*1 eye While it is trae that there was no testimony
witness
to the circumstances of the
CARGLE, Appellant,
Marcus L.
rape,
applicable
sufficiency
test as to
whether,
reviewing
the evidence is
after
Oklahoma, Appellee.
The STATE of
fight
most favorable to the
State, a rational trier of fact could find the
No. F-94-763.
charged
beyond
crime
was committed
a rea
Appeals
Court of Criminal
of Oklahoma.
sonable doubt. Roberts v.
(Okl.Cr.1986)
(citing Spuehler
Dec.
1995.
(Okl.Cr.1985)).
Appellant’s allegation Proposition final is that improperly VII the State used state- during ments made Appellant’s the course of competency during examination the sentenc- ing stage, constituting However, error. review of the attempts record reveals that question
made the State to witnesses concerning Appellant’s competency were ob- jected sustained, although to and the trial acknowledged
court that some of the state- probably ments were admissible. In an ov- caution, erabundance of the court disallowed questioning concerning Appellant’s compe- tency. again Appellant provided Once has
no indicating prejudice. citation to the record The fact that did not receive the penalty requested by death the State belies argument jury imposed that the greater punishment because the State’s actions. argument
This is without merit. After alleged by review of the Ap- errors pellant, we are unable to conclude that
error has requires occurred which either re- versal Appellant’s or modification of sen- Accordingly, Judgment
tence. and Sen- tence is AFFIRMED.
JOHNSON, P.J., LUMPKIN and STRUBHAR, JJ., CHAPEL, V.P.J.,
concur.
808 *6 City, Gassaway, Oklahoma Trial
Michael Appellant. for Counsel Attorney, Fern Macy, Robert H. District Smith, Attorney, Assistant District Oklahoma Appellee. City, Trial Counsel for Brown, Cindy Appellate Defense Coun- G. Division, sel, Capital Appeals Okla- Direct Norman, Indigent System, homa Defense Appellant. Appellate Counsel for Edmondson, Attorney Drew General W.A. Oklahoma, Whittaker, Assistant Robert General, City, Attorney Appellate Oklahoma Appellee. Counsel for
OPINION
LUMPKIN, Judge: Cargle by a L. was tried Appellant Marcus jury in District of Oklahoma Coun- Court CF-93-6982, ty, and convicted No. Case II, First I Murder in the Count and Count 701.7(A); (21 O.S.1991, § and Count Degree III, of Firearm After Former Possession a (21 Felony O.S.Supp.1992, aof Conviction 1283). weapons charge he re- § For the (10) years. The ten a sentence of ceived sought prosecution penalty the death on each addressed them which had been delivered (1) count, alleging Dhooge boys murder The defendant was to the house. The two found lying Sharon floor in previously felony involving of a the bodies: on the convicted (21 room, living person lying in threat of to the Richard was use or violence (2) O.S.1991, 701.12(1)); doorway § to the The defendant bedroom. Each had been head, knowingly shot in the had also great created a risk of death to Richard been (21 O.S.1991, person Dhooges shot in the chest. The recalled the more than one (3) 701.12(2)); lights especially Paisleys’ § were and the television murder (21 heinous, atrocious, O.S.1991, when their or cruel was off returned to house (4) 701.12(4)); Friday; usually, p.m. § and 11:30 The murder was committed between purpose lights were off avoiding preventing for the a and the television was on or (21 O.S.1991, prosecution arrest or at that time. lawful (5) 701.12(5)); § prob- of a The existence got Authorities in the case in break ability that the defendant would commit November when a man arrested for acts of criminal violence that would constitute sought domestic violence to make a deal with (21 O.S.1991, continuing society threat October, jail early county authorities. 701.12(7)). II, jury § On Count found Jones, inmate, living Luke had been presence aggravating all five circum- Appellant Appellant’s parents’ Ap- house. stances; I, jury on Count found all but pellant approached had Jones and wanted to 4, that number the murder was committed forgive if God know would him murder. purpose preventing avoiding for the being After assured Jones this would prosecution. making lawful arrest or After occur, Appellant gone through said he had findings, Appel- these recommended changes, some and had killed man and lant be sentenced to death for each murder (whom woman hillbillies from described as according- count. The trial court sentenced Carolinas) municipality out Spencer, ly. judgment It is from this and sentence County. Appel- in northeastern Oklahoma Appellant appeals. We affirm.1 man, lant “Todd” said had shot the and he gone They had shot woman. I. FACTS Paisleys after residence had sold them Paisley Richard was a woodearver. He marijuana. some bad later iden- “Todd” was and his wife Sharon had into a moved house Christopher tified as Todd Williams. on North Westminster in far northeast Okla- *7 Appellant, Authorities arrested who admit- City study to homa southwestern art forms. being killing ted at the scene but denied They planned stay temporarily, to then re- anyone, blaming both murders on Williams. turn their families the Carolinas. While Appellant told person, them a third Christo- City, they apparently Oklahoma also sold Jackson, pher Todd would corroborate this. marijuana. prosecution’s theory It was the they marijuana bad Appellant sold and his of corroborating Appellant, Instead Jack- friends, and this sale their led to deaths. son essentially told authorities what Jones Paisleys’ neighbor They
The saw gone Paisley last Richard had said. to the 24, 1993, September get money alive on he came when residence back some bad for neighbor’s money. marijuana. to the money, house to borrow Richard did not have the trip neighbor’s He he needed a to a said to save into but went with it $200 and returned town, repay he purchase and would the loan the next in a minutes. few He returned the day. neighbor, Larry price, saying Richard offered the he did not want trouble. couple collateral; a Dhooge, as cheeks Williams then asked to use the restroom. offer, out, Dhooge Paisley refused the loaned carrying When came he a he was Tech-9 Dhooge sent his to the house weapon. approached sons semiautomatic $200. He day, Saturday, the next a collect on the Richard and shot him once in the chest. give Paisleys package lunged Williams, debt and to a Richard then who shot 6, 1995; doing, following: fuEy 1. July In so note the the Petition briefed and at issue and it 6, 1995; 11, January July in Error in this case was filed it was submitted to this Court on 1995. the conditions for the fell to the determine whether in the When Richard him neck. away, attempting following crawl transcript and was were met. We find the floor from the couch dived onto floor pertinent: Sharon information sitting. point, At that she had been where 15, charge was filed November pulled handgun a Appellant out .22 caliber Gassaway Attorney appears to Michael twice, pausing in the shot Sharon head attorney of record from been retained as the unjam pistol. Authori- shots to between Gassaway beginning. March On pistol away inches from discovered a .22 ties application attorney an to withdraw as filed hand; appeared Sharon was Sharon’s record, citing agreed payment lack reaching weapon she into a for the when box (O.R.24). Sharon, a dispo- The record does not show shot shot. As motion; however, approached Gassaway as was then Richard he sition of that Williams head, crawling away, pistol his put the Appellant at represented trial. then a shot him third time. Williams took several motions on March filed
television and a video cassette recorder
107).
(O.R.
prelimi
for
Request
34 —
the residence.
nary hearing transcript
one of
was not
them.
facts will be introduced
be-
Other
18, Gassaway
On March
filed a motion for
relevant.
come
transcript, saying
present
would
(O.R. 135).
necessary
pauper’s affidavit
II. PRE-TRIAL ISSUES
response,
prosecution simply argued:
private,
has
retained counsel.
“Defendant
A.
hearing in
matter
preliminary
first,
error,
proposition
Ap
For
145).
(O.R.
lengthy.”
The district
not
court
pellant
right
he was
contends
denied
12, 1994,
May
addressing
issued an order
equal protection under
when the trial
the law
motions;
Appellant’s
several of
motion
provide
copy
prelim
refused to
of his
court
hearing transcript
preliminary
for a
state
transcript
inary hearing
expense.
at State
153).
(O.R.
expense was not addressed
appeal
dispute
The State on
does not
principle
pre
law
general
that denial
It is
trial counsel did
act
evident
not
liminary hearing transcript
indigent
to an
diligence
seeMng
preliminary
with due
pay
he cannot
for it vio
defendant because
filed
hearing transcript. When he
his first
equal protection
lates the
clause
the Four
application
transcript,
it was not ac
Amendment to the
teenth
United States Con
pauper’s
companied
affidavit. Since
LaVallee,
stitution. Roberts v.
389 U.S.
retained, trial counsel had been
affidavit
88 S.Ct.
L.Ed.2d
necessary to
would be
show the court the
However,
points
also
out a defen
the State
money
transcript.
had no
for a
defendant
indigency alone
dant’s
does
relieve
spe
that absent some
duty
This Court has stated
diligence
from a
to act
due
counsel
*8
acquiring
transcript.
showing
indigency by
have
an
in
the
We
held
cific
of
affidavit
transcript
prelim
to a
of a
testimony,
speculate
accused
entitled
cannot
that
this Court
(1)
inary hearing
act
funds;
where:
defense counsel
was,
fact,
in
the defendant
without
diligence
acquire
with due
tran
ed
to
the
if
even counsel were court-
this would
true
(2)
script;
necessary for
transcript
and
the
State,
671,
appointed. Marton v.
cross-examination of
at
trial.
witnesses
(Okl.Cr.1991)
State,
(citing
v.
672-73
Cook
1158,
v.
742
McMillion
P.2d
1160-61
(Okl.Cr.1971)).
1373,
P.2d
1375-76
(Okl.Cr.1987); Wilson v.
701 P.2d Therefore, the
court
not err
trial
did
even
1040,
(Okl.Cr.1985); Bryant
application.
it did not act on the first
(Okl;.Cr.1970).
948,
P.2d
Failure to
31,
May
application
filed
A second
was
transcript
require
a
provide
when these
1994, accompanied by
pauper’s
a
affidavit
a
ments are met will result
in reversal of
(O.R. 175, 177).
Wilson,
that
The docket sheet shows
subsequent
at
conviction.
2, 1994,
to
on
the motions for continuance
1041. We therefore turn to
record
June
12,
public
opinion
transcript
expense
at
were denied
at
VI.
to
section
Suffice
infra
any
Appellant
of
present.2
say here
failure
to have a
because defense counsel was not
harmless,
preliminary hearing transcript was
application
an
The record shows
to rehear
equal protection
and no
violation occurred.
defendant’s
for
motion
continuance
re-
diligence
Trial counsel did not exercise due
quest
transcript
public expense
for
at
was
support
preliminary
in
of his motion for a
(O.R. 228).
filed
court
June
on
hearing transcript,
the trial
not
court did
an
denying
June 10 issued
order
both mo-
refusing
in
prepared
err
to order one
at
(O.R. 283).
denying
tions
The order
was not
expense.4
is no
this
State
There
merit
20;
began
filed until
trial
that same
June
proposition
first
of error.
day. The
not
issue was
raised on
record
during
proceedings.
trial
B.
act
We find trial counsel did not
with
error, Appel-
his
proposition
For
second
of
diligence
pursuing
request.
due
in
his
Coun
right
process
lant contends his
to due
was
sel
present
day
was not
on the
the motion
violated when the court failed to
a
order
Therefore,
hearing.
was set for a
the trial
professional
examination
determine wheth-
properly
denying
court
acted
the motion.
competent.
he
er
was
The record reflects
O.S.1991,
App.
See
Ch.
Rules
of
attorney
application
his
filed an
for determi-
4(f).3
Oklahoma,
District Courts
Rule
competency
on
nation
June
it,
day
proceedings began.
must also address
another
factor:
trial
defense
transcript
whether the
been
Appellant
incompetent,
would have
use-
counsel believed
was
cross-examining
incoherent,
ful in
Ap-
appeared
trial.
talking
witnesses at
as he
was
himself,
pellant
holding
private
during
has also filed a claim
parts
counsel was
part
ineffective based —at
least
attorney
a conference with his
the weekend
—on
preliminary hearing
failure to
a
attorney
obtain
tran-
before trial.
Appellant
said
script,
particulars
kept asking
attorney,
and we address the
of this
for his
as if
not
he did
was,
factor
proposition
attorney
below. See discussion of
who his
know
and he “continu-
Here,
ap-
prepared
timely
2. The docket sheet reads as follows: "State
been
a
have
fashion.
pears
atly
DFS
does not both
are over-
did
motions
not.
40).
present.”
(Supp
ruled
for failure
O.R.
4.Appellant points
Spain
out
this
Court in
(Okl.
3. Nor
County,
are we influenced
defense counsel's
District Court Tulsa
815
person
subject
any
only appear
A. No
shall be
to
ally
in manners that
behaves
procedures after
criminal
he is determined
and when
but abhorrent....
to
incoherent
be
incompetent except
provided in
to be
insignifi-
matters of
you
to him about
talk
through
1175.1
of
Sections
1175.8 this title.
guy.
regular type
appears to be a
cance he
question
incompetency
The
of the
of a
Simpson,5 but
talk to him about O.J.
You can
may
by
person,
person
be raised
the
the
him
The
you
talk to
about himself.”
can’t
attorney,
attorney,
the
defense
or
district
a
fairly common for
court observed it was
by
application
an
for determination of com-
problems.
to
his
attempt
to
avoid
defendant
petency.
application
The
for determina-
of
court
Appellant claims this attitude
the
competency
allege
tion of
shall
the
was error.
person
undergo
to
incompetent
is
further
proceedings, and shall state
governing “competency”
The statutes
facts sufficient
competency
a doubt as to the
raise
a
must
requirements:
two
defendant
cover
of
court,
time,
person.
may
the
The
ability an at
consult with
have sufficient
competency
a
determination on its
initiate
must
able to
torney; and the defendant
motion,
application,
own
without an
if the
charges
nature
the
and
the
understand
competency
court has a doubt as to
22
the
proceedings being brought against him.
person.
1175.1;
State,
O.S.Supp.1992, §
v.
Smith
denied,
(Okl.Cr.1991),
cert.
P.2d
273-74
added);
(emphasis
§
22 O.S.
1175.2
see also
959, 112
2312, 119
L.Ed.2d
(Okl.Cr
State,
Phillips v.
.1982)
statute).
(discussing sanity
In discuss
(as
ing
competen
the term “doubt”
used with
Appellant must make
threshold
cy
sanity),
Reynolds
and
this Court in
incompetent.
If
done
showing he is
that is
(Okl.Cr.1978)
ing. perti- tion of a applicable statute reads motion; act and while the court cannot part: nent Simpson gen- Simpson professional and her friend. is a former athlete wife O.J. publicity. great charged with erated a deal of nationwide and actor who was the murder *10 matter, arbitrarily right in it merely the has the not sufficient for the defense counsel information, look to source of the say the he is that unable to communicate with conclusion, proper come to a all client; and, from the pro his that his mental client’s circumstances, facts and there is a whether discussing cesses seem to waver while he is sanity doubt in to the of his mind as the him; and, the case with that his client does may He the fact defendant. also consider charge, not understand the seriousness of a question insanity that the of was never justification finding to constitute for a that raised, State, (quoting Johnson v. 73 Okl. mentally incompetent. defendant is 4)). (syllabus Cr. P.2d 625 considering question necessary this it is that 9-10, record.”). Considering 229 P.2d Id. 604.6 the we consider the See entire also source, question reputable a State, what constitutes Middaugh v. 767 P.2d 434-35 (Okl.Cr.1988) (mere equated this Court it “a ... with statement appellant fact had been person, made to the court credible past, treated for a mental condition in the persons, oath....” Id.7 under condition, had a heart nervous enough condition was not to raise a sufficient It Appellant is evident to meet failed capacity doubt as to his mental stand requirements of in Section 1175.2 especially light testimony in of his held, A hearing ease. brief at which trial — State, contrary); Siah v. During hearing, that testified. he (Okl.Cr.1992) (lack memory from sub Gassaway knew his name and identified as abuse, disease, stance trauma or does not attorney; although thought his he he was se, create, per competence a lack stand represented by attorneys, other under he trial). Gassaway really stood his counsel. He charged knew he was with murder and that here, We see no abuse of discretion as we “they kill want to me.” He said he under ruling reasonably sup- find the court’s is punishments stood other but murder Siah, by competent ported evidence. only penalty was death “the one that’s stick Accordingly, proposition P.2d at 487. is ing age; to me.” He also knew his the without merit. parents; his the name of church names, pastor’s name; year
and his and the C. approximate date he was incarcerated. appears From record certain This is sufficient to show that pretrial hearings in this case were not re knew the nature of the crime with which he Citing corded. Van White 752 P.2d charged range punishment. and the (Okl.Cr.1988) Kelly assuming may And even have believed (Okl.Cr.1984). Appellant contends this attorney another was his defense counsel —a failure mandates reversal. by Appel- statement which is contradicted acknowledgement during questioning lant’s agree. We do not haveWe since revisited Gassaway Mr. was his counsel—this does not holding noting capable detract from fact he was of as- primary complete need for a record in all sisting attorney with his defense. penalty proceedings death is to allow an it, appellate Based on the court to evidence before the court determine whether the refusing imposed punishment not err competency did to order a factfinder examination, as the were death improper facts not “sufficient result of influ- ence, to raise a supports doubt” the court’s concern and whether the mind ing finding. words, such competency. por- defendant’s See Fox v. In other (“It (Okl.Cr.1974) tion of mandatory sentence review that are, course, cognizant legal competency 6. there govern to the extent the statutes sanity competency difference between under proceedings. through Oklahoma law. Sections Cf. Title through and Sections 1175.1 1175.8 Although he made a statement officer as an However, why of Title 22. we find no reason court, Appellant’s attorney testify did not dealing term as used in “doubt" the statutes with support application. sanity dealing cannot be used statutes
817 supra, and claim proposition in in his in issue this Van White concerned Court 1, ineffective, 12, trial, proposition it is counsel was Kelly issues at as with dealt infra. actually judge during jury or Accordingly, prop- no we find merit this whether the determination makes osition. imposed. There- be should death sentence fore, portion of the that is the essential III. JURY SELECTION ISSUES requires to deter- proceedings this Court proposition, Appellant For his seventh imposed in viola- mine if the sentence were right fair claims he was denied a while Eighth Amendment. And tion jury improp- impartial the trial court because “any required is also to consider this Court potential jurors expressed erly excused who 21 by way appeal,” errors enumerated penalty about the death but said reservations 701.13(B), O.S.1991, those other errors Sec. instructions. could follow court’s implicate necessarily always do not party This Court has held a need not any Eighth constitutional Amendment —or penalty prove juror’s against a the death bias If alternate provision, for that matter. State, Cooper clarity.” v. “unmistakable make a deter- means for this Court to exist 293, (Okl.Cr.1995), granted 889 cert. P.2d 306 transcrip- complete without the mination — U.S. -, grounds, 116 S.Ct. on other tion, so, not do and reversal is it will (1995). 202 This is so 133 L.Ed.2d White, 752 P.2d warranted. See Van juror cannot because “determination of bias argument that (rejecting Appellant’s 819 to question-and-answer be reduced sessions a motion reversal was mandated because manner of a which obtain results cate transcribed, as this Court hearing was not Witt, Wainwright v. (quoting chism.” Id. judge’s finding a the trial could make that 412, 424, U.S. competent ruling by evi- supported (1985)). appropriate con L.Ed.2d 841 The transcript). dence without the impos juror is cern whether a can consider (Okl.Cr.), cert. v. Allen punishment, ing a the death sentence as — denied, -, 370, 130 115 S.Ct. punishment appropriate. should (1994). can We find we discern L.Ed.2d 322 (Okl.Cr.1994), Mayes P.2d hear here that none record — denied, U.S. -, 115 S.Ct. rt. ce sentencing ings at dealt with the actual issue L.Ed.2d complete most record is proceeding, where our attention to first calls disposi Appellant has noted crucial. While Lynn Knight. Mr. Richard comments in these tion of motions were entered several unhesitatingly he could Knight told the court hearings, presented he has noth unrecorded pa life impose a sentence of life or without pretrial ing showing how these Court role; however, him if the court asked when hearings any way in its influenced meaningful “give he could consideration” deliberations, he sentencing present nor has replied know penalty, “I don’t if the death he showing implication anything us with ed explained The then I do that.” court could mandatory review this Court on the sentence adding that punishment option, death was also required to conduct. See Parker juror “under no circumstances” could (Okl.Cr.1994). 294-95 options, he could not serve consider all complains hear Additionally, although he jury. following exchange then occurred recorded, presented has ings were you could asking I’m whether So COURT: nothing showing why failure this Court give meaningful to each of consideration any way, prejudiced has him to record including possible punishments those and — rulings resulting involving the “[pjroblems injection agree death lethal —and easily appealed are from the conferences your opinion was of death if that in verdict Parker, right.” their own justified. *12 pointed guilty Degree, of the First and When the court out her answers Murder inconsistent, permit you if gave equivocal the law would to consider a were she an- death, you death —a of do being sentence pressed, swers. After she answered penalty not, such reservations about the death no to not whether she “could will under law, that, regardless regardless of the circumstances, any penal- consider the death circumstances, you the facts and not could ty case,” give adding in this “I couldn’t fixing a consider verdict death? penalty.” death KNIGHT: No sir. This not excusal was error. may inquire you if COURT: State wish. MR. MACY: move be ex- State would he example Appellant The last cites oc cused, Your Honor. during questioning prospective ju curred inquire you if may COURT: Defendant He, too, ror A. Hunt. not Prentice did hesi wish. stating give tate he could either life or life I questions. MR. no GASSAWAY: have parole. without When asked about the death reluctantly you, I COURT: must excuse penalty, he said he be a little hesi “would Knight. Mr. Please return to the tant,” adding prosecution “would have assembly assignment. room further mean, prove me without shadow —I this, From it is clear that under no circum- go prove would have to to the extreme to Knight stances could follow the law and con- that, you me that he would deserve know.” penalty punishment, sider the death aas explaining penalty stage, After the court if the even circumstances warranted it. again punish him if he asked could choose a
There nois error here. applicable, replied ment which was he he could, thought he “[w]ith but added all hones complains improp
He next
court
ty
death,
I don’t think I could
him
erly
convict
excused Theresa Rochelle Hardeman.
juror
to be honest.” The
said he had not
asked
questions
court
the same
Ms.
Hardeman,
any
up
made
his mind as to
gave
issues
and she
the same answers
case,
penalty,
punishments
but when it came to the death
as
life and life without
However,
parole.
like I
“[i]t’s
when
court
her
couldn’t be comfortable with it is
asked
give
penalty,
opined
if she could
the death
more of the term of it.” The court
she re
“No, sir,
sponded
hoped
I
if
one
couldn’t.” When asked
no
would be comfortable in assess
her
penalty
ing
punishment, asking
reservations about
the death
him if he could
it,
prohibit
give
considering
“meaningful
would
her from
she
consideration to the death
just
penal
“I
penalty, along
possible
said
don’t believe in the death
with the other two
ty.”
your
punishments.”
The court
her
replied:
“[a]re
then asked
Mr. Hunt
“[c]onsid-
ering
way
brought
reservations such that no matter
up,
what the
I was
that’s a
here,
up
parents
be
explained
evidence turns
no matter the
horror for me.” He
circumstances, you
taught
wrong
could
cir
wrong
not under
him “a
for a
don’t make
consider,
you’d
right,”
Appellant’s
cumstance
have to
death would not
verdict,
necessarily
consider,
“bring
person
reach that
but
finally
the other
back.” He
meaningfully
injec
agreed imposition
penalty
consider death
lethal
of the death
would
“[n]o,
conscience,
again replied
tion?” Ms. Hardeman
violate his
that he did not “be
point,
really,
prosecution
sir.” At that
moved
lieve in
taking
death
someone’s life.”
more,
being
she be excused.
pressed
Defense counsel asked her After
he said he
go
if she
think
penalty....
could
fact situation so horri
“couldn’t
with the death
I
say
it,
ble that she could
do
Sorry,
defendant deserved
couldn’t
Your
but I
Honor.
couldn’t,
penalty;
the death
she replied she could.
to be honest.”
coun
When defense
gave
example
gave
Defense counsel then
as an
sel
him
hypothetical
same
Ms.
guy
given,
if a
five
might
“[l]ike
babies and he lolled Hardeman had
he said he
been
give
them all and
them
questioning by
tortured
and burned their
be able to
it. After more
court,
just
essentially
bodies to hide the evidence and he did it
Mr. Hunt
stated he
mean,”
give
guarantee
her if
asking
she could
could not
he would follow the law
yes.
in that
replied
penalty
circumstance.
She
the death
were involved.
wounds,
which corroborated
two.
extent of
than the other
is closer
This instance
testimony. This Court
medical examiner’s
Still,
judge
left
[was]
it is obvious “the
rulings
evidentiary
prospec-
will not disturb
impression that
definite
with the
appeal
an
absent
abuse
faithfully and
trial court
juror
would be unable
tive
P.2d at 1378-
McGregor, 885
discretion.
Cooper,
apply the law.”
impartially
Cf.
(Introduction
vic
photographs
why
typically
That
this Court
at 306.
*13
decomposed or dismembered remains
tim’s
judge
sees
the trial
“who
gives deference to
clothing
depicting primarily bones and
no abuse
juror.”
the
Id. We see
and hears
error);
not
grass and leaves
strewn over
Accordingly, we find no
of discretion here.
(Introduction of
258
Bryson, 876 P.2d at
error,
proposition is without merit.
and this
eight-by-ten
“admittedly
color
gruesome”
body in
charred
photographs of the victim’s
TRIAL ISSUES
IV. FIRST-STAGE
stage
during the second
of
troduced
A.
admissible;
they
“a
of
were
direct result
supported
medi
Appellant’s actions” and
the
trial,
presented
prosecution
During
the
testimony the
still
cal examiner’s
victim was
Paisley
and
photographs of Richard
Sharon
fire.); Fritz, 811
was set on
alive when he
Appellant
in the house.
they
as
were found
(Photographs
were
P.2d at 1365
admitted
the
proposition of error claims
in his third
photographs of the
or color
black-and-white
gruesome
un-
unduly
and
photographs were
at
the
as discovered
crime scene and
victim
identity
disputed the
necessary, as
never
he
scene;
by the
photos taken
the
color Polaroid
of
the
or the cause
death.
of
victims
beginning
at the
of
medical examiner
photographs
has
This Court
held
illustrating
of the
a different area
autopsy
relevant,
if their content
are admissible
body
the marks and wounds
victim’s
substantially
probative
their
value is
unless
admissible,
they
corroborate
medical
as
prejudicial
outweighed by their
effect.
testimony and illustrate
examiner’s
State,
1366,
P.2d
McGregor v.
885
1378-79
victim). As
we
wounds received
—
denied,
-,
(Okl.Cr.1994),
U.S.
cert.
before,
“[g]ruesome crimes result
said
50, (1995);
95, 133
Bryson
L.Ed.2d
116 S.Ct.
Mayes,
pictures”.
887 P.2d
gruesome
240,
State,
(Okl.Cr.1994), cert.
258
v.
State,
P.2d
(quoting
v.
845
1313
McCormick
—
denied,
-,
752,
115
130
U.S.
(Okl.Cr.1993)).
896,
only consider
898
The
(1995);
P.2d
L.Ed.2d 651
Smith
737
pictures are
is whether the
ation to be made
(Okl.Cr.1987),
denied,
1206,
cert.
484
hideous,
unnecessarily
that the
such
L.Ed.2d 383
108 S.Ct.
be said to be unfair. McCor
on the
can
pictures
grue
The
that the
are
fact
there,
mick,
Here,
P.2d at 898-99.
as
photographs
not of itself cause the
some does
repulsive as to
photographs
not so
“were
probative
The
value
to be inadmissible.
(quoting
Thom
Id. at
be inadmissible.”
mani
photographs of murder victims can be
P.2d
as v.
showing (Okl.Cr.1991), cert.
ways including
fested
numerous
denied,
1041, 112S.Ct.
502 U.S.
wounds,
nature, extent,
and location
(1992)).
L.Ed.2d
scene,
corroborating
depicting the crime
proposition is without merit.
This
testimony. Bryson,
the medical examiner’s
258;
Fritz v.
B.
1364-65 (Okl.Cr.1991).
arrest,
Appellant was taken
his
After
station,
interrogated
police
he was
where
photographs
The
are relevant:
time,
being
after
read his
positions
they accurately depict the
of the
twice.
second
talk,
readily agreed found,
rights, he
which
Miranda8
were
corroborate
bodies
Jackson;
he was
at which
he told
officers
testimony
eyewitness
time
Todd Williams
merely present and witnessed
support
testimony
of informant
tend to
However, during the
They
both victims.
the nature and
shoot
also showed
Jones.
Arizona,
subjected
police custodial interro-
need not be
86 S.Ct.
8. Miranda
384 U.S.
(1966)
gation
suspect
his consent.
without
right? as he said whenever he And *15 evidence, reviewing the After point you your rights giving if that at indi Appellant’s hold actions did not initial know, talk, you you don’t want decide silent, rather desire to remain but cate a you have to. don’t of to ascertain what course indicated desire How— CARGLE: taking, going to be the officers action were continue, we have affect MITCHELL: Just to course of action would and how that that, merely to do the court in the do and we have what him. This one factor says. surrounding the totality of the circumstances knowingly and vol Appellant determination gonna long you guys hold How CARGLE: right to remain silent. untarily waived his me? (Okl.Cr.1993), Pickens v. 850 P.2d See Well, long? is MITCHELL: How — denied, -, t. cer investigated. thoroughly OK? going to be (1994); Sadler 127 L.Ed.2d gonna depend gonna en- This is —this (Okl.Cr.1993). you’re gonna to tell tirely on what be able holding Appellant’s waiver light In of this right? truthfully happened. what All us knowing intelligent, we need You know a lot. know that. You We “fruit-of-the-poisonous- Appellant’s Uh, question— address know a heck of lot. concerning con- argument the second tree” myself. CARGLE: About being versation, during which he admitted Yeah, yourself and about MITCHELL: of mur- the time present at the scene at Todd’s your involvement and about about ders, taking part. For the same denied but And of that. OK? involvement all reason, Appellant’s con- not address we need just gonna depend on is what it’s that’s testimony Christopher Jackson tention the helpful you’re how cooperative and how suppressed. must be you your question is are gonna be. If proposition error without This fourth no, think gonna get tonight, no I don’t out merit. you fact, won’t. you In I’m sure will. Well— CARGLE: C. mean, many got I we’ve too MITCHELL: error, proposition fifth being For his questions are answered as we his conviction for Appellant contends go purpose of the on. That’s the whole Paisley must be reversed together of Richard piece murder investigation, is start to con insufficient evidence you’re one there is And because place. what took OK? correctly Appellant crime. your is the one vict him the tell us side. Todd that can determining sufficiency time, cites test for coming, announced he was At that too. whether, reviewing of the evidence: out carrying Williams came of the back light most favorable to the pistol chest, Tech-9 shot Richard prosecution, any rational trier fact could shot, By then the neck. the second Sharon have found the essential elements of the had left her seat on the couch and was on the charged beyond crime a reasonable doubt. (after Seeing floor. fired Williams (Okl. Spuehler v. 203-04 Richard), Appellant second shot said Cr.1985). “damn,” jumped up from where he was seat- ed, was, ran to where .22 she and fired a begin police began: where pistol shot, her. After weap- the first produced the evidence Luke Be Jones. jammed. Williams shot Richard third being jailed, fore Jones lived with time as Richard crawled toward his bedroom. family. part and his Sometime the first By time, AppeEant unjammed October, Appellant “if asked Jones God pistol and fired second shot into Sharon’s forgive being would him for murder.” After head. so, assured Jones God would do him “going through told he was some AppeEant contends this evidence does not changes” with himself because he had mur aided, AppeEant assisted, show abetted dered “a man and a “out woman” there on encouraged shooting. Eght Richard’s Spencer.” He told Jones someone named presented, this and other evidence we dis- “Todd” had shot the man “and he had shot agree. AppeEant That was concerned with the woman” over bad “some weed deal.” He the “murders” instead one indi- “murder” they got money then after told Jones their cated he culpable beHeved he was for both. back, Todd man shot with a Tech-9 Additionally, AppeEant claimed he and pistol, semiautomatic and when the woman Paisleys’ get WEEams went to the house to moved, pistol. he shot her with a .22 *16 marijuana; this, for despite refund some bad After authorities obtained an war- arrest they there is no evidence returned defec- the Appellant him, rant for and it on served product, tive had it or even How- them. Appellant being police taken to a car. ever, guns. both had loaded The con- State out, being While escorted Appellant asked appeal, agree, tends and we AppeEant patrolman the accompanying him “which concerned, seemed not because WEEams patrolman murders this about.” The testi- bathroom, Paisleys’ went the to but because “[m]urders, fied he said more than one.” long there, he took too in as if he were strongest against Appellant evidence expecting something happen. to given by Christopher Todd Jackson. There is gun: also the evidence of a third Appellant Jackson said he encountered and photographs clearly pistol a show loaded .22 Williams, Todd and asked them for a ride. was in a box on the floor between the coffee They agreed, Appellant but told Jackson table and the couch where they Sharon was sit- stop had to make a get first and ting. photos show Sharon’s in money. They hand the Paisleys’ all arrived at the box, away weapon. inches from the house and went There- inside. While Jackson ac- fore, cepted beer11, Eght prose- in the most Appellant offer favorable to the cution, AppeEant Williams went with Richard to another room. could have seen Sharon they out, weapon When came back reach for in attempt Richard said he an to save husband, any did not right want trouble and her would be and took action to see she was neighbor’s, back. Richard AppeEant went to not successful. if where Even did not see returned, money Ap- for, borrowed giving reaching what Sharon was he would have pellant telling bill and him to steps $100 been to her able see actions and take to it, worry get money about he would back. she ensure did not interfere with WiEiams’ door, Jackson for Appellant shooting started of Richard. murders, although opportunity contends Jackson was an accom- he had the plice. support We find no this theo- do so. ry. implicate Even did not Jackson denied, (Okl.Cr.1992), cert. P.2d light most to the
Taken in the
favorable
203-04,
reasonable
into
agreement
evidence was error.
itself
Paisley’s
proposition
This
Richard
murder.
object
did not
to the admis
Defense counsel
without merit.
agreement, and
sibility
immunity
of the
has
plain
all but
error.
therefore waived
D.
(Okl.Cr
Simpson v.
.1994).
no error here.
We find
error, Appel-
proposition
For his sixth
prosecution improperly
lant
claims
Nickell,
As
“[u]se
we said
Christopher
credibility
vouched
portions
[plea] agree
of these
‘truthfulness’
Jackson,
eyewitness
Todd
Jackson.
impermissible vouching only
ments becomes
crimes,
immunity
an
testified under
implicitly
prosecutors explicitly
when the
prosecution admitted
agreement, which the
accurately
can monitor and
indicate
Appellant claims this admis-
into evidence.
verify
of the witness’ testi
the truthfulness
sion,
argu-
closing
as comments
well
(quoting
mony.”
P.2d
United
Id. 885
ment,
error.
constituted
(10th
Bowie,
States v.
892 F.2d
Cir.1990)).
improper vouching if
There is no
counsel
We first observe defense
testimony
“no
than reveal that
does
more
comments,
object
prosecutor’s
failed to
obligation
testify
an
the witnesses had
waiving
plain
Mayes,
all
thus
but
error.
truthfully
explain
consequences of a
1321;
Moore
obligation.” Id.
breach of that
denied,
(Okl.Cr.),
cert.
227,
reversible error to
when the
out merit.
prosecutor argued Appellant was a continu
ing
society
threat
asked the
to do
B.
Allen,
justice.
was to be hard. He then commented prosecution Constitution because was al- he had to make the decision seek the emotional, present highly lowed to irrelevant penalty, present death then evidence to show jury. evidence to the it was He deserved. added the officers had present to him before he prosecution presented could two witnesses decision; everyone make that and that had who testified as to the victims’ get two, fulfilled their duties as far the case death. pre- Of the the most emotional progressed. Davis, He then said Nancy sentation came from Richard process sister, volunteer Paisley’s because he had prepared who read a state- repeated jury’s job initiated the act. He detailing ment from life Richard child- hard, “[o]nly but you can mother, finish hood until his death.12 Sharon’s statement, prepared interrupted only 12. won the art work. She also identified once, Davis, pages transcript. pictures depicting covered 12 Ms. carvings other Richard did. Richard, years began several older objected picture than with an Defense counsel to one of Rich- (he ard, age anecdote Richard’s life at four as the witness had written the dates of death). 33 at the time of his She related the birth and his death on the back. After this foEowing: coming finding my interruption, "On home and Ms. Davis continued with her writ- statement, crying unwilling mother relating to share her during financiaEy sorrow ten *18 me, her, time, placed with Dick over went to coEege his little hard Richard lived in a tent on the said, cry, mommy. campus arms around her and money coEege, adding: don't to save for "He you. I'm here with nothing. give That's all it took. Dick you was asked for would He the shirt sensitive, loving.” Dick was also family proud She related off his back.” The entire was child, a fishing graduated that as Richard collected degree parks worms him when he with his fishermen; administration; sports, for he local exceEed in and and recreation and business and pitcher captain family was the and his parents baseball became even closer after their She a teams. recaUed beach vacation park died. He took of a control local and made eight. got shared when Richard was He person- sun- a of it. success She also related he how burned, concern, $15,000 expressed and ally when Ms. Davis display a raised for fireworks replied, 1984, it; money "Dick I'll tell spend county them doesn't hurt and rather than you’re supposed get that’s what display to "is today.” beach. still talked about She re- complained. He never He made lemonade through out counted how Richard rose the ranks of point, park system, yearned of lemons.” At that pic- she identified a the state but be an to artist showing proud ture a departing Richard awith torch he instead. "Before [aban- for Oklahoma career], Special Olympics out doning parks carved of wood for the for his career for an art Dick picture quote, State famEy, got Youth Services. shows Rich- told his beloved 'You’ve to have dream, carving, displays ard yourself, reaEy which a blue enjoy ribbon a believe in and (1991), Howell, L.Ed.2d 720 over Shirley testified about Sharon.13 prior by holding Eighth ruled decisions 1. bar the states from Amendment does not allowing Supreme admission victim acknowledges that Tennessee, argument on that Payne prosecutorial and evidence. 501 U.S. Court sadness, heal, not, nothing only existing you’re doing. you’re ache heartache can what If ” meaning to We’re real in life.’ He came and the tears continue to flow. not the and have no Everything emptier art be- to learn of southwestern and Oklahoma same without him. so, Oh, a wood carver. came successful now. we miss Dick and we want him Though gone back. his smile is forever and September was to be The weekend of touch, precious can his hands we not we have last, planning was to move back home. his as he Dick, the one we love so much. memories of August was how her last contact She recounted family's joy We knew a when Dick was bom thank-you a card with a when she received grow grew pride he to and felt the love and as letter joy manhood. Our and thankfulness for hav- remembrance, birthday to which for his 33rd ing a had him as wonderful brother and love [indicating]. guardian angel this he affixed pride for him and still remain forever besides typical happy Dick. was so That was He pain suffering and that knows horrendous coming We couldn’t wait. to be home. justice end. want for and Sharon. no We him light. light went our That out the Dick was justice. They say There time must September when we afternoon forget, helps you and to but heals all sorrows tragic and Sharon's were notified of his only proved time so has how much we miss far spread through family As word deaths. members, friends, co-workers, Earl, Barbara, yet. Sadly Nan- Dick missed acquain- and Ed, Jeannette, Donna, Harold, Buck, Terry, cy, learning many about tances—and are still Howell, Rita, families, Shirley and Ed and and disbelief, contacting was us—there and throughout many, many friends Dick's bitterness, sadness, denial, anger, outrage, country you loved him so. none of who That nothing We and heartache can heal. sheer will ever have lose someone so near and say goodbye. didn’t even have the chance to way you dear to in such a senseless this is them one will ever What it meant to lose no Paisley’s prayer you. you. God bless exactly pretend No one to know know. can did cross Defense counsel examine. how we feel. In order tion, know devasta- suffering, you pain and would have She how much Sharon loved ani- testified experience things yourselves. same mals, finding strays bringing always and them hope you never do. home, them, taking taking and care even them adult, eulogized good who him as a kid and She "one of the to the vet. Sharon was described as encouraging teammates. She related was people I’ve ever There was most alive known. stoty a how a boss shared former just spar- something just about her. She—she when kled, brightness was a about her. She there tree, buy a Dick him not to Christmas told Sharon was our sunshine.” Ms. Howell noted bring special a tree he would him a one from every She the best of situation. said made job. managing he as a second With lot exchanged recipes, always etc. She related cheeks, two up rosy outfitted Santa —Dick—showed chinkapins, she nuts from how mailed box Sharon, in a full Santa Claus suit deliver tree Carolina, "[b]ut she didn’t ever North toys boy. bag was a for his little That full pictures open get to them.” She also identified special Phil son. Dick Christmas for Gain’s together, pictures of every year. and Sharon planned He our of Richard to do it Santa, cat one of with his us. Christmas Sharon with her Richard his last Christmas with will be the same. observed: never torch. She "spunk friend remembered him for Another you I "I tell how much love Sharon.... can’t eyes." sparkle in his Another friend my everything to me. She was She—she taught how also several outdoor remembered everything. We shared And there’s friend. troops. imag- programs girl scout Yet another plan that I ever had that didn’t include never glorious presence that of rainbow ined "as wonderful, loving daughter, was a her. She brightening cloudy day.” Ms. Davis concluded together enjoyed being much. And and we so following: *19 with the coming looking forward to her we were so laugh laugh. us We much He made don’t They already packing getting were home. him We now. We need Dick. want back. home, ready already were to come we September 27 the afternoon of did not know making being spend plans some about able to day bring. we would When what sorrow that together.” time stopped gold beat- learned Dick's heart Oh, when called the Her last contact was Sharon thing. ing, a and we couldn't do how a smile, Sunday to her father her death wish together before to loved see Dick's be in to Again, happy birthday. did not day defense counsel way. is never a that Dick same old There still cross-examine. is not foremost on our minds. Our hearts 826 2.
However, he contends that without some
guidelines,
nothing
the evidence becomes
ability
present
But the
to
victim
“super aggravator”
than a
ne
more
which
not,
impact
as Appellant sug
evidence does
gates
narrowing
penalty
function death
gests,
“floodgates
opened”
mean the
procedures
required
provide.
fully
are
To
to
everything
prosecution
and that
wishes is
issue,
necessary
it
address the
we find
admissible. While the rules of evidence are
pertinent language
Payne.
review
in
applied
not to be
in a
fashion in
mechanistic
sentencing
case,
stage
capital
a
Gathers,
overruling
In
South
Carolina
apply.
do
nonetheless
See Fox v.
779
805,
2207, 104
490
109 S.Ct.
876
U.S.
L.Ed.2d
562,
(Okl.Cr.1989),
denied,
572
cert.
494
(1989)
496,
Maryland,
Booth
482 U.S.
1060,
1538,
110 S.Ct.
U.S.
827
accused,
must
is
trial court
determine whether victim
(“[J]ustice, though
to the
due
due
prosecu
impact
presented by
of
the
concept
also. The
fairness
evidence
to the accuser
it is narrowed
the
strained till
tion
admissible even before
Court
must not be
true.”)
keep
the balance
present
filament. We are to
knows
will
whether
defendant
Massachusetts, 291
Snyder v.
U.S.
(quoting
mitigating
appreciable amount of
evidence.
338,
122,
330,
97,
L.Ed. 674
78
54
it is
amount
But we are also aware
not the
(1934));
Dela-
also Petition
State
opportu
see
is presented,
evidence which
but the
Wise,
ware,
(Del.1991);
v.
1
597 A.2d
State
nity
present
side to
which
each
(Mo.1994);
494
McNelton v.
indeed,
879 S.W.2d
addressed;
the
Payne
the
Court
(1995)
900,
934,
111
900
938
Nev.
Payne
it
made it clear would leave to
Court
127, 137,
v.
108
(quoting Homick
Nev.
proce
how
the states the details on
to devise
(1992)) (“The
600,
key
crimi-
problem.
dures and remedies to address the
sentencing
capital
ability
eases is the
nal
824-25,
Payne,
at
3.
psy-
mation about the
chological,
physical
and
of a violent
effects
example of victim
This case is an
and
of their
crime on each victim
members
coming perilously close to
impact evidence
designated by
family,
person
immediate
or
way.
far
weighting the scales too
the other
by family
of the
the victim
members
highly
In the
of the
emotional statement
face
about
victim and includes information
Davis, Appellant presented only
by Ms.
victim,
surrounding
circumstances
minister,
to have a
who testified
used
crime, the
in which the crime was
manner
relationship
Appellant,
came
close
who
opinion
perpetrated,
the victim’s
and
earing people
who dur
loving
sentence;
recommended
“just
ing
years
got
kind of
past
few
parents and
church.
apart” from his
O.S.Supp.1993, §
984.14 From
defini-
itself,
Payne opinion
we have
in which a
tion and
We
the difficult situation
realize
situations,
following guidelines.
at the
placed: in most
arrived
trial court is
O'Connor,
Kennedy.
joined by
implications
Justices White and
inher
need not address
14.
definition,
Id.,
phrase
“and the
ent in the last
the
should be
to the “fi
evidence
restricted
evidence
it
the
as
relates to
nancial, emotional,
O.S.1991,
psychological,
physi
§
and
impact
12
2403. This victim
evi
effects,”
impact,
cal
or
of the crime itself on dence
not
until
should
be admitted
the trial
survivors;
per
the victim’s
as well as some
court
or
determines evidence of one
more
sonal characteristics
the victim. See also
already
aggravating
present
circumstances is
Freeman,
long
survivors, why and the victim evidence, should not impact hereby promul victim Mitigating have killed. been evidence instruction, offers gate following be used in glimpse awhy factfinder defendant capital all murder in which future cases vic live; unique is and impact deserves victim presented: tim impact evidence unique evidence should be restricted to those prosecution has introduced what is characteristics which define the individual impact known as victim evidence. This died, contemporaneous pro who has evidence has been introduced show the spective surrounding circumstances that financial, emotional, psychological, phys- or death, how those circumstances have ical effects of the victim’s death emotionally, financially, psychologically, and family. members the victim’s immediate physically impacted on members the vic you It is intended to remind as the sen- family.15 tim’s immediate just tencer that defendant should be individual, Consistent with our decision in considered as an so too the (Okl. Mitchell v. victim is an may individual death whose Cr.1994), the represent unique society State should file a Notice of loss to and the Evidence, Intent Impact family. Produce Victim simply This evidence is another detailing sought informing you the evidence specific to be intro method of about the duced; hearing an in-camera should by question. be harm caused crime disposes Appellant's ap- 15. This continuing society, contention on a defendant is a threat to peal impact “super ag- victim evidence ais the victim was so the killed defendant could gravator" always present which will in a prosecution, avoid arrest or victim suf- capital case. The answer lies in the obvious physical fered torture or serious died, before abuse impact differences between victim aggravating ing evidence and aggravating or other circumstance the support- circumstances. Evidence prosecution might allege. jury’s Because the dis- aggravating designed an circumstance is narrowly require- cretion still is channeled provide guidance jury determining aggravating ment must find least one eligible whether defendant for the death doubt, beyond a circumstance reasonable penally; impact victim evidence informs overbroad, penalty death does not become why the victim have should lived. Even victim Appellant’s Eighth contention is an Amend- case, impact present every evidence is ment violation See fails. Windom prosecution does relieve its burden (Fla.1995) (noting So.2d that Florida prove beyond aggravating a reasonable doubt the permitting statute victim evidence allows alleged. circumstance has The two kinds of "only present such evidence after there is in the may are not similar: that a victim great person aggravating record evidence been a of one more cir- who will be missed cumstances.”) go proving friends and relatives does not toward *22 (Souter, J., joins, Kennedy, J with whom evidence in deter- may this You consider concurring). How- appropriate punishment. mining an to ever, must limited your be consideration mind, guidelines in turn to these With culpability of the inquiry into the moral impact presented Ap- the victim evidence defendant, response to not an emotional trial. pellant’s
the evidence.
4.
penalty:
death
Vic-
As it relates to the
an
presented
not the same as
The
in this case
impact evidence is
evidence
tim
an ad-
statutory
Proof of
the
of admis
aggravating circumstance.
framework
exceeded
family
prosecutor
victim’s
is
The
himself
impact on the
sible evidence.
verse
when,
In-
in
aggravating
acknowledge
circumstance.
as much
proof of an
seemed
impact
beginning
in discussing
evidence
the
before
troduction
this victim
evidence
way
stage,
“[t]he
of its burden
second
told the court
relieves the State
no
very
beyond
going
doubt at least
are
to be
emotional.
prove
a reasonable
women
has
aggravating
probably
which
make
feel he
circumstance
man
will
more —we
one
may
vic-
alleged.
job
explaining
consider this
a better
in
what
You
do
been
can
determining the
us
has
The record before
impact
impact
evidence
been.”
tim
only
penalty
death
either
Davis or
appropriateness of the
not reflect whether
Ms.
does
or
find
the existence of one
to their
dur
you
first
Howell succumbed
emotions
Ms.
(at
testimony
point
has been
the trial
aggravating
ing
circumstance
their
which
more
beyond
by
duty
appropriate
evi-
reasonable doubt
have a
take
proven
court would
still,
Mitchell,
1205);
impact
action,
independent from the victim
884 P.2d at
dence
see
evidence,
testimony
aggravating
question
and
be
find
there can
no
circumstanee(s)
outweigh
finding
emotionally powerful,
the stand
found
from
mitigating
admissibility
impact
circumstances.
evi
point
one or more
of victim
instance,
dence, much of it irrelevant. For
sentencing
the other
As it relates to
age
child at
portraying Richard as
cute
im-
may
You
consider this victim
options:
way provides insight
in no
into
four
determining
appropri-
pact evidence in
prospective circum
contemporaneous and
under the
punishment
ate
as warranted
death;
surrounding his
nor does
stances
and facts in the case.
law
surrounding his
how the circumstances
show
used in all future
instruction is to be
financially, emotionally, psycho
death
murder
where victim
capital
trials
impacted on mem
logically,
physically
introduced,
has been
and is effective
evidence
Al
family.
of the victim’s immediate
bers
opinion
published.16
the date this
may
unique
though Richard
have been
Claus,
instruction,
saved the
up
to-
dressed
as Santa
guidelines
that he
These
personal
county thousands of dollars
gether
modify
our
or remand
power
effort,
Review,17
fundraising
athlete and
Mandatory
talented
is suffi-
Sentence
under
artist,
thoughtful and considerate
is a
and was
jury’s verdict of death
to assure the
cient
only
family,
aspect
goes to
one
response”
moral
on reason
“reasoned
“based
statutory
in the
definition
Payne,
factors enunciated
501 U.S.
and reliable evidence.”
fact,
(citations omitted)
impact statements.
of victim
at 2614
im-
of death was
Capital
1. Whether the sentence
Murder
16. This instruction is tailored
However,
provisions
preju-
procedure.
passion,
of 22
posed
influence of
under the
seq.,
factor;
O.S.Supp.1993,
dice,
§
are
arbitrary
et
not restricted
or
other
penalty proceedings.
Courts
to death
Trial
supports
jury's or
whether
2.
impact evidence instructions
tailor victim
should
statutory aggravating
judge’s finding
cir-
of a
present-
apply
type
to the
of trial which it
701.12
enumerated
Section
cumstance as
ed.
this title.
Here,
question, we are
latter
rather than the
O.S.1991,
701.13(C) pro-
§
Specifically,
former.
concerned with the
vides:
sentence,
regard
shall
to the
the court
With
determine:
goes
example,
entire
Ms. Davis
photograph
statement
to the
while the
of Richard
impact of
holding
may
emotional
Richard’s death. There
arguably
one
his art works
financial,
explicit testimony
is no
to the
relevant to show his handiwork and “infor-
psychological
physical
victim”,
effects of the crime mation
photographs
about
other
whole,
family.
proba-
on his
Taken as a
pieces
par-
other
of artwork rendered this
*23
tive value Ms.
cumulative;
Davis’s statement
is sub-
photograph
ticular
and consider-
stantially outweighed by
prejudicial
its
effect.
ing the
fact
date of birth and date
Howell,
testimony by
although
The
Ms.
still
par-
death were written on
back of
that
emotionally charged,
inflammatory.
is not so
photograph,
probative
ticular
its
value was
substantially
by
outweighed
prejudicial
its
this,
discussing
way
In
in no
we
hold
photograph
effect. The
of both Richard and
impact
the emotional
of a victim’s loss is
irrelevant,
clearly
way
Sharon was
as it in no
inadmissible;
simply
irrelevant or
state
financial, psychological
physi-
showed the
or
that,
admitting
emotional im
evidence of
any
cal
their
or
particu-
on
survivors
pact, especially to the
exclusion
other
lar information about
photo-
the victim. The
factors,
greater
court
runs a much
risk
graph
any
did not demonstrate
“information
of having
questioned
its decision
appeal.
on
about the victim” and it does not show how
Parks,
484, 493,
v.
494 U.S.
Cf. Saffle
affecting might
their
are
deaths
or
affect the
(1990) (Discuss
S.Ct.
missed and to is lenges aggravating several circumstances on unique other victim. The more evidentiary both grounds. and constitutional exposed aspects the emotional death, likely a victim’s the less their verdict will response” be a “reasoned moral to the question whether a defendant deserves to He first contends was there insufficient die; greater and the the risk a defendant will support evidence to the murders of Richard deprived of Due Process. Paisley heinous, and Sharon were atrocious begin or cruel. We shall with Richard. complains also court photographs of allowed the victims a.
while part were alive as a of the victim impact evidence. This Testimony Court has held such undisputed that Todd photographs inadmissible, generally are approached Williams Richard and first shot again relevancy their based on him shot, the issues in the chest.18 After that Richard presented Staggs at trial. briefly up P.2d stood pointed before Williams (Okl.Cr.1991); Rawlings weapon to the back pulled of his head and (Okl.Cr.1987) (although trigger. Falling ground to the and shot inadmissible, generally twice, photograph of managed victim Richard to crawl toward his while appel alive relevant to further show bedroom placed before Williams weapon lant, photograph, who had committed mur on very near the back of his head and der). discussion, light of the above we see fired a third time. Based evidence in no Here, reason to retreat from ruling. light prosecution, most favorable to the Jackson, 18. The medical examiner she testified could not related series of events. This series determine order three which the shots to Ap- events was corroborated the statement Here, Paisley Richard terminative, occurred. that is not de- pellant gave to authorities. eyewitness, Christopher Todd Paisley. beyond shooting Richard Richard find While factfinder could reasonable shot, Paisley’s Paisley being Paisley Sharon dived doubt Richard death reasonable couch on to the floor from the which she physical serious torture or preceded so, sitting. she did 143 been When Hale v. abuse. Cf. 878, 109 denied, approached and fired one shot into
(Okl.Cr.), Sharon cert. 488 U.S. pistol jammed. head After her before L.Ed.2d
clearing weapon, Appellant fired second b. shot into Sharon’s head. easy so question is not as to Evidence also at trial that introduced Paisley. The medical examiner Sharon robbery in the Appellant participated of Jan- entry Despite head. wound to her
found one family. Although Denson and her et *24 may more than one there have been evidence members, family without threatened he left through that addition to the shot wound —in witnesses, leaving killing potential them stating Appellant account shot eyewitness crime; identify prosecution him for of that twice, police firearms examiner Sharon result, robbery. convicted of that he was the amount of lead found more opined prosecu In favorable light most to the present only one .22 cali than would tion, Appellant shows learned nowas substan ber bullet been fired —there previous experience, from his and shot Shar conscious after the tial evidence Sharon was keep interfering on to her both fact, the was fired. In medical first shot possi and to murder Richard eliminate possible although testified it was examiner Roma ble witness to Richard’s murder. See shot, after the Sharon remained conscious State, 368, (Okl.Cr.1993), 387 no v. P.2d 847 likely she not. Based on this more did -, 2004, 114 129 aff'd, 512 S.Ct. suffering. U.S. evidence, physical find or mental we no State, (1994); 1 812 L.Ed.2d Williamson v. State, 562, v. 742 P.2d 564 uffer Sto 384, (Okl.Cr.1991), P.2d cert. denied 503 407 denied, 1036, 108 (Okl.Cr.1987),cert. 484 U.S. 1592, 973, 308 U.S. 112 S.Ct. 118 L.Ed.2d (1988). 763, According 98 779 S.Ct. L.Ed.2d (1992), grounds, on other 904 reversed prosecu light to the ly, in the most favorable (E.D.Okl.1995). 1529, F.Supp. tion, support find insufficient evidence Paisley jury’s finding of Sharon the death physical torture or abuse. involved serious 4. finding of this will be discussed
The effect Appellant next contends there review, mandatory below. sentence support aggrava insufficient evidence Appellant knowingly pre ting circumstance 2. great than one risk of death more sented heinous, Appellant next contends the atro- Appellant shows person. The evidence aggravating circumstance is cious or cruel Paisley to the house earli Williams had been unconstitutionally invalid. We addressed er, marijuana. they purchased when When P.2d at argument Cooper, 889 313-14. returned, weapon. had a When each Oklahoma, 1447, v. 58 F.3d also Hatch See house, he knew both Appellant entered Cir.1995). (10th see no need 1468-69 present. After Richard and were Sharon again. address it Paisley, shooting Richard Williams started Paisley and shot Appellant to Sharon went 3. aiding her in the head twice. addition Appellant contends there was next Paisley, death of Richard abetting in the prove he committed insufficient evidence deliberately murdered Sharon prosecution. avoid murder to arrest sup Paisley. people of these two The death aggravating circumstance found knowingly finding Appellant ports jury’s Paisley, not to Rich pertained to but Sharon than great risk of death to more created Paisley. ard 676, v. person. one Sellers 809 denied, 912, (Okl.Cr.1991), cert. 502 U.S. Williams came 691 The evidence shows that (1991); 252 Fowl 112 L.Ed.2d began house and S.Ct. of the back of the out 832 580, (Okl.Cr.1989), both, appellant v. 588 can “it said
er
show
cannot be
denied,
1060,
1537,
...
the conviction
resulted from a
cert.
S.Ct.
(1990);
adversary process
breakdown in the
sel the
but decided
why,
he did not
to.
want
When asked
he
VI. COMPETENCY OF COUNSEL
responded: “Well, I don’t believe Marcus—
Appellant
his
proposition,
In
twelfth
claims
he makes
no sense me. Since
been
counsel
his
was ineffective. He claims coun-
going, he doesn’t make no
I
sense.
pres-
sel was ineffective
he
because
failed to
testify. My
choose not to
wife is
same
timely
preliminary hearing
ent
motions for
why
because
she didn’t come back.” Defense
transcript
competency hearing;
and a
he
proof.
counsel then
an offer of
made
He told
object
failed to
highly
to the introduction of
testified,
parents
the court
if Appellant’s
that
prejudicial
victim
evidence at the sen-
testify
Appellant’s
would
as to
date
tencing hearing;
prepare
and failed to
and
birth;
that he was raised
them and was
present adequate mitigating evidence.
always very
child;
mannerable as a
that
prove
To
perhaps
ineffective assistance of Rose was
too strict
Appellant;
on
counsel, Appellant
only
show not
Appellant
regular
must
that
that
attended
church ser
attorney’s
vices,
performance fell
accept
enjoyed playing
below
and
the drums and
professionalism,
guitar;
able levels of
but
robbery, Ap
also that
before
armed
performance
pellant
planned
entering
this substandard
had an
on
military
effect
had
ser
vice;
on the
proceeding.
problems
outcome
an
Unless
that communication
father,
testimony of all
witnesses
Appellant and his
reviewed
developed between
testimony
testimony
compared that
to the
Appellant.
hurt
which
presented
testimony
at trial. We find
it was
not to
Appellant claims
error
Furthermore,
strikingly consistent.
defense
on the stand. We
put Appellant’s parents
cross-examination
the witnesses
counsel’s
remarks, it
light
father’s
In
disagree.
spirited
thorough;
on at least one
likely
not have
very
he
served
would
occasion,
attempted
im-
defense counsel
will
his son
We
not second-
cause of
well.19
by calling to
peach
key
his atten-
witness
an
guess
for what seems
defense counsel
pre-
testimony
presented at the
tion what
placing
of action
appropriate course
liminary hearing.
Appellant cannot
Because
parents
the stand. Because
Appellant’s
have
useful
transcript
show the
would
been
has
to show his counsel’s
failed
trial,
impeaching testimony at
he cannot
instance,
performance
was deficient
prejudice,
“it cannot be
that the
show
as
said
testimony
their
not address whether
we need
...
from a breakdown
conviction
resulted
sen
changed
the outcome of the
would
adversary process that renders the result
tencing portion of the trial.
Strickland,
466 U.S. at
unreliable.”
Williamson,
2064;
show no above, not err in overrul court did proposi thirteenth last For Appellant’s because it did not ing motion tion, Appellant claims accumulation raise a as to sufficient facts to doubt state *26 trial ad errors at his dictate reversal. We motion Appellant’s competency. Such a transcript (proposition the lack of a dressed simply it be no more effective because would 1) sufficiency the of the evidence con and filed at an earlier time. was Paisley cerning (proposi the Richard murder 5) found no error in the tion above. We dealing pre complaint with the failing competency to order a exami court’s hearing liminary transcript is more involved. 2); (proposition allowing photo in nation that, on noted above based the record We 3); (proposition in ad graphs of the victims us, motion for the court overruled the before Appellant’s mitting statements into evidence hearing transcript ex preliminary at State 4); allowing the (proposition in evidence of pense Appellant’s because trial counsel failed and prosecution agreement between Jackson hearing set for on present to be the time 6); attorney’s (proposition office the district motion; accordingly, counsel failed the jurors from excusing prospective in certain seeking in tran diligence due the exercise 7); plain in panel (proposition no error the attorney’s performance the fell script, and prosecutors in the the comments made acceptable professionalism. levels of below 8); closing arguments (proposition no error However, aggravating the circumstances show in use of cannot 10); incompetence no performance (proposition had an effect and this substandard 12). (proposition proceeding. outcome the have counsel on the schooling, learning his Appellant’s attorney application disabilities and has filed an his supplement appeal in light the record on for leave the made difficulties. In record medical with 3.11 of this Court’s rules. (which accordance Rule attorney by Appellant’s states essen- application, in submitted connection The Appellant’s tent, tially things), the same we find no reason incompe- counsel contention his was grant application, the as we can determine Appel- proposed deals with affidavit of that, presented, informa- even if the record mother, testify in the in- lant's who did not materially Appel- not have benefitted tion would hearing. application the camera indicates jury’s to the determination of sentence. lant as that, Appellant’s would mother affidavit state Accordingly, application supplement the the pre- testify, called she would have had been appeal denied. record is childhood, Appellant’s sented information about staring long- remarás is transcribe cer- of a What failure to herself down the barrel 11) pretrial person wielding (proposition motions nosed revolver. The the tain pistol being her she After admitting portions the victim im- told was error robbed. 9). entry gaining pressing pistol to her pact (proposition There can evidence be head, rings took two the robber her and ordered no cumulative error from these errors. above, her on the floor while two assisted pretrial As noted whether a motion others robbery. way ability When Ms. husband transcribed in no Denson’s was affects down, he, too, punish- came with a guilt factfinder to or threatened determine any way impact upon firearm told to he on the floor. Ms. ment. Nor would killed; thought she would howev- the victim would Denson the effect er, jury. on the one of the robbers told the one named they spotted, left “Mark” been after Accordingly, of error proposition minutes, approximately taking several of without merit. possessions. Ap- the Densons’ She identified pellant apparent leader of the robbers MANDATORY VIII. SENTENCE person weapon and the who held the to her REVIEW head. O.S.1991, required Court This Sec. continuing supporting In addition to 701.13(C) (1) to determine whether the sen- circumstance, aggravating convic- threat imposed tence death was under the influ- robbery jury’s supports tion for passion, prejudice other ence or arbi- finding previously he was of a felo- convicted (2) factor, trary the evidence whether ny involving the use or threat of violence supports jury’s finding aggravating person. O.S.1981, circumstances as enumerated 701.12. Sec. We shall address second Concerning Paisley, the murder of Sharon portion first. jury following aggravators: found the previously of a felo- convicted murder, Paisley to the Richard As involving ny the use or threat of violence to following aggravators: Appellant found person; Appellant knowingly created a felony previously involving convicted of a great person; of death to risk more than one person; or the use threat of violence to the atrocious, especially heinous, the murder was Appellant knowingly great created a risk of cruel; the murder was for the committed person; death more than one murder *27 purpose avoiding preventing of a or lawful atrocious, especially heinous, cruel; was or prosecution; arrest or existed a there probability Appel- and there existed a that probability the defendant commit would lant commit would criminal acts of violence of criminal acts violence that would constitute continuing that would constitute a threat to continuing society. a threat to found in We society. alleged, jury the State but did 10, above, proposition that the evidence did find, not that the for murder was committed support jury’s not the finding the murder of purpose avoiding preventing the or a law- Paisley heinous, Sharon was or cru- atrocious prosecution. ful or arrest sup- el. We did find sufficient to evidence above, in proposition found We the port finding Appellant great the created supported finding jury’s evidence the the to person. risk of death more than We one heinous, Paisley murder Richard atro- support also found sufficient evidence to the or cruel. cious We also found above that jury’s finding Appellant Paisley killed Sharon Appellant great created a risk death to prosecution. to avoid arrest or The same person. than one more Paisley as discussed in evidence the Richard Paisley does not contest the suffi in murder was used the Sharon mur- ciency of pertains the evidence to con support aggravating der to the circumstances threat, tinuing Appellant presented and we find it continuing sufficient. threat to victim of a burglary, society previously June 1991 Janet Den- he was convicted of a son, approximately felony involving testified that at 2:30 one the or use threat of violence morning person. she answered to the doorbell find to the in con following quantitatively the trial, alleged fore be assessed the At (1) in order presented of other evidence to he contended he text mitigating evidence: harm whether its admission was in the of the determine commission principal not (3) (2) beyond a Bartell v. murders; youthful he be- reasonable doubt.” age; less (Okl.Cr.1994). (4) God; loving, Given he from a lieves in comes (5) determined, life, independently family; fact we have caring even the and close evidence, charged, impact victim there was the can the crimes has committed support simply not sufficient evidence salvaged. still be two, aggravating four circum one or but aggravating the circum find We murder, safely in can stances each we hold miti outweigh than the stances listed more portion impact victim evidence gating Appellant. offered evidence improperly was harm which was admitted question: first whether the now address the beyond a reasonable doubt. See Burris less imposed under sentence of death (im (Ind.1994) 642 N.E.2d prejudice any other passion, influence of impact properly admitted victim evidence arbitrary factor. doubt); beyond a Bi harmless reasonable (Ind. 956-57 vins v. N.E.2d above discussion of As noted our 1994) (holding impact victim evidence its nine, proposition we find error in the amount proceedings court must be relevant to state impact presented evidence type of victim circumstances; statutory aggravating but However, jury. as our discussion holding introduction in that case harmless shows, the circumstances aggravating doubt); v. Car beyond a reasonable State only impact victim evidence was not the evi 1995) (Utah ter, (holding stage. during sentencing presented dence impact inadmissible under victim earlier, impact As noted the victim we finding proceedings, but admission Utah used different the evidence evidence is harmless). Accordingly, appellant’s aggravating support circumstances: light presented, of all the evidence do attempt prosecutor in an uses latter imposed find the sentence of death was not jury the is an defendant convince prejudice or passion, the influence of under penalty; for appropriate candidate the death arbitrary factor. other jury is used show the former that, life. It clear victim deserved seems IX. CONCLUSION de- although the victim evidence is signed independently operate of evidence challenge his conviction Appellant did aggravating support used in circum- III, Possession of a Firearm After for Count stances, is the the function that evidence Therefore, Felony. Former Conviction give same: “a measure of judgments and of the trial sentences ... of the offense and therefore seriousness hereby AF- on all convictions are court severity of determining standard FIRMED. *28 Payne, be the sentence that will meted out.” 820, (quoting 111 S.Ct. S. U.S. at V.P.J., CHAPEL, JOHNSON, P.J., and Mann, Sarat, Wheeler, Sitting and A in K. concur. judgment: Sentencing White-Collar LANE, J., specially concurs. (1988)). give Both “as Criminals 56 ... possible much when information STRUBHAR, J., concurs, joins in specially sentencing decision.” Id. 501 U.S. makes the specially LANE concurrence. Gregg v. 821, (quoting at 2606 111 S.Ct. LANE, concurring. Judge: specially Georgia, 428 U.S. 96 S.Ct. (1976)
2939-40,
(opinion of
L.Ed.2d 859
acknowledge
fact that the
accept
I
JJ.)).
Powell,
Stevens,
Stewart,
ruled it
Supreme Court of
United States
under
error,
permissible
the Constitution
as it is one
This is a classic
pass laws that
for a
during
States
state
presentation
“which
United
occurred
impact” evidence
jury,
may
allow “victim
there would
the case to the
which
purposes
sentencing
introduced for
troduced to show the defendant deserves to
Tennessee,
Payne
may
die.
through
The State
contest
this
(1991),
will introduce an factor into the sentencing nothing that has to do with the
defendant. Consider two scenarios of a crime where a during robber kills the victim both, robbery. the course of a In the robber has selected his victim at random and does anything first, not know about him. In the gospel the victim is a minister of the that is family. well loved He has never been ALLEN, Petitioner, Wanda Jean family trouble and has a of a devoted wife and six small depen- children who are upon dent him support. for their entire Oklahoma, Respondent. The STATE of second, drug the victim is a dealer who selling drugs junior
has been convicted of No. PC-95-259. high school students. He does not have a Appeals Court of Criminal of Oklahoma. family, family or what he does have would testify that he did not deserve to live and no Dec. longer anything meant I them. think everyone agree would that the fives and life-
styles of these two victims could have major impact upon the sentence received. Also, lifestyles and fives of the victims do anything to do with the defendant
himself. disagree
I thought with the that the State should be able to balance mitigating evi-
dence of the defendant’s character and the impact that family he has on his with evi-
dence of the of the death of the victim *29 family. on his Sentencing is not a matter of balancing comparing lives. It is a matter determining what should be done with the
defendant because of the crime that he com- mitted. presents When a defendant his im- pact offering evidence he is mitigate it to
rebut the aggravation State’s evidence of in- notes only hearing Appellant specifically sir, No, not death. KNIGHT: request for a hearing at which his beyond you you found transcript at ex COURT: Could preliminary hearing State —if doubt that the defendant reasonable pense denied. We have dealt with