Amend- plea agreement plead guilty to to an amended August ment claims was held in District Court on charge Degree in the Murder Second in return Findings 8, 2000, and the "District Court of Fact Attorney for a recommendation from the District and September Conclusions of Law" was filed twenty-fiveyear for a sentence. Supplemental 2000. Appellant The Brief was filed October not taken had The Abshiers tripped and fell. Appellant, seen time she had Another T6 car, Ashley grab to a doctor. seat of the her in the front while arm, the back her from and throw by the her arms to raise Ashley was able T10 same Later that seat. into the front seat wearing a was apparent pain. She without Casey Ashley, baby-sitting day, while and Been terry cloth shorts. and tee-shirt Ashley started Ashley's diaper. changed injuries on the not look officer did the all over Casey bruises crying observed and by her body covered her that were parts of face, stom- legs, her top part of the her-on clothing. arms, bottom, many of which were ach, and any more had not seen Because he T11 her she removed visible until apparently not her, deter the officer Been and injuries on observed Casey also clothing diaper. and take the child enough to was not mined there protecting her left to be Ashley seemed that her parents to have then, Been told but anonymous call another Casey made arm. she just make sure clinic at the examined report of Human Services Department they would agreed okay. parents was day. This that had observed the abuse she in Eufaula. clinic to the Indian take her by Curt apparently the call received was day, Been checked T 12 The next Been. yet Appellant had not that and found clinic in the testified that Stephanie Abshier T7 offi- got another Ashley there. Been taken and had noticed bruises she fall of 1994 and returned police department cer from child, had never seen but injuries why. Af- to find out house the Abshiers' tell her Appellant would hurt her. Abshier time, Appellant for some ter Been knocked Ashley became to how as different stories like he had He looked the door. answered him at the believed injured, said she and she insisted, going "I'm to take up, just woke began to the child noticed that time. She got when he the clinic Been called her." only Stepha- differently to him. When react Abshi- that the and verified to his office back around, happy, and Ashley would be nie was Stephanie tes- at time. arrived ers had Appellant right." But when was all "she Ashley who took Appellant the one tified her, would holding she he was around and she, Stephanie, was clinic while to the Indian afraid of her dad. She appear sad at work. screaming, crying and would start start Ashley to St. The clinic transferred "Mommy, mommy." Tulsa, Dr. Hospital Oklahoma. Francis 1994, an inci- Near the end of October T8 Boone, surgeon, testified orthopedic an in the Wal-Mart in their car occurred dent at St. Ashley November he saw Ashley had been Stephanie parking lot. brought Hospital. had been She Francis for them Appellant waited shopping while upper that her He verified night before. something got He mad because the car. broken, upper of the a fracture arm was left Ashley Ashley. bought Stephanie had she displacement, and minimal humerus with her, told "Just shut erying, and he started Accord- or bruises. multiple contusions had brat," little, fucking, whining you stupid, up, at the mother history given ing to the her left arm. hit her on and he room, child stated the the father emergency Stephanie testi- also a tool box. tripped over Been, Human Department T9 Curt had told her Appellant at trial that fied Eufaula, anony- took worker Services thing. same of 1994. Ashley in October about mous call simple normally a I, 14 Dr. Boone said highest Priority the case assigned He energy or produce enough fall would in at 5:00 although the call came priority, and Ashley's age with velocity in a child house with to Abshier's pm., he went out Appel- humerus. Ash- Been met fracture the day. Mr. healthy bones to police officer that healthy. Dr. appeared ley's otherwise bones Ashley the home and lant, Stephanie, per- that tests been also testified Ashley's Boone a knot on Ashley. He saw observed Hospital November Francis at St. formed was caused said which forehead bruise Ashley did not that showed through the house running she was when *10 easily Gilbert, more than normal. He believed that co-employee, Toliver, to the Fred Ashley's injuries secondary to blunt Stephanie. Appellant or to Stephanie asked trauma, get Ashley by history, him and and secondary to child something to eat. to cause that kind of Stephanie wait, person abuse. a told him to For thought that she fracture with a hand require or fist would house, there was some food and that most of their force. Such a fracture couldbe she would getting see about some food to by caused slinging by someone a child take home got when she off work that eve- arm. ning. Stephanie testified he really became angry, just and "he like stormed out of the Stephanie wrote out a statement of door," carrying Ashley. Ms. Gilbert also tes- happened, what had upon and based her Appellant tified that upset left, was when he agreement Appellant, Ashley leave was that, and "He kind of slammed the door-and allowedto remain Stephanie with her. went rushed out." stay at her father's Ashley. house with p.m., 116 In Around Appellant Nancy December of 2:00 got Connelly, a together neighbor Stephanie. Appellant back with him mid-Jan- saw walk out of uary they alone, moved house Ashley carrying with something City Oklahoma being to avoid looked like a by push found blanket it into the trunk of his Department car before slamming the trunk Human Services. The De- lid down. partment She described the car as an old issued pick-up a order child. noisy, light Bird, "[wlhite and T blue rusted up." and beat Initially, T17 City, they Oklahoma stayed friend, Banister, at the house of a 123 When he looked over at Connelly, he Ed before moving into their own house at 1802 surprised looked or nervous. He up started South Stephanie Stonewall. got job his car and "revved the motor and took off at Hardee's restaurant near 74th Street and like he in hurry was ... you could hear Pennsylvania South Avenue. stayed Abshier him squealing the tires down the street." home to take Ashley. care of police When the searched his car after his arrest, they did not find a blanket in the evening 118 On the Ashley died, before trunk. There was no testimony other about the Abshiers ate dinner at Ed Banister's Ashley's Abshier's or whereabouts between They house. by returned home 9:00 or 9:80 p.m. 1:00 and 5:00 pm., Appellant again, left returning some time around 4:00 or 4:30 the next morn- p.m., Appellant Around 5:00 ing. parked in front of the front door at Hardee's. He lot, saw Toliver in parking and de-
T19 On March Stephanie awoke manded go get Stephanie. that he Toliver approximately 5:00 supposed a.m. and was heading to his car to leave. Abshier was However, to be at work 6:00 a.m. she was sitting in his car and baby had the on his not able Appellant to awaken to take her to shoulder, wrapped in a blanket. work, so she sleep. went back to She woke up again at 9:00 a.m. and was able to wake Stephanie came out and went to the Appellant, and he drove her to work. passenger side of the car. Toliver heard her say, you my did do baby?" got "What She T 20 The Gilbert, Hardee's manager, Mary in the car Stephanie starting hitting testified her hands on was scheduled to the dashboard yelling. come in at 6:00 a.m. but didn't clock in until 9:82 a.m. The time per- was verified $26 Stephanie testified she saw some tape. sonnel testified, time Gilbert further face, Ashley's blood on and when she asked "[Stephanie] said that her husband was out Appellant happened, what he told her "that night all with the landlord and he was late park he took her to a and she-they were- getting back and get couldn't her to work." playing she was pulled and that up some man Hardee's, returned to on the [in curb black hit LTD] and her" Ashley, after lunch time. appear She did not with the car. He told it her was a black injured man, at that time manager, Mary and that he must have been drunk. He *11 have been beaten, injuries could not "didn't car but her he and her that chased told If auto-pedestrian accident. anything like that." result of an tag number or get a ever car, ex- he would have why he hadn't hit a him been Stephanie asked she had When massive head an- "more hospital, he became to have seen Ashley pected taken flesh," up." tearing of flying fuck injuries, injury, [and] her to "shut crush gry and told debris, on her blood" grease, [and] upset and "road was while she kept repeating that He indications these screaming. clothing. None of child concluded Dr. Wauter present. a see- there for they sat 127 Toliver said 5:00 before hours dead for several had been in front they pulled out then arguing and ond a required injuries would pm. Her Pennsylvania headed north him and hu- average adult an from delivered "blow Avenue, he was trav- the same direction restraint; force." all their no man with pass Hillerest them eling home. He saw Youngs turned off Hospital, and when he Stephanie. Abshier and questioned 133 He Pennsyl- Boulevard, north on they continued only one with he was the said that Abshier vania. they gone to the had Ashley day and that all at Southwestern they arrived 128 When and hit jumped a curb had park where a car hospi- Center, into the ran Stephanie Medical "Except grip- testified: her. Dr. Wauter told baby's hurt." She screaming, "My tal chair, no he showed arms of ping the nurse, Bradstreet, triage Francis whatsoever, flat af- exceptionally an emotion brought Ash- coming in. Abshier child was fect." to Bradstreet. handed her ley in and spoke with the Abshiers Dr. Wauter Ashley's testified 129 Bradstreet Ashley was dead. them together-and told touch, pupils were her body was cold hys- extremely angry Stephanie "became breathing. "Her dilated, and she was Abshier], 'You terical, [at and sereamed mess, away, was just and she torn face was separate taken to a killed her'" She have a lot did not just purple." Abshier going to physically was "[slhe room because told Brad- agitated. He was not emotion and gave no visi- Abshier her husband. attack" car. run over had been the child street Ashley was news that reaction to the ble doc- the on-call contacted 130 Bradstreet dead. Wauter, "immediately ran tor, who Dr. Brent secretary to call told the €35 Dr. Wauter had the child where [Bradstreet] to the room at the door Appellant glanced police. the child." Bradstreet assessing and started impres had the doctor times and the several Ashley's ears and behind observed bruises Dr. Wauter might try to flee. that he sion mark to the a hand appeared to be what of a drawer pair handcuffs out pulled a body tempera- Ashley's chest. front of her him, hands." give your me and told "Just as- After the initial degrees. ture was 88.4 said, this?" complied "What's Ashley sessment, pronounced Dr. Wauter Abshier personally handcuffed Dr. Wauter dead. under arrest." him "You're and told testified about Brent Wauter 131 Dr. the same. Abshier'sdemeanor stayed Ashley the time the child. At examination mortis hospital, she had liver at the * arrived Terry Harrison of the Police Officer T836 body so stiff that Her rigor mortis. Fatality Department City Police Oklahoma heels, it lifted her entire lifted her when Squad testified Investigation Accident head without way to her body all Ashley's any way opinion there wasn't In Dr. Wau- or neck. in her buttocks bend by a car caused have been injuries could "for some had been dead opinion, she ter's body Ashley's hitting He examined her. time." day hospital the at the Dr. Wauter along with was, "That her His conclusion Emergen- of her death. certified is board 32 Wauter not consistent injuries were or her experi- wound requires years five cy which Medicine type He accident." pedestrian and oral examina- passing a written ence and in accident experience twenty years Ashley had over been testified that tion. He investigation, investigated and had answered, well over son *12 liquid "I've seen burns that 5,000 accidents. were similar to this." Choi, 41 Dr. examiner, the medical testi- City T37 Oklahoma Detective Sam Duke fied that in addition to numerous other bruis- hospital went March 1995. He es on her body, head and Ashley had nine sealed car tape, Abshier's with evidence then (beneath subgaleal different fresh pictures scalp) took of the exterior. He had anoth- hemorrhages. She had died from injury to stay er officer with the car while he went causing head swelling of the brain. The inside pictures and took Ashley's of body. skin was denuded large from a area of her came, When the wrecker he went back out- face. Dr. Choi said this and the marks on Appellant's side and followed car to Police Ashley's face appeared and head consistent Headquarters, where it was secured in the being with her held face down something, police garage. He also went to the Abshier shoe, such as a being and stomped. She Stonewall, residence at 1802 South where testified that in opinion her Dr. Wauter's another officer standing by it, was guarding theory, application that the and forceful re- and secured and photographed the exterior. moval of tape Ashley's duct from face could He also collected boots and other items of have caused the skin, removal of the was clothing personal property and from Abshier. possible. However she stood her own He delivered the evidence he had collected theory. Dr. Choi injuries found the fatal and picked additional items he up had from consistent with Baby Syndrome. Shaken the medical examiner's police office to the During the stage trial, second serology of department. trial granted court the State's motion in- Goforth, Police Officer Charles with corporate all evidence from stage the first officers, other Appellant's searched residence the trial into the stage. addition, second and automobile for blood physical and other prosecution presented the impact victim photographed evidence. He the exterior and April Cockerhan, statements Ashley's interior of both the house and the car and he step-grandmother, Cockerhan, and of David and the other officers collected all they items Ashley's grandfather. The testimony of each found apparent value, that had evidentiary took page about one transcript, and there such as blood stains or Joyce hairs. il- was no cross-examination. christ, a forensic chemist for police de- 1 43 Dr. Stuemky, pediatrician, John tes- partment, helped also collect evidence at the tified that injuries to the child would house. painful, have been that children Ashley's age 1 39 Detective Dexter Nelson observed Ab- do adults, not bruise easier than and that the hospital. shier at the He was familiar with injuries Ashley on were too numerous persons the behavior of under the influence count. He is Board certified in the area of of methamphetamine, and testified that noth- Emergency Pediatrics. He is Chief of the ing in Abshier's demeanor indicated he was Service of General Pediatrics for Children's high on methamphetamines. "[Appellant] Hospital and Medical Director of Emergency calm, quiet, speak." reluctant Nelson developed Services. He Hospital's child said, "There no indication that he was program early abuse in the 1970's and devel- high or under the influence of anything, oped the curriculum for child abuse for their my knowledge." medical students as well as their residents of pediatrics.
40 Nelson also observed
inju-
the facial
Ashley's
ries on
body, and on cross-examina-
Stuemky
T 44 Dr.
testified further that one
tion stated: "We didn't
exactly
know
what it
expect
a child to be
during
conscious
appear
was.
It did
it could
injuries
have been most of the
usually
because abuse
liquid
burn,
a-a
response
type
burn,
starts in
a friction
crying
the infant's
and
we
even
maybe
considered
something being whining, and once the child becomes uncon-
placed
off,
on the
ripped
face and
tape."
like
scious
stops crying
and
whining,
asked,
stops.
abuse also
Counsel
injuries
"You had seen
testimony
The doctor's
simi-
burns,
lar to this which were
correct?" Nel- was
twenty-two
years
based
over
surprise him
It would not
manipulative.
children,
be
interviews
abused
experience with
hit his wife.
had
that Abshier
from to hear
perpetrators,
many
many,
in his
studies
in the literature
studies
Smith,
[
medical director
Dr.
J.R.
experience.
own
Hospital, tes-
Integris
unit of
psychiatric
Drap-
Dr.
had examined
presented Wanda
He
defense.
« 45
for the
tified
history of severe
about
he had a
testified
found
stage who
Abshier
in the second
er
she
history
episodes,
the records
depressive
from
anxiety,
intermittent
*13
had conducted.
she
drug dependency.
interviews
reviewed and
and
alcohol
and severe
father
Appellant's
natural
Although
talking on a
him he was
Appellant told
T 49
and abusive
an alcoholic
to be
claimed
rage about some
in a
and was
phone
car
Appellant
mother, he left when
had
money
who
him
but
people who owed
then
His mother
young child.
a
was still
testified
(Stephanie had
to him.
lied
step-
Clock,
good
a
Billy
who was
married
police did not
phone, and
they had no car
style
life
a normal
Appellant had
father.
house.) Appellant said
or
in his car
find one
high
in
alcohol
drugs and
got into
until he
up
him and the
welling
rage
of the
because
used mari-
he had
told her
Abshier
school.
using, and because
methamphetamine he was
peyote
crank,
and
methamphetamine,
juana,
whining,
began
rage and
Ashley sensed his
for
a woman
lived with
He
in school.
while
neck and
by
hair and
her
grabbed
he
Abshi-
they had twin sons.
years, and
two
When
the floorboard.
down on
her
slammed
through a
go
paid for him to
er's mother
house, it dawned
into the
her
Appellant
took
center,
with
got
he
involved
rehabilitation
He
dead.
probably
she was
him that
on
cocaine,
and
methamphetamine,
marijuana,
a
sink near
by the kitchen
up a cloth
picked
using
heavily
drugs again, and
other
wiped
Drano,
harshly
rag, and
wet the
can of
arrest,
of his
at the time
methamphetamine
it;
her face
the skin of
Ashley's face with
She testi-
before.
several months
or at least
off, Dr. Smith
come
appeared to
admitted
gave incon-
mother
and his
that Abshier
fied
Appel
parts of
examination
on cross
history.
his
to her about
stories
sistent
story
not consistent
were
lant's
gave
Appellant also
Draper said
Dr.
of those
this was one
and
physical evidence
happened the
what
multiple stories about
her
believed some
that he
parts.3
said
Smith
first, he stuck
killed. At
day Ashley was
him,
of the
and some
things
told
Abshier
by
run over
Ashley was
story that
with his
Dr.
Abshier told
believe.
things he did not
Later,
he had been
he told her
car.
his wife's
child to
took the
he then
Smith
exploded.
impulsively
he
and that
"meth"
hospital.
then to the
work
the child
"he hit
her
He told
that Abshier
did not think
T50 Dr. Smith
and knocked
child down
knocked
it
prison
because
threat
a future
would be
he "lost con-
and that
ground,"
child to
he would
setting where
awas
controlled
trol."
methamphetamine
and because
no access
neu-
Murphy
about
Philip
testified
47 Dr.
prison.
no children
were
there
of Abshier.
ropsychological
examinations
moth-
was his
final witness
T51 Abshier's
average,
dull
IQ
indicated
full
of 88
His
seale
Johnson,
duty nurse. She
er,
private
Celia
disability. Tests
learning
a mild
he had
abuse Ash-
would
Abshier
could not believe
aggressive
typically
him to be
did not show
many good
thought Abshier
ley. She
be an anti-social
him to
not show
and did
dependa-
very loving and
and was
qualities
Nevertheless,
if the situation
personality.
person.
ble
"blow," and
could
up right, Abshier
set
metham-
then occur. Use
violence
COUNSEL-
INEFFECTIVE
CLAIMED
angry,
mean and
make one
phetamine would
FIRST STAGE
tendency to be
greater
be a
and there would
first
drug. On
Appellant contends
influence of the
under
aggressive
trial counsel's
cross-examination,
could
that his
agreed Abshier
of error
proposition
plastic
Ashley's face. A
missing
from
skin
and car
the house
search of
3. An extensive
liquid
on the television.
Drano was
rag
up
bottle
such a
did not turn
law enforcement
guilt"
"frank
during
admission of
voir dire
"I feel I at
you
explanation
least owe
an
stage closing argument
and first
deprived
why
I
matter,
went to the heart of the
right
of his
to counsel under the
sentence,
which is the death
and that's
Sixth Amendment to the United States Con-
because Steven Abshier committed child
stitution
right
process
and his
to due
under
abuse murder
prove
and the State will
it
the Fifth and Fourteenth Amendments to the
beyond a reasonable doubt. We are here
United States Constitution.
for sentencing and sentencing only, and
this is a horrendous crime that has been
adopted
153 We have
the two-prong
committed and the D.A.
upper
has the
test for effective assistance of counsel set out
hand.
I feel
like I'm at
the foot of a
Supreme
the United States
Court in
mountain looking up my goal,
which is a
Washington,
Strickland v.
my
fair trial
just
client....
I
want to
80 LEd2d
you
ask
(1984).
questions
hopefully
First,
my
reach
a defendant must show that
goal, which is a fair trial
attorney's performance
for Steven Abshi-
was so deficient
*14
occurs,
er.
was,
that
And if
effect,
justice
the
that
defendant
then the
denied
system
guaranteed
counsel as
by
has worked."
the Sixth Amend
Second,
ment.
the defendant must show that
Trial counsel
jury
further
told the
in first
attorney's
performance
deficient
preju
stage closingargument:
diced the trial to the extent that the defen
dant
Id.,
was denied a fair trial.
certainly
466
probably
"[Wle
U.S. at
could have tried
687,
2064,
untarily
Abshier next
rights,.
waived his
claims that trial
Appellant says
counsel's
guilt
admission of
was also a
viola
pleads
when a
guilty
defendant
gives
up
important
three
rights
federal
stated
tion of
Fifth
and Fourteenth
Supreme
Boykin Alabama,
Court in
rights
process.
Amendment
to due
The Due
238, 243,
U.S.
89 S.Ct.
protects
Process Clause
the accused against
(1969):(1)
LEd.2d
the privilege
exeept upon
conviction
proof beyond a rea
against
(2)
compulsory self-incrimination,
sonable
every
doubt of
fact necessary to con
right
by jury,
to trial
right
stitute the crime with which
charged.
he is
However,
confront one's accusers.
when list
In Winship,
re
90 S.Ct.
manner,
ed in this
Appel
it can be seen that
1068, 1072,
(1970).
ord does not
show his consent
fact,
he did
In
not.
I
quite
was
shocked."
to the
guilt
concession of
and that he is
examination,
T75 On cross
Appellant was
therefore entitled to a new trial.7
evasive,
extremely
barely
could
remem-
pursuant
We issued an order
Ap
any
ber
other details about the conduct of
pellant's motion for a
evidentiary
Rule 3.11
the trial.
example,
For
he could not remem-
hearing on Sixth Amendment claims direct ber whether he and his counsel had ever
ing the District Court to conduct an eviden-
discussed whether
testify
he should
at trial
tiary hearing
"Findings
and issue
of Fact and
or not. Abshier
silently
sat
during his jury
(1)
Conclusions of Law" on three issues:
trial
trial while his counsel made concessions in
counsel's
guilt prior
concessions of
to and
presence.
know,
far
So
as we
he has
(2)
during
trial;
stage
first
trial coun
never stated that
opposed
disagreed
or
sel's
during
statements
stage
second
closing
approach
with the
used
his counsel-even
arguments;
the failure of trial coun
when Abshier testified at the evidentiary
sel to contact and use certain
witnesses
hearing on remand.
stage
second
in mitigation
punishment.
8.11,
Rule
Rules
T76 At
evidentiary
Oklahoma
hearing, appellate
Court
O.S.,
Appeals,
Ch.18,
Criminal
Title
App.
attempted
counsel
to strictly limit Appel-
(2000). We further directed a determination
lant's testimony to the first
instance where
Appellant
approved
of whether
the trial
trial counsel conceded the
guilt.
defendant's
strategy of conceding guilt.
Appellant was never asked at the evidentiary
hearing
approved
whether he
174 At
evidentiary
such conces-
hearing
Ap-
both
sions. He never testified
agreed
that he
pellant
counsel,
Faulk,
and his trial
Mr.
testi-
disagreed
tactic,
only
fied.
that he
only
was
was
asked
question
one
surprised
when
attorney,
Lockard,
Mr. Faulk
Mr.
first
mentioned it
direct:
"Prior
standing up
jury.
to his
He
say
in front
did not
jury
of the
whether he and
trial
counsel ever discussed it after the first
telling your
jury
you
guilty
and that
prove
State
beyond
it
time or
whether he
expressed
ever
to his
doubt,
reasonable
had Mr. Faulk
consulted
counsel
disagreement with the strategy.
consulting
out
despite
Brown and
Brown's con-
(1986);
398 Mass.
He admitted well, the trial the events started as to him lawyer had served after the trial ly formed if his (after said, "He he had been sen- him unfolding. judge Abshier did ask they as were death) anything if there was to tenced it was the trial was-how just me how told going things place and how taking judge, "No. say. He said to the to wanted your and so jury the was shake just of I want to quite how the selection fine. That's certainty you with you. thought conclude I forth." cannot We It's clean. Thank hand. record, evidentiary the even after although the he stated Appellant, from real fair." was remand, counsel consult- whether hearing on hearing evidentiary that he post-trial at the making decision the made the before his counsel ed with Abshier when was "shocked" jury during dire voir to concede to the expressed to jury, never concession guilt. prove defendant's the State would trial, sentencing, or at at anyone during the discussed, and it was not hearing that he testified evidentiary the remanded re- specifically he did counsel testified guilt by his of the concession disagreed with client, He discussing it with his member lawyer. customary practice to discuss his it said was strategy to concede that the findWe Counsel his client. trial tactics with such jury, preserv- guilt while to defendant's memory discussing his strat- specific had a contesting sentencing, right ing his capital de- experienced egy with four other (outside jury) all evidence presence of the dire, day's first voir lawyers after the fense client, vigor- his might prejudicial be it to mentioned evening he first before witnesses, cross-examining the State's ously jury. testimony of three presenting defense having nu- clearly remembers T 77 Counsel (3) defendant's expert and the witnesses another his client on merous discussions mother, persuade the defen- attempting to testify in him to subject: trying persuade to ask for testify on his own behalf dant to his own behalf. closing argu- concentrating his merey, and upon Abshier's Putting reliance T78 (1) plea for main themes: ment on three this record is on of events based version instead "Life Without Parole" a sentence of person will be who problematic. He is kill, (2) "Death," intent to lack of Abshier's is affirmed. if the sentence death executed responsibility assumption of Abshier's wife, emergency room lied to his He had psychi- by admitting to his Ashley's death first, and, doctor, to his own police, it," only reason- was not atrist that "he did claiming Ashley was struck psychiatrist, strategy effective counsel trial able evidentiary hearing he was At the a car. strategy he could have probably the best only thing-that Mr. absolutely one clear try to pursued under the circumstances him advance not discussed with Faulk had less than death. a sentence obtain guilt to the concede Abshier's strategy of trial performance T find that 82 We vague and evasive about jury. Abshier range wide fell within the counsel in this case Remarkably, he could not everything else. re- professional assistance reasonable they discussed whether even remember Constitution, that Abshier quired by the his own testify on Abshier would whether strategy trial acquiesced the reasonable at trial. behalf perfor- upon by his counsel. embarked however, find, suffi- that we have T 79 We deficient, and there was not mance of counsel case decide Abshier's information to cient proposi- first prejudice. was no determining whether counsel without tion is denied. Abshier and ob- strategy with discussed this approval advance. tained OF COUNSEL- INEFFECTIVENESS Appellant ac find that 180 We CLOSING SECOND STAGE counsel strategy of his quiesced in the trial *19 Fourteen, Appellant Proposition In during T83 any time effort at he made no where counsel, Mr. Ms. Sanders claims his trial judge disagree express to the to the trial Faulk, due to statements Later, were ineffective formal strategy. ment with below, second stage closing argument, 188 Ms. Sanders testified that she listed prejudicial which were and adverse to his made her statement get jurors' to atten interest. tion. She Ashley believed that "did not have a chanee in this world" and that several ' 84 In our remanding order for an eviden- persons were at fault for protecting not her. tiary hearing on Sixth grounds, Amendment Mr. Faulk used try candor to and convince we asked the trial court to hear evidence and jurors spare his client's life. He asked findings make of fact and conclusions of law them not to consider "Life" because he was on this issue. they sure going weren't anyway. He tried Appellant " 85 complains that trial counsel jury convince the that "Life Without Pa was ineffective when following state- role" was punishment the most extreme be ments were made in the stage second closing cause the murderer would have the rest of argument by Ms. Sanders: "From'the time his life to think about what he had done. born, Ashley was this child did not have a Counsel jury, told the you "[IHf send him to chance in this world. The child had no one prison Parole, on a Life Without he'll have to protect her life to her.... Everybody in think about it and he'll have to deal with it." this case seemed to be protecting them- 89 Mr. Faulk's reference to defenses as selves." "excuses" would strike a many chord with Appellant 1 86 complains that trial counsel jurors might who consider the use of meth- closing ineffective in argument of the amphetamines poor excuse for taking the stage second proceedings when Mr. Faulk: life of a child. Counsel's statement was accu- 1. mitigation Referred to evidence as "ex- rate when he said that Abshier lied like a fool
cuses" that did Appellant's not reduce when Abshier had claimed a car ran over responsibility, Ashley. However, this was mentioned to emphasize that he subsequently 2. Conceded told the aggravating two cireum- context, truth. counsel said: stances, Stuemky "Dr. also said that child abusers 3. Told jury to consider a life have a difficult time admitting sentence, they what did, and I think Dr. J.R. Smith also said 4. Stated several Appellant times that that. He has from gone lying like fool at had lied and in "lying fact was like a the start of this to at least acknowledging this," fool at the start of that he did it. He couldn't even take the Said, 5. "He couldn't even take the stand stand you to tell he did it. He doesn't you it," to tell he did nerve, have the-the but he told Dr. J.R. jury Told the give Appellant Smith that he did it and he give didn't him punishment-life most extreme without all the details and that's because he's parole. denial. you But if prison send him to on a 87 The Parole, "District Life Findings Court Without Fact he'll think have to and Conclusions of Law" found about it that the com- and he'll have to deal with it." ments of counsel were based on reasonable This was a strategy light reasonable of the trial strategy: fact first version of the facts "Faced with overwhelming evidence of was overwhelmingly contradicted the evi-
guilt, primary goal strategy of both dence. Counsel's statement Mr. Faulk and Ms. Sanders was to save acknowledged that "he did it" is analo- the defendant's life. It was gous determined to the facts of Washing- Strickland v. trial ton, counsel that a means to that end was supra. Washington's counsel made a rapport establish a certain with the strategie rely choice fully possible "to as as and be candid with jury, thinking respondent's acceptance responsibility such strategy would entice the jury crimes," into for his where judge's "the trial sparing the defendant's life.... Because importance views on the of owning up to this strategy was not successful does not one's were well crimes known to counsel." it make unsound or unreasonable." Abshier's Counsel also reasonably concluded *20 continuing despite Brown's that Abshier and prefer to hear ing Brown jury would that a statements The innocence. protestations his actions. for responsibility taken had argument closing in counsel by Abshier's that correctly stated Counsel reasonably scope of not outside were it he did tell them to the stand didn't take closing and unlike representation, effective Ab- testify that experts to defense used Brown, con- not were in made statements man- In this them. to had confessed shier trial, We position client's trary to his Abshier that ner, informed counsel finding at trial court's concur with admitted lying, but had longer nowas these comments hearing that evidentiary truth. argument closing stage in the second counsel allega Appellant's Contrary to strategy. trial reasonable based complete not did appeal, trial counsel tion on here. error There no "especial aggravator, to the first ly stipulate trial experienced anwas Trial counsel T93 atrocious, Counsel heinous, and eruel." ly to best where could determine lawyer who said, closing argument, in emphasis his place going not Probably. I'm know. "I don't in strategy second-guess his should we trying far as that as anything about say to expert, Dr. his adroitly used He hind-sight. probably isn't you that this to convince testi- reinforce Smith, repeat, and adopt, to cruel, way atrocious, The heinous, expert Stuemky, the State's mony of Dr. beaten, way her face was that child Appellant. to witness, favorable that was you know, for that's looked, that's-you mitigation effectively argued counsel Trial decide." argument his closing stage during the second strategy to show reasonable This was to kill as intent lack of probable client's responsibility taking was jurors that Abshier Finally, Stuemky. Smith testified likely done, more which was he had what for client; I "And all mercy he asked telling impression than a favorable to make Life Without feel you if don't that ask is denying the obvious. lies and more I then enough punishment, is harsh Parole completely con did counsel 191 Nor merey to him and you extend ask that would but said: aggravator, second cede the spare his life." continuing He is a "Continuing threat. counsel stage argument, In the second T94 al- and is on meth if he remains threat sought he objective which clearly had one or defenseless child[ren] around lowed penal- try avoid the death diligence-to society, he's in-prison But people. Appellant's fourteenth client ty for his to no one." threat is denied. proposition expert Dr. Smith's reiterated argument This OF COUNSEL- INEFFECTIVENESS not think testimony that he did witness WITNESSES MITIGATION prison threat a future would be Abshier setting where a controlled it was "because Evidentia- Application for T 95 methamphetamine no access also Amendment Claims Hearing ry on Sixth pris- no children there were and because perfor- ineffective trial counsel's claimed that children argument was Counsel's on." by his failure was demonstrated mance could be penitentiary people outside evi- existing mitigating investigate and utilize of Life by a sentence protected from violence He his trial stage of in the second dence Parole. Without support of the three affidavits attached former from Abshier's in Brown was Application. One said Circuit 192 The Fourth mother McGilberry-the (4th Cir,1989), girifriend-Brenda Dixon, 499-500 F.2d from Another sons. of his twin denied, 110S.Ct. cert. third Billy Clock. step-father, penalty former (1990), during the L.Ed.2d sister-in-law, Teresa jury both his former concede to from could phase counsel have tes- they would claimed Each jury Abshier. [which murders guilt of the Brown's asked, yet none been they if had tified of two existence and the already found] Ab- they contacted claim affiants these consult- without cireumstances aggravating *21 attorney help shier's trial to offer during to ed the outcome of the trial. None of the (8) nearly years three Appel- between testifying relatives evidentiary hearing lant's arrest and trial. No affidavit has personal claimed to have knowledge of events provided been from that he ad- occurring on the Ashley's date of death.
vised his counsel of the existence or names of 1 100 The affiants' assertions that Abshier potential these witnesses. good Ashley was to and other children would
196 Abshier's girlfriend, former carry little weight compared to the number MecCilberry, severity Brenda injuries, who of her Abshier had lived and his admis- with for sions that years two or three he was before alone with during he met her Stephanie, claimed in her affidavit that Ab- day injuries when these occurred and that he good shier Ashley was knocked her ground and other children. and into the floorboard of his witness, car. Defense Dr. Draper, Wanda Ph.D. testified at trial that she had tried to find Although Appellant claimed to Dr. Brenda, Clock, Billy as well as and had not Smith that he killed Ashley using while been able to locate them before They trial. methamphetamines, numerous witnesses saw
were found after
trial and stated in their
him before
Ashley's
and after
death on the
they
affidavits that
would have
if
testified
day she died and testified that he exhibited
they had been asked.
symptoms
no
methamphetamine
use.
In
I
By
fact,
the time of the evidentiary hearing
slept
so soundly between 4:30 and
in August
held
McGilberry
Brenda
was
Stephanie
9:00 a.m. that
could not awaken
subpoenaed
appear.
but did not
Appellate
him, he was asking
time,
for food at lunch
Supplemental
counsel conceded in his
Brief
and he was calm at
hospital,
hyper.
after Evidentiary Hearing that
the District
symptoms
These
are contra-indications of re-
correctly
Court
concluded that "the defen-
ingestion
cent
methamphetamine
which
McQGil-
dant has failed to establish that Ms.
normally
sleeplessness,
causes
appe-
loss of
berry would have been available as a
tite,
witness
and hyperactivity
fidgety
nerves. Ste-
at the time of trial and thus has failed to phanie, who was familiar with his behavior
show trial counsel was ineffective for failure
using
when he
methamphetamine,
testi-
present
this witness at trial."
fied he had
not used
for about a month.
Appellant's proffered
Thus
testimony in his
§ Appellant
found another witness
application for evidentiary hearing that he
before the evidentiary hearing,
17-year-
drugs
used
on other occasions would not
nephew
Abshier,
old
Paul
the son of Teresa
persuasive
have been
drug
as to his
use on
Abshier.
Paul would have been
about
day
of the murder.
trial,.
years old at the time of
When he was
between
years old,
five and ten
he was
duty
placed
While a
on de
around Abshier a lot.
played
His uncle
fense counsel
investigate
the existence of
him
always
had a smile.
Ashley
He saw
possible
cases,
defense
capital
witnesses in
asleep
lap
on his uncle's
onee. We do not see
this does not mean that the defendant has no
how failure of trial counsel to discover this
responsibility
cooperate
with and assist his
by
witness
the time
of trial in January
counsel
in identifying potential witnesses.
prove
could
ineffective
of trial
assistance
Supreme
Court
said
Strickland v.
counsel. Paul's existence
always
known Washington,
reasonable answered, "Yes Copeland Mr. evidence? the facts example, when For mation. him, "You asked then The court defense line of ma'am." potential certain support a an- He that?" about reservations no because to counsel known generally are *22 far as slight reservation swered, maybe "Just said, for the need has defendant the what relying on murder abuse being a child as considerably may be investigation further turning to responsibility, having the not And altogether, eliminated or diminished And yourself, excuse to-to drugs or alcohol reason given counsel has defendant a when honestly say case, I could the if that were investiga- certain pursuing that to believe less than anything consider not I would that harmful, or even fruitless be tions would penalty." the death investiga- those pursue failure to counsel's challenged as unrea- on may not later be based said this was Copeland tions short, counsel's inquiry into far as to what so had heard sonable. he statements may be then the defendant The court with would be. conversations evidence go of counsel's you could proper him, assessment that you to a "Do believe critical asked decisions, may be just as it investigative trial and this jury deliberations-into into mind and open an with counsel's deliberations proper assessment critical to making decisions." litigation hear in you other that rely the evidence ultimately make?" you will that the decision relative to one called that counsel noteWe judge then answered, "Yes Ma'am." He Then on Appellant's behalf. in testify at trial making that asked, course in the "And relatives, relatives, former appeal more evidence, can decision, hearing all the after contact- they were not that signed affidavits punish- legal three of all you consider pres- evidence highly relevant ed but definitely answered, "I could He ments?" these The existence mitigation. in ent them." consider known to witnesses its did not abuse court The trial of trial. time Cope- exeuse Juror refusing to in discretion tri suggests counsel Appellate that he stated because for cause land re time spent more have should al counsel includ- punishments, three all consider could about witnesses' his own theories peating He death. life, parole, and ing life without However, childhood. unfortunate Abshier's definite- life: "I would could consider said he any unfortunate weak as the evidence keep an definitely I it. would ly consider step-father good Appellant had childhood. situation." the whole open mind about life normal fishing. He had a him took who it would be agreed that Copeland T108 alcohol drugs and got into style until he respect jury room in the important real no error here. find high We school. that he jurors, and the other views of accepting into "bulldog" someone not should DIRE ISSUES VOIR asked, you believe "Do Counsel opinion. Proposition Two Appellant claims ' 104 now, that heart, right your mind your Copeland could juror prospective life sentence actually at a look you can for available punishments all three consider in a consideration and honest give it fair Life, is, Murder, Life with- Degree First answered, Copeland murder?" abuse child Further, Appellant Parole, or Death. out the situation depend on just "It would been ex- have Copeland should asserts I says. evidence, else everybody like hostile he seemed because for cause cused I defi- it. would definitely consider voluntary defense mitigation the whole mind about open nitely keep an drug use. situation." him, you "Do trial counsel asked Defense point when T 109 At one case, in a penalty in a death understand seated on if he were Copeland asked court you may consid- guilty of death only, that penalty case a defendant that found
jury panel answered, "Yes." He factor?" mercy as a er he consid could Degree, in the First Murder him, you "Do asked then and Counsel punishments legal of the all three er problem with that?" Copeland Mr. an- "The failure of the trial court to remove a swered, problems "I have no giving prospective juror unequivocally who states that he is unwilling to followthe law dur mercy at all." ing penalty phase by considering a life juror 1 110Where stated he could consider error, sentence is The record reflects that punishments, all three imprisonment life, defense counsel challenged prospective imprisonment parole, for life without juror cause, and when the court denied provided law, death as Appellant was not the challenge, defense per counsel used a entitled to have him excused for cause. We emptory challenge. All appellant's per held in Humphreys 1997OK CR emptory challenges were subsequently ¶ 6, 947P.2d 570: used; but as nothing there is in the record *23 "The decision to any juror whether to show that disqualify a who sat on the trial objectionable, was we are
prospective juror
unable to discov
for cause
rests
any grounds
(Citations
er
trial court's sound discretion whose deci
for reversal."
omitted.)
State,
Ross v.
49, ¶
1986 OK CR
sion will not be disturbed unless an abuse
11,
117, 120,
717 P.2d
sub nom Ross
State,
of discretion
Spears
is shown.
aff'd
Oklahoma,
81,
84,
487 U.S.
83
108 S.Ct.
431,
(Okl.Cr.),
900 P.2d
denied,
437
cert.
2273,2276,
80,
(1988).
101L.Ed.2d
87
1031,
678,
516 U.S.
116 S.Ct.
183 LEd.2d
(1995);
State,
527
487,
Allen v.
862 P.2d
In
State,
affirming Ross v.
the U.S. Su-
(Okl.Cr.1993),
denied,
491
cert.
preme
511 U.S.
Court said:
1075,
1657,
114 S.Ct.
128 LEd.2d 375
"On further
by
examination
defense coun
(1994). To determine if the trial court
sel, [Prospective
Huling
Juror]
declared
properly
prospective
excused a
juror
for
that
if
jury
petitioner
found
guilty, he
cause, this Court willreview entirety
would vote
impose
to
death automatically.
juror's
Defense counsel moved to
voir dire examination. Carter
Huling
re
1234,
(Okl.Cr.1994),
1244
cause,
moved for
arguing that Huling
denied,
cert.
513 U.S.
115
S.Ct.
would not
be able to follow the law at the
(1995).
130
L.Ed.2d 1107
To
penalty
withstand a
phase.
The trial
court denied the
challenge
motion
Huling
for cause
concerning punishment
provisionally
was
seat
issues,
ed.
venireperson
The defense then
must be
exercised its
willing to
sixth
peremptory
penalties
challenge
consider all the
provided
Huling.
remove
by law
The defense ultimately used
all nine of
its
and not be
irrevocably
committed
any
challenges....
jurors
None
12
punishment
one
of the
option
who
before the trial has
actually
petitioner's
sat and
decided
fate
Carter,
begun.
peremptory peremp have used Copeland, he would Juror Prospective challenge to excuse tory qualified no less Stuemky was Dr. T117 the death position her "because Blansett qualified he was than testify this about However, he nev strong." very penalty experi- his based on opinion testify his about for cause. Blansett to excuse er moved of 200 persons out only one or two ence that cause. passed her for specifically fact, he intended actually children killed who had cause, Blansett Ms. passed he had After favorable testimony was This to do so. challenges numbers peremptory he used does counsel appellate Appellant, jurors whom excuse other and 9 to questioning testimony line of this contend (He used challenge for cause. he did not was error. 7 to excuse number challenge peremptory testimony is admis- expert Generally, 1 118 unsuccessfully he had who Copeland Mr. knowl- specialized the witness's where sible cause.) ex Abshier Since challenged understanding the assist the edge will he did jurors whom prospective cused five *24 issue; pro- in determining a fact or evidence Blansett after challenge for cause not an as qualified is the witness vided Blansett to strike seated, not move and did train- skill, experience, knowledge, expert by record his cause, preserved he has not for 0.S8.1981,§ 2702. 12 ing, education. or juror in sitting as Blansett in any prejudice his case. {$119 an whether The decision testify rests allowed to is expert witness refusing [ in not err did The trial court 115 and its trial court of the discretion within cause, if the even Copeland to excuse in the by this Court upset will not be decision error, Appel- be considered refusal were Barnhart its discretion. of abuse absence any such error preserve failed lant has 451; 18, P.2d 559 CR 1977 OK v. proposition is State second His appellate review. 105, State, 707 CR 1985 OK v. Roubideaux denied. 35, 39. P.2d OPINION-HOW DR. STUEMKY'S acknowledged has This Court 1120 VICTIM LONG WAS Syndrome Abuse of the Child existence CcoNsSCIOUS testimony to assist expert allowed has and Propo evi complains abuse Appellant understanding child 11116 State, CR 1986 OK not Raymond Stuiemky dence. should Dr. Three that sition expert his testify State, about 1149; allowed 1983 have been Rice v. ¶ 4, P.2d 717 ery- expert and An 97, ¶ 7, conscious child was P.2d that the opinion OK CR from merely received "because beating she objectionable during the ing opinion is one Stuemky testified Dr. decided Abshier. to be ultimate issue an it embraces 0.8.1981, § 2704. during of fact." by the trier conscious to be expect a child usually State, CR injuries because abuse 1993 OK of the Hooks most But see ¶¶ v. Har Gabus 11-16, and erying P.2d and infant's of the starts because 678P.2d 253. uncon vey, 1984OK becomes the child whining, and once whining, erying and stops and scious proper- testimony was Stuemky's 1 121 Dr. testimony was The doctor's stops too. abuse proposition admitted, third Appellant's and ly expe years of twenty-two over based is denied. children, interviews with abused rience from studies many perpetrators," "many, ABUSE- OF INSTANCES EARLIER expe own and studies literature in the ARM BROKEN VICTIM'S testimony corroborated His rience. Appellant Four Proposition 122 In Ashley story to Dr. Smith failed notice Burks complains that whining and he began rage and sensed hands, specify grounds admission of her with his what pushed existed for her from a evidence of other Actually, crimes. the com- proof car. The was that he kicked her to the plaint is that specified the State many ground, placed too many bruises on her body, grounds. Appellant alleged that this did not that she pushed was either or fell out of give him the car seat from beside Abshier onto the theory notice of prepare which for. When the trial court ground. asked counsel how We find that the notice was suffi- notice, he was harmed said, the State's cient. argument strained, "The Honor, is Your I $126 Appellant claims that intent admit." The State maintained that most of was not "genuinely" an issue because intent exceptions applicable except per- general intent presumed crime is from haps "preparation." specify Notice should the commission of the crime itself. This least one of grounds specify should argument ignores the fact that in a case of all those reasonably that are applicable. First Degree Murder of a Child under
1123 Prior 701.7(C), § acts admitted to show the burden is on the State to absence of relevant, mistake or prove accident are beyond a reasonable doubt defendant acted "willfully" or "maliciously." and not merely admitted to show the defen State, ¶ We held in Gideon v. Fairchild dant's bad character. 1999OK CR 112, ¶9, 1986 OK CR (Opinion P.2d on Rehearing). 1338, a child abuse case: prior Evidence of acts of vio general "While the rule is to exclude by Appellant lence against this child was also crimes, evidence of other exception an ap admissible to rebut statement plies where the prior injuries evidence of had made to law enforcement that Ashley prove admitted to the absence of mistake was the victim of an automobile-pedestrian 2404(B). accident. § O0.8.1981 *25 accident. Appellant's fourth proposition has Here, the critical issue was whether the no merit.
injuries resulted from abuse or whether they happened accidentally appel as the VICTIM-IMPACT EVIDENCE PRE- lant claimed. This Court has consistently SENTED BY GRANDPARENTS that, held nature, in cases of past this injuries are admissible to rebut any Proposition Five, claim £128 In the that the latest injury Appellant through complains occurred that two victim impact statements accident by simple read the grandparents in the or negligence. Freeman v. State, 84, 681 (Okl.Cr.1984); P.2d 86 sentencing stage White should not have been al State, v. 713, 607 P.2d (Ok1.Cr.1980); trial, 715 lowed. Appellant At objected that the State, (Okl. 1162, 603 P.2d 1164 impact victim Ashford statute in Oklahoma un Cr.1979)." constitutional and that the statements which provided had been to him hearsay. contained 1124 Prior acts against of abuse objections His were overruled. The State child can be admissible to show the defen voluntarily portion redacted a of one of the dant's attitude and feeling of against malice statements about how Ashley died and the decedent, the even if it consists of evidence of impact mother, of her death on her Stepha State, other crimes. Revilla v. 1994 OK CR Appellant nie. for the appeal first time on 877 P.2d objects to the ground statements on the Appellant 1125 claims there is a fa grandparents were not by authorized law to tal variance between the Burks present notice and trial, the statements at and that proof at trial. The notice indicated that effects on family members other than the Appellant slung Ashley by the arm and "immediate family improper members" were into a wall and broke her arm. proof ly included within the statements. When jerked was that he by her the arm over a Appellant objects car trial, ground on one and, seat by either that act or another act cannot ground assert a different appeal. on time, around that same broke her arm. An State, Bennett v. 1982 OK CR other notice her, said that he kicked abused 652 P.2d we held that a defendant
606
find
testimony. We
impact
of victim
review
appeal
error
to assert
right
waived
victim
admitted
improperly
nothing in the
objec
contemporaneous
specific
no
because
weighted
"improperly
testimony that
impact
alleged
of the
time
at the
made
tion
find
trial We
in the
scales"
0.8.1981,
required
as
error
short,
far less
80, ¶ statements
extremely
State,
were
CR
2104(A)(1).
1994OK
v.Moss
§
factual details
than
emotional
no
there were
519. Since
P.2d
no
evidence,
little or
already in
death
grounds
on the
objections
contemporaneous
say
cannot
themselves. We
weight in and
plain error
asserted,
for
we examine
now
caused
brief,
statements
isolated
these
only.
unreasonable
of an
the result
to be
verdict
surprise as
claim
does not
Hooks,
supra;
Cargle,
response.
emotional
copies
and with
notice
provided
he was
error,. Appellant
plain
no
find
supra. We
be-
statements
written
grandparents'
not be found
could
this error
argues
trial,
testify, mere-
sworn
They were
fore
reject.
harmless,
we
argument
which
be
identity
their
about
questions
ly answered
preserved
had been
error
if this
Even
read
and then
Ashley,
relationship to
been
clearly have
review, it would
appellate
an oral narrative
as
statements
their written
State,
CR
1994 OK
Simpson v.
harmless.
man-
They did not describe
oath.
under
P.2d 690.
recom-
no
and made
Ashley's death
ner of
{1833
Appellant.
that vie-
argument
sentence
Appellant's
as to a
mendation
cross-examined,
"superag-
to be
available
They
operates
as a
impact evidence
tim
any cross-
waived
counsel
repeatedly
rejected
have
we
gravator"
State,
OK
reject.
examination.
Toles
continue
180;
¶
1995 OK
Cargle,
947 P.2d
CR
that, "Although
{130 Appellant concedes
806, 826;
Hooks
P.2d
CR
may
grandparents]
{[the
Cockerhan's
¶1, 38,
at 313.
OK CR
victim
sponsor
properly
been able
proposi-
{184
designated
fifth
deny Appellant's
'persons
as
impact evidence
We
the vie-
by family members
the victim
tion.
indicate
nothing in the record
there is
tim'
OF
the case."
PHOTOGRAPHS
this was
COLOR
VICTIMS
HOMICIDE
read
statement
Although the
BODY
Cockerhan,
Grandmother,
states
*26
Mrs.
by the
Proposi-
complains in his
135
Ashley Abshi
of
"on behalf
that it is written
pho-
color
twenty-two
the
that
tion
indicates
Six
nothing in the record
family,"
er's
into
body admitted
Ashley's
tographs of
des
were
Cockerhan
Mr. or Mrs.
either
that
gruesome"
"particularly
are
the
of
evidence
family members
immediate
by
ignated
they "re-
rights because
Abshier's
testimony under
violated
impact
give victim
victim
and bruised
Supp.1998,
depict
22
the battered
peatedly
Title
O.S.
of
provisions
the
also
It would
victim."
the child
body
in
Further,
statements
written
both
§ 984.
de-
photographs
say, these
accurate
of the
the effect
statements
brief
clude
be
and bruised
family members
battered
repeatedly
Ashley Abshier
pict
death
victim.
body
the child
fami
of the immediate
than "members
other
by § 984.
ly" as defined
particu
only thing that is
1136
de
pictures is the
about
larly gruesome
v.
in Hooks
said
This Court
1182
skin
294, 313,
layer of
with a
1, ¶ 36,
the child
P.3d
face of
State,
19
nuded
CR
2001 OK
about
mystery
Considering the
missing.
face of a
presume,
"not
we would
Ashley's
from
the skin
removed
Abshier
how
impact witness
record,"
a victim
silent
the tri
important
extremely
face, it was
representative.
family's designated
picture of
accurate
Cargle
to have as
of fact
pronouncements
ers
Court's
This
were
pictures
806,
These
77,
possible.
cert.
injury as
P.2d
State,
909
this
CR
1995 OK
depict
100,
autopsy incisions
136
117
before
demied,
S.Ct.
made
U.S.
519
when
appeared
body as she
lifeless
Ashley's
our
(1996),
guide
continue
54
L.Ed.2d
607
brought
Abshier
her into the emergency
regarding
said
the Louisiana
penalty
death
room. The child
scheme,
had been dead for two or
which does not use aggravating cir-
more hours when she
brought
in. The
cumstances in
sentencing
stage, but uses
photographs
inches,
only
were
5x8
with a
a narrow
guilt
definition in the
stage:
white 7x9 inch backing, and
physi-
were not
pass
"To
muster,
constitutional
a capital
cally passed
jurors
among the
in the court-
sentencing scheme
'genuinely
must
narrow
They
room.
displayed
were
one at a time on
persons
class of
eligible for the death
a 25 or 27-inch television sereen in the court
penalty and must reasonably justify the
room and the trial judge required
they
imposition of a more severe sentence on
displayed only
be
long
as
necessary
as was
compared
defendant
to others found
for the
testify
witness
about them.
guilty of murder!
Stephens,
Zant v.
462
862, 877,
U.S.
103 S.Ct.
77
1137 As we
recently
said
in the case of
(1983);
L.Ed.2d 235
cf. Gregg Georgia,
49, ¶
Fairchild v.
1999OK CR
U.S.
weighed
proven
by any
outweighed
they
not
are
stances.
v.
In McCracken
mitigating cireumstances.
eligi
persons
class of
1144 The
¶¶ 34-37,
68,
State, 1994 OK CR
fur
of death
punishment
receive a
ble to
vicarious
331-332,
"a
323,
held that even
we
by the restriction
in Oklahoma
ther narrowed
to death
may
sentenced
be
felony murderer
by the defen
that,
jury trial is waived
unless
aggrava
kill, if sufficient
intent to
an
absent
only a unanimous
guilty,
pled
has
or he
dant
exist,"
no
There were
ting cireumstances
peers can
jury
the defendant's
12 member
Certainly that hold
holding.
to that
dissents
Fields
at death.
punishment
set
in a case
applicable
less
be no
ing would
29, 923 624, 630; 21
35,
P.2d
¶
1996 OK CR
personally
directly and
murderer
a
where
701.10(B),
If a defen
O.S.1991,
701.11.
§§
701.7(C), if a
§
child,
in violation
a
kills
jury sentenc
right to
has not waived
dant
or cir
aggravating circumstance
sufficient
agree
unanimously
jury cannot
ing, and the
outweighed by
are not
exist that
cumstances
may
pun
judge
set
punishment,
then
circumstances.
any mitigating
_
imprisonment
than
greater
no
ishment
held that a
has
Supreme Court
148 The
Parole."
Id.
"Life Without
"Life" or
to death
a defendant
may not sentence
State
to
sentencing, and
jury
right
to
§ 701.11.
kill,
kill, attempt
or
himself
does not
"who
rights guar
sentencing, are
unanimous
lethal
place or that
killing take
that a
intend
in Oklahoma
capital defendants
anteed
v. Flori
employed." Enmund
be
force will
guaranteed
rights
beyond those
extend
3376,
3368,
782,
73
da,
102 S.Ct.
458 U.S.
See,
Constitution.
by the United States
Bullock,
(1982);
Cabana
L.Ed.2d 1140
142,
Arizona, 481 U.S.
example, Tison
689, 693, L.Ed.2d 704
106 S.Ct.
U.S.
L.Ed.2d
107 S.Ct.
Arizona,
(1986).
481 U.S.
Tison v.
In
(Arizona
capital
for a
provided
law
1676, 1688, 95
157-158,
107 S.Ct.
with
conducted
sentencing proceeding
be
(1987),
the En-
extended
LEd.2d
Reeves, 524 U.S.
Hopkins v.
jury);
a
out
penalty
death
rule to authorize
mund
1898-99,
141 L.Ed.2d
did
who
felony-murder defendant
also for
sentencing
(1998) (in Nebraska,
three-judge
major
was a
kill
"who
personally
not
aggravating and
to consider
panel convened
reckless
felony and exhibited
in a
participant
re
sentenced
mitigating cireumstances
Tison held:
human life."
indifference
death).
spondent to
jurisdic
minority of those
"Only a small
{145
proposition is
Appellant's seventh
for felo
capital punishment
imposing
tions
merit.
without
possibility of
rejected the
ny murder
kill,
intent
an
capital
absent
sentence
TISON, LOVING,
ENMUND,
AND
position
minority
this
do not find
and we
THRESHOLD.
REEVES
constitutionallyrequired." Tison,
of a
Degree Murder
First
at 1688.
107S.Ct.
malicious
willful or
requires proof of a
Child
Bullock,
Hnmund,
Ti-
perpetrators
perpetrator
by the
action
appli
son,
addressed
Supreme Court
child,
by use
either
death of a
resulting in the
accomplice
an
penalty to
cability of the death
child or
upon the
force
of unreasonable
actually inflict
did
in murder case who
injury to the child.
which results
act
case, we have
In Abshier's
fatal wound.
*28
Child,
the will
Murder of
Degree
First
In
alone,
himself, acting
actual
who
a defendant
cause the death.
perpetrator
acts of the
ful
Therefore,
requirements
the
ly killed.
rather
than
act
requires an intentional
This
Bullock,
apply,
Enmund,
do not
and Tison
act,
requires
or inadvertent
an accidental
Appel
whether
not determine
we need
injure.
to kill or
specific intent
no
felony
in a
"major participant
lant was
human
indifference
reckless
exhibited
Degree Malice
First
1147 Like
In
participant. Wis-
Murder,
only
the
Felony
life"-he was
Degree
and First
Murder
609
State,
dom v.
¶ 38-40,
1996 OK CR
Loving,
918
Abshier's case involves an accused
himself,
384, 395,
P.2d
precise issue,
we decided this
killing
who did the
distinguishing
Enmund,
Tison and
since
In Hopkins
Reeves,
151
524 U.S.
person
Wisdom was the
who actually killed a
118
1902-08,
S.Ct.
610 (1997). Stuemky testified heinous, Dr. 1023 "especially L.Ed.2d was murder the that con- Ashley was opinion, expert his that (2) exists cruel," "there that atrocious, and or beating she during the crying and commit scious would defendant the probability one that He testified Abshier. from received constitute that would of violence acts criminal during conscious to be society." expect a child continuing to threat usually abuse injuries because the of most 765, State, 1995 P.2d 906 v. In Powell T156 and crying infant's the of because starts Rehearing, Granting ¶¶ 67, 71, 37, Order OK CR uncon- child becomes the whining and once 784, 782, cert. ¶ 3, P.2d 906 whining, the erying and stops and scious 1438, 134 1144, 116 S.Ct. denied, 517 U.S. corrobo- testimony was His stops too. abuse by unani (1996), adopted we 560 LEd.2d that story to Dr. Smith rated for review" "standard the opinion mous whining began rage and Ashley sensed aggra support the evidence sufficiency of corrobo- It is also very hard. her he hit and case death-penalty in a vating cireumstances testimony Abshi- about by Stephanie's rated Supreme States by the United established Ashley when cussing at Ashley and hitting er 764, 110 497 U.S. Jeffers, v. in Lewis Court at Wal-Mart in the car crying was she (1990). The 3092, 606 LEd.2d 111 S.Ct October the stan that held Court Supreme Jeffers of a review corpus habeas for federal Choi, {159 dard testified pathologist the Dr. cireum- aggravating finding of court's state injuries be- many separate that there the essential for as tell whether the same was could stances but she fore death is, crime, "rational the that the elements the blows each of when conscious Ashley was in Jackson established standard factfinder" then and Ashley vomited inflicted. was 2781, 307, Virginia, v. had lungs. She her into it back sucked (1979). L.Ed.2d injury to her chest force a blunt received thymus her enough to bruise severe suf of review standard 1 157 chest bone. the protected behind which is aggrava an support evidence ficiency of had She tongue was bruised. her The end of whether, viewing after is ting cireumstance (be- subgaleal separate extensive nine favorable most light in the evidence the as the as well hemorrhages, sealp) the neath of fact trier any rational prosecution, the skull) (inside hemor- subdural extensive aggra the existence found could surface and left right rhaging over both a reasonable beyond vating cireumstance which the brain brain, swelling of and of the 765, CR 1995 OK Powell, P.2d doubt. hemorrhaging death, well as as her caused ¶ 3, P.2d Rehearing, Granting 37, Order consistent which eye membrane inside adopted the Jack previously at 784. We shaken-baby syn- shaking, or violent with review appellate Virginia standard v. son of her addition, layer outer drome. to establish the evidence sufficiency of area of large away from a ripped Spuehler v. skin was crime. of the elements essential of these that all us ¶ 7, Logic tells face. 709 P.2d her State, CR 1985 OK simultaneous. not have been could wounds Powell decision reaffirmed 203-204. We Powell citing both subsequent cases in two claims, only evidence "The T160 Abshier State, CR 1998 OK DeLozier and Jeffers: conscious case was in this victim 29-30, Jackson ¶ 36, blows the numerous she received [when ¶ 80, P.2d State, CR 1998OK opinion through the body] came her head concurring, judges Curiam, (Per two Abshier, howev- Stuemky." testimony of Dr. result). concurring judge and one made himself he er, statements overlooks Dr. He told Dr. Smith. Draper and to Dr. bur its to sustain In order «158 knocked the child "he hit Draper murder that a to establish proof den the child knocked atrocious, child down heinous, cruel" "especially He told control." he "lost and that ground," consciously the victim prove must State Ashley sensed that "because Dr. Smith Smith death. before suffered her 42, 932 grabbed whining, began rage and cert. P.2d ¶ OK CR her down and slammed neck 1124, 117 S.Ct. hair and denied, 521 U.S. *30 611 T Appellant's Proposition 1683 Nine is with- the floorboard" of the car. It is therefore obvious that she was conscious when at least out merit. upon
two of those severe blows were inflicted
Abshier,
car,
by
in
her
one
and one
CLAIMS THAT AGGRAVATORS
supports
jury
outside. The evidence
ARE UNCONSTITUTIONAL
finding beyond a reasonable doubt that Ash-
Appellant
1164
Proposition
Ten
ley
suffering
great pain
was consciousand
heinous,
"especially
claims that the
atrocious
during
significant part
at least a
of the as-
cireumstance,
aggravating
cruel"
and the
upon
sault
body,
she received
her
before she
"continuing threat
society"
aggravating
lost consciousnessand died.
cireumstance
unconstitutionally
are
vague.
1161 The
supports
evidencelikewise
State,
In the case
19,
of Wood v.
1998 OK CR
beyond
finding
a reasonable doubt
¶ 57,
1, 15,
959 P.2d at we held:
that "there
probability
exists a
the defendant
"This
repeatedly rejected
Court has
argu
would commit eriminal acts of violence that
ments on the unconstitutionality of the
continuing
would constitute a
threat to soci
'continuing threat' aggravating cireum-
ety." The evidence in this case
stance
persuaded
and we are not
to alter
Appellant
daughter
had abused his
many
prior position.
our
State,
Cooper
See
v.
before,
times
including breaking her arm
293,
(Okl.Cr.1995);
889 P.2d
315
Malone v.
several months before he killed her. He
State,
707,
(Okl.Cr.1994),
876 P.2d
715-16
getting
avoided
medical treatment for her
therein;
and cases
State,
cited
Walker v.
1994,
Stephanie
arm.
had seen
301,
(Okl.Cr.1994),
887 P.2d
320
cert. de
Ashley
Wal-Mart,
hit
in the car at
Sherrie
nied,
859,
166,
516 U.S.
116 S.Ct.
133
Casey had seen him
sling Ashley
once
over
(1995)."
L.Ed.2d 108
arm,
the car seat
her
and on another
kick
ground
yard.
Workman,
occasion
her to the
in the
1 165
We held
1991 OK CR
¶¶
Casey
125,
many
24-25,
Ms.
also discovered
bruises on
824P.2d at 383:
Ashley which had been hidden beneath her
"Appellant also
ag
asserts that the other
clothing.
Department
Curt Been of the
gravating
jury,
circumstance found
Human Services
Ashley's
observed a knot on
that 'there
probability
exists a
the defen
forehead.
dant would commit eriminal
act[s]
vio
lence that would
continuing
constitute a
Appellant had assaulted Ash
society,'
threat
unconstitutionally
both
ley many
day
times on the
of her death. He
vague
unsupported by
the evi
hospital
did not take her to the
until she had
dence....
This
repeatedly up
Court has
peeled
been dead for several hours. He
validity
held
particular
of this
cireum-
skin off of her face. As we said in Workman
State,
359,
Rojem
stance.
v.
753 P.2d
369
¶
State,
125, 25,
378,
1991OK CR
824 P.2d
(Okl.Cr.1988)
denied,
900,
[cert.
488 U.S.
383-384,
denied,
890,
cert.
506 U.S.
118 S.Ct.
249,
(1988)
109 S.Ct.
102 LEd.2d 238
258,
(1992),
violence helpless supports child tinuing aggravating jury finding, beyond doubt, threat" circumstance is reasonable "there probability exists a specific vague), defendant citing Malone v. State, 707, 717; 1994 OK CR 876 P.2d would commit criminal acts of violence that continuing would constitute threat to soci Mitchell v. 1994 OK CR denied, ety." cert. *31 Supreme (1995); 1169 The United States 95, Hogan v. 50 133 LEd.2d
S.Ct.
the defen
1157, 1162,
recognized that where
41,
has
State,
P.2d
Court
877
1994 OK CR
issue,
1154,
dangerousness
at
1174,
future
is
denied,
dant's
115 S.Ct.
513 U.S.
cert.
on
State,
release
prohibits the defendant's
(1995);
state law
v.
1994
1111
Snow
130 L.Ed.2d
the sen
process requires
parole, due
291, 298;
v.
39,
Revilla
P.2d
OK CR
876
that the defendant
1153,
tencing
be informed
24,
1143,
State,
877 P.2d
1994 OK CR
v. South Car
parole ineligible. Simmons
764,
is
denied,
1096, 115 S.Ct.
130
513
cert.
U.S.
2187,
olina,
154, 114
129
S.Ct.
512 U.S.
State,
(1995); Ellis v.
1992 OK
661
L.Ed.2d
(1994).
trial court instruc
133
The
L.Ed.2d
denied,
45,
1289, 1301,
513
cert.
P.2d
CR
867
requirement of Simmons
meet
tions
178,
863,
LEd2d
113
180
U.S.
115 S.Ct.
Bill of Particulars
telling
jury,
where a
State,
19,
(1994);
1993 OK CR
853
Trice v.
filed,
penalty
death
has been
requesting the
denied,
220-221,
203,
cert.
510 U.S.
P.2d
they may im
possible punishments
(1993).
638,
1025,
L.Ed.2d 597
114
126
S.Ct.
"Imprison-
Degree
are
pose for First
Murder
in the
case
We also held
Cammon
166
Life,"
Life with
"Imprisonment
meant for
"especially hei
aggravating cireumstance
Parole,"
have said
"Death." As we
out
atrocious,
nous,
limited
this
and eruel" as
concept
parole is sufficient
repeatedly,
vagueness.
is not unconstitutional
Court
juror
any rational
to under
ly clear to enable
¶ 43
45,
54,
Canmon,
& n.
904
1995 OK CR
Mol
explaining it further.
stand it without
State,
54,
89,
citing
v.
105
n.
P.2d
&
41, 939
Stouffer
28,
lett,
at 11.
P.2d
1997 OK CR
¶
166,
(Opinion on
DR.
OPINION-TAPE
WAUTERS'
against
carpet
the floor or
caused the skin on
USED ON VICTIMS FACE
off,
peel
her face to
This
Dr.
was
Choi's
Appellant objects
(2)
«176
in his thir
theory.
Appellant put tape
Ashley's
on
proposition
opinion
pulled
Ap-
teenth
to Dr.
face
it
quickly.
Wauter's
and then
off
Smith,
peeled
pellant
picked up
rag
about what caused the skin to
off
told Dr.
he
be
Ashley's
Appellant's theory
face.
is that
sink,
the kitchen
it was near a can of
Drano,
qualified
Ashley
probably
Dr. Wauter needs to be
as a scienti
that he realized
dead,
expert
guidelines
rag
fic
under the
of Daubert v.
that he ran some water on the
harshly,
rubbed it across her face
and that
Pharmaceuticals,
Inc.,
Merrell Dow
{
foreign particles. Defense
testimony
face and found no
counsel elicited
179 Defense
Nelson,
if
had examined bodies
asked her
she
who
counsel
of Detective
cross-examination
been bound
hospital,
it
the victim's hands had
Ashley's body at
where
saw
burn,
tape
explained that where
type
tape.
a friction with
She
liquid
could have been
usually
burn,
maybe
applied
body,
some-
there is
considered
has been
"or we even
off,
ripped
remaining."
face and
How-
thing being placed
"paste
on the
material still
some
ever,
al-
"usually"
were three witnesses
not mean
tape."
like
Thus there
her word
does
Ashley's denuded
Dr.
personally
preclude
examined
ways,
who
and therefore does
Further,
may have been caused
theory.
face and said it
Dr. Wauter stat-
Wauter's
him,
you had seen
tape.
asked
"And
just
opinion,
Counsel
and deferred
ed it was
burns,
injuries
to this which
similar
claimed
opinion Dr.
Since
Choi.
answered,
"I've
The Detective
rag
correct?"
and rubbed
he ran
water on a
some
to this."
liquid
that were similar
seen
burns
harshly, and that her skin
it across her face
action could have
rag,
on the
came off
did
Although defense counsel
T180
*33
parti-
away
any foreign
or removed
washed
expert
an
in
that Nelson was
not establish
residue,
fibers,
carpet
tape
grit,
such as
cles
Ap
area,
objections, and
there were no
this
the
may have been evidence of
or Drano that
testimony
complained that his
pellant has not
injury.
her
source of
"Further,
Reviliq,
in
improper.
was
We said
now
very testimony
[Revillal
to which
Fatali-
Terry
the
Harrison of the
183 Officer
of the re-cross-
complains was the result
ty
Investigation Squad, who
Accident
by
counsel.
of the doctor
defense
examination
investigator
for over 20
been an accident
party may not
5,000
that a
It is well established
acci-
investigated over
years and had
himself invited."
complain of error which he
dents,
qualified by training,
highly
and was
¶20,
Revilla,
testified to
Dr.
was shaken
STATUTE-CONSTITUTIONALITY
syndrome.
injury
do know that the
We
Appellant in
proposition
his sixteenth
Abshier,
Ashley's
face was caused
as he
Degree
asks us
declare the First
Murder
hospital,
stated to Dr.
at the
Wauter
statute,
O.8.8upp.1999,
of a Child
Draper
later to Drs.
Smith
that he was
701.7(C),
§
unconstitutional
void
alone with her all afternoon and that the skin
*34
vagueness. Appellant
that
aware
this
rubbing
came off while he was
her face
rejected
argument
Court
that
in
w.
Drew
harshly
rag,
with a
and other witnesses testi- State,
stance enumerated in 21 701.12. 0.8.1991 INSTRUCTION: UNREASONABLE $190 Appellant asks us to consider THAN FORCE IS "MORE THAT proposition under arguments this the he A AMOUNT ORDINARILY USED AS Three, Five, Six, Propositions made in his MEANS OF DISCIPLINE." Eight, and Nine. As we have examined each Appellant Proposition Fif propositions of those herein and found each complains appeal teen for the time first on denied, should be we do not find that (2d) about No. Instruction 4-89-OUJI-CR complained propositions matters inof those defining unreasonable foree as "more thon impose caused the the sentence ordinarily discipline." used as a means of that passion, preju death under influence added.) (Emphasis The definition is derived dice, arbitrary other factor. 00.98.1991,§ Appellant from 21 admits objection addition, Appellant he made no this instruction 1191 In al Therefore, plain leges engaged egregious trial. we will review for that the State (1) continuing threat Appellant was a argu- that stage closing in the second conduct especial- murder was society, the in- that the each of have considered
ments. We heinous, on prosecutorial Iy comments atrocious or eruel. alleged stances of they fair that were and we find the evidence {195 gave an instruction The trial court testimony and proper comments on as at trial had been introduced that evidence properly admitted been which had exhibits circumstances, following mitigating argument, closing into evidence. counsel jury to resolve what it for the make comments is entitled to for each side mitigating under cireumstances was no error There on the evidence. based the case: and circumstances of facts here. "(1) history of vio- has no The defendant alleges further Appellant Abshier; Ashley prior to the abuse of lence improper com prosecutor highly made "(2) prob- has had a severe The defendant punishment in the case on the ments past. abuse lem with alcohol mean, "He Parole would saying Life without "(3) influ- under The defendant was sheets, three meals sleep clean eat gets to methamphetamine at the time ence of relatives, from his day. gets He visits murder. committed the TV, adequate pun works out. Is watch torturing killing a child?" "(4) mother, ishment Celia John- The defendant's objection contemporaneous There was no pro- son, him and will loves and cares for response to defense It was in this comment. support. financial vide emotional and jury should counsel's statements "(5) has suffered from de- The defendant punishment most extreme give anxiety attacks pression, swings, and mood receive, Parole. Defense Life without he can throughout life. punish also said Counsel "(6) has shown remorse The defendant death, pun but then ment ends with his daughter. of his over the death his mother and not begin ishment "(7) learning The defendant has suffered further ar end until she dies. Counsel starting carly age." enjoy disability at an right gued: "[Appellant lost has] *35 doing everyday things that we will be addition, they jurors were advised that right trial. He's lost the after we finish this mitigating circum- that other could decide meal he wants. He's choose what kind of exist, so, they if should consider stances family. He's lost right to visit with lost the well. those circumstances as anyone right ever have romance with Proposition find in Seven 1196 We again." teen, the enumerat that either one or both of prosecutor was of the 193 The statement by the found aggravating ed circumstances error, by the plain and it was invited not jury support a jury be sufficient would Although we argument opposing counsel. circumstances finding aggravating containing lan similar criticized comments in this outweigh mitigating cireamstances CR guage in Duckett v. 1995 OK case, sup at trial and we find the evidence ¶46, con those comments finding aggravators ported both words, "while vie- [the tained the additional beyond doubt. proven a reasonable How do grave.... [his in his tim] lies cold comment go him?" and the relatives] visit FAIR TRIAL-ACCUMULATION relief invited. Therefore Duckett was OF ERRORS argument is denied. on this based claims that the accumulation 197 Abshier are that neither 1194 We satisfied Find- deprived him of a fair trial. of errors arbitrary passion, prejudice, nor other Propositions One ing only one error present in the record to undermine factor is (admission of certain vie- through Seventeen jury's in the verdict. As we confidence our Proposition impact tim evidence discussed proposition Appellant's ninth found under herein, supports jury's ample evidence Five), preserved appellate for was not which error, plain there could and was not aggravating cireumstances: review finding of the two Proposition be no accumulation of anything errors. not consider less than death for a Eighteen is denied. defendant convicted of child abuse murder
who
on drugs
relied
or alcohol as an excuse.
The trial court denied
request
Abshier's
DECISION
Copeland
exeuse
spe
for cause. Under the
Lynn
Judgement
1198 Steven
Abshier's
cial circumstances of this voir dire examina
Degree
and Sentence of Death for First
tion
Usually
this was error3
we find that
Murder
hereby
of a Child is
AFFIRMED.
type
this
of statement
pro
is cured when a
spective juror
says
later
he can consider all
LUMPKIN, P.J.,
JOHNSON, V.P.J.,
punishments,
three
expressed
because his
CONCURS.
preference
penalty
for the
in particu
death
lar situation is theoretical-he doesn't know
CHAPEL, J., DISSENTS.
what the evidence will be. That is not the
STRUBHAR, J., CONCURS IN
case
already
here. Counsel had
said Abshier
RESULTS.
guilty
was
of child
sug
abuse murder and
gested
drug
abuse would be offered in
CHAPEL, J., DISSENTING:
mitigation. Copeland said under those cir
11 Errors in first and second stage de
impose
cumstances he would
penal
the death
prived
Abshier
a fair trial and reliable
ty. Any suggestion that he would consider
sentencing procedure.
Initially I must note
(but
any other
might
evidence that
would
my continued dissent to this Court's errone not)
presented
be
meaningless.
I dis
interpretation
ous
of the child abuse murder
agree
majority's
with the
mistaken conclu
I disagree
statute.
both with the conclusion
sion that this
preserved
issue was not
that child
general
abuse murder is a
intent
review.
Copeland
Abshier asked
be removed
crime,1
consequent
and with the
imposition of
cause,
peremptory
used a
challenge to
general
death sentence for a
intent crime
him,
remove
sitting
made a record of the
without a finding that Abshier
personally
juror he would
per
have removed with that
culpable
daughter's
for his
murder.2
req
emptory challenge. That is all that is
disagree
12 I
majority's
with the
resolu
uired.4
Proposition
tion of
Although prospective
II.
juror Copeland
Turning
T 3
stage,
said he
errors in the
I
could hear the evi
second
open
dence with an
grant Proposition
mind and
again
consider all
XI. I once
punishments,
three
he also stated he
my opinion
jurors
could
note
should be in-
majority appears
denied,
1. The
to misunderstand the im-
cert.
n.
*36
port
208,
2, 2000);
(Oct.
discussing Proposi-
of this conclusion.
formed
consciousness,
evidence
then
insufficient
a child loses
conclude there is
tinues until
I also
stops erying. This evi
child
stops when the
circumstance.
support
aggravating
either
majority's conclu
support the
does not
dence
a con
presents
allegation that Abshier
The
for at least
supported by the
victim was conscious
society is
sion that the
tinuing threat to
rejected this
We have
two of the blows.
committed,
the crime was
manner
which
there was
circumstance where
aggravating
prior
of
abuse
unadjudicated instances
plus
of conscious
circumstantial evidence
no direct or
disagreed
previously
I
victim.
to this
similarly reject
it
I
ering.8
suff
support
this
these factors to
the use of
with
disagreement with
briefly my
I note
here.
sup
In order to
cireumstance.6
aggravating
egregious
majority's
treatment
of the
especially
that the murder
port the claim
prosecutors
by the
improper comments
cruel,
heinous,
must
the State
atrocious
closingargument.9
ser
suffering from torture or
conscious
show
body
majori
The victim's
physical
agree
abuse.7
Finally,
ious
1 4
I cannot
with
received effective assistance
ty
injuries,
that Abshier
horrific
had suffered
showed she
not confirm
examiner could
the medical
lawyer
for a
case. The
of counsel
this
minimum,
crime,
they
when
was conscious
at
person charged
the child
with
whether
only
for his client
himself said
as an advocate
inflicted. Abshier
must serve
control,
proof.
prosecution
lost
to its burden
hit the victim and
hold the
that he
respon
whining he hit
counsel cannot abdicate
began
Defense
the victim
that when
not without
opinion
sibility
guilt-at least
evidence
and concede
relied
her.
State
as
Stuemky,
provide effective
expert,
the client's consent-and
Dr.
its child abuse
from
fully agree
I
to his client.10
sistance
proba
thought
the victim
who stated
governments
meaningful
adver
sense as the
and cases
400,
43,
P.2d at
n.
Malicoat,
5.
992
612,
Shillinger,
625
sary.'"
861 F.2d
Osborn v.
therein.
cited
Cronic,
(10th Cir.1988)(quoting
U.S.
v.
466
U.S.
J.,
Gilson,
931,
See,
(Chapel,
eg.,
n. 3
8 P.3d
2039, 2051,
6.
648, 666,
L.Ed.2d 657
S.Ct.
80
104
64,
State,
dissenting); Hooper
OK CR
947
v.
1997
Accord,
(1984).
Spraggins, 720 F.2d
v.
Francis
denied,
1190,
(11th Cir.1983),
470 U.S.
denied,
943,
cert.
524 U.S.
cert.
1090,
58,
P.2d
1108 n.
1194
(1998);
722
Can
1776,
2353,
S.Ct.
141 L.Ed.2d
1059,
118
835
84 L.Ed.2d
105 S.Ct
non,
106, n. 60.
904 P.2d at
defendant, by
(1985)("Where
capital
his testi
verdict of not
as his
seeks a
as well
mony
plea,
at 398.
Malicoat,
7.
992 P.2d
counsel,
strong
though
evi
guilty,
faced with
client, may
against
not concede
dence
eg.,
State,
33,
OK CR
v.
1998
See,
Turrentine
hypo
merely
guilt
avoid a somewhat
issue
denied,
955, 976-77,
U.S.
cert.
525
P.2d
965
sentencing phase
presentation during the
critical
562;
624,
1057,
Cheney v.
L.Ed.2d
119 S.Ct.
142
credibility
thereby
before
maintain his
81;
72,
74,
State,
Perry
P.2d
v.
OK. CR
909
1995
642,
(6th
Sowders,
jury."); Wiley
647 F.2d
650
v.
20,
521, 533-34;
State,
CR
893 P.2d
1995 OK
656,
denied,
Cir.),
454 U.S.
cert.
State,
Hayes
CR
845 P.2d
v.
1992 OK
(1981)(counsel's complete con
70 LEd.2d 630
OK CR
816
State,
v.
892; Battenfield
guilt
de
nullifies the
of the defendant's
cession
denied,
P.2d
cert.
guilt
right
or inno
to have the issue
fendant's
(1992);
Brown
S.Ct.
117 L.Ed.2d
presented
as an adversarial
cence
State,
913. See
1988 OK CR
ineffective assis
and therefore constitutes
issue
Washington
OK CR
also
U.S.,
counsel);
F.Supp.2d
tance
Ramirez
opinion
(investigating
officer's
P.2d
(D.R.I.1998)(counsel's
acknowledgment
scene,
physical
*37
based on
evi
at crime
events
dence,
charges
guilty
so
of all
held
the defendant was
theory
barely supported State's
of con
egregious,
the adversarial
and so undermined
suffering,
that evidence
but Court warned
scious
justness of the
process and confidence in the
strong given
evidence
lack of medical
was not
result,
People
prejudice
presumed);
crime).
and brief duration of
514,
449,
488
Hattery,
94 Ill.Dec.
109 Ill.2d
denied,
513,
(1985),
478 U.S.
cert.
NE.2d
repeatedly condemned the
Court has
9. This
3314,
1013,
92 L.Ed.2d
106 S.Ct
only
argument,
to be
a cot"
'three hots and
(1986)(counsel's
strategy
conceding guilt in
of
¶52,
OK CR
ignored.
State,
1,
Hooks v.
avoiding death
at
order to concentrate
efforts
therein);
(see
55 and cases cited
P.3d 294
Note
"totally
with defendant's
penalty was
at odds
Washington,
989 P.2d
979.
although strategy
guilty"
plea of
earlier
not
light
attorney
may
in
of the
been a reasonable one
"an
have
Circuit has held that
10. The Tenth
guilt,
overwhelming
was an
of client's
it
upon
evidence
adopts
a belief that his client
and acts
who
Harbison,
one);
any
impermissible
State
'fail[s]
convicted
to function
should be
majority
simply
some cases there is
derstand or
believe
DNA evidence or
stage,
no defense to be offered in the first
witnesses, but would not have a reasonable
attorneys
and that defense
need to maintain
they
if
doubt
believed the State's evidence.
enough credibility
effectively fight for
a
In Hale v. State14we found counsel did not
punishment
sentence less than death
guilt during
stage closing argu
concede
first
trial, However,
phase
I
of
see a
dis
clear
by saying
ment
there was no doubt the de
(a) holding
tinction between:
the state to its
asking
fendant was involvedin the crime but
proof by requiring
put
it to
on
burden
jurors to
consider
extent
to which Hale
support
evidence in
of each element of the was involved. Trice v. State15 involved a
charged
engaging
crime
in an adversari
capital post-conviction claim of ineffective as
evidence,
testing
electing
al
of that
while
not
appellate
appel
sistance of
counsel.
heldWe
(b)
defense;11
affirmatively present
a
late counsel
not
failing
ineffective for
telling
jury outright
that the defendant is
trial
raise
counsel's lack of
effectiveness
guilty
charged,
of the crime
as Abshier's
(but
conceding
guilt
rape
Trice's
as to
attorney
throughout,
defense
did
from voir murder)
rape
Trice
where
confessed to the
stage.12
dire to the
close of
first
strategy
and the defense
focused on his lack
majority
1 5 The
claims that the State still
specific
intent to commit
In
murder.
none
prove up every
had to call its witnesses and
flatly
these cases did trial counsel
tell
However,
charged.
element of the crime
prospective jurors,
began,
before trial even
outright
where there is an
concession of
guilty.
that his client was
guilt,
jury
is left
no reason or moti-
majority's
T7 The
discussion of
from
cases
weigh
vation to
the state's
or decide
evidence
jurisdictions
credibility
how much
each
other
suffers from similar
to afford
witness's
omis
testimony. Accordingly,
presentation
sions.
In Gomes the First Circuit held coun
nothing
the state's
than
case becomes
more
reasonably
guilt
sel
drug
conceded
as to one
exercise;
guilty
rote
transaction,
the result-a
verdict-is
relatively
which was
minor and
evidence,
foregone
supported by overwhelming
conclusion due to defense coun-
in or
guilt.
set's concession of
argue
der to
his client was innocent of the
Lucas,
remaining
charges.16
three
In
coun
majority wrong
T 6
in suggesting
we
during
stage
sel
closing
conceded
first
represen
have condoned a similar failure of
probably
tation.
we
his client was at
Wood v. State13
held counsel
the scene and
homicides,
argued
committed the
he was
guilt during
stage
did not concede
first
clos
ing argument by telling jurors
they
specific
too intoxicated to form the
intent
they
if
necessary
reasonable doubt
did not un
for murder.17 Lucas
relied
504,
(N.C.1985),
S.E.2d
507-08
cert. denied. 476
defendant's murder convictions were reversed.
1123,
1992,
U.S.
514,
106 S.Ct
tinuing threat unless incarcerated and
by
concur in the results reached
the Court in
gested
jury
would decide the murder was
this case.
I continue to believe that First
heinous,
cruel;
especially
atrocious
and Degree
By
Murder
Child Abuse is and
give
said the
should
Abshier the harsh
specific
should
abe
intent crime as I ex
opin
penalty possible,
est
which
counsel's
pressed in Fairchild v.
1998 OK CR
parole
ion
life
than
was without
rather
death.
(Lane,
965 P.2d
dissenting
J.
Predictably,
argument
this
backfired. I can
Strubhar, V.P.J.),
joined by
opinion with
closing argument
find
defense counsel's
rehearing granted,
drawn and
1999 OK CR
marshaled the evidence for his side before
opinion
followed
on
judgment.23
submission of the case to
Fur
rehearing, 1999 OK CR
testimony certainly have been relevant However, they been called. I take exception
strong
majority's
comment
provide
that Abshier did not
an affidavit
When for an incapacitated person. the issue of ineffective assistance of trial 93,710. No. counsel, appellate provide counsel must this showing strong pos Court with affidavits sibility that trial counsel was ineffective Oklahoma, Appeals Court of Civil convincing clear and evidence.24 This is a Division No. 1. stringent standard. This Court has never Aug.5,2000.
required attorney-client a defendant to waive privilege and reveal communications with tri
al raising counsel in affidavit form when an
ineffective assistance claim. arguments judg- before submission of the case to Herring York, 853, 862, New U.S. (1975)(no ment). S.Ct. 45 LEd.2d 593 as- pect adversary justice system of our criminal 3.11, important opportunity could be more than the 24. Rule Rules the Oklahoma Court Ch.18, (2001). closing Appeals, App. each side to marshal the evidence in Criminal Title