Allen v. State

testify. understandably children Brown was hearing jury’s stage

distressed after first

verdict, not sufficient reason to but right important him

allow to waive a as as

attending his own trial. The state also has having present

an interest the defendant objected

at trial this ease state Furthermore,

Brown’s removal. a defen- presence required only

dant’s at trial is only statute and not for the defendant’s

protection, integrity but to maintain the system aas whole. When citizens are absence, public’s

tried for crimes in their system justice

faith in our is undermined. agree I

Although that in it some cases

necessary proceedings to continue with the defendant, “voluntary

the absence of the exception applied by

absence” as this court is step

far lax. simplify too “One further could more, i.e.,

the trial even submit the accused

person prior apprehension to trial to his

true ‘absentia’ form.” Warren v. su 448, (Brett,

pra, dissenting). 537 P.2d at P.J.

I exception would limit this to cases where escaped

the defendant has or absconded and longer present person.3

is no Because

Brown was available could have been courtroom,

brought into the the trial court Therefore, allowing

erred his absence. I

would reverse the sentence and remand this resentencing.

ease for ALLEN, Appellant,

Wanda Jean Oklahoma, Appellee.

The STATE of

No. F-89-549. Appeals

Court Criminal of Oklahoma.

Feb. 1994.

Rehearing Denied March 1994. physical precludes grant 3. In situations where illness court should a continuance. trial, attending the defendant from his or her

82 Carpenter, City,

Bob G. OMahoma trial counsel, Luker, Appellate William H. Asst. Defender, Norman, counsel, appellate Public appellant. for Stensaas, Sandra H. Atty., Asst. Dist. Lane, City, Atty., OMahoma Wes Asst. Dist. counsel, City, OMahoma trial Susan Brimer Oklahoma, Loving, Atty. Gen. of David Wall- Blalock, Gen., ing Attys. & A. Diane Asst. pre-trial hearings, counsel, during some appel- was not made City, appellate for Oklahoma during voir dire and some isolated instances lee. complains a rec- Specifically, trial. and district court ar- was not made of her ord OPINION motion to with- raignment; her counsel’s LUMPKIN, Presiding Judge: draw; prosecution’s motion hearings on the handwriting provide and to submit to tests Allen was tried Appellant Jean Wanda for a exemplars; hearings on her motion of Murder the First jury and convicted public expense; her investigator at (21 701.7), private § O.S.Supp.1982, and Pos- Degree prep- suppress; her motion for motion to and Former Firearm After Convic- of a session hearing transcript. preliminary (21 1283), aration of § Felony O.S.Supp.1983, a tion of lapses during the complains of two CRF-88-6621, She also in the District Court No. Case concerning a one discussion trial itself: jury County. The found of Oklahoma instructions; Appellant the other after testi- aggravating circumstances of two existence stage. shall punishment We fied punishment for death as and recommended exam- (10) separately, each but first we address years pos- for felonious and ten murder complete record. ine the rationale for trial court sen- of a firearm. The session accordingly. judgment this and From tenced Appellant cites Van White perfected appeal. this Appellant has sentence (Okl.Cr.1988) Kelly v. P.2d 820-22 judgment for and sentence affirm (Okl.Cr.1984) P.2d 565-66 murder, remand for a new but reverse and that reversal is mandat- support of her claim charge. firearm trial on the capital are proceedings all case ed when charges against stemmed The Judge Kelly, In Brett transcribed. shooting Leathers on De- from the of Gloria he special concurrence which sub- wrote police depart- in front of the cember responsibility of the State mitted it was the Village, Ms. Leath- ment Oklahoma. proceedings assure all were transcribed in a had been involved ers penalty case. He reasoned this a death relationship, and Ms. Leathers homosexual mandatory sen- could not conduct its Court relationship. to continue the did not wish O.S.1981, pursuant to 21 tence review check between dispute After a over a welfare complete record of all 701.13 without a Appellant, Ms. Leathers and Leathers Ms. missing in that portions proceedings. by po- Accompanied decided to move out. all connected with the actual case were lice, the residence the two shared she went to White, this trial. Id. at 565-66. Van belongings. A gathered some of her expanded the rationale for the re- on Court arose, concerning dispute apparently There, reviewed Kel- quirement. this Court belongings, and Ms. ownership of some of the ly and held that “in order to effectuate police to the station at the Leathers went mandatory obli- sentence review Court’s at the house. suggestion of one of the officers § gation O.S.Supp.1985, 21 701.- under car, separate in a and Appellant followed 13(C)(1), complete stenographic record a attempted get to Ms. outside the station capital proceedings.” be taken in all shall moving out. The to reconsider Leathers White, Kelly, P.2d at 821. As Van 752 during shooting occurred this discussion. failure to concerned itself with Van White captured until Appellant fled and was not during jury proceedings the actual transcribe day Ms. Leathers died December the same trial. single gunshot Appellant had from a wound fired into her abdomen. emphasis Appellant placed on the has

language capital proceedings.” “in all While I. PRE-TRIAL ISSUES holding a com do not retreat from our we pro transcribed in all plete record should be

A. penalty im ceedings in the death is which error, underlying basis must examine the posed, we proposition In her fifth of if to do so warrants of the rule to see failure a record asks this Court to reverse because

87 reversal, Eighth automatic or whether such a failure violation of the Amendment. And can required be harmless. while this also Court is to consider “any by way errors appeal,” enumerated penalty Oklahoma’s modern death O.S.1991, 701.13(B), § 21 other those errors being response statutes came into to the necessarily always implicate do not Supreme holding in Court’s Furman v. Geor Eighth any Amendment —or constitutional gia, 408 U.S. 92 S.Ct. 38 L.Ed.2d provision, for that matter. If alternate (1972) penalty procedures 346 that death means exist for this Court to make a deter- imposed such as Oklahoma’s violated the ban complete mination transcription, without the Eighth Amendment to the United so, it will do and reversal is not warranted. on States Constitution1 cruel and unusual White, See Van (rejecting 752 P.2d at 819 punishment. Essentially, proce the older Appellant’s argument that reversal was man- constitutionally dure was infirm because hearing dated because motion was not tran- way distinguish there was no eases which scribed, finding as this Court could make a penalty warranted the death under the law. judge’s ruling supported by that the trial In response Legislature adopted proce our competent transcript). evidence without the dures similar to those found be constitu tionally acceptable Gregg Georgia, Appellant complains here the mo S.Ct. L.Ed.2d 859 preparation preliminary hearing tion for of a (1976) subsequent por and cases. Essential transcript was not transcribed. While refus procedure tions of the new included re al transcript to make a available an indi quirement proof aggravating circum gent defendant can be a violation of the distinguish deserving stances to those right Equal defendant’s Protection under not; penalty death from those who did Amendment, the Fourteenth no such error requirement this Court conduct a here, occurred copy as received a sentence review to determine: Therefore, transcript. of the this Court does 1. Whether sentence of death was transcription not need a of the motion to imposed passion, under the influence of determine a constitutional violation did not prejudice any factor; arbitrary or other place; take and failure to transcribe the hearing O.S.1991, is harmless error. § 2. 3001.1. supports Whether the evidence jury’s judge’s finding statutory or of a Likewise, this Court can determine aggravating circumstance as enumerated Appellant appeared from the record at ar 701.12 of title. Section this raignment, copy received a true infor 701.13(C). O.S.1991, this, From one can mation and the list of witnesses to be used at primary complete deduce the need for rec- trial, reading waived of the information and penalty proceedings ord all death is to pled guilty, was denied bond and was appellate allow an court to determine wheth- given necessary deadlines to file motions. imposed punishment er the factfinder essentially transpires That is all that at ar influence, any improper death aas result of O.S.1981, 451-470, raignment, §§ see supports and whether the evidence such a Appellant presented allegations in has no words,

finding. portion other propositions anything improper of error oc mandatory sentence review that concerned curred time. Kelly Court Van White and dealt with trial, Concerning issues at it trial as or the motions for blood judge actually sample handwriting exemplar, determination makes the this Court samples given whether the death sentence im- should be has held such can be without Therefore, posed. any por- violating rights Ap that is the essential of the constitutional proceedings requires pellant long tion of the this Court to so as she is afforded notice and imposed opportunity determine if the sentence were to be heard. State v. Thoma- Hereafter, tion, pro- 1. all references to constitutional unless otherwise noted. will visions refer to the United States Constitu- (Okl.Cr.1975); The first one requiring level reversal. Elix the son, P.2d (Okl.Cr.1987). prospective during the voir dire occurred P.2d him of the juror The court informed honored. Scott.

Here, both were record reflects the following exchange took Appellant agreed charges to when fact, shows record place: samples. provide blood THE The law— COURT: in the record no indication

findWe argued suppress was a break a min- motion Can I take MR. SCOTT: However, have examined we ute? or decided. record, and the entire motion and both Oh, sure. THE COURT: Appel nothing violation seized find I am— MR. SCOTT: rights which was Amendment Fourth lant’s Getting queasy? a little THE COURT: trial, her state and find against her used given sugar in violation of I have a little blood police was MR. SCOTT: ment to rights. therefore I been a while since ate. problem Fifth Amendment and it’s her failing to transcribe any error determine okay. I No. I’m need— MR. SCOTT: beyond a reason harmless hearing was (Whereupon, an off-the-record discussion California, 386 Chapman v. able doubt. had, following proceed- after which (1967). 17 L.Ed.2d 705 87 S.Ct. in-camera:) ings were had failing argues error Appellant also right. THE All You understand COURT: hearings dealing with her motion transcribe you I though that —I mean don’t want investigator state-appointed for a you if seriously honestly I want to tell us — as counsel. attorney’s to withdraw motion Okay? you need to take a break. part argument as a We will address Okay. MR. SCOTT: seven. propositions six and THE that would be COURT: ‘Cause two instances where Appellant lists something I wouldn’t want deal with. during was held discussion an off-the-record Scott, I right. All Mr. as mentioned the discussion of those dealt with trial. One of charged murder in the Defendant is instructions, afforded both and the court degree.... court here informed [the first make a record of that opportunity to sides an juror prospective of the nature of the reflects the discus The record discussion. charges against Appellant] hearing jury. sion held out of the you. sup- am I MR. Bless What SCOTT: therefore, objection; no Neither side had you? in front of posed to do? Eat fail by the court’s error occurred reversible discussions, Yes, you are. as THE COURT: a record of the ure to make nothing concerning the contested there was Okay. MR. SCOTT: to review. The instructions for this Court my question— right, All THE COURT: Appellant had occurred after other instance full going get I’m I him with a mouth —did testified, stipula parties and the discussed peanut butter here? Following off-the-record discus tion. you. I’ll time MR. SCOTT: sion, stipu parties further discussed Okay. THE COURT: the off-the- lation. It is obvious to this Court stipulation, record with the discussion dealt hearing any case was outside My question in all THE seri- COURT: therefore, jury; argu no there can be ousness, juror you’re if as a in this selected unduly ment influenced them the discussion beyond you if find a reasonable case and any way, any Eighth precluding thus guilty of mur- that the Defendant is doubt

Amendment violation. you degree given and I ask der in the first you’ll all the facts and circumstances Appellant lists two instances of off- in the case and the know at that time the-record discussions voir dire. me, you can analysis, you have from require While more instructions these omissions punishment op- legal we do not to consider all three find these isolated instances rise

89 tions, life, parole, life without and the B. penalty? death error, assignment In her sixth of

MR. Yes. SCOTT: Appellant argues denying the court erred in private investigator her a public expense. at discussion, surrounding From the it is obvi- Appellant’s motion filed with the trial court ous to this Court the off-the-record discus- give specific why did reasons an investi juror’s prospective sion dealt with the health gator necessary. hearing on the problems acquisition and the of some food so transcribed, motion was not but he would not faint voir dire. Once counsel, which, has filed an affidavit of trial resolved, that was the court continued its presented in connection with the evidence at questioning on the record. trial, in making proper assists us determ The second off-the-record discussion oc- affidavit, ination.2 In the trial counsel said after curred was sworn and before investigator fully he needed the to in more alternates were chosen: vestigate Appellant’s defense of self-defense _If ap- THE COURT: counsel would charge manslaughter. the lesser proach the bench for a minute? presented trial, Based on the evidence including by Appellant, we have conclud (Whereupon, an off-the-record discussion merit, III.A, ed these theories had no see had; following afterwhich [sic] infra; light overwhelming and in evi court:) proceedings open were had murder, guilt Appel dence of we conclude Joiner, you ap- THE COURT: Ms. would prejudice “by lant faded to establish clear proach please? you up? Would come convincing evidence” the court’s refus MS. JOINER: Me? appoint investigator. al to an Munson v. 324, (Okl.Cr.1988), 330 cert. Yes, THE you COURT: ma’am. If come 1019, 820, 488 109 U.S. S.Ct. 102 front, right down Ms. Joiner. I’ve ad- (1989) Arizona, (citing L.Ed.2d 809 Mason v. you vised the counsel what told me about (9th Cir.1974), 504 F.2d 1352 cert. de your being very ill husband and we all nied, 420 U.S. 95 43 S.Ct. L.Ed.2d agreed you point. release at this (1975).3 you. MS. JOINER: Thank proposition. see no merit to this you. THE COURT: Thank Likewise, proceedings surrounding from the II. ISSUES RELATING TO discussion, the off-the-record it is obvious the JURY SELECTION discussion centered around an illness juror’s prospective family, nothing and had A. juror prospective do with whether a could give Appellant penalty. decide to the death error, proposition In her tenth Eighth violation, There was no Amendment Appellant alleges prosecution improperly procedural and the error was harmless. 20 peremptory challenge exercised a of a black O.S.1991, § 3001.1. juror Kentucky, in violation of Batson v. 1712, 1724, proposition. There is no merit to this S.Ct. L.Ed.2d affidavit, (since considering way 2. In we in no 3. A statute in effect at the time of trial position retreat from our P.2d 56 Brown repealed) required Appellant’s po- a defendant in 1994), (Okl.Cr. supplementations expert sition to demonstrate the services of the appeal the record on are not favored and ordi "reasonably necessary permit are the defen- Here, however, narily granted. Ap will not be adequately prepare present dant to his de- pellant argued earlier her conviction must be ” fense at trial.... The trial court was then reversed because the court failed to a rec make authorized to rule on the "reasonableness of proceedings capital ord of all in her case. request.” O.S.Supp.1985, light 464. In instance, that vein and in this isolated we have holding given investigator our the reasons merit, for the supplementation determined we will allow the ques- are without we need not address the determining assist us in whether the failure to tion whether court abused its discretion in hearing appoint transcribe the and failure to investigator Appellant's were harmless error. case. 90 clearly indicates defense counsel had (1986). record is also African-Ameri-

69 opportunity pose appropriate ques- can. juror concerning punish- tions to each prima holds that once Batson options to considered.4 ment discriminatory selection is estab facie case lished, appel prosecution can rebut Nor is there merit racially expla by giving a neutral case lant’s complaint trial court refused to allow peremptory challenge. Id. at nation for inquire as to lesser included of counsel to 98, this 1724. It also observes 106 S.Ct. at purpose of voir dire is to ascer fenses. The justify not rise to the level explanation need grounds challenge tain there are whether Id., 97-98, cause, for 476 U.S. at ing excusal jurors permit prospective for bias and to 1723-1724; findings and the at 106 S.Ct. peremptory challenges. intelligent exercise of great defer are entitled to the trial court (Okl.Cr. State, 85, 532 P.2d 88 Palmer v. 21,106 21. n. at 1724 n. Id. at 98 S.Ct. ence. 1975). Here, although counsel did not ask Here, as reasons for prosecution offered every juror specific question, who was his person the fact she excusing the black venire he or she could follow the asked indicated raising eye expression by made a facial applicable given to them the trial law she said she could consider brows when juror indicates to us each indi court. This penalty; she been hesitant that had death in he she could consider a lesser cated or penalty; asked about the death when find no abuse of dis cluded instruction. We making eye with the avoided contact refusal to coun cretion in the court’s allow attorneys; prosecutors, but not with defense question sel’s about lesser included offenses. during prosecutor’s dozed off and she (Okl.Cr. 676, 682 v. 809 P.2d Sellers believe these reasons general voir dire. We — 1991), denied, U.S. -, 112 S.Ct. cert. sufficiently pass constitutional neutral to are 310, (1991); 116 L.Ed.2d 252 Banks 1117, Boltz v. 806 P.2d muster. See (Okl.Cr.1985). 418, 423 — denied, (Okl.Cr.1991), cert. (1991); 143, -, 116 L.Ed.2d S.Ct. C. (Okl.Cr.1987), Smith v. State Appellant also contends the trial rt. 484 U.S. 108 S.Ct. ce jurors prospective improperly court excused (1987) (hesitancy about 98 L.Ed.2d 383 in they could follow the court’s who said Power, penalty); States v. United death despite having about structions reservations (9th Cir.1989) (fidgeting F.2d 739-40 propo penalty. In this thirteenth the death juror might not be attentive caused concern error, Appellant alleges the court sition Ruiz, trial); 894 F.2d States v. United jurors improperly prospective excused Webb Cir.1990) (facial (2d expressions indi Alexander. juror to sit in cating possible reluctance of reason). trial deemed sufficient This Court has held proposition. no merit in this We find penalty are oppose the death not all who capital cause in subject removal for B. cases; firmly believe the death those who unjust may serve nevertheless penalty is argues proposition in her twelfth they long as jurors capital cases so as preventing erred in coun- of error the court willing they to tem- clearly that are jurors’ state inquiring prospective into from sel in def- their own beliefs porarily set aside parole. disagree. life views on without cited, of law. to the rule erence Appellant has In the instances Johnson, ties, prison. being And do life in juror one of those prospective de- questioning 4. In any preconceived notions about what you pris- have life in "[t]here’s stated: two fense counsel ons, person: the same also asked that means?” He possibility parole and the one is with no any preconceived notions about you you have prison. "[d]o deduct Now what do other is life possibility parole?” without the (Transcript what life options?” [sic] of voir from those two 596-97). (voir to do we are not called 104). As Drye, dire at questioning defense Mr. dire at so, time no determination we make legislature wisdom in its stated: "... counsel proper. questions are these possibili- whether separate distinct three has set out

91 (OM. 565, juror prospective of Alex- 559 The same is true Battenfield — denied, -, ander, Cr.1991), despite repeated questioning 112 who U.S. indi- cert. (1992) (quoting procedure a confusion as to the to 117 632 cated both

S.Ct. L.Ed.2d McCree, 162, 176, 476 U.S. 106 be used and reluctance to consider death Lockhart v. (1986)) (em 1758, 1766, option: 137 penalty 90 L.Ed.2d as a viable

S.Ct. added). phasis you THE COURT: Could consider

Here, juror gave prospective Webb penalty option as death as a viable some- answers, contradictory appearing indecisive thing you thought if the circumstances court; questioning by the then response impose You could in fact it? warranted it? agreeing prosecutor, then defense with the No, really I MS. ALEXANDER: don’t about counsel. She had reservations could, really. I I think I not don’t think clearly penalty, did not indicate death but have it in me. could set those reservations aside and Okay. appreciate THE I it COURT: Well following exchange follow law. certainly fussing and I’m not not — questioning typical: of her is the end all, you you you at but understand kind of you ... if THE COURT: were member given I have both answers and think it’s jury [you] in fact select the of the could really truly you an effort to tell us how penalty appropriate punish- death as the feel. provided ment if that the law were what ALEXANDER: Yes. MS. the evidence and that’s what showed? If law

MS. WEBB: that was what the appreciate THE But —I that. COURT: provided. my you’re question But earlier was if Yes, if juror you’re taking THE COURT: ma’am. And that’s sworn in as a Now, under- what the evidence showed. the instructions— oath to follow stand, Webb, going you Ms. I’m not to tell MS. ALEXANDER: Yes. going you to tell of that the law is which give you again I THE COURT: —that and options you three should choose. You get point my instruction is that we to that know, going give you the law is some finding punishment and there’s been you parameters, guidelines, some for degree guilty murder in the first then use, right to it but when it comes down my you instruction would be that are to finding guilt there should be all the evidence and determine consider it, options three in front of will have those pun- each of the three after consideration you know. punishment appro- is most ishments which you They won’t —I tell which one won’t you if you say I hear that priate. Do appropriate. you You know still would if penalty the death and even considered have to make that decision and order appropriate you thought it was the most you have to able to be fair to both sides you not be able to punishment that would you that will in fact consider all of tell me way? vote that presented options those and the evidence right. That’s ALEXANDER: That’s MS. making your all three before decision on I exactly don’t think could. what —I you not rule out one or two of would options? any particular punishment (voir 759-60). juror Again, the dire Tr. you do that? Could put aside her clearly indicated she could No. MS. WEBB: pen- personal feelings impose the death (voir 51). After consid- alty proper in a circumstance. In situations when a dire Tr. surrounding pro- ering the entire record juror’s are unclear and contradicto- answers exclusion, giving appro- spective jurors’ traditionally to the im- ry, this defers Court judge, we hold judge, “may priate deference to trial pressions the trial who have a “sufficiently juror responses demonstrated impression prospective definite jurors] capital punishment beliefs about [the fulfill his or her oath.” would be unable to (Okl.Cr. ability to ‘substantially impair [their] would Duvall v. ” juror.’ Battenfield, 816 P.2d at 1991); as a Battenfield, P.2d at 559. serve Brown, F.2d (quoting Coleman v. testified she cleaned blood (10th Cir.1986), towel; cert. 482 off her face with a small then drove to 96 L.Ed.2d 888 police 107 S.Ct. station where she knew the dece- (1987)). going. Despite dent was the time involved

going into the house at the time the same left, face, wiping decedent then her she told RELATING TO TRIAL III. ISSUES approximately the she car followed two A.l lengths behind the decedent. The vehicle riding parked which the decedent was error, proposition Ap In of his first police department, a drive area of the off of pellant claims the trial court erred in refus street, Appellant parked the street. in the ing testimony support of her defense of behind the decedent’s vehicle but not block- Appellant self-defense. testified she was ing got Appellant it. out of her car and had fearful the decedent because decedent reached the rear of the decedent’s vehicle years said she killed a woman Tulsa ten approaching when she noticed the decedent sought purposes for of corrobo earlier. She her, holding garden point, the rake. At that testimony by ration to introduce the dece Appellant her said she retreated back to mother, Wilson, Ruby dent’s that the dece vehicle, door, opened passenger the and re- story. dent had told the same Ms. Wilson pistol glove kept trieved a she in the com- the evidence inadmissi The trial court ruled partment. She turned around to see the appeal hearsay. ble The State on acknowl very decedent near her. She claimed she edges prove not offered to the evidence was accidentally shot the decedent an en- asserted, 12 the truth of the matter see O.S. suing scuffle. 1981, 2801(3), responds alleged but sig Tulsa homicide was too remote to be of in Appel There are several flaws

nificant in her self-defense claim. value theory. long lant’s self-defense It has been making arguments, both sides their assume that, person if Oklahoma law even a is an Appellant had a valid defense of self-defense. aggressor, by clearly he can lose that status disagree, and therefore hold it was not withdrawing fight. from the He can evince proffered testimony. error to exclude the by that desire to withdraw either word or argument purposes and for For the sake of act, long so as his intentions are clear. Ev analysis only,5 only Appel- we shall use State, 218,206 247, ans v. 89 Okl.Cr. P.2d 252 why illustrate her lant’s version of events to (1949). party It is also true if a who theory of was not warranted. self-defense party pur attacker withdraws and the other necessary sues more than is to ensure her Appellant dispute a at a testified that after safety, pursuing party can take on the supermarket possession over of a welfare attacker, right status of and lose the of self- check, decedent, accompanied by her State, 302, defense. Peterson v. 86 Okl.Cr. officers, police mother and returned to the State, 286, (1948); 288 Smith v. 19 gathered possessions. house and of her some 14, 514, (1921); Okl.Cr. 197 P. 516 Gransden stay asked the decedent 417, 157, v. 12 Okl.Cr. 158 P. 161 attempt to work out their difficulties. When (1916); Heath, car, see also State v. 237 Mo. Appellant followed the decedent to her (1911). Here, decedent, small, hand-held, S.W. grabbed decedent a multi- by mother, tool, getting in the vehicle with her ple-pronged gardening at trial identified house, rake, leaving going police garden as and struck station, it, clearly causing bleeding face with extensive indicated desire to with be- draw; Appellant’s Appellant, gone eye. Appellant neath retreated who had house, wounds; danger. into the house to minister to her own was out When she got decedent, arguably decedent into the car and left. followed the became course, testimony, strongly 5. Other conflicted dence is discussed below. with version of events. That evi- strength- an that is It is pursuer, observation true instructions on self-defense given if is subsequent sup actions. should there evidence to ened However, port it. if there no evidence to self-defense, support the trial court is under person It is also true a does not have obligation give no the instructions. Ri aggressor provoke fight to be or with dinger Okl.Cr. P.2d party killing intent of the other to be (1954). Here, limiting even review to right deprived of the to self-defense. If a events, Appellant’s version of we find the by provocative person behavior initiates a Appellant was not entitled to on instructions confrontation, even no intention of kill self-defense. commend While we the district person, ing right other she loses the caution, erring court for on the side of we self-defense. Ruth v. nonetheless here in allowing find error in (Okl.Cr.1978). Here, assuming 921-22 even self-defense; on structions an error that ben- provoke Appellant argu did not an intend to Appellant. Consequently, efitted evidence in pursued ment when she the decedent to the support theory of that was not error. station, police she re-initiated the encounter by her actions. the She knew decedent was A.2 yet pursued anyway, upset, knowing she her Appellant’s Nor is there merit possibility of strong.6 the a confrontation was argument the should evidence have been ad support heat-of-passion mitted to her man point, More to Ap the based on slaughter theory. While we have set forth pellant’s testimony, when she walked behind events, Appellant’s of other version testimo vehicle, ap the decedent’s the decedent saw ny strongly Appellant’s with conflicted ver tool, proach gardening with the same then mother, of sion events. The decedent’s who withdrew to her own ear to retrieve the driving with the decedent the vehi weapon, right she lost the self-defense. It cle, any testified the did not at decedent time party obligation a is true has no to retreat Appellant garden attack with a tool. An confrontation; from a can she stand her officer at the residence the first en State, ground and defend herself. Perez v. counter, fearing would the tool be used in a (1931). 180, 428, 429 51 Okl.Cr. 300 P. None fight, picked up had the hand rake and con theless, there must be a distinction between clothing cealed it under some in a basket in retreating to avoid a confrontation and with rear seat the of decedent’s car. He noticed drawing a short obtain distance to a tactical position the rake was in the same when he advantage here, acquisition deadly of a — shooting. examined basket after the Heath, 255, weapon. See State v. 237 Mo. pull officer away same saw the decedent’s car (1911); 141 S.W. 30 v. 2 Jackson immediately did; from the residence after he (1911). Ala.App. Appellant 56 So. and there had assault been no while he was vehicle; yet to reach when was able her she there. A second officer testified he drove did, grabbed weapon, turned she a and con approximately back around to the residence escaping. her fronted attacker instead of minute left one after he had and saw neither holdings we do not earlier While overrule our Appellant’s the decedent’s nor Despite ears. party duty has to retreat from a no copious claim of amounts of blood confrontation, possibility wound, we believe from the examination her vehi factor in escape recognized blood; should be a de revealed cle no and a search of her termining deadly whether force was neces night shooting residence of the revealed bodily sary great to avoid death harm. bloody Appellant or no towels. While did have (La.Ct. Freeman, eye See State v. 447 So.2d a small wound underneath when she (La. App.1984), captured days writ 449 So.2d 1356 four after shooting, 1984). person one who saw immedi- statement, below, making necessarily do not actions 6. In we discussed should be considered in Appellant by following determining theory hold her actions whether the of self-defense is provoke a intended to confrontation. justified. decedent action, merely state combined with that this rea); appropriate shooting en contained the mens ately after —when (Okl. v. P.2d President 225-26 she had used—looked at gun her the gave Cr.1979) (conviction from injury or modified second saw no evi- Appellant’s face and manslaughter based on degree murder of blood. dence appellant his lover after evidence that killed hearsay statement though the Even man; him had sex another she told admissible, Appel- not mother was decedent’s evinced conduct under the circumstances explained the stand and herself took lant passion depraved more heat of than because the jury she feared decedent mind). above, Appel As noted to assume someone, had killed her she decedent told the accurate version is to lant’s version is information in thereby getting the desired produced ignore other at trial. The evidence jury. of the See Boltz front support giving of ei evidence does (Okl.Cr.1991); also 12 see P.2d a lesser ther instruction as included offense. 2404(A)(2). O.S.1981, re- The trial court’s hearsay testimony proposition is without merit. This to admit the fusal not error. mother was decedent’s D. assignment of error is without merit.

This error, proposition her second B. allowing Appellant claims the court erred in an accom videotaped her confession without finding on light In of that instructions our Appel diagram. videotape, the panying On warranted, Appellant’s not self-defense were something paper piece lant drew on a of in concerning proposition of error error eighth officers she an effort to show where had give in failure an additional the court’s at parked her when she arrived the vehicle is also without merit. self-defense instruction rough diagram police station. The was not preserved. C. complete see no reversible error. A in her ninth Appellant contends viewing videotape of the that at a indicates erred in not proposition error the court rough point Appellant her dia- before drew second-degree instructing on sponte sua gram, hands table she used her and the at second-degree manslaughter, murder and sitting she which was indicate relative request though did not either in even This, positions of the vehicles. combined she retreated Appellant struction. testified testimony her at trial with which she vehicle, her grabbed gun, and turned to her diagram by police the contradicted drawn to confront the decedent. She testi around jury and demonstrated to the where officers Under frightened fied she was the time. being parked, vehicles al- she recalled the facts, second-degree instruction on these an jury lowed her to communicate to the manslaughter finding This is not warranted. things located version where were Appellant reinforced re-entered the is since transpired. jury In did in way, this the what Young pistol. v. confrontation See with receive the facts circumstances fact all (1947). State, 71, 179 173, 175 P.2d 84 Okl.Cr. confession, surrounding the see Williams v. Additionally, Appellant if was afraid and even State, 554, (Okl.Cr.1975), 542 P.2d 573-74 deceased, injure the did not intend to 907, grounds, on other 428 U.S. modified statutory clearly does not fit the evidence (1976), any 49 L.Ed.2d 1215 S.Ct. degree requirement murder that of second admitting videotape in the error without the evincing accused conduct a de the show beyond diagram harmless a reasonable was praved disregard mind in of human extreme proposition merit. doubt. This is without life. Smith v. Cf. (Okl.Cr.1984) (act swerving car toward E. mind, depraved children evidence of showed videotape-related another though he did not appellant even claimed actions; complains appeal injure complaint, Appellant on anyone his intend request improperly on a in car was driv- trial court acted deliberate manner which the jury started. The F. after deliberations jury stating note it wished to sent court a proposition In her fourteenth of er tape. During ensuing in-cam- review the ror, Appellant complains the trial court erred discussion, Appellant’s trial counsel era ob- allowing Appellant evidence was the jected questioning court’s to the trial relationship “man” in her homosexual jurors specific portion to determine which the decedent. The evidence came jury Consequently, to hear. wished lay opinion testimony form of from the dece jurors telling a note them trial court sent mother, on dent’s based her observations of they to decide whether wished review the two. It used to show aggressive tape. jury person relationship, indicated its desire to in the entire passive. while the decedent was more tape, replayed the entire and it was review open for them in court. We do not believe the court erred n allowingin the evidence. As we stated complains now the court erred in (Okl.Cr.1985), Green 713 P.2d 1032 ascertaining specific problems the what cert. 479 U.S. S.Ct. jurors having were in connection with the (1986), L.Ed.2d 165 section 2701 of the evi tape, citing Martin v. “substantially dence code has liberalized (Okl.Cr.1987). primary This Court’s con requirements” admission for introduction of jury’s cern in Martin was the unrestricted Now, lay opinion. opinions witness such videotaped testimony seven-year- use of of a rejected only they “should be when are not old sexual abuse victim in the room. rationally perception on the based language Martin contains that a trial court witness, opinion superfluous or the in the request which has received a to review evi it would of no value to sense the trier precise dence should ascertain the nature of (emphasis original). fact.” Id. at 1039 If jury’s difficulty, requested the the isolate helpful jury, such evidence can be to the it is it, testimony weigh that can solve then the within the discretion the trial judge probative testimony against value of the the admit it. Id. However, danger emphasis. Id. undue Here, the was able to make witness obser- responded observe here the court in ac we by daughter Ap- vations of conduct and cordance with trial counsel’s wishes on the pellant, though may spent even she not have Therefore, subject. any error that occurred great amount of time around the household. counsel, by Appel invited defense was help jury The evidence would understand profit ap lant cannot from those actions on why way party each acted the she did both State, peal. Thomas v. 744 P.2d 976 during leading up shooting events to the (Okl.Cr.1987); Cooper 671 P.2d shooting very The reason for the itself. (Okl.Cr.1983). 1168, 1172 further note shooting leaving Appel- the decedent’s was being testimony tape played was not of a lant and intention to terminate the relation- trial, witness at but rather was a conversa circumstances, ship. proba- Under these its Appellant police. substantially Du outweighed tion between See tive value not effect, O.S.1981, (Okl.Cr by prejudicial its see vall v. properly § and the evidence was admit- .1989). prosecu Nor do in the we see error ted. turning up tape on tion’s the volume at point. prosecu

one The record indicates the IV. ISSUES RELATING up response tor turned the volume in to a TO PROSECUTORIAL signal by juror, who indicated she was MISCONDUCT having difficulty hearing tape. We do emphasized agree Appellant not this act complaint, Appellant In her fourth portion tape. Appellant any particular of the prosecutorial instances of mis claims several request at has failed to show how this act im complains first the State conduct. She juror prejudicial. proposi gentle, This properly portrayed the decedent as a individual, refusing Ap- to allow weak while tion is without merit. prosecutor’s decedent’s other statement was a fair com- pellant to show the side— hardened, Clayton, violent criminal. that of a She ment on the evidence. 840 P.2d at complaint by on her again supported bases her self-defense 29. some Likewise evidence— theory theory. although invalid As we held version of it —was case, supra, portion of her prosecutor’s see comment the second complaint merit. is without stage Appellant had chased an un- down friend, Pettus, armed Detra seven and one- Additionally, virtually we note that years half earlier in the and shot her same com none of the remarks which now jury manner she did the decedent. The trial, objection plains and are drew stage heard evidence the second Pettus appeal. Clayton v. therefore waived on abdomen, died from a contact wound to the (Okl.Cr.1992). 18, 29 While possible which have been would not from the disturbing prosecutor’s we find somewhat shot; distance said she fired the objecting conduct in first to the introduction and that Pettus had contusions on the back by of evidence the decedent’s mother con skull, being pistol of her consistent with cerning killing the decedent’s of a woman whipped. earlier, years commenting during then clos ing only evidence of decedent’s vio addition, there is no merit to Appellant, lent came behavior from we see no Appellant’s prosecutor contention the mis refusing fundamental error. Error in to ad points stated the law. She first to an isolat mit evidence when that evidence should have prosecutor ed instance where the told the been admitted is an error committed jury you “... do not kill Wanda Jean Allen. court, prosecutor, and not of the will not be you All do is return a death verdict. You miscarriage justice reversed or a absent kill I you don’t her and don’t kill her. All substantial violation of a constitutional or can do is return a death verdict. That’s all O.S.1991, statutory right. 20 3001.1. The you do.” The cites Caldwell v. prosecutor right has a to comment on evi Mississippi, 472 U.S. 105 S.Ct. jury, dence that has been allowed before the (1985) support L.Ed.2d argu of his concerning Appel and we find the comments prosecutor attempted ment that the to con lant’s and the decedent’s behavior behavior responsibility vince the for deter range fall within the of fair comment allowed mining the death sentence rested somewhere prosecutors attorneys. both and defense Ro other than on their shoulders. To establish a (Okl.Cr. mano v. 847 P.2d 380 violation, necessarily Caldwell “a defendant 1993); Clayton, P.2d at 29. no 840 We find jury must show that the remarks to the present Due in ac Process violation these improperly assigned described the role to the light tions of the fact we found her self- jury Adams, by Dugger local law.” 489 theory defense invalid. 401, 407, 1211, 1215, 109 S.Ct. (1989). L.Ed.2d 435 disagree prosecutor the

We also by commenting path remark, context, misstated evidence the The taken in when does Appellant’s improperly jury’s of the bullet made version of the describe the role. In “impossible.” “impossible” incident closing argument, prosecutor While the same might word, strong jury myself have been too also said “it’s difficult for and for Mr. had heard get up you evidence from medical examin Lane to here and talk to and ask making unlikely. you er her version No funda to sentence this Defendant to death. It’s light very mental error going occurred of the over difficult. like it’s Just to be diffi- whelming presented against Appel you evidence people go cult for back there and commenting justice lant. There is no error in that render a verdict in this Appellant’s you during none blood was found in her case.... We told voir dire that Although your job easy vehicle. the interior of her car was here would not be nor it would color, a maroon pro you appreciated you the criminalist who be one that or that enjoy doing, cessed the car said the blood have ...” Following would would the com- interior, remark, plained-of prosecutor been a darker color than the observed present. Appellant placed predicament would have been visible had it herself in her been Appellant also com- they Appellant to a snake. jurors position in the found put the prosecutor pointed plains of error when the prosecutor The re- at that time. themselves the dece- postcard to a had sent jurors they had been told minded the fun, depicted goril- the card job easy or dent. The front of would not be voir dire their caption, My “Patience Ass—I’m jurors la with the adding during their deliberations other, scream, Something”; Kill contained a they back occasionally “cuss at each Gonna “Try you’ll throwing things threat: and leave understand this they yell. people hearWe other, you ‘dig’ For REAL NO JOKE all card MORE at each and sometimes —some- prosecutor said “that’s jurors they all do is bow their LOVE GENE.” times the Appel- job Allen in a nutshell.” pray,” indicating their is an Wanda Jean heads and comment, objected say- argument attorney to the agonizing one. Based on the its lant’s implied Appellant entirety, prosecutor ing prosecutor was an we do not believe the by objection, attempting jury’s ape. role The trial court overruled the to diminish observing way. responsibility for she did not take it that telling them the comment, light of the entire neither do we. fate rested elsewhere. allegation complains prose also Nor is there merit to the decedent, prosecutor attempted sympathy to define reason elicited for the cutor maMng by saying prosecution’s bur references to a fair trial or treatment able doubt aside, beyond objection need not be all doubt or a shad for her. Lack of an den rejected propo past has in the held that similar com ow of a doubt. This Court Court nearly on identical lan ments did not warrant relief this Court. sition of error based (Okl.Cr.1987), 394, 402 guage Vaughn v. State 697 P.2d 967 Castro v. (Okl.Cr.1985). reject again. it rt. 485 U.S. S.Ct. We ce (1988) jury (asMng the 99 L.Ed.2d 446 Appellant complains prosecutor any guaran constitutional if the victim had during closing argu improperly criticized her tees). See also Shelton v. ment, maMng references to status as.the (Okl.Cr.1978). 1107, 1111 person in a homosexual relation dominant relationship ship. find no error. The V. INEFFECTIVE ASSISTANCE jury’s understanding critical to the COUNSEL OF shooting surrounding the and was a facts error, proposition Appel- In her seventh proper factor for the to consider. See O.S.1981, (jury lant states she was denied effective assis- can take into consid tance of counsel for several reasons. We of a domestic relation eration the existence them in the order she has ship determining grade punishment or shall address homicide). presented other them. of a We have examined had been complained-of comments —that she ineffec first asserts counsel was She crying during trial an effort to show re adequately. paid he was not tive because morse, evi contrasting that behavior with states he had Trial counsel’s affidavit remorse; observing showing a lack of dence agreement Appellant with and reached an story changed her one hundred and she had family representation for a provide her times; fifty making oblique an reference and fee, by arraignment. payable Coun certain not feel

to a cold-blooded murderer —and do assumption he his fee on the would sel based may improper influenced the ones which plea arrangement with the be able to reach a guilt. its determination however, Ap prosecution. By arraignment, $800, family paid only him less stage, prosecutor pellant’s had In the second agreed-upon fee. Addi Appellant which takes than one-fifth made other comments story tionally, that after the fee telling a the affidavit states as criticism. Those include arraignment, agreement counsel involving person’s illustrate that a and before a snake to the death story prosecution told learned the would seek change. doesn’t nature fable, against client. Counsel was nev prosecu penalty and the his more the line of a representa- for his immediately comparing paid er more than $800 tor added he was not client; attorney tion. His motion to withdraw was overruled tween the and his and we court, reportedly the trial who him told he simply attorney good refuse to assume an representation Appellant should consider standing in voluntarily this state who has part obligation perform as of his ethical obligation undertaken an represent pro bono service. client would fail to render the utmost service solely to that subsequent client based on a responds Appellant The State has failed to inability pay. of the client to espe- This is prejudice attorney show because her was not cially true support when the record does not fully paid, specific as she has cited no in- allegation. Consequently, we find no investigator stances other than lack of an conflict of interest. pay where her lack of funds to counsel mani- performance.7 Ap- fested itself in counsel’s Therefore, Appel we will address whether pellant responds payment the lack of created lant was denied effective assistance of coun interest; result, prejudice a conflict of as a only sel based not per on whether counsel’s presumed. disagree. must be deficient, formance was any but also whether Appellant confusing We fear the hard- performance prejudiced deficient Appellant. ship possible process and due violation (Okl.Cr.1991), 384, Williamson v. against attorney, Lynch, see State v. — -, t. cer (Okla.1990) P.2d 1150 with a conflict on her (1992) S.Ct. (citing L.Ed.2d 308 part. process A person due violation on one Washington, Strickland v. 466 U.S. necessarily does not translate into a constitu- (1984)). S.Ct. 80 L.Ed.2d 674 against tional violation another. We do not disagree Appellant the better addressing an ineffective as might course have been to allow counsel to claim, sistance indulge Court must withdraw, or at least have counsel from the strong presumption counsel’s conduct falls public appointed defender’s office lead as range professional within a wide assis attorney counsel. And while her undoubted- Williamson, tance. 812 P.2d at 411. The ly experienced hardship as a result of her Appellant burden rests with to show there is him, pay hardship failure to such can be that, probability a reasonable but for coun attorney’s refusing a reason for ap- an errors, sel’s proceeding result of the pointment, withdrawing arrange- or from an would have been different. Id. With these made, already ment O.S.Supp. he has see 5 mind, principles in we shall spe address the 3-A, 1.16(b)(2) App. Ch. Rules cific Appellant’s instances set forth in brief. (3), 6.2(b); attorney it is also true an pro should render bono service whenever Appellant complains first her attor possible. O.S.Supp.1988, 1, App. See 5 Ch. ney people did not interview who had investi 3-A, 6.1(a). Rule gated the death of a woman the decedent had affidavit, supposedly In his killed in Tulsa a counsel notes the financial decade earlier. him, hardship imposed upon investigation claims but does would state up a conflict as a have turned existed result of that evidence she could use in her hardship. Appellant presented financial defense of has self-defense. As we have deter ¡from jurisdiction8 us with authority any theory no mined the of self-defense was not holding inability pay defense, of a client to auto- valid based on own testi matically mony, creates a conflict of interest be- cannot failing show harm in complaint, investigator 7. That clearly denial of an relationship terminated the with the at- issue, expense, pre-trial state is addressed as a torney; Sweeneydealt with a situation that arises supra. attorney represent when an who was hired to defendant represent at trial was forced to by Appellant, 8. Cases cited Commonwealth v. appeal same compensa- client on without further 33, (1987) Sweeney, Pa.Super. 368 533 A.2d 473 there, gravamen tion. Even of the case did Scheps, and Pa.Super. Commonwealth v. interest, not deal with a conflict of but the abuse (1987) 523 A.2d 363 do not avail her. In by failing ap- of discretion the trial court in to Scheps, the court dealt with an of discre- abuse point appellate indigent defender when one tion that occurred when the court refused to available, appeal perfected. was before the was attorney allow an to withdraw after a defendant investigate of support evidence in that ISSUES to VI. RELATING theory. TO PUNISHMENT Appellant also claims counsel was A. investigate incompetent because he did not history readily available her life discover error, proposition In Appellant her of third mitigating Essentially, Appellant evidence. improperly hearsay claims the court allowed that evidence she claims would have shown form evidence in the of Det. of Steve Pacheco troubled, childhood; delinquent had a a low City Department, Oklahoma Police who quotient; intelligence in the and was struck killing the 1981 testified about of Detra Pet- old, years raising she was head when twelve killing tus. That formed the basis of the possibility damage. of brain aggravating against circumstances found her. Appellant claims trial have counsel could gave Pacheco several details of the Pettus all agree, this evidence. as all uncovered We homicide. this information would known have been Appellant Appellant. presented has not this initially disagree Appel with why Court with sufficient did not reason she lant’s statement detective did not estab attorney her of inform at that these time lish where he obtained the information to facts now claims to her she were essential which he plainly testified. detective tes words, In defense. other counsel could have tified he was involved in the Pettus homicide Appellant, obtained the information from investigation, and in fact took not apprise who did see fit to him it before following statement Appel homicide. agree or trial. We a federal with objected lant’s trial counsel on similar assessment court’s counsel can- “[t]rial grounds, objection but withdrew the when failing for be ineffective to raise claims as him, pointed this fact was out to Appel a fact neglected supply his to which client has reply lant her admits in brief. has She underlying the essential those facts when all therefore waived but fundamental error. possession; facts are within the clair- client’s Further, is a presumption regularity there voyance required is not of effective trial proceedings, Huntley the trial court v. Petsock, Dooley counsel.” v. F.2d (Okl.Cr.1988); (3d Cir.1987). 890-91 (Okl.Cr. Tuggle Page, Additionally, we have examined exhib- 1967), Appellant provide has failed and presented Appellant support its has of this any presumption, rebut the pro evidence to section, agree and with the State several viding only speculation barest the detec the exhibits would have harmful been more personal knowledge tive did not have helpful. Appellant’s than mother testified However, events to which he testified. Appellant did inwell school. contrasts This proves speculation record is without mer Appellant with information the exhibits it. IQ upper had an of mental limit retardation. It also contrasts informa- Certain items were not covered Appellant expelled tion from school be- Appellant’s Appellant statement: the fact fought constantly always cause car- trip together Pettus took Arkansas knife. The ried a information also showed before; armed; year that Pettus was not Appellant had people, assaulted other includ- gun dumpster and that no was found in a light ing parent. and a foster In relative placed said she had where it. As information, Appellant prej- cannot show suming are not statements these indepen- udice because counsel failed to made to the detective at the time of the Williamson, dently -find this information. investigation, do not we view their admission at 411. P.2d In as error. her 1981 fundamental statement homicide, Appellant made after Pettus light findings, of these no merit we find claim, said she at the motel to talk to her request to this nor to the we resubmit friends, boyfriend, to the district evidentia- mentioned Pettus’ the ease court for an ry hearing. in Hodges, Russell the same sentence. In vein, Appellant opportunity stipulate past

that the statement and Pet- to to a conviction trip together involving to tus took a Arkansas was not the use or threat of violence. prove they in trip, offered to fact made the This Court held in v. Smith 819 P.2d they but that were friends. It was therefore — (Okl.Cr.1991), cert. 2801(3). O.S.1981, hearsay. § -, (1992), 112 S.Ct. 119 L.Ed.2d 232 additionally prove when the State must Likewise, the detective’s statement indicating the defendant has committed acts gun dumpster no found in the was not continuing society, he would be a threat to prove gun offered to no found. applicable. the restraints in Brewer are not 1981 statement she told the detective she had rejecting As this Court said in the notion a just placed gun dumpster, in the as she stipulation would suffice when such a circum making did in her 1988 statement. This was stance existed: prove gave story offered to she the same Relying upon stipulations bare could re- in in authorities 1981 as she did 1988. findings continuing sult erroneous gun Whether a was found is of no real conse Requiring threat. the defendant to refute statement, quence. Appellant In her stated implication society of a threat to would her, Hodges Appellant shot at and when amount to proof a shift in the burden of him, fired at fell. think Pettus a reason prove onto the defendant’s shoulders to person reading able the 1981 statement aggravating absence of the circumstance. would draw the inference Pettus did not have very These are the considerations that however, pistol; a even if this were to be compelled They the decision in Brewer. hearsay, considered we do not feel its admis compel also the decision that when the prejudiced Appellant. sion Whether Pettus alleges continuing State threat circum- not, Appel was armed or did she not fire at stance, only permitted it must not but lant; Appellant her fall to saw required present evidence that the de- ground Hodges. after she fired at fendant’s behavior demonstrated a threat society, probability and a that the threat scale, aOn broader we believe the would continue to exist the future. complained-of testimony hearsay is not for Smith, (emphasis 819 P.2d at 277-78 testimony origi- another reason. The was not of nal). unarmed, prove fered to Pettus was a friend Appellant’s, gun or that a was not found in Therefore, complaint is without merit. O.S.1981, dumpster. 2801(3). See The evidence was offered to show similarities C. killing between actions in Pettus complains in her seven killing and her actions the decedent in this proposition teenth her sentence should be interrogator case. told each prosecution reversed upon because the relied pistol dumpster; threw the in a each victim support same evidence to aggra both the weapon; Appel was killed with a .38 caliber vating continuing circumstance of threat and victim, lant knew each whether close friends having that of prior felony conviction in not; killings or and both arose out of an volving the use or threat of force or violence argument. Any error that arose out of the person. to the complained-of beyond remarks was harmless previously This Court has addressed this Byrd reasonable doubt. situation, observing identical although (Okl.Cr.1983). rely upon appellant’s the state did prior support convictions to aggravating each cir-

B. cumstance, the convictions were not used to aspect appellant show the same anof or his Appellant complains in her fifteenth crime. proposition failing the trial court erred procedure

follow the prior established Brewer v. The circumstance of violent felo- (Okl.Cr.1982). There, aspect nies shows the of a defendant as a we held defense given incorrigible person counsel should be violent and pres- whose

101 circumstances, act, gating penalty the death conjunction past in his viewed ent conduct, appropriately punished imposed. shall not be can be only by imposing the ultimate sanction. Appellant compares in- OUJI-CR 440. this hand, continuing the threat the other On statute, arguing it struction to the that goes aspect of the circumstance to the jury interpreted should to read the cannot be society protection of from the need for impose the death sentence unless it finds the Al- probable future conduct. defendant’s totality mitigation in does not the evidence necessity though jury must of consider outweigh aggravating circumstance in- each past arriving in the defendant’s conduct words, argues dividually. In other he each past make prediction, its this does not his aggravating circumstance must stand alone aspects the same. and future totality mitigating circum- against the of the (Okl.Cr. State, v. 819 P.2d 278 Smith stances; any aggravating if circum- one — denied, 1991), U.S. -, 112 cert. S.Ct. manner, outweighed is in such a stance (1992). 2312, 119 L.Ed.2d 282 See also jury impose penalty cannot the death based (Okl.Cr. v. 713 P.2d Green aggravator. on that 1985); Wainwright, 772 F.2d Funchess conquer” construction is This “divide and (11th Cir.1985). 683, 692 supported by the statute itself. The not Here, overlap. the two do not addition 701.11, statute, § O.S.Supp.1987, reads in conviction, prior felony to the violent pertinent part: at least one of the “Unless first-stage prosecution also re-introduced statutory aggravating circumstances enumer- sentencing proceedings evidence into if it ated in this act is so found or is found support aggravating circumstance of con- any aggravating that such circumstance is tinuing proposition threat. This is without outweighed by finding of one or more merit. circumstances, mitigating penalty the death imposed.” Clearly, singular shall not be

D. “aggravating phrase in the circumstance” “any aggravating circumstance” refers such complains next the “con reference, back to the first “at least one of aggravating tinuing threat” circumstance is statutory aggravating circumstances.” unconstitutionally vague. re This Court has aggrava- that each requirement We read no rejected challenge, peatedly see Wil ting on its own stand circumstance must (Okl.Cr.1991), liamson v. — totality mitigating against the of the circum- denied, U.S.-, rt. S.Ct. ce 1592, O.S.1981, supported by 21 stances. This is (1992), L.Ed.2d 308 701.10(C), concerning general sentencing authority support additional has not cited may present- proceedings, evidence where eighteenth proposition of error. It is any mitigating circumstances or as ed “as therefore denied. any aggravating circumstances enu- seq. 701.7 et of this title.” merated Section E. section, mitigation all evidence Under this gave contends the court Appellant next ag- presented, along with all evidence improper dealing instruction with Oklahoma specific gravation. This Court has held (OUJI- Jury Instruction —Criminal Uniform balancing aggravating circum- standards for CR) prop- nineteenth 440. claims She mitigating circumstances are against stances of error the instruction misstates osition constitutionally required. Sellers v. disagree. law. We (Okl.Cr.1991), cert. — instruction reads: -, 310, 116 112 S.Ct. (1991). instruction is one unanimously L.Ed.2d 252 This you If find that one or balancing reasons a assists the aggravating circumstances ex- which more of doubt, against reasons deserves to live beyond a reasonable unless defendant isted involving con- any die and is not one you unanimously find that such she should also of facts that establish crete determinations aggravating circumstance or circumstances id.; 438. guilt. See see also OUJI-CR outweigh finding of one or more miti- Additionally, place Ap- to circumstances, construction must aggravating consider pellant urges prohibit they permitted would this Court from ignore mitigating were evi- utilizing authority reweigh its aggravating altogether. language dence he com- mitigating ag- circumstances should one plains of is found at OUJI-CR 438. invalid, see O.S. gravator found to be Williamson, rejected argument We this in Dixon, 1991, 701.13(E); Dutton v. § 757 P.2d again. 812 P.2d at 409. We do so (Okl.Cr.1988), as we would have no way knowing jury those situations where a H. may aggra- have found the existence of two circumstances, vating yet determined the to- Likewise without merit tality mitigating outweighed circumstances twenty-second proposition, improp- the court aggravator one but not the other. We do not erly jury instructed manner Legislature in believe the one instance would they which weigh aggravating were to give authority reweigh ag- this Court the mitigating acknowledges circumstances. She circumstances, gravating mitigating then jury was it instructed had to find the operation allow a statute which its would presence aggravating circumstances be- deprive very authority. this Court of that yond doubt, a reasonable complains but jury was told it could authorize the death assignment This of error is without merit. penalty if it aggrava- determined evidence outweighed mitigating tion evidence. We F. consistently rejected have and continue to Appellant in proposi her twentieth Williamson, reject argument. 812 P.2d tion contends the trial court erred in allowing at 410 and eases cited therein. aggravation giving evidence of without first proper complains her notice of it. She I. Pettus, evidence she and Detra the victim of homicide, the 1981 were friends who had rejected the same manner we have trip taken a together. to Arkansas She does twenty-third argument, that the trial court not claim prosecution did inform her should jury have instructed the it had the evidence of the Pettus homicide would be option regardless to return a life sentence used. This Court addressed a similar com findings concerning its aggravating and miti- State, plaint in Williamson v. 812 P.2d 384 gating circumstances. Id. — (Okl.Cr.1991), cert. -, (1992). 112 S.Ct. 118 L.Ed.2d 308 J. There, purpose we held the of notification Appellant next contends her death present to allow a defendant time to sentence should be vacated because the court explanation defense or an for the conduct. instructed the punishment to determine Id. at 408. Here, the State filed notice of an for the possession offense of (O.R. felonious of a open policy 81), indicating file the infor punishment firearm in the stage. same We mation Appellant. was available to Addition initially Appellant object note failed to to the ally, this Court has held that “the State is not procedure trial, or instructions at and has required give description a detailed of the thus waived all but fundamental error. Id. evidence that will be offered in order to meet at 409. statutory notice of section 701.10.” Id. (citing Wilson v. Appellant directs our attention to the (Okl.Cr.1988)). Appel Prosecutors informed death only. sentence for the murder lant details of the Pettus homicide would be regard note charged presented aggravation. We view this as stage first carrying a loaded firearm. sufficient in this case. The information claims a violation of 21 § O.S.Supp.1983, 1283. This Court has held

G. practice better is to hold a bifurcated alleges next improper- the court trial when a defendant violates the Oklahoma ly that, jurors instructed although they Act, here did. See Firearms which O.S.1981, 1289.13; Cooper 765 this Court before. Duvall v. 1213-14 (Okl.Cr.1988). (Okl.Cr.1991). prac again. P.2d This 633-34 We do so applicable tice at the time trial9 af VII. MANDATORY SENTENCE greater protection. forded defendant REVIEW Therefore, trial the court was correct fol Court, lowing the law set forth this and O.S.1991, required by This Court 701.13(C) we cannot see how deliberation on the fire (1) § to determine whether the charge any way prejudiced jury arms imposed sentence of death was under the penalty. to inflict the death passion, prejudice any influence of or other (2) factor, arbitrary whether the evi- notes, however, This Court that the supports jury’s finding dence aggrava- charge conviction for the firearms must be ting circumstances as enumerated in 21 O.S. reversed and remanded for a new trial. Al 1981, § 701.12. Pursuant to this mandate though proce the trial court used the correct in response Appellant’s sixteenth dure, properly jury it failed to instruct the error, proposition of shall first determine we stage. end the first The court in sup- whether the evidence was sufficient to jury simple possession structed the on of a port imposition penalty. of the death firearm, (1) telling them the elements were Appellant asserts the in evidence is (2) (3) (4) knowingly; possessing; any pistol; posed sufficient both to show she a continu (5) wilful; possession such in OMahoma (21 O.S.1981, ing society § threat 701.- (O.R. 174). County, Oklahoma This instruc 12(7), previously and that she had been con apprise jury tion does not of a crime in felony involving victed of a use or threat the state of carrying OMahoma. It is the (21 O.S.1981, person § of violence to the 701.- vehicle, O.S.1981, a loaded firearm in a see 21 12(1)). prosecution incorporated The first- 1289.13, § carrying any or firearm after con evidence, stage presenting as well as addi felony, O.S.Supp.1983, viction of a see in support aggravating tional evidence Cooper, that makes the act a crime. circumstances. In addition to the evidence 765 P.2d at 1213-14. Omission of these ele opinion, set forth second-stage earlier necessary. ments makes reversal See Hack evidence showed had been convict (Okl.Cr.1988) ett v. 751 P.2d degree manslaughter ed of first in 1981 as a (omitting battery” elements of “assault and result of the death of Detra Pettus. Taken defining and “intent to kill” from instruction light prosecution, in the most favorable to the battery elements of crime of assault and with we find the evidence sufficient. Evidence deadly weapon a constituted reversible er concerning prior manslaughter conviction ror). showed was confronted with the violence, area, Therefore, threat of left the Feloniously the conviction for returned decedent, pistol, pistol whipped a Carrying with a Firearm must be REVERSED abdomen, police shot her in the then told Appel- and REMANDED for a trial. new weapon dumpster. threw the in a con twenty-fourth proposition lant’s That is otherwise disagreement, from frontation arose a verbal without merit. part escalated at which least as result autopsy conduct. showed K. that decedent died as a result of a contact wound, proposition, Appellant indicating weapon In her last claims was fired from death, failing range. Appel court erred to instruction the close As a result of this jury “presumption argu- pleading guilty on the after of life.” This lant was convicted rejected by degree manslaughter. ment has been considered and first Evidence of that procedure Chappie 9. This was the at the time of trial. Booker T. (Okl.Cr.8-27-93) Cooper (holding Compare has since been overruled. O.B.J. 2606 that when (Okl.Cr. charged charge Williams v. a defendant is with a of felonious 1990) (holding possession felony, an accused is not entitled to a of a firearm and another after felony, charge of a the firearms shall bifurcated trial when the former conviction is an conviction charge) stage proceedings). tried the second essential element of the firearms conviction; slaughter she suffered emotional evidence combined with can be homicide up- Appellant got of her childhood deprivation which showed as result from this trial decedent; fol argument bringing; with the the crime was committed into an to leave the house emotionally she tried un- passion lowed her when and she was heat of ap relationship; beneficial; stable; terminate the hold and treatment would be station, police where she proached her at the particularly heinous. The crime was not abdomen; into the decedent’s fired shot aggravating of the two found the existence fled, weapon by attempting to hide the then above, while declin- discussed circumstances acquaintance. Before the giving it to an ing to find she committed the murder shooting, Appellant had written cards prosecution. avoid arrest or decedent, threatening her with letters to the mitigation Reviewing the evidence leave. After she was if she tried to violence of death to aggravation, we find the sentence arrested, police she had thrown the she told appropriate. factually substantiated nearby dumpster behind a busi pistol into a Finding warranting reversal or decedent, no error day the The she shot ness. same modification, judgment for the and sentence son and said she she called the decedent’s Degree in the First is AFFIRMED. decedent was dead. Murder not rest until the would above, supports both the we this evidence For the reasons stated REVERSE We believe that con aggravating circumstance and REMAND for a new trial the conviction threat, continuing v. stitutes a of a Firearm. for Felonious Possession Battenfield State, 555, (Okl.Cr.1991), 566 cert. — denied, -, 1491, 112 117 S.Ct. U.S. STRUBHAR, J., JOHNSON, V.P.J., and State, (1992); v. 812 L.Ed.2d 682 Williamson concur. — denied, (Okl.Cr.1991), 384, cert. P.2d 406 CHAPEL, J., concurs result. 1592, U.S. -, 118 L.Ed.2d 308 S.Ct. (1992); previously had been and that she LANE, J., dissents. involving felony the use or

convicted of a person. v. to the Smith threat of force LANE, Judge, dissenting. (Okl.Cr.1991), cert. de part respectfully I must dissent to that — -,

nied, 112 S.Ct. U.S. majority opinion the addresses the which (1992); P.2d Smith v. L.Ed.2d 232 many facets of self-defense raised this (Okl.Cr.1987), cert. 1214-15 case. 98 L.Ed.2d 383 108 S.Ct. appellant That shot and killed Gloria (1987). trial. ut- Leathers was not contested at Of initially alleged prosecution The appellant importance most to the was her Ap aggravating circumstances: three theory important was of self-defense. So felony pellant convicted of a involv had been defense, assumed the risk of cross- this she violence; posed ing she the use or threat of exposure examination and of her violent his- society; continuing and the murder threat to tory present to take the stand and evidence pros arrest or was committed to avoid lawful necessary judge to raise it. The trial Appellant presented mitigation ecution. As presented evidence to satisfied she sufficient good relationship showing had a evidence jury. and so instructed the raise the defense family; her the circumstances of the with discretionary supports deter- The record this penalty; the death the crime did not warrant do, mination. the trial court did not What relationship Appellant and the dece between case, requires reversal in this is and which dent; habits; good her her mental work jury the defense of instruct the that once crime; her nature state at the time of the is raised the State bears self-defense personality; of rehabilita her chances beyond disprove to it a reasonable burden tion; age; victim and the her her fear of the 745; doubt. OUJI-CR West See violence; prior victim’s her care conduct (Okl.Cr.1990). 798 P.2d 1083 good beings; for other human her conduct remorse; of fact the Imposing itself as the trier penitentiary; showing of appellate majority proper review prior except the one man- substitutes no criminal record Ar- most is the failure of the her” standard. The serious error “we don’t believe goes guing spin majority shifting its factual own trial court instruct on the State’s by announcing the trial court so far as erred requires reversal and burden. This error finding put enough on evi- the defendant court for new trial. remand the district theory of self dence to take her defense majority exception I also take to the find- jury. is simple truth the record ing was the appellant the evidence the “man” supports court’s decision the trial any probative relationship lesbian has in her theory of self defense. defendant raised the involving a case value all. Were Thus, not abuse the trial court did its discre- couple, the fact that a male heterosexual instructing jury. tion so Whether relationship “man” in the defendant was the believes, appellate or indeed court whether nothing. I likewise tell me find no would jury ultimately have would believed evidence, purpose proper for this and believe analytical consequence. defense of no only purpose present its defen- the proper What matter is whether trial does sympathetic as less to the dant than consequences flowed from undeniable victim. successfully appellant fact the raised the is- Unfortunately they did

sue self-defense.

not. summarily num- majority dismisses a stating alleged

ber of errors self-defense was

not raised in this case. Since the defense raised,

plainly I must dissent from

majority’s these treatment of issues as well.

Case Details

Case Name: Allen v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 15, 1994

Citation: 871 P.2d 79

Docket Number: F-89-549

Court Abbreviation: Okla. Crim. App.