Larry Floyd BARNETT, Appellant, v. STATE of Oklahoma, Appellee.
No. F-86-895.
Court of Criminal Appeals of Oklahoma.
May 18, 1993.
854 P.2d 226
After careful, independent review and consideration of the evidence as set forth above which supports the valid aggravating circumstances, as well as the evidence which may be considered mitigating, this Court finds the sentence of death factually substantiated and appropriate. Indeed, this case does not present a single close question upon reweighing. Neither the arguable mitigators to which the evidence gave rise during first stage proceedings, nor the specific mitigating factors provided through Instruction No. 8 during the penalty phase of trial, were compelling. The mitigating evidence was so insubstantial that, rather than call any second stage witnesses, defense counsel attempted to influence the jury by informing it of his own personal crusade against the death penalty. He referred to a “higher power,” arguing that human beings are fallible and should not have the ability to decide whether another person lives or dies. Finally, he claimed that the Lorenz family was probably “in a lot better place” and “in a lot better shape” than those present in the courtroom that day. Frankly, we are offended by the manner in which defense counsel attempted to mask the lack of mitigating evidence in this case.
In the context of the reweighing process, it is noteworthy that the prosecutor during closing argument did specifically refer to the failed “heinous, atrocious or cruel” aggravator, emphasizing the language in the instruction which has since been held unconstitutionally vague. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). However, only one small portion of the State‘s entire closing argument was devoted to this aggravator. The prosecutor placed more emphasis upon the other three valid aggravating circumstances which the jury ultimately found to have existed. Given the substantial evidence supporting the three valid aggravators and the paucity of mitigating evidence, it is clear that the jury‘s improper consideration of the unconstitutional aggravator did not play a significant role in its decision to sentence appellant to death. But see Clemons v. Mississippi, supra, 494 U.S. at 753-54, 110 S.Ct. at 1451. We therefore again reaffirm our previous denial of appellant‘s application for post-conviction relief.
LUMPKIN, P.J., JOHNSON, V.P.J., LANE, J., concur.
Bill J. English (Trial Counsel), E. Joe Lankford (Appellate Counsel), Norman, for appellant.
R. Richard Sitzman, Tim D. Kuykendall (Trial Counsel), Norman, Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen. (Appellate Counsel), Oklahoma City, for appellee.
PER CURIAM:
Appellant, Larry Floyd Barnett, was tried by a jury for the crimes of Murder in the First Degree, in violation of
On the evening of Friday, April 11, 1986, Tom Sloan and his fiancee, Lisa Enboden, went to the 3300 Club in Oklahoma City. There, they saw appellant, whom they had met at the club the previous week. After the bar closed, Sloan and Enboden agreed
Sometime after they arrived, Enboden decided that she wanted to stay with the appellant and she wanted Sloan to leave. At her request, appellant asked Sloan to leave and when Sloan hesitated, appellant pushed him out of the house. A few minutes later, Sloan kicked in the door to try to talk to Enboden. At that point, appellant and Sloan went outside. Shortly thereafter Shaw went outside as well. Enboden walked out to the front yard and saw the three men mostly pushing and shoving each other but she also saw a couple of swings. After five minutes she went back inside the house.
Several minutes later, appellant came in the house and asked Enboden for Sloan‘s car keys. Enboden did not know where they were and appellant went back outside. A short time later, Shaw entered the house and went to the kitchen. He left the house carrying something that looked like a knife. Enboden watched through the front window as a “shadow” ran across the lawn, kneeled over a figure on the lawn and made several stabbing motions. She testified that this “shadow” was John Shaw. Enboden did not see appellant during this time. Shaw returned to the house with blood on him. When appellant came back in the house he and Enboden went to bed.
The following morning, appellant and Shaw went outside to change the tire on Sloan‘s car. When they were unsuccessful, appellant decided to borrow a welding truck from his boss so that he could cut the lug nuts off the wheel and change the tire. While appellant was gone to get the truck, Shaw and Enboden went to a convenience store where Enboden bought a soft drink and Shaw bought a cup of coffee and some gas which he put in containers. When they returned to the house, Shaw got in Sloan‘s car and was backing it into the driveway when Sloan sat up in the back seat of the car. Shaw went inside the house and came back outside with a knife. Shaw then stabbed Sloan several times and attempted to suffocate him with plastic. When Shaw returned to the house he had blood on his arms and shirt.
After fixing Sloan‘s car, the two men left with Shaw driving Sloan‘s car, a green Malibu, and appellant driving Shaw‘s car, a black Ford Grenada. At approximately noon, Phillip Noland observed a green Malibu with a damaged right wheel traveling east on Etowah road in Cleveland County, followed by a dark colored Grenada. Noland noticed the cars because he heard a loud noise like a tire screeching. He watched as the damaged tire on the Malibu blew, and the car swerved into a ditch. The Grenada parked nearby. Noland saw a man look in the open trunk of the Malibu. Noland had stopped watching and walked to the other side of his house when he heard a muffled explosion. He turned and saw the Grenada speeding away. When he walked to the other side of his house again, he could see the entire interior of the Malibu burning. In a taped statement, appellant claimed that Shaw set fire to the car, but admitted that he knew Shaw was going to burn the car.
The body of Sloan was found in the back seat and the fire was determined to have started as a result of arson. However, at trial the medical examiner testified that the cause of Sloan‘s death was a combination of multiple stab wounds and blunt force head injuries. In addition, she stated that a pencil found jammed in Sloan‘s ear could have been a contributing factor in his death. Despite her positive findings concerning the cause of death, the medical examiner could not exclude the possibility that the deceased had been alive at the time of the fire. However, she stated that to address the speed at which death occurred or to find that the death was heat related would be “speculation.”
Issues Relating to Guilt/Innocence
While appellant was in custody under arrest, he made a statement to the police which was taped and later admitted into evidence at trial. He claims that this statement should have been suppressed because it originated as the result of an illegal arrest. Appellant specifically claims that the police did not have probable cause to arrest him when they did so. We disagree.
Title
At the preliminary hearing, the arresting officers testified that during the course of their investigation into the homicide and arson, the vehicle in which the appellant, Shaw and Enboden were riding, Shaw‘s car, was stopped initially because it matched the description of the vehicle which had been seen at the scene of the arson, at the house in Noble along with Sloan‘s car, and most recently at Sloan‘s house. Prior to the stop and arrest the police had been told the license tag number of the car seen at Sloan‘s house earlier that day. This was the tag number on Shaw‘s car. They also discovered that Enboden, a material witness, was present in the car. They noted that appellant and Shaw fit the physical descriptions of the two men sighted at the scene of the arson where Sloan‘s body was found. Based upon this information, we find that the police did have probable cause to believe that a crime had been committed and that the appellant had committed it. Thus, the warrantless arrest of appellant was valid.
Shortly after his arrest, appellant made a statement which was video taped and subsequently admitted into evidence against him at trial. Appellant argues that this statement should have been suppressed as it was the result of police trickery and was not the result of a knowing, intelligent and voluntary waiver of his right to remain silent. Appellant claims that the police trickery which coerced him into making the incriminating remarks occurred when the police told him that his version of the story differed from those given by Shaw and Enboden when in fact the police had not yet talked to Shaw or Enboden. The record reflects that while the police had spoken with Shaw, they had not received a statement from Enboden at that time.
In determining whether a statement was made voluntarily, one must look to the totality of the surrounding circumstances, including the characteristics of the accused and the details of the interrogation.2 Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Where the voluntariness of a statement is in question it is proper procedure for the trial judge to hold an in camera hearing to determine whether the statement was made voluntarily. See Jackson v. Denno, 378 U.S. 368, 382, 84 S.Ct. 1774, 1783, 12 L.Ed.2d 908 (1964). Where there has been such a hearing, this Court will not disturb the ruling where the trial court‘s decision to admit a statement is supported by sufficient evidence that the statement was made voluntarily. See Elliott v. State, 753 P.2d 920, 922 (Okl.Cr.1988).
In the present case, the trial judge did hold an in camera hearing in order to make a determination on the voluntariness of appellant‘s statement. At the hearing, the appellant claimed that the police informed him that both Shaw and Enboden had told them that appellant killed Sloan. He claims that if they had not told him this, he would not have made any statements. However, on cross examination, appellant revealed that he was advised of and understood his Miranda warnings. He indicated that he understood that he did not have to talk to the police if he did not want to do so, and that it was his desire to tell his side of the story that afternoon. He also acknowledged that he gave his statement voluntarily. In light of this testimony and the circumstances surrounding the interrogation, we cannot find that the trial judge erred in finding that the appellant made his statement knowingly and voluntarily.
Having determined that appellant‘s arrest was lawful and that his statement was properly admitted into evidence, we can now address his first proposition of error wherein he claims that the evidence was insufficient to sustain his conviction for First Degree Murder. Specifically, he claims that the State failed to prove that he was a principal to the crime of First Degree Murder as the evidence merely proved that he acquiesced to the crime which was committed by John Shaw. Because the evidence presented at trial was both direct and circumstantial, the test for determining the sufficiency of the evidence is whether,
In order for an accused to be convicted as a principal in a crime, it must be established that he directly committed each element of the offense, or that he aided and abetted another in its commission.
In the present case, the forensic pathologist testified that in her opinion, based upon medical fact, the cause of Sloan‘s death was a combination of stab wounds to the chest and blunt force head injuries. When asked whether the fire could have been a contributing factor in Sloan‘s death, the forensic pathologist testified that she could not exclude that possibility. She said that there was no anatomical or chemical evidence that Sloan was alive when he was burned. However, she also said that such evidence would not necessarily be present if the fire that burned him was of an explosive type. Thus, based upon the medical facts, she indicated that it would be speculation for her to say for sure when Sloan died and whether or not the fire was a contributing factor in his death.
Appellant argues that this testimony necessarily excludes the jury from finding that the fire contributed to the decedent‘s death. He contends that such a finding would be based upon mere speculation as there was no evidence that Sloan was alive at the time of the fire. In fact, he claims that the State‘s own evidence proved that the victim was dead prior to the fire. We disagree.
Thus, we find there to have been additional evidence from which the jury could have found that Sloan was still alive at the time of the fire and that the fire contributed to his death. Further, there was evidence that appellant knew that Shaw had put gas in a container in the trunk of the car and that they were going to set fire to the car with Sloan in it. He gave Shaw the screwdriver necessary to open the trunk in order for Shaw to remove the container of gas that was used to ignite the car and Sloan. We find that this evidence, when viewed in the light most favorable to the State, is sufficient to support the jury‘s finding, beyond a reasonable doubt, that the appellant aided and abetted in the commission of First Degree Murder. Accordingly, this assignment of error is denied.
Clearly, appellant‘s video taped statement was instrumental in securing the conviction against him. The appellant acknowledges this and alleges that the video taped statement was obscure, confusing and disjointed. He claims that because of this, his statement was subject to being misinterpreted to indicate that Sloan was still alive at the time of the fire. Thus, appellant contends that he was denied effective assistance of counsel because his attorney did not put on a defense by putting him on the witness stand to rehabilitate the prior inculpatory statement.
The standard of review for ineffective assistance of counsel is two pronged: First, an appellant must show that counsel‘s performance was deficient; second, an appellant must show that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). There is a strong presumption that counsel‘s performance falls within the wide range of reasonable professional conduct. Id. 466 U.S. at 689, 104 S.Ct. at 2065. We also note that this Court has repeatedly held that representation will not be deemed inadequate because in hindsight trial strategy could have been different. See Stover v. State, 674 P.2d 566, 568 (Okl.Cr.1984); Smith v. State, 650 P.2d 904, 908 (Okl.Cr.1982).
In the present case, appellant claims that he was denied effective assistance of counsel because his defense attorney did not put him on the witness stand to controvert the State‘s speculation that he had inferred in the video taped statement that Sloan was still alive at the time of the fire. In the taped statement appellant said that he did not want to drive Sloan‘s car with Sloan in the back seat because he was afraid that Sloan would raise up on him. Appellant argues that had he taken the stand, this statement could have been explained as his fear of being alone with a dead body.
It is not clear from the record that defense counsel did not consider this as a possible avenue of defense and make a tactical decision not to utilize it. In fact, defense counsel could well have considered it and thought it best to refrain from proffering a weak defense so as not to subject his client to a potentially devastating cross examination by the State. Because this appears to have been a reasonable tactical decision, we cannot find that appellant has shown defense counsel‘s performance to have been deficient. Further, appellant has not convinced this Court that this line of defense could reasonably have changed the outcome of the trial. This assignment is denied.
As to his conviction for Arson in the Third Degree, appellant contends that reversal is required because the State failed to prove that the vehicle burned was worth at least fifty (50) dollars, as is required by
At trial, Jay Stewart testified that he had sold the Malibu to Tom Sloan on March 22, 1986, approximately three weeks prior to the time that the car was burned. The evidence indicated that the car was sold to Sloan for one hundred and fifty (150) dollars. Although Mr. Stewart acknowledged that the car could have depreciated in value from the time it was purchased, he stated that the engine itself, if it was a good engine, would probably bring one hundred (100) to one hundred fifty (150) dollars. He did not know if this car had a good engine. Further, Bobby Sloan testified that the car was in running condition. We find that this testimony, while not direct evidence of the value of the vehicle, supports a reasonable inference that the value of the burned Malibu was at least fifty (50) dollars.
Appellant also argues that the sentence assessed on the arson conviction, fifteen (15) years imprisonment, was excessive under the circumstances. We note that this sentence was within the statutory limits. When a sentence imposed is within the statutory limits, this Court will not modify unless under the facts, the sentence is found to be so excessive as to shock the conscience of the Court. Bristol v. State, 764 P.2d 887 (Okl.Cr.1988). In this case, we make no such finding.
Issues Relating to Sentencing
The jury imposed the death penalty upon the appellant after finding that two aggravating circumstances existed; that “the murder was especially heinous, atrocious, or cruel,” and that “the murder was committed for purposes of avoiding or preventing a lawful arrest or prosecution.” Appellant urges this Court to find that the second aggravating circumstance, that “the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution,” is not supported by the evidence.
This aggravating circumstance, by definition, requires that there be a predicate crime, separate from the murder, for which the appellant seeks to avoid arrest or prosecution. In prior cases in which this Court has upheld the validity of this aggravating circumstance, the predicate crime has clearly been a separate and distinct offense from the murder.3 In the present case, however, the appellant was alleged to have committed the crime of murder for the
When an aggravating circumstance is found to be invalid, this Court has the authority to review any remaining aggravating circumstances and the mitigating evidence to determine the validity of the death sentence. Castro v. State, 745 P.2d 394 (Okl.Cr.1987), 749 P.2d 1146 (Okl.Cr.1987) (Opinion on Rehearing), cert. denied, 485 U.S. 971, 108 S.Ct. 1248, 99 L.Ed.2d 446 (1988);
In the present case, the only remaining aggravating circumstance is that “the murder was especially heinous, atrocious, or cruel.” While the facts of this case certainly support a finding that the murder was especially heinous, atrocious or cruel, they also indicate that the vast majority of the acts upon which this aggravating circumstance can be based, were perpetrated against the victim by John Shaw. Many occurred in the absence of the appellant. Conversely, the mitigating evidence showed, among other things, that appellant had been a dependable, hard working employee with a reputation for honesty. He had incurred no problems with his fellow employees and had displayed no violent conduct. Further, he had served two tours of duty in Vietnam and had received a purple heart, bronze medal and army commendation medal. Because the evidence shows that the appellant‘s actual, physical participation in the most brutal acts was minimal, we find that the mitigating evidence outweighs this remaining aggravating circumstance. Accordingly, appellant‘s death sentence must be modified to life imprisonment.4
Having reviewed the allegations of error raised by appellant, we find that the convictions for First Degree Murder and Third Degree Arson shall be AFFIRMED. The sentence returned for the Arson conviction is AFFIRMED but the death sentence returned for the Murder conviction is MODIFIED TO LIFE IMPRISONMENT.
LUMPKIN, P.J., and LANE and CHAPEL, JJ., concur.
JOHNSON, V.P.J., specially concurs.
JOHNSON, Vice Presiding Judge, specially concurring:
While I specially concur with the decision of the Court herein I feel there are items
If there is anyone who is in a position to oversee and/or monitor the evidence that comes into a case, it is the trial judge. He has the expertise to look at the evidence from a dispassionate point of view. I believe the trial judge that has the courage to make this sort of recommendation to this Court should be followed. Therefore, I acquiesce to the position of the trial judge and would also vote to affirm the conviction but modify the sentence to life imprisonment.