*1
Billy ALVERSON, Appellant, Don Oklahoma, Appellee.
STATE No. F-97-1018. Appeals Criminal Court of Oklahoma. 6,May Rehearing Denied June
501
503
505 *7 Fransien, Tulsa, at trial. for defendant
Jim Lafortune, Attorney, District William Swab, Attorney, Tul- Assistant District Brett sa, at trial. for the State Tulsa, Southerland, appellant on for Stuart appeal. Edmondson, Attorney General
W.A. Drew Miller, Oklahoma, Assistant B. Jennifer General, City, Attorney appel- Oklahoma ' appeal. on lee
OPINION
CHAPEL, Judge:
Alverson,
Billy
Appellant,
Don
conjointly
charged
with three codefendants1
degree malice murder
crimes of first
with the
*8
alternative,
felony
and,
degree
first
in the
I)
(Count
O.S.1991,
in
of 21
violation
murder
701.7(A)
(B)
danger-
robbery
§
and
with
&
II)
(Count
in
of 21
weapon
violation
ous
O.S.1991, §
in
of Tulsa
the District Court
The State
County,
No.
Case
CF-95-1024.
aggra-
particulars alleging three
a bill of
filed
juryA
trial was held
vating circumstances.
Wilson,
conjointly with
Appellant
was tried
Alverson
Lee
were Michael
1. The codefendants
only
Harjo. Haijo
to re-
Harjo.
was the
codefendant
and Richard
Demond Brown
Darwin
parole.
possibility
the
Har-
conjointly
life without
and
ceive
were tried
Wilson and Brown
part
in
appeal
in
and reversed
jo’s
was affirmed
appeals were
Their
affirmed
sentenced to death.
Harjo
by
opinion in
v.
F-
part
unpublished
OK
ted for the or II. DUAL JURY ISSUES prosecution. O.S.1991, a lawful or arrest 701.12(4) § & ¶ 5 Harjo Alverson and co-defendant conjointly, separate ju-
were tried but with I. FACTS deciding complains ries their fate. Alverson in his sixth of error that this dual co-defendant, 2 Alverson’s Michael Wil- procedure law, by is not authorized son, QuikTrip worked at the convenience deprived that it him of a trial. fair We store located at 215 N. Garnett in Road disagree. Tulsa, Wilson, Alverson, Oklahoma. and two friends, Harjo of their Richard Darwin Brown, approved This Court has the use QuikTrip during went to the ear- juries of dual in ly morning February 26, codefendant cases.2 Addi hours of tionally, Yost, previously in They night chatted we ruled an “Extraor with Richard clerk, dinary opportune by until the most Writ” action initiated time arose Alverson and juries to him them accost and force him into the his that use codefendants of dual They back discretionary cooler. handcuffed him and tied this case was with the trial tape. legs Harjo his with duct judge procedure prohibited Alverson and since the is not Harjo carry- went outside and returned with Accordingly, Oklahoma law.3 collateral ing a baseball bat. estoppel prevents arguing Alverson from jury procedure dual contrary this case was ¶ Yost was found beaten to death However, to Oklahoma law.4 we will address blood, pool of beer and milk. Part of a regarding procedure’s claims broken set of handcuffs was found near his rights. effect on his hip. right pin The medical examiner found from these handcuffs embedded in Yost’s ¶ 7 bears the burden of during autopsy. skull Two safes contain- showing prejudice actual before relief will be $30,000.00 stolen, ing over were as all well proce warranted.5 Alverson first claims money register from the cash chilling dure had a effect on cross-examina videotape. store’s surveillance All four de- attorneys respective tion because for the day fendants were arrested later same wearing ques defendants had to be careful not to ask tennis carrying new shoes and wads prejudicial tions drop of cash. The one co-defen stolen safe and the store videotape, having dant without first surveillance other co-defen as well as other dam- evidence, aging in a dant’s removed. He when was found search of claims occurred, bat, left improperly Alverson’s home. baseball the vic- his bloody jacket, speculate QuickTrip against tim’s him the other cuff evidence handcuffs, presented. from the set of broken Wil- about to be Alverson does not jacket son’s Nike which showing preju matched the one he cite instances actual *9 dice, tape wore hypothesizes on surveillance were taken but jury rather that his ¶ 2. Cohee 942 P.2d 4. Wilson v. 1998 CROK Guideline Kane, 213. citing Wilson v. 1993 OK n. P.2d Turnbull, Harjo Denying et al. v. Order Peti- 96-1258, Relief, Extraordinary tions for Nos. P P Wilson, ¶ 96-1266, 14, 1997) OK CR 73 at P.2d (Okl.Cr.January P at 96-1278 (not (citations publication). omitted). for Mandy jo’s witness questioning not of State’s way. in are this We prejudiced was Rumsey did Rumsey. had testified she persuaded. Harjo, she from not see blood on whom knew ¶ judge painstakingly instruct- 8 The trial school, night also of murder. She jury be occa- that there would ed Alverson’s paid not much testified that she had attention to presented would be where evidence sions him. to Alverson because she did not know other, they but just jury and not one Harjo’s Rumsey color counsel asked what only the case on the evidence were to decide clothing wearing night, Alverson was regarding Alverson. presented to them wearing a and she answered he was designed to allevi- instructions were Court’s jacket. Harjo’s then asked dark blue counsel on any possible speculation or ate confusion reason tell if her if that was one she couldn’t juries. void part two The record is of the clothing— blood on his he did or didn’t have not juries that the did follow any of indication dark color. because of the the trial court’s instructions. object attorney did not to 12 Alverson’s ¶ Moreover, to not Alverson does cite timely manner, waiving in a all question this any specific instances where the dual disagree ques- plain error. that the but We procedure defense counsel’s cross- “chilled” having to put position tion Alverson in of indi- witnesses. There is no examination of against prosecutors. It two was a defend attorney’s that his cross-examination cation solely for did question asked clarification and any would have been different of witnesses any not elicit information that Alverson’s used. procedure had not been the dual already it. Accord- did not have before merely hypothesizes gen- in Again, Alverson ingly, plain not it did rise to level juries tend to chill cross- eral terms that dual arguments Having found none of the error. to show examination. This is insufficient merit, proposition propo- in be of this this to prejudice will not merit relief. actual is denied. sition also claims that Alverson jury procedure created a conflict dual III. STAGE ISSUES FIRST attorney was his interest situation because anything to co- prejudice to do ordered not error, In Al- his first Harjo. placed his He defendant asserts illegal was under arrest verson contends he attorney position he had to where simul he removed from at the time was Wilson’s parties. taneously protect of two the interests vehicle, driving a li- which he was without However, this is not the case. Alverson’s cense, handcuffed. He claims his subse- do attorney merely not to was instructed illegal by quent was tainted confession Harjo anything prejudice to co-defendant suppressed. and must arrest be 'presence Harjo’s jury. All Alverson’s lawyer had ask the court to to do was remove claim, Contrary to Alverson’s along Harjo’s proceed jury if he wanted arrest, but rather under he was not under Harjo. damaging to This lines which were re investigative when officers detention him or a way no made an advocate co-counsel him from the car and handcuffed moved Harjo, on Hollo- and Alverson’s reliance only being He detained so him.7 was entirely misplaced. ivay v. Arkansas6 is investigate possible involve could his officers murder, ment in but also because Finally, complains Yost’s driving a li- just caught him without Har- had prejudiced that he co-defendant "investigative not "under arrest” detention” and 6. 435 98 S.Ct scene; (1978) (reversible attorney rep- despite being at was not "un- handcuffed to order error un- until the detention had become with conflict- der arrest” resent three different codefendants stop possible reasonably ing intrusive—i.e. when vehicle where counsel warned interests joint transported to completed the detec- will occur because of and he conflict of interest representation). event, division). his co-defen- unlike tive dants, driving caught without a Alverson was 39-40, every right arrest thus had license and officers Brown v. 15) (Tr.VI (defendant immediately. (citations omitted) under him *10 508 Approximately Accordingly, explanatory
cense.8
ten minutes into his
crime.
his
testimo-
detention,
ny
the officers learned that Aiverson
properly
lay
was
as
admitted
witness
outstanding
had
misdemeanor arrest war-
opinion testimony.11
an
rants.9 He had not been detained for
attempts
distinguish
17 Aiverson
to
of
unreasonable amount
time before these
Jones,12
case from that of United
v.
States
facts,
gave
every right
ar-
which
officers
to
explanatory testimony
which held similar
re-
him,
light.10 Accordingly, Al-
rest
came to
garding
tape
up-
an audio
admissible. Jones
subsequent
transporta-
verson’s
arrest and
testimony
held
of a
the
witness who heard
tion to the
of
Tulsa
detective division
the
unintelligible tape
the statements
an
on
as
Department
legal,
Police
the
confes-
recorded;
being
testimony
were
his
ren-
any
by
sion which
followed was
tainted
tape
dered
difficult to understand
record-
illegality in his
proposition
arrest. This
must
ing
incorrectly
Aiverson
admissible.
asserts
be denied.
proposition
that Jones stands for the
that
In
third
er
his
of
only
actually present
someone
the
when
re-
ror,
complains
Aiverson
that Detective Ma-
cording
testify
is made can
to its contents.
improperly provided
an
kinson
the
with
contrary,
simply upheld
theOn
Jones
the
prejudicial “lengthy
irrelevant and
narrative”
of
audio-tape recording
admission
an
where
regarding
depicted on
what was
the store
familiar
one
with its contents testified and
videotape.
surveillance
The record
clear
recording gave independent
the
support
to
that Detective
what
four
Makinson knew
all
testimony.13
his
defendants
like and
looked
had viewed the
videotape
entire
before he testified.
the
For
case,
In
Detective Makinson was
benefit,
jury’s
identified all four
Makinson
familiar with all four
defendants and was
tape
being-
defendants on the
as it was
position
identify
to
them when he saw them
played.
change
He
the
discussed
shift
videotape. Testimony
the
on
from Makinson
occurred,
regarding
and he also testified
witnesses, regarding
and other
when the
tape
on
what could be heard
as the
change
place
shift
took
and the time of the
beating
place.
took
assault,
victim’s
was corroborated
the vid-
eotape.
playing
find no error in
We
16 The detective’s identifications of the
videotape
defendants,
explanatory
or in Makinson’s
happen-
discussion what was
testimony regarding
ing during
change,
testimony
tape.
“narra-
the shift
tive”
similar to
concerning
tape
preparation
of an
audible sounds on the
transcript
all
accurate
helpful
jury. They
were
to the
to use as
listening
based on Makinson’s
of the de-
reference tool when
to
observations
an audio-
prior
tape.14
watching
videotape
accurately,
fendants
More
already
stated
above,
knowledge
his
lay
the events that had tran-
it
opinion testimony
witness
spired
on
investigation
based
his
of the
properly
that was
it:
admitted because
8. Tr.VI at 15.
Brewer v.
OK
CR
51 n.
denied,
P.2d
365 n. 1 and cert.
U.S.
(1986);
107 S.Ct.
O.S.
9. Aiverson
brief
claims in his
that officers did not
only arguably
§
improper
2701. The
com
learn of the existence
tírese
warrants until late
ment was the detective's statement about "the
night,
transported
after Aiverson had been
However,
hitting
bat
victim the head.”
However,
police
Sgt.
station.
Allen testified
objection
defense counsel's
was sustained and he
at trial that he was
he and
sure
the other arrest-
specifically requested
not be admonished
ing officers knew
war-
about Alverson’s arrest
event,
disregard
the comment.
scene,
they transported
at the
rants
before
him.
comment was not a serious error which would
(Tr.VI
13;
4-5)
Tr.VII at
justify relief.
Brown, supra.
Beck
reliance on
Cf.
(10th Cir.1976),
12.
509 object on these Alverson did not perception of the tered. rationally on the based (2) testimony, grounds during waiv- Yorkston’s witness; the trier of fact.15 aided plain ing all but error.19 ¶ eight, Al- propositions seven and In 19 the of complains about introduction verson ¶ purpose 22 the chain “The of argues proposi- in DNA evidence. Alverson against custody guard rule substitu of is to erroneously court the trial tion seven tampering the be tion of or with evidence (PCR) Polymerase Reaction admitted Chain is time found and the time it tween the it is holding a first results without DNA test analyzed.”20 Although the State has the object hearing. Alverson did not Daubert16 showing the evidence in substan burden of is trial, at this evidence to the admission of tially at the of offer the same condition time plain waiving all but error. committed, it is when the ing as crime necessary possibility of alteration that all recently visited not 20 We have only speculation If there is negated.21 DNA be and determined PCR this issue occurred, it tampering is or alteration admissible in the State testing is reliable and allow point, proper to admit the evidence and Alverson concedes Oklahoma.17 go weight than its DNA its rather argues but that the PCR evidence doubt expert admissibility.22 came an who did case from explain performed the how she statistical case, includ 23 In this witnesses analysis probability or describe the statistical police officer tes ing five detectives and one it was Assum on which based. information question in the tified that the items were must ing deciding that State without In were found. same condition as when testimony proba before statistical elicit such addition, the indicated the items witnesses admitted, record bility will be evidence properly marked for identification testify in fact that Brown did suffi reflects testimony ex sent to the OSBI. Yorkston’s Thus, ciently regarding issues.18 these plained within how the evidence was handled properly admitted. evidence was DNA testimony, find the Given this we OSBI. ¶21 Proposition eight, Alverson con- Ap against properly admitted evidence the State failed to establish a sufficient tends pellant. custody for items tested OSBI chain exam- serologist Jamie Yorkston. Yorkston IV. FIRST STAGE JURY following which had been items ined INSTRUCTIONS (1) porch: half of from Wilson’s one seized error, (the Al- 24 In his ninth other half was the broken handcuffs in- degree murder body); contends a second near the victim’s verson found at scene (3) (2) given. He claims jacket; should have been QuikTrip Wilson’s Nike struction Yost’s robbery by bat; merely commit jacket; piece of intended to he metal (which fear, felony predicate for pieces of or glass matched three force broken cooler). degree felony mur- glass QuikTrip Alver- lesser offense second found weap- der, robbery dangerous and not with complains failed to demon- son the State on, felony first evidence, predicate samples taken which that this strate felony that Alver- it, degree al- murder. We note had not contaminated or from been 5,¶ State, 116, Green, OK 756 Minter v. 15. CR 126 at 713 P.2d 19. OK 11. P.2d Pharmaceuticals, v. 16. Daubert Merrell Dow State, Middaugh v. (citation omitted). P.2d adopted Taylor v. This Court Daubert in 10, ¶ 889 P.2d 328- ¶ 59, v. OK CR 22 admissible). 21. Driskell testing (holding RFLP DNA v. OK CR 17. Wood ¶ 13, OK CR 22. Contu 1000, 1003. 18. Tr.VI at 234-35. *12 ¶ request
son did an instruction not on murder Alverson contends first attorney his degree, waiving plain all was ineffective because he stat second but during dire, anticipate, I ed voir “And error. based evidence, you on the will be in a second stage, looking punishment.”28 at This was ¶ case, In this the facts are of exploring potential asked the context a undisputed that victim was beaten to juror’s feelings penalty. the death toward bat, danger death with a which baseball is trial, Throughout strategy counsel’s was weapon weapon. ous This used so argue culpable less Alverson was than the robbery completed. could Where a be rob others in murder. Yost’s Given the over bery dangerous weapon, is committed with whelming guilt, including of evidence felony degree second murder cannot be ac store tape surveillance and Alverson’s confes complished because offense becomes one sion, strategy trial counsel’s sound of at of degree felony Accordingly, first murder.23 tempting damage regarding punish control an degree felony instruction on second mur ment him did not render ineffective. improper.24 der would have no been We find error here. ¶28 Next, Alverson contends his
attorney was ineffective because he neither V. ISSUES ADDRESSING BOTH cross-examined State’s DNA witnesses
FIRST AND SECOND STAGE nor offered DNA defense evidence
presented. concedes Alverson “hinge” State’s case did on not the DNA A. INEFFECTIVE ASSISTANCE evidence.29 The State’s DNA evidence was OF COUNSEL that the blood on the found items seized from ¶26 In his fifth porch codefendant Wilson’s was that of the error, attorney Alverson contends his victim. We fail to see how the outcome of ineffective. of an Our review ineffective as this trial would have differed had Alverson’s begins sistance claim pre of counsel with a counsel cross-examined these witnesses or sumption presented competence, refuting and the burden is evidence the DNA re Accordingly, on the sults. Alverson preju defendant to demonstrate both was not defi by diced performance performance cient counsel’s and relief resulting prejudice.25 not warranted.30 There is a strong presumption that counsel’s professional, conduct was and the defendant presumption
must overcome the
that coun
29 Alverson
also
contends
equaled
sel’s
strategy.26
conduct
sound trial
attorney
that his
was ineffective because he
dispose
If
can
ground
we
the claim on
heinous,
conceded the crime was
atrocious or
prejudice,
of lack of
we will not determine
cruel.
In making
argument,
Alverson
performance
whether trial counsel’s
was defic
takes one
stage closing
sentence from second
ient.27
arguments completely out of context. Coun-
State,
19, 31,
Lambert,
60,
23. Foster v.
OK CR
714 P.2d
27.
CR
1994 OK
79 at
sel’s exact atrocious, port ordinary injuries Alverson was his contention that he was cruel der argued major participant. inorganic He as received a child resulted brain robbery, not mur- only to commit damage, dispose intended of this claim a lack of we on der, minimal. participation that his prejudice well.35 lesser cul- Arguments as to one defendant’s stage of are common in the second
pability
*13
B. GRUESOME PHOTOGRAPHS
constitute ineffec-
capital trials and will not
of counsel.31
tive assistance
In his second
32
error,
challenges
of
the admissibili
Alverson
Next,
complains
Alverson
30
ty
depicting
vic
photographs
of several
the
failing
properly
was ineffective for
counsel
pho
The
tim and his wounds.
admission of
stage
of
prepare one
his second
witnesses.
discretion,
tographs
trial
is
the
court’s
within
Beverly
worker
Jean Carlton was
Social
ruling
not
and this Court will
disturb that
present
history to
Alverson’s social
called
an
absent
abuse of discretion.36 This Court
a
jury.32 This witness was not aware of
the
previously
question
that
has
held
the
report prepared from one of
pre-sentence
pictures
unnecessarily
whether
are so
hid
prior
the
Alverson’s
convictions. Because
impact
produce
eous as to
an unfair
on a
rejected
continuing
aggrava
the
threat
jury.37
tor,
dispose of
claim on a lack of
we
prejudice.33
Ex
Alverson contends State’s
33
95, 99, 100,
hibit Nos.
and 104
Finally,
Alverson takes is
improperly
all
admitted
were
into evidence
investigate
counsel’s failure to
al
sue with
during
stage
the
trial.38
first
Exhibit Nos.
injuries
leged head
Alverson had received as
properly
and 95
to cor
request funds to
an
introduced
child. Counsel did
hire
issue,
testimony
which
roborate
the medical examiner’s
expert
to look into this
was
concerning
wounds
victim’s
trial court.34
defensive
to the
properly denied
Because
assistance,
5,¶
expert
Rogers,
court-appointed
for
he must
¶ 35 Exhibit No. 115 is more trou
especially
uction.46 This
given
true
the
blesome.
It
is a
photograph
color
of the
overwhelming
State’s
evidence that the vic
cavity,
victim’s
top
brain
the
of his skull
prior
death,47
tim suffered
including
his
having
by
been removed
the medical examin
the
tape
surveillance
on which one can hear
pre-trial
er. At
hearing
the
motion
wherein
screaming
help
the victim
admissible,
moaning.
the trial court ruled it
the State
argued
say
purpose
its
We can
with
was to illustrate
the utmost confidence
the mas
sive crack the victim suffered from one side
the
photograph
admission of this
did not
¶74, 46,
39. Romano v.
1995 OK CR
42. Tr.X at 3-4.
92, 114,
P.2d
(1996)(pictures
depicting
43. Tr. of
at 122-23.
4/29/97
nature,
wounds, including
extent and location of
wounds,
relevant);
defensive
held
Wood v.
fact,
impossible
44. Tr. of
at 44. In
it is
5/19/97
311, ¶22,
(pic
1976 OK CR
distinguish
hinge
between where the
fracture
properly
tures
admitted where
tended to
began and ended and where the medical examin-
pathologist’s testimony
corroborate
concerning
sawing
place.
er's
took
hands).
defensive wounds to head and
104, 8,¶
45. Oxendine v.
right
40. No.
99 shows the
side of the victim's
(Okl.Cr.1958) (holding
pic-
color
face; No. 100 shows the left side of the victim’s
showing
tures of nude
autopsy
victim
results of
face; No. 101 shows a full frontal
shocking,
view of the
unnecessary
highly
preju-
so
face;
reversal).
victim's
No. 102 shows the back side of the
dicial as to force a
injuries
victim’s head. Different
can be seen in
pictures.
each of the
46. Wilson v.
P.2d 448.
Romano,
V46,
cutorial misconduct in the argued, “you sympa- second for his then can let ceedings. argues prosecutor He thy your blatant- point. enter deliberations at this ly misstated you evidence twice: once when he But I submit this is not about argued forgiveness. that Alverson had told Detective sympathy.”57 It’s not about Yost, planned killing context, Folks that he on and When viewed in it is clear that the again argued prosecutor when he that Alverson had discussing sympathy for the defendant, such, admitted to Folks that he knew the victim. As going kill to rob and Yost. possibly statement cannot be viewed as an attempt sympathy. to evoke victim his statement to Detec Folks, tive robbery Alverson stated the had ¶ 45 Alverson also takes issue with planned been about two weeks advance. prosecutor’s description victim as go He did not so far as concede the man, trying living “This innocent to make a Therefore, planned. prose murder was baby boys.”58 for his wife and two Once argument However, cutor’s was inaccurate. again, objection trial, lodged no waiv viewing whole, the record as a we find the ing plain descrip all but error. We find this error harmless. The trial court reminded proper tion was it was based on the after each of defense counsel’s ob improper evidence. It is far less of an solici jections lawyers’ statements were sympathy tation for victim than other state Additionally, not evidence. defense counsel upheld by ments this Court.59 argued that his client had not made as sweeping Likewise, prosecutor confession as the prosecu mis we find the takenly alleged. “Allegations prosecutori place tor did not ask themselves al asked, misconduct do not warrant position reversal of of the victim when he conviction you bat, unless the cumulative effect was “Have ever taken a metal baseball deprive such to your just defendant of a fair tri take it in barely, hand ... al.” Because we do not inap barely tap find that the your the metal baseball bat on *16 propriate deprived Appellant skull, just comments barely. of a This.argu It hurts.”60 fair jury’s trial or affected the assessment of argue pain ment was made to the victim felt penalty, the death, death relief prior wholly is not warranted.55 to permissible his area during sentencing of stage closing discussion alleges Alverson further argument. prosecutor improperly attempted to evoke stated, sympathy for “you the victim when he 47 We have reviewed each of the com- sympathy your can let plained-of enter deliberations at statements and find none resulted point.”56 objection this justice, No was at in miscarriage deprived ap- made of trial, waiving plain all but error. pellant right, We find no of a substantial trial or had error here. impact This statement was made in judgment whatsoever on the or sen- discussing context of mitigat the defendant’s Accordingly, proposition tence.61 is de- ing prosecutor evidence. The discussed how nied. State, ¶50, 29, 54. Smith v. 1996 OK CR nightmare being 932 P.2d immersed in a child's worst of 521, 531, denied, cert. by trying 521 U.S. 117 S.Ct. chased an evil monster to kill her” and (1997), citing request Duckett v. imagine what she went 7, 19, 1995 OK through approach improper cert. held to solicitation denied, victim, 519 U.S. sympathy improper for the but not as it L.Ed.2d 872 presented was based on the evidence and on the death). theory State's of the victim's
55. Id.
60. Tr.X at 67.
56. Tr.X 37.
83, ¶30,
61. Hawkins v.
1994 OK CR
Id.
(1995), citing Staggs
(a) co- dence that Alverson and his three presented evidence insufficient the State dragged signifi- jumped for a defendants Yost him to the victim was conscious show losing Harjo length cant of time before conscious- into back cooler. Alverson and preceded “one to render his death go ness so as left then the cooler to outside and retrieve abuse”; physical or serious torture handcuffs and a baseball bat. It is safe to (b) heinous, especially if even the death was necessary infer restraints because cruel, failed to atrocious or the State show struggling. the victim was One can hear it to Alverson caused be so. help screaming victim on the surveillance Harjo tape as exit the store. sufficiency of the 49 When the findWe that even before the baseball bat aggravating evidence of an circumstance is cooler, brought into the the victim had appeal, will challenged on this Court view the already an “suffered extreme mental light evidence in the most favorable to the guish being captive, knowing that his held any competent State and determine whether ultimate fate rested the hands of his at supports charge evidence the State’s that the identify tackers he could if left to whom aggravating circumstance existed.62 The live.”64 determining standard for the existence heinous,
aggravator “especially atrocious or Harjo returned Once Alverson cruel” is as follows: bat, forty to the with the baseball over cooler aggravating has [T]his Court limited this “pings” beating could be heard the brutal circumstance cases in which State place. Although the took medical examiner proves beyond a reasonable doubt that the many testified that of the could have blows preceded by murder of the victim was death caused instantaneous or unconscious- abuse, physical torture or serious which ness, the defensive wounds on the victim’s may great include the infliction of either plainly hands demonstrate that he did not anguish physical or extreme mental cruel- swiftly, lose rather was consciousness but ty. physical “Absent evidence of conscious painfully happening what aware of death, suffering prior of the victim Additionally, hinge him.65 hand- from the physical or required torture abuse serious skull, cuffs was removed from the victim’s standard is not met.” As to the extreme indicating point placed his at some he had cruelty prong aggravating mental *17 hands the bat head in between and his circumstance, creating “torture extreme posture. ample defensive We find evidence mental distress must be the result inten- anguish of both mental and con- extreme by the The tional acts defendant. torture physical suffering prior victim’s scious to the produce anguish in must mental addition aggravating to necessity accompanies support death this circum- to that which of the underlying killing. Analysis must stance.66 focus on State, 26, 62, ¶ though physical
62. Hain v.
1996 OK CR
919
victim did not suffer serious
P.2d
1130,
(citation
denied,
omitted),
subjected
men-
1146
cert.
519
abuse where she was
to extreme
1031,
588,
cruelty).
U.S.
117
tal
S.Ct.
517
¶
65. See
v.
887
Walker
15,
318,
denied,
859,
¶
301,
Cheney
63.
v.
OK CR 72
P.2d
P.2d
cert.
U.S.
116
1995
909
516
(citations
(1995) (while
omitted).
S.Ct.
L.Ed.2d 108
medical
many
may
have
examiner testified
the wounds
77, ¶ 70,
unconscious,
64.
v.
Brown
the
been inflicted while victim was
many
uphold
P.2d 474.
alone
This
is sufficient
the
defensive wounds she incurred established
jury’s finding
aggravating
of this
circumstance.
quite
during
that she
alert and
much
active
83, ¶ 45,
attack).
OK CR
See Hawkins
of the
denied,
cert.
Cheney,
(upholding
at
66.
OK CR
L.Ed.2d 408
heinous,
aggravator
atrocious or cruel
even
argues
ing
aggravator
perform
52 Alverson
in the alter
this
failed
the
constitutionally
narrowing process.
native that even if the evidence is sufficient
mandated
heinous,
support the
atrocious
cruel
and
¶ 54 The law in Oklahoma is well
legally
aggravator, it is
insufficient to show
circumstance,
aggravating
settled that this
as.
he inflicted
physical
serious
abuse or
v. State71 to those mur
by
limited
Stouffer
place.67
disagree.
intended that it take
We
preceded by
physical
ders
torture or serious
The
showed
evidence
Alverson was
sub
abuse,
sufficiently
satisfy
channeled to
con
participant
stantial
the murder. He ac
stitutional constraints.72 We decline to revis
tively participated in the initial attack where
it this issue.
dragged
in the victim
into
cooler.
gave
55 The trial court
straighten
came out of the
Alverson
cooler to
heinous,
defining
the standard instruction
up store merchandise that he
his
cohorts
atrocious or cruel. This
states:
instruction
during
had knocked off the
at
shelves
instructions,
As used
these
the term
tack, then re-entered the cooler. Alverson
extremely
“heinous” means
wicked or
actively participated
bringing
the baseball
evil;
shockingly
“atrocious” means outra-
bat,
handcuffs,
arguably
into the
vile;
geously wicked and
“cruel” means
bat,
Although Harjo
cooler.
carried the
Al-
pitiless,
designed
high degree
or
to inflict a
way
verson led
outside the store to re
to,
pain,
enjoyment
utter
indifference
or
By
trieve it and back inside to the cooler.
of,
sufferings
of others.
introducing dangerous weapon
into the rob
heinous,
bery,
desperate
phrase “especially
Alverson “created a
situation
The
atro-
cious,
inherently dangerous
to human life.”68
or cruel” is directed to those crimes
Moreover,
preced-
Alverson was inside the cooler
where the death of the victim was
beating
by
when some of the
was administ
ed
torture of the victim or serious
Accordingly,
ered.69
physical
we find the evidence
abuse.73
clearly showed that even if Alverson did not
previously upheld
56 We have
himself,
deliver the blows
he knew the mur
instruction,
constitutionality
of this
find
place
actively participat
der was to take
ing
paragraph
the second
limits the use of
ined
it.70
aggravating
circumstance to cases where
error,
53 In his eleventh
proves beyond
the State
a reasonable doubt
(a)
applied by
preceded
contends:
that the murder of the victim was
Court,
heinous,
especially
abuse,
physical
atrocious or
torture or serious
“which
aggravating
per- may
cruel
great
circumstance does not
include the infliction of either
constitutionally required narrowing
physical anguish
form the
or extreme mental cruel
(b)
process;
ty.”
instructions defin-
instruction is sufficient
Arizona,
against
67. Tison v.
appel-
the victim in the absence of the
lant).
(stating
¶ sixteen, Moreover, proposition ¶ In Alver- pro the fact that 66 62 Smith, African-American, per juror mitigation instructions spective an son contends jury mitigating nothing ignore for cause to bolster mitted the evidence was excused does properly- altogether they require The trial court not con Alverson’s claim. because did juror prospective jury- after she mitigation excused Smith even after the sideration opposed penalty and stated she the death previously it existed. We have determined Clearly, apply would not it.83 “her view on jury instructing held that that it “must” substantially capital punishment have could presented mitigating evidence consider impaired perfoimance of her duties as away improper, take would be “as would juror in with the instruction and accordance jury duty from the its to make an individual oath.”84 punish appropriate ized determination of 87 Thus, prop ment.” the instructions were Finally, reject 63 we er, proposition fails. and this jurors the excusal of who contention they stated would not consider the death penalty “pro-death penalty” him left with D.
jury. jurors All the who on this case served proposition In his fourteenth of er- 67 penalties could all three stated consider ror, impact Alverson claims victim evidence by provided law.85 and mother from the victim’s wife should rejected Having 64 all of Alverson’s ar- have admitted. Both witnesses read been guments support of his claim that prepared trial court statements which the penalty applied unconstitutionally death previously approved. had him, proposition we find this lacks merit. impact 68 Victim statements
C.
impact
victim
are admissible in
and
evidence
procedure.88
capital sentencing
Victims
65
his thirteenth
may present
their rendition of the circum
error,
Alverson takes issue with the trial
crime,
surrounding
stances
the manner
anti-sympathy
court’s
instruction which was
perpetrated,
which the crime was
and recom
incorporated
stage
into the second
instruc
impact
mend a sentence.89 Victim
evidence
argues
pre
tions. He
that this instruction
provide
quick glimpse
the life
giving
should
vented the
from
to miti
effect
extinguish
gating
previously which the defendant chose to
circumstances. We have
financial, emotional,
rejected
may
psycho
argument.86
include the
considered
prior
logical
physical
We adhere to our
decisions.
effects of the crime on
State,
8,¶
group
community;
a "distinctive”
in the
85. Banks v.
1985
CR 60
701 P.2d
OK
representation
group
418,
(a
of this
in venires from
venireperson
only required
421-422
juries
which
are selected is not fair and reason-
willing
penalties provided
be
to consider all the
persons
able in relation to the number of such
irrevocably
law and not be
committed before
community;
represen-
that this under
begun).
has
trial
systematic
group
tation is due to
exclusion of the
State,
process.
in the
selection
Hooker v.
28, ¶71,
86.
v.
Cannon
1998 OK CR
961
75, ¶21,
1358-59,
1994
OK
(citations omitted).
P.2d
855
Missouri,
357, 364,
quoting Duren v.
U.S.
664, 668,
(1979).
S.Ct.
519 response” survivors, per- a “reasoned moral to the as some than as well the victim’s evidence.94 of the victim.90 characteristics sonal ¶ complains 72 Alverson also that ¶ However, Process the Due 69 improperly mother testified that the victim’s pre Amendment of the Fourteenth
Clause problems, did not cause her had her son impact evidence of victim cludes the use life, long range plans for his had a effect unduly prejudicial that it renders “that is so him, bright promised future ahead of and had fundamentally Inflamma unfair.”91 the trial age. her in her old to take care of We an tory descriptions designed to invoke emo disagree inappro that these statements were not fall under response do tional hearsay. priate, prejudicial, or inadmissible permitting these statutory provision the financial and These statements showed statements; emotionally types such impact of the crime on one of the emotional opinions prejudi are more charged personal regarding The statement victim’s survivors. probative cial than and are inadmissible.92 promise the victim’s to take care of his moth hearsay, case, as it was not offered to com er was not ¶70 In this prove truth of the matter asserted.95 plains testimony from the victim’s wife that Rather, financial, psy it demonstrated the the limitations on vic and mother exceeded impact chological and emotional of the vic imposed by impact this Court. tim evidence tim’s death. the victim’s wife Specifically, he contends (1) testify allowed to that: improperly ¶ 73 Alverson further contends enjoyed cooking ironing and for the vic she impact victim evidence as a whole ne tim; holidays special birthdays and narrowing penalty gates function death victim; the victim loved Christ to the and required provide. ar procedures are He family in a mas because he was raised gues operates “superaggravator” it as a it. did not celebrate jury in function of overwhelmed his its bal ¶ properly 71 These comments addressed ancing aggravating mitigating circum and affected his wife emo- how the victim’s death consistently rejected have stances. We tionally, psychologically physically. The argument.96 required prove State testimony arguably imper- only which beyond aggravator a reasonable at least one describing how the victim imp missible was that may penalty the death be doubt before as a child.93 did not celebrate Christmas osed.97 However, testimony considering the as a ¶ case,
whole,
In this
the trial court
74
find this brief reference was
we
specifically
that victim
inflammatory enough
run the
that the
instructed
risk
aggra-
the same as an
something
impact evidence is not
jury’s
of death was
other
sentence
2597, 2614,
(1991),
62, 65,
L.Ed.2d 720
111 S.Ct.
115
v.
933
90. Conover
Brown,
538, 545,
904,
quoting
v.
479 U.S.
P.2d
920.
California
837, 841,
(1987). See
impact evidence. appellant An allegations these of error. tion denied. is propositions support must his or her of error authority. by argument citation of both E. a If this is not done and review of the record fifteen, proposition Al- error, plain we will not reveals no search aggravator “to verson contends the avoid authority support appellant’s for to books prosecution” lawful arrest or is unconstitu allegations.100 We find of the com bald none tionally vague overbroad. We have plained plain of instances rise to the level of previously aggravating held that cir error.101 sufficiently limited the re cumstance (a) quirements predicate that: a crime exist single requires 78 As no error re ed, murder, apart from the from which the versal, whole, proceedings, as a cannot be sought arrest/prosecu to avoid defendant consistently deemed unfair. “We have held (b) tion; presented evidence State that where there is no individual error there establishing the intent to kill in defendant’s can be no reversal for cumulative error.”102 arrest/prosecution.99 order to There avoid Alverson’s final of error is de the issue. The is no reason revisit State nied. presented support sufficient evidence to prongs aggravator. propo
both
of this
This
VIII. DOUBLE JEOPARDY
sition is without merit.
Approximately
six
after the
months
brief,
filing of his
Alverson filed a motion
VII. CUMULATIVE ERROR
brief, or,
requesting
supplement
leave to
proposi-
76 In his seventeenth and final
alternative,
in the
for this
Court
address
error,
tion of
that even if
contends
spowte.
deny
an issue sua
We
Alverson’s
standing
none of the errors
alone warrant
supplement
motion to
the brief but
ad-
will
reversal, the combined effect of those errors
question
sponte.
dress the issue
sua
deprived
sentencing
him of a fair trial and
procedure.
request,
Alverson raises three new alle-
At
the trial court
gations
gave
separate
jury
of error under the rubric of this
two
verdict forms to the
(1)
I,
proposition:
testimony regarding
regarding
that the
Murder in the
De-
Count
First
QuikTrip’s policy
giving
money
gree:
degree
over
dur-
one for first
malice murder and
(the
robbery
ing
degree felony
jury
without resistance was irrele-
one
first
murder
vant;
II,
prosecutor’s
given
that the
reference
form
third verdict
for Count
Robbery
Dangerous Weapon).
Alverson as a “cold blooded murderer” dur-
with
ing
jury,
you
the cross-examination of Alverson’s fa-
trial court instructed the
“if
find
stage
improper;
proven beyond
ther in second
that the State has
a reason-
prosecutor
that the
medical
asked the
exam-
able doubt the elements of 'Murder
in the
sustained,
98. O.R.III at 425-26.
a "cold blooded
were
murderer”
curing any
Finally,
questions
error.
asked of
40, ¶73,
99. Charm v.
OK
responses
the medical examiner and his
thereto
(citation omitted).
P.2d
properly presented
to aid the
in decid-
ing
prior
whether the victim suffered
to his death
100. Romano v.
heinous,
support of
atrocious or cruel
(citations omitted).
aggravator.
First,
QuikTrip policy
evidence of the
relevant to show that Alverson and his codefend-
¶ 72,
102.Willingham,
native theories of murder and
findings
guilt
specify under which whether dual
of
raise double
verdict form does not
murder,
concerns,
theory,
felony
jeopardy
and whether the convic
malice murder or
felony
guilty,
underlying
then the verdict
tion for the
still stands.
defendant is found
felony
interpreted
one of
murd We now hold that
situations where the
will be
jury
guilty
with
finds a defendant
of murder in
er.106 We then must reverse
instruc
degree
principles
un
first
under both
of mal
tions to dismiss the conviction for the
murder,
felony
will
derlying felony, since a defendant cannot be
ice murder and
we
con
felony
underly
degree
one
murder and the
strue the conviction as
of first
convicted
Judgment
ing felony.107
malice murder.109 The
and Sen
tence,
guilty
which states the defendant is
However,
jury
sepa-
where the
has
Degree,
one Count of Murder
the First
entirely
verdict
an
rate
forms then
new sce-
any possible
jeopardy
eliminates
double
con
and the Munson
develops,
analysis
nario
is
cerns,
guilty
has
as the defendant
been found
Munson,
inapplicable.
gener-
In
of a
the use
only
count murder
sentenced
one
impossible
al verdict form made it
to divine
doubly
accordingly.110 He has not been
con
jury
had intended
whether
to convict
doubly
victed nor
sentenced.
felony mur-
defendant of malice murder or
case,
interpret
possible
In
it
der.
we decided to
84 Because
to determine
felony
the verdict as one of
murder “in
convicted Alverson of malice
order
murder,
appellant
receive the benefit of the rule
there is no reason to reverse the
robbery
that a defendant cannot be convicted of felo-
conviction.111 Alverson’s convictions
gave
103.
at 383.
victions in those cases
the defendants undue
O.R.III
Having
benefit to which
were not entitled.
error,
longer
104. O.R.III at 432-433.
apply
realized our
we will no
analysis
issue.
incorrect
to this
O.R.III at
See,
State,
e.g.,
Fitts v.
982 S.W.2d
73, 60,
(distinguishing
(Tex.Ct.App.1998)
between cases
106. Wilson v.
OK CR
citing
involving
multiple
op-
v.
for
offenses as
Munson
1988 OK
convictions
124, 28,
324, 332,
denied,
offense).
posed multiple
theories for same
See
758 P.2d
cert.
218, 220,
People Bigelow, Mich.App.
v.
U.S.
109 S.Ct.
under the influence First, in this case was Appellant factor, arbitrary any and whether other Extraordinary Re- for party to the Petitions jury’s finding of supports the the evidence 2 of the Court’s lief out in Footnote set Upon of circumstances. review aggravating judi- have been opinion. The issues raised record, say of cannot the sentence the we the context of cially determined. Within imposed because the death was judi- procedure judgment is res criminal that by passion, prejudice improperly influenced Appellant procedurally barred cata and is arbitrary factor. or other time. The raising the issue a second from estoppel the opinion collateral with confuses inquiry, Turning we to the second preclusion. judicata, i.e. claim doctrine of res that the trial court instructed note approach, we should Rather than use aggravating three circumstances. on procedurally claim barred simply state the is aggrava- jury found the existence of two The judicata. by res murder was ting circumstances: Second, opinion I while am of prosecu- to avoid lawful arrest or committed prevent the trial law does not tion, Oklahoma especially and that the murder was discretion, court, in of its from the exercise heinous, or cruel. We find that atrocious juries, skeptical I impaneling remain dual support and the evidence both law procedure, espe regarding the value of this review of jury’s determination. After careful Although I do not find cially capital in cases. record, we find the sentence of death case, in the instant reversible error occurred factually appropriate. substantiated and by Appellant are raised some of the issues warranting find no error rever- 87 We likely problems we will illustrative of future of the conviction or sentence of death sal juries impaneled. when dual are encounter degree robbery with a dan- first murder or broadly endorsing the dual Rather than Judgments gerous weapon. Accordingly, majority in Cohee v. procedure, as did the degree of first and Sentences for crimes (Okl.Cr.l997)(Lump robbery dangerous with a malice murder and kin, Concurring part, dissenting in in J. County weapon in the District of Tulsa Court impact on part), I will continue to monitor its AFFIRMED. are case-by-case the trial on a basis. BILLY DON ALVERSON was Third, respect with by jury Degree in tried for Murder the First two, opinion goes too far its I believe the Robbery Dangerous Weapon in and with a post-autopsy photographs. discussion of in the District Court Case No. CF-95-1024 general principal that agree I with the While County the Honorable E.R. of Tulsa before post-autopsy photographs should be viewed Turnbull, Judge. Alverson was sen- District degree suspicion a certain because with to death for Murder the First tenced prejudicial potential to be more than their Robbery Danger- Degree life for with a recognize post-au probative, we must Weapon perfected appeal. ous may place have their topsy photographs Judgments are AFFIRMED. and Sentences cases. Mitchell v. certain See (Okl.Cr.1994), 1196-97 P.J., JOHNSON, J., L.Ed.2d 50
STRUBHAR, proba- photograph more (1995)(post-autopsy concur. addition, prejudicial). post- tive than 1999 OK CIV APP autopsy photograph of the interior of the C.T., C.T., A.T., In the Matter of hinge type fracture skull which revealed Adjudicated Deprived Children. of the did not show “the base skull the medical examiner.” It Oklahoma, Appellant, handiwork of State of by Appellant the level of force used showed and his co-defendants as beat the victim Kenny Thompson, Appellee. injury to death. If this had been visible on body, photo- of the victim’s outside 91,804. No. injuries graph of those would have been ad- regardless prejudicial of how it missible recognizes
might have been. As the Court Appeals Oklahoma, Court Civil “photographs of the numerous wounds to the Division No. 2. head suffered the victim were
victim’s April photographs properly admitted. These sterile, prejudicial far more than the clinical
photograph of the inside of the victim’s --). (Opinion pg. I find the
skull.” photograph was admissible and no error oc-
curred. Finally, it should be noted the criteria Washington, set out in Strickland v. 466 U.S. (1984), evaluating effectiveness of has counsel explained further been Lockhart v. Fret well, 364, 113 838, 122 L.Ed.2d standard, Applying the Lockhart
the record is void of evidence the trial was rendered unfair and the ren verdict suspect
dered or unreliable. LILE, specially J.: concurs. However, opinion. I concur I properly believe Exhibit No. 115 was photo admitted. This showed the extent of probative the cranial fracture and its value outweighs any prejudice. unfair