Cheatham v. State

relating sufficiency sufficiency to preliminary of statutes of indict of the information at hearing again to im arraignment. ments and informations was eliminate and at formal any objection repeal any material from trials and to He failed to matters raise penal complain that a or not common-law doctrine statute aware of the nature construed, strictly charges should of or such stat filed that he was unable to equitable against charges. utes established the doctrine of lib defend those He cannot complain “These eral construction. statutes have at this late date. special application to indictments and infor- innocent; A presumed defendant is he is away with

mations. It does the strict con presumed ignorant to be so he cannot placed pleadings, struction on those once comprehend meaning the common of words ordinary person if a makes them sufficient every day English used language. in the understanding know what can was intended This information states the crime with suffi- by They place upon the terms used. clarity apprise cient to him of the act he is duty courts the hold them sufficient unless alleged to have committed. It also sufficient- they prejudice are so as to defective ly states violation state law to confer the rights upon of the defendant the merits of his jurisdiction. court Accordingly, it is not 138, 145, case.” Clark v. Okl.Cr. 73 fatally again defective. I will state once this (1937). Furthermore, a strict Court should not antiquity reach back into statutory public of a definition offense is not and resurrect bones of pleading Code necessary in an information. Fulkerson many should have been laid to rest (1920). 17 Okl.Cr. 189 P. 1092 ago. decades allegations the information are respectfully I dissent. Petitioner, plain: engaged while in the act of Degree Burglary, First killed his victim with me;

a wooden board. This seems clear to it

certainly Petitioner, clear to seemed who

pled guilty gave offense a suffi-

cient factual for his crime. It basis was not

necessary underly- to list the elements of the States, ing felony. Thornton v. United Cf. CHEATHAM, Appellant, Charles Leon 414, 423, 585, 588, 271 U.S. 70 L.Ed. (1926) (in charge conspiracy, “the pleading require rules criminal to not Oklahoma, Appellee. STATE of degree same of detail an indictment for conspiracy stating object of the con- No. F-90-649. spiracy, as if charging it were one the sub- Appeals Court of Criminal of Oklahoma. offense.”). stantive June 1995. certainly agree

While I it pro- would have allegations vided more notice State’s Rehearing Aug. Denied the Petitioner to list the elements of first degree burglary, to do failure so here is not

fatal, especially when Petitioner waived

right complain about the information

entering a knowing voluntary plea

guilty to it. consistent appli- This is with our

cation of waiver rights Constitutional Counsel and trial. To hold otherwise

would position be to to the adhere untenable person presumed is while a to know the

law, knowledge evaporates when ishe ease,

charged with a of it. In violation opportunity object Porter,

Kurt Geer and Joel Asst. Public Defenders, City, Oklahoma for defendant at trial.

Greg Ryan Rogers, and Charles Asst. Dist. Attys., City, Oklahoma for the State at trial. Hammersten, Catherine Clendenin Asst. Defender, Public City, Oklahoma appel- for appeal. lant on Loving, Atty. Susan Brimer Gen. and A. Blalock, Gen., Atty. Diane Asst. Oklahoma City, appellee appeal. for OPINION LANE, Judge: Appellant, Cheatham, Charles Leon charged with Degree Murder the First (Malice Aforethought), alternative, or in the Murder, Felony Robbery and Danger- with a Weapon, ous all After Former Conviction of Two or More Felonies. He was convicted 24,1990 May Felony Robbery Murder and Dangerous Weapon with a after a two-stage jury trial in the District Court of Oklahoma County, CRF-86-4869, Case No. before the Gullett, Honorable James L. District Judge. The trial robbery court dismissed the convic- tion it felony as was the basis for the murder conviction. sentencing After the stage pro- ceeding, recommended death, sentenced to and the trial court sen- accordingly. Appellant appeals, tenced chal- lenging guilty both the verdict and the sen- imposed tence for the crime. affirm Appellant’s conviction, but the sentence of death is vacated and the cause is remanded resentencing. for SUMMARY OF FACTS Thursday, 4, 1986, September On ap- proximately p.m., 7:00 William L. “Bud” (a a dropped him off at his sister’s little over bludgeoned to death Witherspoon was found away); McKnight Witherspoon met with mile northeast side of home on the far in his p.m., 11:15 11:45 County. somewhere between and City, Wither- Oklahoma Oklahoma male, up pick Appellant and then be- sixty-four lived returned year old white spoon, Delores, wife, in a tween 1:00 and 1:30 a.m. alone, near- but visited his night nursing every home between the McKnight Witherspoon again with met Cindy and p.m. and 7:00 Mar- hours of 6:30 3) day (Wednesday, September next some- just road lived from vin Terrell down p.m. Appellant 4:20 where between 3:30 and every day Witherspoon, and him almost saw McKnight “Big” dropped and Charles Green Cindy had known the of the week. Terrell house, Witherspoon’s McKnight off at and child, con- Witherspoons since she was a and forty- her told the two to return for in about family Witherspoon and Delores sidered Witherspoon had been drink- five minutes. routinely She and Marvin members. ing got there her McKnight when and asked Witherspoon, lunch or breakfast Jones, go liquor store Oklahoma jobs in their him to do business. hired odd Witherspoon him get more Vodka. some nursing placed been in a home Delores had gave her to take her bill allowed $100 murder, and previous With- some truck, did not have a car.1 his since she trying process in the to find erspoon was McKnight Appellant and met Green day during so he to care her someone store, her to liquor and the two followed bring her back home. could afraid Witherspoon’s house because she was gas. Witherspoon met would run out of Mary McKnight a Certified Medical she (CMA) Nursing yard, her the front at Oak Hill Home Aide Green, parked street in front of knew Wither- on the living, Delores was and where house, McKnight left told them to come inquiries and after spoon frequent from his visits forty-five Ap- McKnight for her in minutes. daily back about as to Delores’ condition. Delores, not and getting pellant Green did return to control her to and was able McKnight eventually her had brother-in-law the other aides and take medicine when eat p.m. and cooperate, pick up her 7:00 7:30 She get to to and between were unable her Witherspoon alive left his thought good be a last saw when she Witherspoon she would evening.2 house that providing at-home care. prospect for Delores’ McKnight arranged with Wither- to meet and returned Green testified he 2, 1986, Tuesday, to September on spoon approximately 9:30 Witherspoon’s house to proposition. discuss McKnight that had left. p.m. and learned then They stayed fifteen minutes and working, not about her vehicle was Because house, (a min- ten Faye to about McKnight Appellant’s car went Smith’s borrowed Cadillac) away. her was not home but keep appoint- utes Smith to cream-colored sister, year daughters old were. McKnight’s eleven and twelve (Appellant ment. dated Jarrahi.) shortly arrived and there picked Green Alma Loudella house; shortly after Appellant left up at she before 10:00 and McKnight a friend’s McKnight Witherspoon that loaned Witherspoon had testified alcoholic and not had 1. an two-day Apparently, approximately $100 dollars twenty-seven years. her over over a drink for death, Terrell, period that Cindy him. She also testified preceding she met with his in the weeks house, alcoholic, Witherspoon, who had Witherspoon once before she left his an induced to also drink, to apparently quite asked her a bit again often found the had imbibe. Marvin Terrell phone hook he didn’t together, take his off of the because called once to bail drunk and was two When left Wither- Witherspoon want to be disturbed. she jail out of he was involved in a posses- one-vehicle, night, spoon's he had in his house that accident. Wither- alcohol-related (which unspecified contained an again sion his wallet spoon promised would never Terrell he cash), flashlight implication police-type and amount while under the influence. drive stereo/television, was, all previous Radio combination given Witherspoon's refusal Shack body missing discover- when anyone, he was were his track to intoxicated loan store, Witherspoon liquor She told ed. also not drive himself to and would gave money, Appellant about McKnight given her and even preferring to loan vehicle to so she $25 had received. liquor of the cash she purchase the for him. could arriving, Cindy sometime between 10:10 and 10:20 Witherspoon Terrell last saw alive However, p.m. prior leaving on the afternoon September the Smith and became house, Appellant concerned when she told Green that he needed was unable to contact by phone him “go somebody day. the next get knock in the head and Since she had night, classes to attend that she money5’ him asked her some and invited Green to come refused, try husband Marvin to to contact Wither- along. stayed and Green with the spoon. When Marvin was unable contact girls, leaving midnight. Ap- sometime after Witherspoon, he went over the house to pellant promised Green, to return for but Upon entering house, check on him. never did. body discovered the police. and called He Elmer and Barbara Dawson lived down the t.v./stereo, also noted that flashlight Witherspoon road from and testified on the Witherspoon’s prized shotgun missing were night September they by Appel- drove from the house. lant’s house at about p.m. 8:30 or 9:00 analysis Forensic present of the evidence standing yard saw him speaking the front in the house and on the revealed t.v./stereo They say to two men. were if unable to nothing connecting Appellant with the crime. white, men were black or and Elmer testified There fingerprints, were no identifiable only that he agreed saw one man. Both samples hair and blood taken from the home they light saw a colored parked Cadillac could However, not be matched to him. Witherspoon’s the street front of house. testimony police simply gave indicated the up couple returning shop- from school trying samples to collect hair because the ping with evening. their children that unkempt house was and had not been Meanwhile, McKnight called Green time, long period cleaned for a making the spoke Smith’s house and with him about samples retrieval of hair only useless. The Witherspoon. She asked him what condition print found was on the That t.v./stereo. Witherspoon was in when he and print identification, was suitable for but was him, expressed left concern that she had anyone, including matched to Appel- not been able to reach him.3 lant, victim, Terrells, McKnight or (all Green being whom admitted in the Sometime p.m. between 10:30 and 11:00 house at prior one time or another to 3rd, the evening the Appellant approached of the murder). Josephus Huntley and Duffy Charles at the Jones, Hide Out Club in offering to sell them It is obvious from the record that the the Witherspoon’s from house and t.v./stereo events, sequence of upon believing any one shotgun. Huntley his claims he never saw testimony witnesses’ as to the time of occur- gun, agree the purchase but did to the any particular chain, rence for event in the fifty dollars and did so after t.v./stereo becomes Throughout distorted. the testimo- borrowing money the Duffy. Duffy from ny, repeatedly it is stressed that the time saw gun. both the t.v. and the given estimates simply are that —estimates approximations. and It should also be noted McKnight phone continued to Witherspoon that of those testifying, several admitted night, several more times that and the next drinking during evening, the several were morning had a friend drive her over to With- (some convicted serving felons time at the erspoon’s arrived, house. When she she no- trial), time of and several admitted that the open, ticed that the upon door was and see- descriptions approxima- were at best ing blood, overturned get- furniture and and they really tions as kept never track of the ting response calling no after out Wither- reason, time for much in anticipation less name, spoon’s left. She returned to the testifying of at a murder trial. being house later after by advised her sister to return and fingerprints, remove her Appellant’s but arguments propositions go did not inside. error will sequential be addressed in the Witherspoon put 3. Green testified that flashlight his boots Witherspoon’s t.v./stereo house on and walked him and out to the car during the time he and were there. they as seeing left. He also testified to the trial, beginning with first FIRST STAGE PROCEEDINGS the order supplemental proceedings. Appellant’s stage fundamental error claims incorporat- will be Propositions through I IV XXVII, Proposition alleging the trial court brief, XXIV, original renumbered ed into venirepersons failed to admonish the follow- XXV, XXVII, and dealt XXVI and -with se- ing improper colloquy an between a venire- quentially. Attorney. man and the The District com- alleges plaint question by asked PRE-TRIAL PROCEEDINGS guilty juror Appellant was intimated (Propositions Appellant claims XI and crime, juror requiring by removal as a his XXVI) judge it for the district was error trial the trial court. either counsel or Fail- ruling dismissing magistrate’s reverse the now, juror, ure to remove he claims original information. initial fundamental error and ineffective assistance hearing held October 24 and preliminary of counsel. 3, 1986, at which time November Magistrate Jackson sustained the de Niles A record does not sup review of the evidence, and fense demurrer to the State’s port Appellant’s question contention. charges. appealed The State dismissed the directed asked Juror Dozier was at the pursuant the Court Criminal Rules delay bringing Appellant to State’s trial Appeals, O.S.Supp.1987, App.Rule Ch. years four when crime had occurred ear 6.1, Blevins, Judge apply James District seated, initially lier. Dozier was When asked guide-lines by this ing specified Court juror by the trial if selected as a court would (Okl.Cr. Fletcher v. presume innocent until Rhine, 1986), overruled, State doubt, proven guilty beyond a reasonable sustained demur responded which he in the affirmative. The rer, finding, reviewing magistrate’s posed question the State was as follows: ruling only, that for errors of law he could understand, Why not review of fact to determine wheth I issues Juror Dozier: —as probable pursu years ago? er cause existed. fellow the crime four committed (codified O.S.Supp.1987, ant to Rule at 22 6.1 Right. State: 1089.1-1089.7), Judge appealed §§ Blevins’ my Why in mind. Dozier: That’s been did ruling. you bring him to long wait so trial? concerning Appellant’s argument post ex may have been application O.S.Supp.1987, question of 22 While Dozier’s inart- facto worded, transcript fully reading § 1089.5 to case was dealt with in this indi- 28, 1989, delay September cates his with the State’s Court’s order entered concern was trial, bringing not a denying Rehearing Petition for comment Appellant’s innocence. original ruling guilt we or our wherein reversed rehearing grant- the decision remanded for assertions, Contrary Appellant’s each ing Appellant’s demurrer evidence. Dozier, following venireperson, prior to and that issue here. also We will not revisit they if was asked the trial court would Judge misinterpreted found Blevins Appellant proven until presume innocent Fletcher, supra, a requiring our decision in guilty beyond doubt. All an- a reasonable hearing Rule in the case. new 6.1 jury affirmatively. The re- swered reviewing points during the record in this peatedly at various reminded After case, we do find that the reversal of the presumption the trial of innocence. erroneous, magistrate’s ruling was it nor objection

error, claims, no to Dozi for the made as district question, request Dozier’s remov presented facts in the er’s did not court review the al, reaching peremptory ninth chal preliminary hearing in its and waived his determi indicates lenge. Nothing in the record Dozi nation. not vacate con We will preconceived notions of or remand to er had viction sentence the district jury guilt, presence or that skewed court for dismissal. 422 argues Proposition

deliberations. There was no error Dozi I there panel any potential presence er’s on the support was insufficient evidence to his con- by Appellant’s viction, error was waived failure to simply by stating summarized that he object jury. and to strike him from the Fail could not have committed the if crime peremptory challenges ure to exercise all approximations of certain of the wit- objections potential ju waives as to bias of alleges nesses are to be believed. He that all State, 1163, rors. Douma v. 749 P.2d 1166 presented circumstantial, of the evidence (Okl.Cr.1988); State, 1061, Stott v. 538 P.2d support and therefore insufficient to a convic- (Okl.Cr.1971); State, Young 1065 v. 357 P.2d tion. 562, (Okl.Cr.1960); Oklahoma, 566 Ross v. evaluating sufficiency When 81, 89-91, 2273, 2279, 487 U.S. 108 S.Ct. 101 involving only the evidence claim circumstan (1988). 80, L.Ed.2d 91 evidence, tial this Court will examine the We also find no admonishment was neces- evidence, light in the most favorable to the sary light jury questioning the extensive State, determine, not whether the evi given presumption and instructions on the every possibility dence excludes other than

innocence. There is no error here. guilt, but to determine whether other reason Proposi next claims at hypotheses able are excluded. Banks v. prosecutor tion State, IV that the defined reason 497, 728 P.2d 501 In jury during able doubt for the voir dire. The State, (Okl.Cr 106, Greer 763 P.2d 107 general rule of this .1988), Court is that when the we held: objectionable statement, State makes an it is opinion It is our hy- the “reasonable upon incumbent defense counsel to make a pothesis” test is the better standard when timely, contemporaneous objection. Failure reviewing solely a verdict upon based cir- object plain appeal. waives all but error on evidence_ cumstantial This test re- Tulsa, (Okl.Cr City 79, Fox v. 806 P.2d 80 quires only that the State’s evidence ex- .1991); State, 866, Shelton v. 793 P.2d 871 every hypothesis clude reasonable other (Okl.Cr.1990); State, 914, Jones v. 764 P.2d guilt. than (Okl.Cr.1988); State, 917 Thomason v. 763 considering evidence, When circumstantial 1182, (Okl.Cr.1988); P.2d 1183 Smith v. jury may consider both the evidence and (Okl.Cr.1987), cert. State, 1206, 737 P.2d 1213 reasonably inferences deduced therefrom. denied, 358, 484 U.S. 959 108 S.Ct. 1189, See Morrison v. 792 P.2d (1987); L.Ed.2d 383 Plunkett v. (Okl.Cr.1990); Nguyen v. 834, (Okl.Cr.), denied, P.2d cert. 479 U.S. denied, 925, cert. 492 U.S. (1986); 93 L.Ed.2d 725 (1989); S.Ct. 106 L.Ed.2d 609 Johnson Tucker v. (Okl.Cr.1980).objection No was made here. Re (Okl.Cr Dodson v. gardless, a review of the record reveals that .1984). Insofar as challenged has prosecutor’s question potential juror to a sufficiency evidence, we will under affirming that the would not make the take our underlying review the facts greater State’s burden “beyond than a rea conviction mindful of this standard of review. sonable doubt” did not rise to the level of defining reasonable pre doubt. As we have presented While the evidence here viously stated, grossly it is not circumstantial, incorrect for Appellant’s was conviction prosecutor “beyond the to state that a rea still does not warrant reversal. implica sonable “beyond doubt” does not mean tion Appellant’s from contention is that cir State, Nguyen shadow of a doubt.” v. 769 cumstantial evidence proba somehow is less 167, (Okl.Cr.1988), denied, P.2d 171 cert. 492 tive than direct evidence testimony. and/or 925, 3264, U.S. 106 L.Ed.2d simply 609 That is not the case. v. Woodruff (1989), grounds; overruled on other v. (Okl.Cr.), Green 846 P.2d 1133 cert. - denied, -, Diaz v. U.S. S.Ct. (Okl.Cr.1986). (1993). 728 P.2d L.Ed.2d 313 The distinction to be There is no error here. made is that evidence/testimony direct re ny placed Witherspoon’s approxi- death at particu made: the quires inference to be no testimony Appellant’s mately p.m.; presence or is the 10:30 and of evidence piece lar requires during that the proof. evidence unaccounted for time of the Circumstantial was drawn, must inference be There more than sufficient reasonable murder.6 any jury’s to inconsistent with support be found to the verdict. De- then evidence than hypothesis other the defen spite presented reasonable fact the evidence the that 1133; Woodruff, 846 at guilt. circumstantial, strong dant’s circumstan- it was (Okl.Cr. State, 763 P.2d evidence, Greer v. uphold Appellant’s to tial sufficient 1988); Smith conviction. (Okl.Cr.1985), grounds, on other overruled Proposition Appellant claims that VI P.2d 521 Kaulaity v. right process his to due and a fair was denied no mixture or combination of There is prosecutors’ inappropri trial because of the direct it is cir Evidence is either or two. during trial. It should be noted ate behavior cumstantial, clearly and are distin the two only alleged improper one of com that guishable. such, objected during to trial. As ments was Appellant several made statements remaining comments for we will review the claiming police, initially that he did to the Fox, Shelton, See, plain only. supra; error the victim. confronted with know When Smith, Thomason, supra; supra; supra; possibility fingerprints4 that had been his Tucker, Jones, Plunkett, supra; supra; su scene, abruptly story his found pra. Proposition will also address XXIV and he that he had been to changed, stated error occurred here as claims dis Witherspoon’s house on one occasion to that had when a witness testified breeding dogs. He also cuss volunteered previously prison. been in We have re fingerprints appeared in numerous record, and do not find viewed entire throughout the house he locations because error reversible here. Witherspoon’s in in rooms had been various during Appellant complains visit. several state his brief residence during he as Witherspoon’s voir dire which identifies possession admitted he had ments sold, encompasses prejudicial. The a dis shotgun, which he imme first t.v./stereo Appellant objected (although by the diately Witherspoon’s after death course State which items), being opening argument. A bench given him to as claimed Green had he held, Witherspoon’s prosecutor and the house conference and that he been to Testimony refrain further comment. No evening. agreed from from earlier that same requested Appellant, Witherspoon additional action was indicated was alive Green It proceeded. dire is incumbent and the voir unharmed at time Green and objecting request when relief p.m.; upon counsel the house sometime 8:30 left trial as he or she deems p.m. Appellant to Green from the court 10:00 stated around here situation. Counsel going appropriate “knock that he was someone instruction to the money” requested invited no admonition or and take their head him; cured error with sold which would have accompany Green comments. regard inappropriate Witherspoon’s belongings at the Hide Out 1337, 1342-43 than an after he invited Green Thomas Club less hour denied, 1041, 112 him; cert. U.S. blood to assist there was (1992); Cosgrove lid5; key testimo- 116 L.Ed.2d ignition and trunk medical S.Ct. belongings. any fingerprints to be made is .police The inference 4. . had not found scene, Wither- Appellant’s. Appellant committed the murder and much less Likewise, Appellant's spoon was the victim. going "knock shotgun he was were statement Green that The t.v./stereo somebody is not direct evidence Club. head” them at the Hide Out trunk when sold again, trier Witherspoon. Once that he killed Appellant on the police acted are not fact must infer that statements to 6. statement, Witherspoon. None anything other that he killed evidence than direct true, statements, house, direct Witherspoon’s point even are evidence at if some time, Witherspoon. Appellant possession Witherspoon's killed (Okl.Cr.1991). Appellant There is through then claims error requirement police testimony no Court reverse a the admission of describing judge properly the trial conviction where sus testimony stench of blood. While the defendant, objection by tains an “the and we concerning improper the smell of blood was assignment.” Shepard do not reverse on this say prejudicial we cannot that it was error. (Okl.Cr.1988). replete testimony The trial was concern ing present the excessive amount of blood remaining voir dire comments com- the scene due to the victim’s severe head plained proper questions of were either wounds, testimony and the officer’s was cu ascertaining acceptability potential ju- testimony mulative of reflecting the ex proper rors or comment were on the State’s injuries. However, tent of those we do not attempt by role the trial. There was no testimony find that the referenced amounted align jurors. Ap- the State to itself with the “gratuitous gore,” preju nor do we find it pellant’s present cited authorities factual sit- require diced so as to reversal. present uations dissimilar from those in the prosecutor simply case. Here the stated he alleged also error occurred dur- represented people County. of OMahoma ing questioning Mary McKnight. Ap- pellant’s granted, motion in pre- limine was alleges next it was er venting eliciting testimony the State from prosecutor display ror for the the t.v./ster concerning from Appellant’s prior witnesses eo, shotgun, flashlight and a similar to the during convictions and incarcerations (the Witherspoon’s one in alleged home mur stage During first of trial. McKnight’s ques- weapon) during opening der statements. tioning, she was asked how she first came to here, authority alleging State’s cited it is Appellant, know following exchange and the proper during to handle evidence trial7 is was had: inapplicable, insofar question as the items in yet had not been admitted as evidence. right. you any State: All Did have other improper While we find it was for the items relatives that were friends of Cheatham? displayed jury during have been to the McKnight: Yes, sir. statement, opening we do not find State: Who was that? prejudiced by display. Appellant did object display during the State’s McKnight: Well, my family. My whole opening, waiving plain all but error. Ulti brother and Cheatham was down—I first mately, shotgun the television and were ad met him penitentiary together. down in the mitted, objection with no Appellant. from May approach, Defense Counsel: I Your Likewise, flashlight throughout was used Honor? trial, being described as similar to the one (Bench hearing conference out of the victim, owned possi and touted as the jury.) weapon. Appellant object ble murder never display, ed to the nor can he show Well, now how Judge, Defense: I could have sworn flashlight the use of the in prejudice resulted this, we concerning had a motion in limine prosecu sufficient to warrant reversal. The cautioning peni- their witnesses about the tor’s describing Appellant’s comments sale of tentiary, custody.... DOC “very bloody” provided television an accu specifically State: I instructed this witness description rate immediately of the t.v. things not to talk about like this.... crime, although the t.v. was not in that right, proceed. Court: All let’s You had Regardless, condition when sold.8 the com better remind this witness.... improper ment was not so that it constituted error, (Pause inartfully and while worded cannot proceedings we for Counsel to talk say witness.) phrased jury. it was to mislead the testimony 7. Grant v. per- indicated an orthotolidine test formed on the television showed it had been Huntley purchased the t.v. from wiped clean of blood. Expert testified it did not have blood on it.

425 admonition, stop in nature jury requests nor to is the of invited requested no error. request McKnight was a mistrial. did he (outside hearing the of the of Thomas,

admonished 811 P.2d at 1342 - 43. questioning jury) and the continued. objected, Appellant At the admonition, requested jury cur could have Appellant did state the While not ing any potential He chose not to do error. “objection” voicing displea when word guess so. will not trial counsel’s We second answer, McKnight’s from the ex sure with admonition, in an strategy requesting not but following response change the we would be we claim neither will allow now saying objection, remiss that there no error he invited the error reversible where Likewise, suggests. the a review as State by request. failing to make the exchange the entire reveals that the State Appellant then claims dur error received, surprised espe answer the argument, referencing ing closing several of cially it had the witness not since admonished again, Appel comments. Once State’s convictions9, prior speak object closing any during not lant did not that the and we do find comment comments he now claims were erroneous However, intentionally while we do elicited. plain prejudicial. A review for error error, remark, we not condone which was Allegations prosecutorial mis finds none. say that it cause for reversal. cannot is judg should not cause a reversal of conduct sentence unless their ment or modification of long held that inad We have when deprive cumulative effect is such as improper missible evidence or an comment is sentencing and fair fair trial defendant jury, to a presented an admonishment to State, proceeding. v. P.2d See Pickens 850 jury by the or com court that evidence - (Okl.Cr.1993), denied, 328, 343 cert. U.S. is not to considered will cure ment (1994); -, 127 L.Ed.2d 232 State, 1342-43; Thomas v. 811 P.2d at error. State, (Okl.Cr v. 501 Williams (Okl.Cr.1991); Cosgrove v. 806 P.2d 75 .1983). find that the claims We (Okl.Cr. Patterson v. 341 do not warrant reversal. 1987); v. Funkhouser alleged The first comment as error denied, cert. U.S. jurors that remember their requested (1987); S.Ct. L.Ed.2d 354 Kitchens potential fragile to be crime victims how (Okl.Cr.1973). P.2d find We unexpectedly it taken and that can be life is Thomas, counsel this case similar to where away. comment We do not find admonishment, objected, requested but no deprive to the level of error sufficient to rises prejudice appeal. and then claimed We ill-advised, of a trial. While fair error, stating: to find refused constitute the statements are not sufficient to error. reversible present an case Such admonishment appropriate, have but none was would been referenced the “blood State requested. Appellant requests now us from the force of the splattered on walls regardless reverse his conviction defenseless, poor, old blows to inebriated that the could have cured fact error been long have held counsel man.” We trial. We loath to such a are reach defendant and the State must be both the easily have been avoid- result could argue the evi accorded a liberal freedom First, Shepard, ed.... as we stated logical during clos and its inferences dence objec- the trial when court sustained the arguments. P.2d ing Jones v. tion, result was obtained. Sec- desired Lems ond, request Appellant’s failure to admoni- have examined the state objectiona by Appellant as ignored identified tion of the witness ments friends, acquainted McRnight’s clearly responsive become not where she had answer was question, as the State asked which him. McKnight’s were Cheatham’s other relatives 426 charged.

ble and do not find that reversible error ment in the crime as We find no i occurred. The comment was a reasonable error here. presented drawn from the evidence

inference man, Witherspoon elderly an We have held that in order for trial: and unable to defend himself when prosecuting attorney the remarks of the inebriated savage, bloody he became the victim of a they constitute reversible error must be fla beaming. find no error here. grant prejudi and of such a nature as to be

cial to the defendant. Romano v. story concerning aff'd, State related 512 U.S. “crafty lawyer” promised jury -, (1994); who the that L.Ed.2d (Okl.Cr. through the “real killer” would come the Collins v. 758 P.2d time, 1988); specified causing courtroom door at a Wimberli 536 P.2d (Okl.Cr.1975). jury the to look toward the door at the prosecutor compared Ap j Upon noting ju time. pellant’s Pilate, that the actions to those of Pontius designated looked, lawyer equated that, the remarking Pilate, their actions like could ror^ doubt,” surprised “reasonable and was Witherspoon’s not wash blood from his jury when the guilty came back with a ver analogy hands. claims the was a trial, Questioning dict! the inability rehabilitated, foreman after the comment on his to be lawyer why the prejudiced jury wanted know the verdict sympathy the and invoked guilty and was told that the foreman may for the victim. While the comment have watching designated ill-advised, the defendant at been we do not find it to be timfe, only person and the defendant was the say reversible error as we cannot that this in the courtroom who did not look toward Appellant’s statement resulted in being de door because he knew he had prived committed the of a fair sentencing. trial and/or analogy by crime. The used determining the State prosecutor’s When whether a relating story things was that closing are not remarks were outside the record and always seem; they as that there prejudicial reversal, were weak so as to warrant a case; in the jury State’s that light error is to be considered of the nesses should not be misled because pre the State evidence and whether the remarks can be circumstantial; sented a largely ease that was against said have influenced the verdict that, weaknesses, despite its appellant. the State and] Pickens v. 850 P.2d at proceed 343; decided to prosecution. with the Keeling telling claims story Thornton v. aspersions upon somehow cast defense coun We find that there sel’s abilities and trustworthiness. That was was more than support sufficient evidence to case. notithe say conviction and cannot closing remarks resulted that convic The State from beginning knew tion. they going so that not said were to be able to fill gaps jury: in all of the for the Proposition there were claims at VII that he discrepancies; there was no murder right testify was denied his constitutional weapon; fingerprints; there were no tell-tale when the trial prior court ruled that his eyewitnesses. there were no All history of these criminal impeach could be used to things proving difficult, made its case more testify. him in the event Appel- he chose to but1 impossible. sought limine, The State’s tact lant a motion in which was throughout they court, was to remind denied the trial wherein the State could guilty proof find only where the would be allowed to elicit the number mainly evidence, consisted previous of circumstantial questioning Appellant convictions in they did. The comment is not cause testify, specifics had he chosen to not the 'reversal, but persua prior rather constituted each of the felonies. That motion was argument sive coupled denied, with admissions of finding, hearing the trial court case, weakness in proof, the State’s argument, particular al extensive “in this mat- circumstantial, probative involve ter outweighs that the value well beit sought to Ms preclude tion use of state- prejudicial value toward defendant.” testify police.10 Upon bringing not at trial. to the Appellant did ment motion attention, to the trial court’s the court decid- urges prior Appellant since his ed to hear and rule on the motion after (shooting with to were violent intent crimes seating jury. the The motion never Mil, weapon for carrying a concealed after again, was the of raised nor mtroduction the degree felony, first man mer conviction of objected to at trial. statement battery slaughter, assault and and they bearing no dangerous weapon) timely When a defendant files a veracity, therefore had no his truth and and suppress motion to but fails to renew the impeachment value. He claims since the trial, by objectmg issue to its introduction circumstantial, against largely him was case right complain his to this he waives to Court. in testify, light not of he needed to but could (Okl.Cr State, 1152, v. P.2d 1164 Jones 742 ruling. ruling, alleg trial That he the court’s State, (Okl .1987); Wing v. 579 198 P.2d es, was fundamental error. .Cr.1978). assignment an of error Since has properly preserved, not been Court’s repeatedly held a mo We have plain only. review is limited to error Cole v. merely advisory. In in order to tion limine is (Okl.Cr.1988). State, Appellant 766 P.2d 358 objections preserve to the properly introduc right complam, and has waived his our subject of the tion of evidence which is the plain for error reveals none. review limine, objection in must be made at motion sought to intro the time the evidence is be at trial Evidence revealed State, v. 782 P.2d 400 duced. Cline voluntarily; appeared police he the station State, (Okl.Cr.1989); Nealy v. 636 P.2d 378 spoke given warmngs; he Miranda State, (Okl.Cr.1981); Teegarden v. 563 P.2d police, requesting questioMng the never ruling only 660 the counsel; right mvokmg or Ms cease appellant is the has can contested after Appellant repeatedly knowledge demed objec taken the stand and there has been an participation of or m the crimes. We find no questions concerning prior tion to Ms crimi error here. nal conduct. decision remain Proposition alleges IX error in al precludes silent was a tactical choice which lowing bloody the of victim’s considering mtroduction this Court from the issue. oMy beddmg, shirt undershirt. Not did Regardless, felony are convictions admissi- object to the of tMs admission O.S.1981, impeachment 12 ble under evidence, stipulated he to it. has 2609(A)(2) § if two are conditions satisfied: plain waived all but error because did not (1) of or the release the wit- conviction object to the admission tMs evidence at (10) from less than ness confinement is ten (Okl 672 trial. Elix v. prior years to the time at wMch admission of .Cr.1987); P.2d v. Johnson (2) sought, and trial that conviction is denied, 1132, 101 cert. 449 U.S. probative court determines that the value of (1981); Castleberry S.Ct. L.Ed.2d outweighs prejudicial the evidence its effect denied, (Okl.Cr.), v. cert. P.2d to the detriment of defendant. Cline 667, 42 L.Ed.2d 673 419 U.S. applying at 400. Even (1974). ten-year-rule, interpretation strictest have all but one of the convictions would long has held that the This Court light finding of the court’s been admissible at trial is within the admission evidence probative out- that the value of the evidence judge, tMs trial Court discretion weighed prejudicial We find no its effect. except will not find reversible error where error here. Hughes v. that discretion has been abused. VIII, Proposition alleges the Beh At (Okl.Cr.1985). An court failed to rule on Ms motion rens trial no resulting mo- examination of the record reveals abuse suppress, error. crimes, police. though give al- he did a statement confessed to never (5th evidence, Cir.1980). Johnson, discretion in the admission of the F.2d 431 See also especially light Appellant’s stipulation. 620 P.2d at 1313. clothing bedding sup were used to mind, With these tenets in we have reviewed port Witherspoon claim that State’s argument by Appellant and, raised hav- attack, conscious was initi ing us, examined the record before cannot room, living ated in the after which he made say representation that the Appel- afforded bedroom, way lay undressed and during proceedings lant fell below the subsequently down on the bed where he died. Strickland, standard established in supra. prejudice claim of from the determining whether, criteria is but clothing stench of blood from the was ad alleged commissions, counsel’s omissions or Proposition dressed above VI. We find no the result of the trial would have been differ- error here. ent. We do not present find that criteria here. X, Proposition Appellant

At claims he was counsel, basing denied effective of assistance A review of the record reveals that upon previous propositions the claim his engaged rigorous counsel in examination and alleging misconduct, prosecutorial error ad- jurors witnesses, cross-examination of statement, mission of his introduction of the pre-trial filed several resulting motions in the bedding clothing, request and failure to exclusion of evidence and statements that parole the life sentencing option. without very would have been beneficial case, argued State’s vigorously support in Claims of ineffective assistance of Appellant’s claim that responsible he was not judged light counsel are in Supreme of the crime, for the presented and that by the case guidelines Court’s established in Strickland mainly the State consisted of circumstantial 668, Washington, 2052, 466 U.S. evidence. The fact that was con (1984). 80 L.Ed.2d 674 We considered the victed does not mean that his counsel was application State, of the test in Pierce v. ineffective, and we find no sup evidence to 1266-67 and found: port that claim in this record. long allegations We have that held of in Proposition V, At then competent judged by counsel will be complains it was fundamental error for the skill, “whether judg counsel exercised the trial court to fail to define the term “reason diligence reasonably ment and of a compe able doubt” for jury. acknowledged As attorney light tent defense in of his overall by Appellant, it is well settled that the term performance.” Fisher v. 736 P.2d self-explanatory “reasonable doubt” is and is Cotton v. jury not to be in defined instructions. Un (Okl.Cr.1984). In re derwood v. 659 P.2d 948 claim, view such a we are to accord a We find no change reason to position our strong presumption that counsel was at this matter. constitutionally least competent. Strick Washington, land v. 466 U.S. Given police, statement to the (1984). S.Ct. 80 L.Ed.2d 674 We will crimes, the nature of the and the evidence of judgment hindsight, make this in sec guilt, Appellant demonstrate, his has failed to guessing ond strategy. counsel’s trial absent occurred, the errors he claims that (Okl.Cr. Dutton v. 674 P.2d 1134 jury would have returned a different 1984). verdict. (Okl. In Dutton v. SECOND STAGE PROCEEDINGS

Cr.1984), we held: A criminal defendant should receive rea only We need address one of the sonably competent assistance of allegations counsel. concerning made occurring errors (Okl.Cr. Johnson v. stage the second proceedings be 1980). However, this does not mandate requires cause that error that the case be judged flawless counsel or counsel ineffec remanded to the trial resentencing. court for by Blackburn, hindsight. tive Clark v. Appellant alleges rights that his pro- to due will consideration of the protection violated when those cases receive equal were cess in- sentencing possibility. In the to instruct the additional trial court failed fairness, of fundamental we find potential punishment alterna- terests respect to justice by taken this tive, though no such demands the action parole, even life without distinctively compelling requested. He Court under these bases instruction option, punishment fact facts. on the claim 701.10, § O.S.Supp.1987, be- codified III, Proposition Appellant argues that At trial, prior although subse- law to his came he is entitled have his sentence reversed quent to the commission offenses. remanded, notwithstanding the Okla argument. in the merit

find Legislature’s homa enactment penalty nature of the Due to extreme 701.10a, § O.S.Supp.1993, which restricts cases, capital have murder we involved “any sentencing options capital cases extremely need for care often discussed the authorized law at the time of sentence scrutiny imposition of the death ful the crime....” the commission of While State, 1025, v. sentence. See Liles first this issue this is the time has been (Okl.Cr.), denied, 1164, 476 1036 cert. U.S. by Appellant, an it is not the raised first (1986). 732 This 106 90 L.Ed.2d S.Ct. by has been this issue addressed this Court. legis philosophy by is the also demonstrated (Okl.Cr. v. P.2d In Fontenot 881 69 requirement that this Court examine lative 1994), in foot this same issue was addressed every any of death for each sentence response Judge Lumpkin’s in dis note imposed that un evidence the sentence senting opinion, we noted: where any passion, prejudice influence or der the Legislature Oklahoma enacted the The factor, arbitrary and whether the evi other parole” op- possibility “life without the supports the offered trial each of dence 21 in of 1987. tion November See findings respect aggrava jury’s with the O.S.Supp.1987, 701.9 and Al- Sees. 701.10. support sen ting circumstances which the though Fontenot committed the offenses at 701.13(C). § O.S.Supp.1987, 21 In tence. date, prior to his second trial and issue this short, absolutely, must sentences of death be did occur until conviction June unquestionably fair. statute’s 1988—well the enactment. gravity penalty, circumstances, of the death we Given these this Court’s Under principals find that of fundamental fairness opinions in Salazar 852 recent (Okl.Cr.1993) this ease a new compel us reverse P.2d 729 and Hain v. stage (Okl.Cr.1993), in Allen v. second trial. As discussed require that P.2d 744 P.2d find no we new Fontenot’s case be remanded for a prohibition application constitutional sentencing proceeding providing him with possible sentencing option in cases this punishment option. parole life without period penalty became law in the where request did not an note Fontenot Quite trial. the offender awaited sim- parole. while on life without As we instruction justify however, a ply, Salazar, we cannot decision which would re- in error stated pun- of a act as a total bar to consideration sulting pro- from instructions which fail merely death punishment ishment alternative to because proper range of is vide the giving to the trial the crime rise occurred cannot be waived. fundamental and previ- effective date of short time before the argues Legislature The dissent ously legislation. enacted effectively precluded this Court from has holdings to applying in the Hain and Salazar circumstances involved this decision Shortly opin- after those unique interpreted not be Fontenot’s case. are should down, Legislature ramifications outside the ions were handed have broader setting pro- the statute forth the very implicated limited under these amended situation only in to be when this Court apply analysis will this cedures followed facts. We resentencing. op- capital case for adding remands cases where amendment remand, may im- Upon the sentencer now parole life to Section 701.10 tion of without Only “any authorized law at pose sentence in effect the time of trial. the time of commission of REMANDED stage for new proceed- second crime_” O.S.Supp.1993, ings. Sec. added). (emphasis 701.10a The dissent amendment, claims this which was ex- JOHNSON, P.J., CHAPEL, V.P.J., retroactive,

pressly prohibits made concur. granting Court from relief under Salazar and Hain to all defendants whose cases LUMPKIN, J., part/dissents concurs in are handed down after its enactment. part. not, however, Legislature did amend 701.9, 21 O.S.Supp.1987, clearly Sec. STRUBHAR, J., concurs in result. provides punishment that the for first de- gree life, murder shall pa- be life without LUMPKIN, Judge, concurring part death, or punishment role and that these dissenting part: options upon are effective “conviction.” agree I While judgment should provision Fontenot was convicted after this affirmed, again I respectfully must dis enacted, and was thus entitled to have agree my colleagues this case must be pa- instructed on the life without resentencing. remanded for I do this based sentencing role option. See Dobbert v. my in Humphrey dissents Florida, 432 U.S. (Okl.Cr.1993); Hain v. (1977). L.Ed.2d 344 The trial court erred and Salazar in failing sponte sua to instruct Fontenot’s 852 P.2d I jury in accordance with section 701.9. The also dissent I my colleagues’ because believe Legislature’s procedural amendments to reasoning is based on an interpre erroneous provisions the remand in section 701.10a Eighth tation of the Amendment to the Unit did not obviate the trial court’s section ed States Constitution. See Salazar v. sentencing 701.9 error. (Okl.Cr.1993) 859 P.2d (Lumpkin, Moreover, rejected argument we a similar P.J., dissenting Denying to Order Petition raised the State in its Petition for Re Rehearing Directing Issuance of hearing in Salazar v. 859 P.2d 517 Mandate). Fairness requires the rule of law (Okl.Cr.1993) (order denying petition for applied consistently, regardless of the rehearing). response In to the State’s gravity punishment assessed. claim that the amended section 701.10a case, rehearing warranted in Salazar’s we I also continue to assert this Court should stated as apply follows: “To [section adopt enlightened a more “Spuehler- unified deprive 701.10a] Salazar would him of type” appellate rule of regardless review sentencing option that this Court has stat whether the evidence is direct or circumstan ed was available to him in Wade v. tial. See White v. 900 P.2d and Allen v. (Okl.Cr.1995) (LumpHn, Specially J. Concur However, ring). evidence this case is would penalty options, result in harsher regardless more than sufficient of the stan prohibition which would against violate the applied. dard imposing punishment a harsher in an ex (Citations omitted). post facto manner.”

Fontenot, 74 n. is

entitled to have his instructed on the life parole option,

without notwithstanding

O.S.Supp.1993, § 701.10a.

Having allegations reviewed the of error by Appellant,

raised we find that the convic- felony

tion for murder is AFFIRMED. The

death felony sentence returned for the mur-

der conviction is VACATED and the case is

Case Details

Case Name: Cheatham v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 28, 1995

Citation: 900 P.2d 414

Docket Number: F-90-649

Court Abbreviation: Okla. Crim. App.