*1 credibility tends cast doubts of de- Benjamin BREWER, Appellant,
fendant.3 contention, As to the first Oklahoma, Appellee. The STATE of the admonishment of the trial court deem jury sufficiently any cured to have No. F-79-609. error. Kitchens v. Appeals Court of Criminal of Oklahoma. allegation to the next As error, question by we do not find that the 18, Aug. 1982. improper. To the con prosecutor Aug. As Corrected trary, it was the defense since by way occurred of acci incident dent, ap the cross-examination was most
propriate. appellant alleges re
Lastly, the
versible error occurred when the following statement: “. . . that
made you guy, guy
leaves one there.
You talk about a mind. A mind demented Although this
that would do that —.” usually
Court does not condone the use of language,
such forceful evidence of
fered tends to prosecutor.
conclusions of the Costilla v. (Okl.Cr.1980), and cases
cited therein.
Accordingly, judgment and sentence
appealed from is AFFIRMED.
BRETT, J., CORNISH, J., P. concur. following: your theory why 3. The record reflects the Under would that Q. be? please, MR. If GULLEKSON: the Court its Okay. during period And of time Q. theory. testifying not under his He is you experience any burning did sensation happened object what and I to counsel’s you you burning got identified as until theory. prejudicial statement as his Its the bathroom? jury and I ask that be admonished to sensation, stinging burning. A. A disregard testimony. Mr. Moss’ you got You didn’t burn until into the Q. please, says MR. If the MOSS: Court its bathroom? assumption theory or this is his as to myself I with a wet A. Not till touched happened. what washcloth. your objec- you burning? THE COURT: I would overrule Then felt Q. A. Yes. tion.
57
the appellant’s conviction:
the overzealous
prosecuting
conduct of the
attorney. The
prosecutor in this case embarked on a cam-
paign
prejudicial
theatrics which doubt-
less
prejudice
resulted in unfair
ap-
pellant.
illustrate,
The following examples
though certainly
exhaust,
do
prose-
cutor’s erroneous conduct at trial.
McCarthy, Deputy
Frank W.
Chief Public
Defender,
O’Neal,
1) As he was cross-examining
Johnie
Asst. Public De-
fender, Tulsa,
appellant’s expert witness
appellant.
for
defense,
insanity
Gen.,
Cartwright, Atty.
Jan Eric
Tomilou
(a
stabbed State’s Exhibit Number 10
Liddell,
Gen.,
Atty.
Gentry
Asst.
Oklahoma
inch
20 inch
photograph
deceased
City,
appellee.
*4
body
victim’s
itas was found at the murder
scene)
separate
four
times with the knife
OPINION
Although
used in the
recognize
murder.
we
BUSSEY, Judge:
prosecutor’s range
speech
of free
wide,
Wright
State,
illustration is
v.
Brewer,
appellant, Benjamin
The
was
(OkI.Cr.1979),
tinent
to our reasons for
Object,
MR.
object,
FALLIS:
when it
affecting
those
the re-trial.
gets tight,
objecting.
he starts
We turn first to the
contributing
Object
factor
MR. BURNS:
to his comment
weight
the most
to our decision to reverse
now and ask that the jury be admonished
disregard
See,
it
Hager
State,
and move for a mistrial
ture.1
jecting
everything
happened
that ever
neous to the evidence
impose
and tend to
in this courtroom.
responsibility
jurors
on the
the rising
Honor,
MR. MeCARTHY: Your
we ob-
crime rates. Hager, supra;
Coats v.
ject—
(Okl.Cr.1978); Cooper
inconsistent,
MR.
Rather
FALLIS:
isn’t
it?
object
MR.
The above
MeCARTHY: We
to counsel’s
remarks and other similar
comments
amply support
matters of law.
comments
appellant’s
up
That’s
to the court.
contention that he was denied a fair trial.
THE
objection,
COURT: I’ll sustain the
next contention that cer-
*5
approach
the
to the bench.
tain evidence should have been excluded
MR. MeCARTHY: I would ask that
the
from the
pursuant
trial
to a motion in li-
jury be—
presents
mine
a troublesome issue.
In one
you,
MR. FALLIS: Thank
Your Honor.
of his
police,
statements
to the
appel-
the
you
MR. MeCARTHY: Would
admonish
lant admitted that
gained
he
entrance into
jury?
apartment
the victim’s
by first breaking
They
THE COURT:
adjacent
are so admonished.
into an
apartment
crawling
through a
attic-way.
common
The
prosecutor’s
The
allowing
conduct of not
sustained the appellant’s motion in limine to
defense counsel
opportunity
to be heard
portion
delete that
of the confession. Dur-
objections,
coupled
on
with the needless
ing
hearing
motion,
on
prosecu-
ridicule demonstrate a
respect
lack of
agreed
deletion,
tor
to the
stating:
appellant’s
constitutional
to a fair
When taken as a whole I
trial which this Court
can see no
shall neither tolerate
entry
relevance to the
apartment
nor condone.
into the
generally,
See
Chandler v.
State,
next door at
(Okl.Cr.1977).
572
this time and I
P.2d 285
We can-
can find no
exception
the trial
for its use
court’s statement
as evidence in this
case,
(the
“They
jurors)
so we
objection
are so admonished” was
have no
to the court
granting
sufficient to cure the error.
join
motion and we would
left,
in the
only thing
motion and the
3) During
sentencing
hearing,
course, is
physical aspect
of extract-
prosecutor
possi
twice referred to the
ing
confession,
that from the
so however
that,
bility
acquitted,
if
appellant
would
go
that,
counsel wants to
about
we’ll be
commit similar crimes in the future. This
glad
join
in that.
argument
highly improper.
line of
It is
trial,
error to comment on
possibility
During
that a
the State introduced
may
defendant
commit crimes in the fu-
evidence which
ap-
demonstrated that
O.S.1981, 701.12(7),
present
1. We note that under 21
case the State failed to do so.
If the
propensity
prosecutor
properly
of a defendant to commit future
wishes to
make such an
may
retrial,
argument
crimes
statutory provisions
be used as an
circum-
justify imposition
complied
stance to
of the death sen-
must be
with.
tence,
particulars.
if listed in the bill of
In the
of 22
apart-
requirements
have
into the
pellant may
broken
as to the
was not misled
adjacent
appellant
to the victim’s.2'3
The
ment
which he had to defend
charges against
complied with
prosecutor
The
himself,
pos-
exposed
neither was
that no references to
motion to the extent
a second
being placed
jeopardy
in
sibility of
con
portion
the deleted
v.
Holloway
his offense.
time for
However,
prosecu
fession were made.
The trial court
(Okl.Cr.1979).
602 P.2d
that the
accomplished the same result
tor
overruling
in
did not abuse its discretion
prevent by
designed
motion in limine was
demurrer.
above.
introducing the evidence described
Thus, although
prose
we do not accuse the
the intro
The next issue concerns
word,
urge
on his
going
cutor of
back
reproductions
photographic
duction of
on retrial will be
practice
the better
at trial. We
body
the victim’s
and wounds
1)
join
to either
in
prosecutor
for the
eight
in the introduction
find no error
motion,
proce
such a
and then
follow
wounds on the
depicting specific
color slides
594 P.2d
dure outlined in Burks
were taken
body.
photographs
victim’s
(Okl.Cr.1979)
appel
to introduce the
body
had been
morgue
at
after
in;
2)
in
breaking
join
lant’s
or
acts of
the tes
served to illustrate
They
cleansed.
references to the
the motion and delete all
See, Bills
the medical examiner.
timony of
breaking in.4
complains
further
improperly
introduced
prosecutor
error in the intro
We also find no
of other
in his trial. There
evidence
crimes
20 inch black and
a 16 inch
duction of
ap
that the
was evidence which indicated
as it
body
the victim’s
photograph
white
automobile, purse,
stole the victim’s
pellant
The photo
murder scene.
was found at the
of semen in the
dog.
presence
nature,
admittedly gruesome
graph is
to infer
vagina
victim’s
led the
grue
was a
the occasioned death
however
throughout
the trial
accurately
The photograph
some deed.
dispo
the manner of
raped her. Because of
it was
the scene as
faithfully represented
case,
again only
we need once
sition of this
*6
Pate v.
police
Tulsa
officers.
by
found
es
guidelines
remind the
of the
State,
(OkI.Cr.1961). It was
1086
361 P.2d
tablished in this
for the introduction
to illustrate
examiner
used
the medical
wishes
of other crimes at trial.
If the State
See,
jury.
findings to
explain
and
his
evidence,
appropriate
to use the
meas
State,
(Okl.Cr.1978).
We turn now to issues not case, O.S.1971, 2403. perti- decision in this but nonetheless nent to retrial. times that numerous We have stated rests error, evidence photographic allegation
In
admission
eighteenth
trial court.
of the
erred in within the discretion
claims the trial court
appellant
(Okl.Cr.1977).
State,
1373
infor
v.
561 P.2d
his demurrer to the
Collins
failing
sustain
deci-
trial court’s
met We will not overturn
adequately
mation. The information
judge who allowed
portion
noted that the
It should be
2.The
evidence consisted of a
was one other
be introduced
apartment adjacent
the evidence to
the victim’s
wall of the
presided
judge
over the motion
matching
ap-
than the
who
fingerprint
which
contained a
limine.
matching
pellant’s; photographs
fingerprints
appellant’s
found in that
which were also
is
emphasize
in limine
the motion
4. We
apartment;
testimony concerning
finger-
those
We
binding
of this case.
the retrial
not
prints;
concerning
possibility
and evidence
decision whether
the trial court the
leave to
attic-way.
through
he crawled
confession,
appellant’s
part of the
delete that
again
the issue
be raised.
should
sion
abuse of that
application
absent
discretion. Griz-
This Court denied the
on De-
State,
v.
1978,
zle
Two of the is the assignments of attorney’s error concern his to war unsuccessful determine whether there is evidence attempt guilty plea to enter a to the first charge rant a reduction of a of murder to a degree murder charge arraign homicide, and, so, at the 1978 lower if in degree of ment. judge plea The refused to the accept Hanna v. accordingly. struct the jury and allowed the to file a Bill of Par State (Okl.Cr.1977); Gibson ticulars to potential punish enhance the death, O.S.1981, ment to pursuant to 21 701.10 The trial court also in appellant correctly and 701.12. The filed
§§ application the not to prohi jury sympathy for issuance of writ of structed consider bition in trial. stage and/or mandamus with this Court the second of the bifurcated ordering the in accept guilty plea sympathy to The construes the and sentence imprisonment. him to life con- jury’s struction to be a barrier to the
61 imprisonment or for life.” any ished death mitigating of circumstances sideration Thus, in- agree charged degree We a with first presented. cannot defendant such The was jury had an effect. murder need consult the struction in Oklahoma weigh mitigat- to expressly instructed he possible penalties statute all to ascertain in determination of the ing circumstances faces. imposed. of the sentence to be
severity O.S.1981, addition, specifi- In 21 701.10 § addition, O.S.1981, 701.13(C)(1) In that, in cally “Only states such evidence Court, reviewing the death requires this in known aggravation as the State has made it was im- to determine whether sentence to be prior to the defendant his trial shall passion, preju- under the influence of posed all provision admissible.” This removes factor. The any arbitrary dice or other possible surprise uncertainty or against sympathy trial court’s instruction from potential penalties the nature of the “arbitrary” to influ- designed prevent was is stage trial. It sentencing as for the victim or sympathy ences such no a apparent prelimi- that there is need for affecting jury’s her from deci- family in the bill nary hearing particulars on sion. capital cases. appellant’s assign nineteenth argu- Lastly, the appellant’s we address ment of error that a alleges preliminary proved improperly ments that the State hearing particulars on bill of should circumstances in the sen- aggravating both argues have been held. The tencing argues of his trial. He first stage hearing required since a is in preliminary in the introduced improperly evidence felony all after former conviction of incorporated erroneously first was stage cases, (AFCF) requirement the same should relied stage into the when the State second in capital be had cases. to the contention evidence reject We this for two argument reasons. heinous, was especially the murder O.S.1981, 701.10, title 21 Initially, does Due the fact that atrocious cruel. a provide hearing for on a preliminary trial, a new this case must be remanded particulars degree bill of filed in a first alleged all error we need not discuss case. If had legislature murder intend- matter. it to concerning this Suffice procedure, ed such a presumably it would trial will be that we second presume have so stated the statute. alleged thus error properly, conducted herein alleviated. should be Secondly, leading espoused case which hear- right preliminary the fundamental agree appel cannot with We cases, ings in AFCF Carter aggravat argument lant’s second (Okl.Cr.1956), P.2d 435 appel- cited previously had ing alleging circumstance lant, distinguishable is from cases the use felony involving a been convicted of et brought under 21 701.10 §§ person or of violence threat Carter, a seq. preliminary In held that as offered proven. improperly hearing charges necessary on AFCF be- circum prove evidence to in- cause a defendant has a stance sentence judgment possible formed of all which he punishments conviction, infor rape upon faces of a certain offense. conviction crime, and charging mation him with that penalty enhanced is not reflected in the the vic testimony personal limited particular defining statute the crime with *8 the State initially tim. that argues He charged, only way which one is thus the would be prior the informed him conviction potential a defendant 'to be of the informed It use of records. proved by the court penalty enhanced the through prelimi- is noted, during the however that However, O.S.1981, must be nary hearing. 21 this matter 701.9, concerning that, person pre-trial arguments states “A who is con- § and the informed pleads victed of or or nolo contendré the guilty to call degree pun- to murder in the shall be that he reserved the first 62
witnesses to support allegation, ly and proven through judgment use of the provide However, would names appellant with sentence. and the element that and addresses should he decide to them. call the felonies involved the use or threat of The later conceded had easily summarily that violence is not so an received endorsed list of witnesses in proven. necessary It is therefore that included, which the name of information present the victim was con- State sufficient and that he knew her why cerning name was listed. prior felony sup- convictions to Thus, the State with the complied statutory port its contention. O.S.1981, that, of mandate 21 701.10 § The necessity for additional information “Only aggravation such as the evidence in concerning the nature of the convic- prior State has made to the known defendant tions to be trier made known to the of fact prior to his trial shall be admissible.” is examples. obviated two First we take known,
evidence was
made
timely
who,
example
person
of a
not unlike the
appellant was not surprised thereby.
to
appellant, stands
be sentenced for mur-
in
degree
der
the first
with a
convic-
prior
The appellant additionally argues
rape.
might
tion of
to
that
One
led
assume
the State should not háve been allowed
rape
from the face of the crime that
neces-
to go behind the judgment and
of
sentence
sarily
use
of
involves the
or threat
violence
the rape
prove
conviction to
had
that he
possible, however,
is
to the victim.
It
been previously
felony
convicted of a
in
rape
conviction
from
stemmed not
acts
volving the use or
of
threat
violence to the
or threats of violence on the
part
person.
appellant argues
that neither
defendant,
through
but
sexual intercourse
the information charging him in that case
one incapable
with
of
In such a
consent.
nor
testimony
of the victim should have
case, the rape
support
conviction
would
been allowed into evidence
sen
during the
circumstance.
hearing.
tencing
He cites Baker v.
935 (Okl.Cr.1967)
P.2d
to
support
example
A second
that of a
would be
contention. Baker contains a
statement
who
person
stands before the trier of fact
our longstanding rule that a former convic
capital sentencing stage
in the
with a prior
tion in after
former
felony
conviction of
conviction of murder in
degree.
the second
cases is to be proven only by
properly
a
again,
example,
Once
as in
above
sentence,
judgment
along
certified
with
imply
crime seems to
on its face the use or
proper identification
defendant. Al
However,
possible
threat of
is
violence.
it
though
agree
that Baker is a correct
that the
may
murder conviction
have result-
statement of the law
AFCF
defendant,
ed from the fact
while
cases, we cannot
say
such a rule
driving under the influence of intoxicants
controlling in the sentencing stage of a
having
after
previously
been
convicted of
capital case.
driving under
intoxicants,
the influence of
wrecked his
caused
automobile and
The aggravating
in
circumstance
of his passengers.
person
death
caused
question reads as follows: “The defendant
passengers
the death of the
in
while
was previously
of a felony
convicted
involv
(i.e.
commission
felony
driving
of a
while
ing the use or
threat
violence
intoxicants,
under the
influence
second
person.”
Thus,
701.12(1).
offense, See, O.S.1981, 11-902),
there-
is required
go
State
beyond simple
by supporting a murder in the second de-
proof that a
a capital
defendant in
had
case
gree conviction,
but no one would
prior felony
ag
convictions
establish the
crime
involved the use or threat of
gravating circumstance. The
must
person.
violence to the
additionally prove
prior
felonies
involved the use
Thus,
or threat of
cases,
violence
many
prior
in
con-
allege
person. The
victions,
fact
the prior
more,
felonies
very
without
well
could
re-
were committed and that
the defendant
sult
finding
erroneous
the trier of
committed them are properly and most easi-
previous
ag-
fact that
felonies
*9
circumstance, when,
they
person,
in truth
violence to the
the defendant
gravating
must
gross
do
would result in a
miscar-
the
to
given
opportunity
personally stip-
not. This
be
justice.
conviction(s)
riage
prior felony
of
ulate that
the
al-
leged by the State did involve the use or
argument
We realize that
the
violence
person.
threat of
Counsel
posi
made that a
in a
might be
defendant
for the defendant must not be allowed to so
could
to those described above
tion similar
for him.
stipulate
judge
must satisfy
impli
the
simply produce evidence to rebut
himself that the defendant understands and
previous
his
involved
cation that
felonies
the
appreciates
nature of the proposed stip-
a re
threat of
the use or
violence. Such
the
ulation and
consequences potentially
however,
to a
quirement,
would amount
either
arising
agreement
from
or a re-
proof
appel
shift in the burden of
onto the
stipulate
may accept
fusal to
before he
the
prove
to
absence of the
lant’s shoulders
the
defendant’s decision.
Although the
aggravating circumstance.
the
stipulates,
If the defendant
State’s
to
appellant may rightfully
required
aggravating
the
circumstances
proof of
any mitigating
raise
circumstances
limited to
of the judg-
must be
introduction
consider,
the trier of fact
he cer
wishes
to
prio"
ment and sentence in the
felonies
the
required
disprove
cannot be
to
tainly
stipula-
the
written
along with
defendant’s
In
aggravating
alleged.
circumstances
that
involved the use or
tion
felonies
Wilbur,
684,
95 S.Ct.
Mullaney
U.S.
If
person.
violence
threat of
to
Supreme
508 (1975),
44 L.Ed.2d
stipulate,
refuses to so
State
defendant
a
a
required
Court held that
statute which
evidence suf-
permitted
produce
shall be
to
reduce a
produce
defendant
to
evidence to
felonies
prove
prior
did
ficient
a
charge
degree
of homicide to lesser
consti
violence to the
involve the use or threat of
tuted an unconstitutional shift of the bur
emphasize
prosecutors
person. We
onto the
The same
proof
den of
defendant.
trial courts should exercise informed discre-
impermissible result would be reached were
minimal amount
permitting only
tion in
require
prove
we to
a defendant
support the
cir-
aggravating
of evidence to
did
the use
former convictions
not involve
do
authorize the
today
cumstances. We
or
carry
threat of violence. The
must
State
past
crimes
re-try
defendants
State
proving
the burden of
that the circumstanc
stage
capital
of
cases.
during
sentencing
felony
es
a
prior
defendant’s
appropriate
convictions are
to its contention
case, we cannot
present
In
the defendant
the ulti
should suffer
permissible
overstepped
that the
death.
penalty
mate
of
circum
proof
in
bounds
pro
testimony did
We therefore hold that
the follow
The victim’s
stance.
the violence com
ing
procedure concerning
gruesome
must be the
vide
details of
She
appellant.
701.-
her
allegation
upon
by
State’s
mitted
as the
12(1)
cases:
man
capital
simply
appellant
in this and all future
identified
First,
701.10,
her,
he used a
defend
and testified that
by
raped
as mandated
who
during
com
given
ant must be
due
of all evidence
knife to threaten her life
notice
Likewise, the infor
aggravation
present;
intends to
mission of the crime.
in that
second,
case
charging
must
the evidence
review
mation
jury that
proffered
its
to inform the
the State in
served
threat of violence.
allegation in camera to
felo
involved
use or
ensure that the
crime
no
we hold that
there was
error
Although
nies did indeed involve
or threat of
the use
the rules
third,
find
person;
upon
aspect,
emphasize
violence to the
a
in this
the re-trial of
felony
apply
trial court
set forth shall
ing by
prior
herein
involve
convictions did
the use or threat
this case.5
intelligently
represented
counsel or
waived
The record in this case does not reflect that
proved
representation
either
in his
former
conviction.
the State
that the
*10
of
appellant’s allega-
necessary
remainder
slides and further were
to
not
Further,
tions of error need not
They
be discussed.
of
explain the cause
death.
there
peculiar
concern issues
the trial giving
to
controversy
was no issue or
to the cause
as
appeal.
rise to this
Due
the fact
to
that the
of
color
death. These
slides could
aid in
trial,
appellant must be afforded a new
no
of
appellant’s guilt,
determination
opinion
necessary.
on the issues are
but
prejudice
could
serve to
by
to a fair
their
nature
gruesome
trial
stated,
For the reasons herein
we RE-
majority opinion
size. The
re
mistakenly
VERSE the
conviction and RE-
State,
lies on Bills v.
(Okl.Cr.
whether pictures of a homicide victim made
subsequent to his death are admissible into
evidence are they
... inadmissible unless are they relevant some material issue MORRISON, Johnny Appellant, reasonably would jury assist the in the guilt, determination of the defendant’s Oklahoma, Appellee. The STATE of relevancy and this outweigh must danger jury would substitute No. F-82-195. emotion for reason as a basis of their Court Oklahoma. Appeals of Criminal verdict. Oxendine v. Aug. argues eight that the color slides necessary were to illustrate the testimony However,
of the medical examiner.
medical examiner testified wounds
depicted in color slides would not be
difficult jury to describe to the without attempt prove Should the State the former Failure to will render the former convic do so See, as
conviction Tucker circumstance on tion inadmissible. re-trial, prove 1972). (Okl.Cr. it has the burden the above. P.2d 458