Clayton v. State

rеview, noble, opinion departs and for should be the reasonable- is it from the tradi- by actions as viewed appellate ness of a defendant’s tional rules review and em- person under the circum- a reasonable through barks the Court on a course much per- generic not a “reasonable stances and turbulent water in the future. However, the trial court must first son”. Regretfully, the Court seems to disre- type of evidence is determine if this rele- gard reaching the evidence of the case in a presented by vant under the fact situation attempt adopt syndrome a which is not relevant, If it is not it is not the case. applicable to the facts and does not com- admissible. port requirements being gener- with the also dissent to the must Court’s discus- ally accepted in the scientific/medical com- hearsay opinion beginning in the sion of at munity. agree While I that evidence of the 4., subpart Hearsay and the Battered Wom- Disorder, Post-traumatic Stress which is Syndrome. The Court cites the Okla- accepted diagnosis as a standard for Code, homa Evidence the definition of hеar- community, medical would be relevant evi- all, “Most, say, and states if not of the out- provide dence case to of-court statements psychological diagnos- with the medical and attempting hearsay”. to offer were not required tic criteria to determine the rea- why failed to state Court actions, sonableness of a defendants it is hearsay. Hearsay statements were not is appropriate not relevant here. The resolu- O.S.1981, excep- defined at 2801. The society tion of the ills of should left be Hearsay tions to the Rule are contained Legislative and Executive branches of Sections 2803 and 2804. This Court is re- government. our This Court should re- quired apply the substantive law as en- application strict itself to the of the law to by Legislature, acted the Oklahoma unless presented the facts in the record. I there- we find a statute violates constitutional fore must dissent to the Court’s actions provision. I any argument do not find this case. constitutionality of Section there- fore, by statutory are bound its lan-

guage. The Oklahoma Evidence Code was clarify

drafted to the rules of evidence. Court, analysis in its further issuе,

hearsay adopt seeks to definition

hearsay which is not contained within the

statutory language. attempt to rede- hearsay fine inis direct conflict with Sec- CLAYTON, Appellant, Robert William open floodgate tion 2802 and will attempts to introduce hearsay inadmissible pursuant to the criteria by illusive set forth Oklahoma, Appellee. The STATE of the Court. No. F-86-165.

Many questions more are raised than an- opinion. swered dis- Court’s Appeals Court of Criminal of Oklahoma. “reasonableness”, cussion “imminence” Sept. 1992. “hearsay” will be the source of much litigation and error at the trial court level Rehearing Denied Nov. years. for several This Court will be forced to address these same re- issues

peatedly legal in an effort to clear the

quagmire develop attempt which will as we explain opinion’s what was meant

analysis. The role of this should be issues,

to resolve not create them. We courts, provide

should answers questions. goal

not more While the of this Wallace, Defender, Asst. Tri-

Ron Public Counsel, O’Neal, Asst. De- al Johnie Public Tulsa, fender, Counsel, Appellate appel- for lant. Edwards, Litchfield

Allen and Gordon Counsel, Tulsa, Attys., Dist. Trial Asst. Gen., H. Henry, Atty. H. William Robert Luker, Gen., Blalock, Atty. Asst. A. Diane Gen., Atty. City, Appellate Asst. Oklahoma Counsel, appellee.

OPINION PARKS, Judge: Clayton, appellant, was Robert William Degree by jury and convicted of First tried 701.7) (21 O.S.Supp.1983, in Tul- Murder County District No. CRF- sa Court Case rec- jury’s 85-2501. accordance with ommendation, appellant was sentenced Sentence, Judgment From this death. appeals. appellant We affirm. 25, 1985, Shortly noon on June before grounds keeper a at the South appellant, Oklahoma, Tulsa, told Apartments Glen take a going that he a co-worker hour. shop during the lunch nap find lunch to The co-worker returned from and that longer there expressed woman, appellant had whom a summer, had in earlier in the interest apart- in her South Glen murdered ment. p.m. apartment and 12:30 on that baby’s

Between 12:00 to his 18-month-old bed- day, appellant apartment arrived at the room where he found his body wife’s dead Syphurs apartment Helen in another com- slumped baby over front of the crib. He plex proximity close South Glen police called the baby and took the outside Apartments. breathing heavily He was where he waited for officials to arrive. Syphurs and told Mrs. that he had been personnel Officers and medical arrived fight couple a of men who tried to p.m. around 1:00 unsuccessfully at- shaking him. He rob his hand and tempted to revive Mrs. Timmоns. An au- fight. stated that he had it in the broken ‍‌‌‌​‌​​​​​‌‌‌​‌​​​​​‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​​‌​‌‌‍topsy revealed that she sustained twelve using phone, appellant After took a (12) chest, neck, stab shower, wounds to the side towel, wrapped put himself in a arms, large paper bag, clothes and called someone bruise to the back of her personal problems head, tell them that due to skull, a fracture to the front of the day. he would not be back at work that ligature mark on her neck possibly caused Syphurs Mrs. then took top being her pulled tightly bikini Reinke, home of Don and Sharon where neck, around her and numerous bruises friend, Tony Hartsfield, and his and abrasions. The medical examiner also resided. opined that Mrs. Timmons died from multi- at arrived the Reinke’s around ple injuries stab wounds and blunt head p.m. wearing carrying 1:30 a towel and injuries and that all of the were inflicted paper changed sack. He clothes and reiter- prior to death. He further testified that fight. ated that he had been He told the (15) victim could lived have fifteen Mrs. Reinke that he needed to wash his (30) thirty having minutes after sustained they bloody. clothes because Al- were wounds, likely the but would have lost con- though Syphurs Mrs. testified that she had receiving sciousness after the head nothing clothes, appellant’s seen on Mrs. wounds. Reinke stated that she noticed blood on the A forensic analyzed chemist who the thighs and knees of appellant’s overalls crime scene splatter concluded from blood appeared which to still be wet. two, evidence that at put possibly least and washing his clothes into the machine three, apparently dropped but assaults blood-stained occurred. The first assault sock, police found, which officers later leading apart- was at the back door into the the floor beside the machine. When Mr. ment. The second assault occurred inside Hartsfield and Mr. Reinke arrived home apartment. the A third possibly assault thereafter, shortly appellant told them that baby’s occurred in the bedroom. fight. he had been in a Both men noticed obtaining appellant’s After name from appellant’s bothering hand was him. apartment the manager, as well as other Shortly p.m. after day 12:30 on the in information, police officers went question, William Timmons returned home question appellant. Reinke’s home to Upon apartment to his South Glen for lunch. He arriving p.m., around 3:30 the officers a.m., had at been work since 7:30 but had (one asked Mr. if “Randy Clayton” Reinke wife, Timmons, spoken with his Rhonda aliases) was there. Mr. telephoned 10:30 a.m. when he her. Mr. initially knowing Reinke denied him but Timmons testified that he received no an- subsequently get went into the house to p.m. swer when he called Rhonda at 12:25 appellant urged when the officers the im- Upon arriving, he noticed that the back portance talking to him. Mrs. Reinke door was unlocked pillow and towels and a appellant testified that he going said was laying were near the door where his wife run police because the were there. Mr. evidently sunbathing. had been He en- appellant Reinke stated that he found sit- apartment tered the immediately and no- ting per- on a back bedroom window and everywhere. Yelling ticed blood for his run, answer, receiving suaded him not to but rather to talk to wife Mr. Tim- bloody through police. mons followed a trail the percentile popula- appellant lower one two that as Mr. testified Hartsfield ap- to let tion. The doctor further testified that he told Hartsfield went outside folding aggressive knife pellant passive, about the exhibited police find out usually Mr. carried. personality, traits in his well as paranoid the knife subsequently found tendency dependent Hartsfield to be submissive. (25) feet backyard twenty-five about emotionally stated that he was imma- She had on which window and self-centered and to em- ture unable officers did not inform the sitting, but Finally, been pathize with others. the doctor consent Pursuant to a its existence. he stated that had disclosed that search, the knife police officers discovered only grade the seventh had finished Expert testimony estab- day. next mistreated his alcoholic father. knife have caused lished that could stab wounds.

Mrs. Timmons’ I. expert not determine whether could PRE-TRIAL ISSUES knife on the minute amount of blood found During origin. animal was of human or A. search, appel- officers also found error, eighth assignment appel- In his machine, in- washing clothes in the lant’s asserts that the trial court erred lant Mrs. Reinke cluding overalls on which declare overruling his motion to unconstitu- No trace had earlier seen blood stains. he the statutes under which tional on the clothes which could be found blood argues prosecuted. Specifically, However, the washed. recently had Legislature amended when the Oklahoma also found aforementioned officers 701.13, O.S.Supp.1985, they failed experts bloody sock which determined resentencing function a first limit the AB Type stained with blood. jury to the degree murder conviction same blood, blood Type has while the victim’s claims convicted the defendant. He that Type AB. such that this failure denies defendants go police to head- Appellant agreed to right. a and himself substantial being ad- questioning. After quarters for O.S.1981, 701.13(E)(2), Title 21 § rights, appellant ad- of his Miranda vised authority this granted “[s]et stabbing only the victim but because mitted sentence aside and remand death] [a him. made sexual advances toward she of the sentence case for modification held inadmissible be- This statement was imprisonment life.” 1985 amended for court found that cause instructs this Court statute “[s]et rights. A sub- fully did not understand his for aside and remand the case sentence infor- sequent containing similar confession resentencing trial court.” In by the Cart objec- appellant’s over mation was admitted 479, (Okl.Cr. wright (See III(A) Opinion). of this tion. Part 1989), that a majority a of this Court held trial, During stage the second of death re- sentenced to “can be defendant appellant had presented evidence that State 701.13(E)(2)] under sentenced [Section folding and intimi- used a knife threaten violating process post the ex due without boyfriend rape a victim and her date the Oklahoma or prohibition of either facto by Mr. testimony Alabama. Further dis writer Federal constitutions.” beating appellant in a implicated Hartsfield majority decision on to the sented Pasadena, Texas. man robbery of a not be that statute should grounds However, testimony indicated express pro no retroactively where applied Hartsfield, appellant, than assaulted rather pro application was vision retroactive the Texas man. Cartwright, by Legislature. See vided P.J., dissenting). (Parks, psycholo- 778 P.2d mitigatiоn, appellant In called a interpretation of I this Although stand on that her examination gist who testified statute, yield doctrine of stare a to the testing of that he had appellant revealed 701.13(E)(2) 68, holding that Section I.Q. placing him in the scale decisis full 3, Thereupon, held July either the Federal or Okla until 1991. does not violate resentencing presently Since un district court found that it was homa constitutions. properly hearing. not issue feasible to At a der the statute is an conduct subse- Court, quent proceeding, Sep- we need address before this which concluded on 1991, retroactivity aspect 12, Section appel- either the tember found appellant’s 701.13or nineteenth lant competent to stand trial when he error, 1986). also raises issue. 1, did (February 25 March are assignments of error without findings regard These in this were forwarded to 16, 1991, September merit. this Court on and we permitted parties additional time for both B. supplemental to file briefs on this matter. trial, court the district found Prior to Initially, we must address one of appellant’s was a doubt that there findings the district fact. The court’s to stand triаl ordered that competency applica court noted filed Ap- undergo competency evaluation. competency tion for a on Octo evaluation 11, 1985, July pellant was examined on 16, 1985, request ber withdrew the but Sherman, Ph.D., determined Samuel J. who supplemental October its competent to trial. In a that he was stand brief, argues the State that such withdraw supplemental brief filed week before one right al waiver constituted a argument, appellant oral contended that his post-examination competency hearing. to a must because the conviction be reversed agree We such action constituted a mandatory record did not establish that respect waiver with to the October post-examination competency hearing was request. evaluation resumption of crimi- prior conducted such taken action was the defense fol O.S.Supp.1985, proceedings. nal See lowing request July original 1175.1, seq. et 1985, competency examination. Section July dated that a unpublished competency hearing In an order 1175.4mandаtes cause to the be has this Court remanded this conducted after accused present case, it district and directed to forward examined. In the there is no court- proof, any, hearing if that a evidence to indicate that was af held, statutory right hearing along findings concerning fact forded his to a fol 11, 1985, appellant’s competency lowing July competency trial. to stand We evalu ation, further nor evidence to demonstrate that he ordered: hearing. such affirmatively waived a See hearing that in the event no such was State, (Okl.Cr. Kiser v. P.2d 782 408-9 held, case considered re- this shall be 1989). Accordingly, reject we the State’s manded to the for the [district court] argument waiver and address the merits of purpose conducting proper hearing. a of appellant’s regarding the propositions fea make findings The district court should retrospective sibility competency and hear concerning feasibility presently de- ings. appellant’s competency termining Robinson, light v. stand trial Pate Relying primarily upon v. Rob Pate 836,15 L.Ed.2d 383 U.S. 815 inson, appellant first the tri contends that compe- on his findings as well as finding retrospec al court erred in that a he did. tency to stand trial when hearing held competency tive could be and 13, 1990, by holding district August subsequently On court same. conduct a response stating filed a to our that it Court has held failure to order hearing with post-exami- competency concurrently a trial could not determine whether process. competency hearing per held. Due is not violative of due nation se (Okl.Cr. counsel, State, P.2d 1121 prosecu- of defense Boltz v. 806 illnesses State, witness, 1991); P.2d expert hearing a v. 765 tor and an Anderson State, (Okl.Cr.1988); 699 feasibility conducting a 1233 Rowell v. determine the hearing (Okl.Cr.1985). P.2d a defendant’s retrospective competency was not 651 “[I]f competent trial to stand at time of can be trial competency subsequent at a when he did. meaningfully determined competent and the basis of credible time on finally contends that our by evidence, the dis then error committed remand this for a decision to case retro hearing hold a failing court trict spective competency hearing is in conflict Boltz, time cured.” can bе prior him caselaw and thus denied due Furthermore, delays occa P.2d at State, (Okl. process. v. 778 P.2d 932 Wolfe continuances do by a and sioned remand State, Cr.1989); v. P.2d Thomas necessarily preclude meaningful ret (Okl.Cr.1989); Kelly v. 735 P.2d 566 Id., citing rospective determination. Unit (Okl.Cr.1987); v. Scott (5th Makris, 535 F.2d ed States authority are cited Cir.1976), cert. denied Scott, proposition. In Kelly and this Court (1977).1 51 L.Ed.2d 803 appellants’ reversed the convictions be case, present competency In the the trial court post-examination cause no following evidence/witness conducted. In case hearing found that neither did retrospective compe possibility holding es were available at we discuss the ret hearing: rospective hearing. records as to exam in both tency Various personnel, psycholo medical Thomas inations this Court acknowl Wolfe ap jail personnel, edged possible and witnesses of it is cure on remand gists, trial; judge competency at the time he stood a trial failure to hold a pellant court’s trial; appellant’s Wolfe, trial presided hearing over at the time trial. we who Sherman; counsel; meaningful retrospective Dr. Thomas A. Good found that no Ph.D., M.D., man, Williamson, par hearing Diane could be conducted under the psychological evalua each conducted ticular facts of case. Thomas was who court, February, January tions of fact remanded district Barnes, D.O., 1986; and William R. determined that it was not feasible to con City-County jail physician retrospective hearing. These Tulsa who ob duct a later clearly procedure while he was incarcerated. cases set forth served now As found under similar circumstances this Court to correct utilized Boltz, post-evaluation “With such a wealth available court’s failure to conduct a evidence, properly competency hearing prior the trial court deter to trial. See also Anderson; competency Boltz; retrospective that a de mined Johnson (Okl.Cr.1988). Accordingly, Id. at 1121-22. was feasible.” 761 P.2d 484 termination right process to due of law was next claims that he was not violated. hearing competency a fair denied because to sponsor called him as a witness the State II. signed incar exhibits he had while several jail. Appellant City-County in the cerated TO RELATING ISSUES Fifth that such action violated the claims JURY SELECTION States Constitu Amendment United A. II, 21 of the Oklahoma and article tion assign argues first in his that has We note Constitution. excusing in trial court erred procedure violat ment that the specify to how such failed for in juror cause violation rights, prospective and this Court his constitutional ed 412, Witt, U.S. 105 v. 469 any Wainwright discern such violation. We unable to is 844, ‍‌‌‌​‌​​​​​‌‌‌​‌​​​​​‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​​‌​‌‌‍(1985). juror The 841 and S.Ct. 83 L.Ed.2d reject this assertion error therefore venireper- issue, at was one of several presented at who that the evidence find their views and beliefs jury’s finding sons for amply supported the excused hearing decisis, senting). of stare opinion as matter to writer continues be the this 1. It compe majority of post-examination yield my this failure to hold a view to that of the that tency hearing prior to trial mandates reversal. Court. Anderson, (Parks, J., 1234 dis P.2d at See 765 26 penalty, ques juror formance of his

regarding Finding death duties. no discretion, extensively by prosecutor, de assign- tioned abuse of we dismiss this and the court those fense counsel trial ment of error. his were at Although answers

views. confusing perhaps contradictory, times B. juror note that before he we stated in his contends seventh impose penalty the death could vote to prosecutor proposition that the his violated ap absolutely certain of would need be right the jury mitigating to have consider “beyond pellant’s guilt; a reasonable prosecutor ques He claims evidence. for him doubt” was too low a standard on, venirepersons tioned their about views death He fur to recommend a sentence. of, that the effect evidence someone expressed imposing a death sen ther murder might convicted of have different legal would tence under this standard “vio background emotional than themselves. his violence his late convictions” and do Appellant argues questioning, that this 370). (Tr. has conscience. This Court stat essence, ignore “primed jurors to [the done to one’s conscience is ed violence only mitigational presented] evidence key point not the or consideration excus they had secured their assurances that ing jurors holding cause under (Appellant’s Brief p. 60). would do so.” Illinois, 510, Witherspoon v. U.S. 391 88 1770, (1968), 20 L.Ed.2d 776 the semi S.Ct. during No objection was raised voir dire prior Wainwright. nal case on this issue respect questions with of the at (Okl. 422 See Banks v. Consequently, issue. review for funda- Cr.1985). upon appel cases that It is these only. Thompson mental error pins argument. lant his 724 P.2d 780 reversed on Oklahoma, grounds Thompson Supreme United States U.S. S.Ct. L.Ed.2d replaced Witherspoon the earlier standard questions We find that these Texas, Adams v. 448 U.S. S.Ct. did preclude considering and reaffirmed L.Ed.2d and, mitigational correspond- evidence propriety Adams standard ingly, error fundamental resulted. Thus, appropriate Wainwright. test is is meritless. juror’s ‘prevent “whether the views would impair substantially performance legal juror duties as in accordance III. his instructions and oath’.” Wain RELATING TO ISSUES wright, at 105 S.Ct. at 469 U.S. GUILT/INNOCENCE Wainwright Court further noted paid judge must be the trial deference A. sees juror who and hears the because the proposition, appellant In his third judge may impression left trial be with an erroneously asserts that the court ad juror a prospective “that would be unable through mitted his evidence confession into faithfully impartially apply the law” Department testimony of Tulsa Police though impression is not even such evident Detective Parke. The record showed that Id., printed record. at 425- gave police oral statement to 26, 105 852-53. Under stan being rights after read his under dard, officers that the trial court find did not Arizona, Miranda v. 384 U.S. 86 S.Ct. in excusing pro abuse the its discretion 16 L.Ed.2d 694 This oral spective juror. The record indicates that was held statement inadmissible because difficulty the venireman would had have magistrate preliminary hearing the found following trial court the law the would appellant fully that did not his proof instruct to understand in relation the burden rights. apparent guilt/innocence stage the This fact became when standard for both sentencing stage. difficulty attempted to record the confession and officers upon appel the their substantially impaired per- would have but terminated efforts understanding rogation by and appellant asking eventual invoca his name lant’s right necessary personal his counsel. tion of to data bеcause this is “normally information attendant to Public De- The officers then summoned Moreover, custody.” arrest and these appellant, counsel Pete Silva to fender questions certainly were not the kind which appellant Mr. instructed whereupon Silva the reasonably detective should know were further with the not to discuss the matter likely incriminating to elicit statements. premises left the Mr. then officers. Silva Thus, interrogation occurred. proceeded appel- to officers “book” and the appellant to Detective Parke asked lant. his support argument To that the name, true address social provide his previously given inadmissible statement appellant complied security number. After Parke, tainted confession to the Detective request, Parke with the Detective started appellant cites A.L.T. v. P.2d 74 interrogation door of out the the room. (Okl.Cr.1980). There, found in this Court However, appellant stopped the detective juvenile’s admissible a confession even wanted to talk. De- and indicated that he though police officers administered the Mi Parke reminded Mr. tective warnings randa to the and his juvenile if appellant asked Silva’s instructions and father prior to the In that confession. Silva stat- wanted Mr. to return. case, a police initially interrogated officer ed that he wished to talk detective juvenile giving requisite the without the proceeded give an alone and to account of warnings. juvenile Miranda After the transpired in what the death the dece- crimes, to four deter confessed the officers dent, as an which as well incident occurred juvenile mined may that have been in Texas. earlier involved in a homicide. The officers called Appellant now that claims Detective juvenile’s day father the next improperly interrogation Parke reinitiated explained rights the Miranda to Us both. right he had invoked his to counsel. after information, ing acquired previously He concludes that the second oral state- questioned juve then different officer given to Parke was ment Detective tainted again nile and obtained a second confes illegality of the first statement. We sion. This held that the second con Court disagree questions and note which erroneously pro- fession was admitted at a Parke posed Detective were hearing it was taint secutive merit because merely inquiries necessary for book- illegally ed obtained first confession. ing procedures did not which amount distinguishable from the We find A.L.T. Innis, “interrogation.” In Island Rhode simply case at because the officers in bar 1682, 1689, U.S. acquired during A.L.T. confession Supreme held L.Ed.2d 297 in- “interrogation” receiving second after purposes that for of the United States Con- through questioning formation initial rights require- and Miranda stitution case, illegal. instant ments, interrogation “must reflect a mea- im- appellant under the questioned officers compulsion beyond above sure fully pression that he understood custody The Court fur- inherent itself.” rights. agreed talk until interrogation under ther held Miranda right realized he had a to counsel at only express questioning “refers interroga- that time rather than later. The equivalent, also functional but its provided. tion and counsel was ceased part police or actions on the words Against and Deteсtive his counsel’s advice normally than those attendant {other recommendation, initi- Parke’s police custody) arrest and should and admitted ated the second conversation likely to in- reasonably are elicit an know Detec- certain murder. details about the response criminating suspect.” only tive testified that he asked Innis, Parke 100 S.Ct. at 1689-90 only added). questions, few and those were Kreijanovsky (emphasis See also confessing. State, (Okl.Cr.1985). clarity appellant was P.2d of what v. 706 541 Clear- facts, we find that the ‍‌‌‌​‌​​​​​‌‌‌​‌​​​​​‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​​‌​‌‌‍inter- Under these do not ly, Detective Parke did not reinitiate 28 probative outweighed of the tainted the value exhibits confession

first inadmissible confession, any prejudicial they might the effect have had as was case second (Tr. 847-48). Additionally, proper- jury. was on the Because confession the A.L.T. admitted, many trial the other assignment of error must the court reviewed ly this (which part were photographs made a fail. record) appellate the but found that B. photographs offered the State were body cleaned ones which had been in his fourth Appellant сontends and the removed and “the best blood were that cause for arrest assignment probable (Tr. 846-47). pictures of the available.” therefore, and, all the lacking evidence was Moreover, photographs offered to were arrest was inad gained as a result of the show the location and extent of the wounds for first He this issue missible. raises testimony expert to corroborate appeal. record reveals that time find that the court did witnesses. We (3) Sup filed Motions to appellant three admitting the not its discretion in abuse these motions None of press Statements. State, v. 693 P.2d photographs. See Stout arrest, objection but rather raised an to (Okl.Cr.1984). 617 suppression of appeared to be limited to statements, first of which the two oral suppressed. The evidence now com D. of, exception of the second plained assignment, appellant In his fifth above, drew no oral statement discussed asserts the trial court erred in allow objection. ing testify expert on Kenneth Ede to as an Moreover, pled guilty not splatters. Appellant blоod contends charges arraignment without splatter testimony incompe the blood contesting legality of the arrest. This tent because the State offered insufficient timely long has that failure to held authority gained to establish that it has arrest legality prior to the of an object general acceptance recognized as science plea charges ap entering a waives expert was an in the field. or Mr. Ede Holliday issue. v. pellate review of the recognized Although this Court has 124, (Okl.Cr.1988);

State, 126 755 P.2d splatter analysis blood as forensic science State, 562, (Okl.Cr. 563 v. P.2d Carter 738 evidence, worthy into of admission Farris 1987). Consequently, we refuse review State, (Okl.Cr.1983), P.2d 995 v. 670 assignment further. this of error initially object note that did not ground to the evidence on at trial. C. only challenged Defense Mr. Ede’s counsel Appellant’s second (Tr. qualifications testify expert. an court’s admission error concerns the trial 815-16). specific objection is made When photographs body of the victim’s which evidence, at trial the admission of “gruesome and appellant characterizes as objеction different will be considered on inflammatory,” and therefore inadmissible. State, 977, appeal. P.2d 979 Hughes v. admissibility for of a test (Okl.Cr.1988); State, Marks v. 654 P.2d gruesome it is photograph is not whether Therefore, (Okl.Cr.1982). this is- inflammatory, rather whether its but preserved review. sue substantially outweighed probative value is properly pre issue danger prejudice. Nguyen Regarding of unfair served, qua whether a witness 769 P.2d the decision v. expert lifies as is within the sound dis cert. denied U.S. (1989); Kennedy trial court. 738 cretion of the 106 L.Ed.2d Jones (Okl.Cr.1982). (Okl.Cr.1987). See also collegiate O.S.1981, case at bar has 2403. The trial court reviewed witness in the chemistry school degrees in and extensive photographs prior at issue each area in he testi- ing held the scientific specifically admission and rights. or a and seminars on breach his fundamental He attended courses fied. (Okl. Cooper analysis and studied under 671 P.2d splatter blood Cr.1983). leading author- We find no abuse of discretion in he considered to be who subject in the United States. the trial court’s admission of this evidence. ity on the in Moreover, experience he had hands-on contends that it im- also analysis and had testified splatter blood proper prosecutor to for the comment on times. We find it a dozen about well over closing the aforementioned evidence ar- by the trial court in of discretion abuse gument. Many of the comments drew no testimony by Mr. Ede admitting expert therefore, and, objection pre- were not splatter analysis per- he the blood on appellate Thompson, served for review. Consequently, find no merit to formed. 724 P.2d at 783-84. We find that all of the assignment of error. statements, one, except were fair com- per- on the evidence and ments within E. range closing argument. missible Id. Appellant’s proposition ninth con improper objec- The one comment drew an alleged instances of misconduct cerns Any tion which the trial court sustained. con prosecutor. Specifically, appellant might error which have resulted from the that he was denied a fair be tends comment was cured the trial court when implanted ju prosecutor cause the jury disregard admonished the it. See penalty was rors’ minds that the death James, supra. mandatory. The trial court sustained de Next, appellant prose- that the contends objection dire fense counsel’s to the voir attempted sympathy cutor to elicit for wit- this misstatement was question nesses, husband, including the decedent’s and admonished the to disre couched rape and the Texas the Alabama victim gard question. This Court had consis questions assault victim. All of the asked cures tently held that an admonishment pertained and relevant evidence any substantially does not af error which correctly ap- and the trial court overruled fect the verdict. James v. pellant’s objections. We find no error in (Okl.Cr.1987); McLeod questions responses given asked or In this ,(Okl.Cr.1986). 881 questions. those instance, cured er the admonishment may have resulted. ror which only argument that response merits a makes which detailed argues that the further derogatory concerns re from this Court attempted to “set an emotional prosecutor prosecutor allegedly made dur marks eliciting sym proceedings” by to the tenor ing the dire and cross examination voir (Appellant’s p. Brief pathy fоr the victim. expert witness who called to 67). He asserts that the State used tactics mitigating During voir present evidence. passions, designed jurors’ to inflame the examination, prosecutor inquired dire request to have the victim’s including a regarding performed tests of the witness position his wife husband demonstrate the appellant: eliciting her and when found testimony looking up Well, ma’am, victim Q: many how of these baby as she died. Defense counsel you performed? her tests have objection interposed an husband’s eight hundred. A: At least seven or position of the victim’s but demonstration it, eight Q: is seven or hundred? What object testimony to the did not count, sir. A: didn’t position head was such victim’s performing Q: long you have How looking baby. at her appeared to be she these tests? of evidence is within The admission court, doing indepen- A: I have been this as of the trial and the sound discretion private practice psychologist there dent ruling court’s is not reversible where since 1979. showing prejudice is no 30 (Okl.Cr. State, hay- v. 767 P.2d Well, go Lamb

Q: you ever had one have 1988). trial discre It is within the court’s you? on wire of, to determine whether sufficient evi tion sir. that I know A: Not of a exists to warrant instructions dence know; you? would Q: You wouldn’t degree. v. 740 P.2d Rawlings lesser necessarily. A: Not (Okl.Cr.1987). so. Q: I didn’t think de- 1044). court sustained (Tr. The trial presented by the State The evidence and admonished objection fense counsel’s began outside the showed the attack The the disregard statement. jury the apartment through- and continued victim’s appellant’s request trial court honored Two testified out it. State’s witnesses expert in the as an recognize the witness to them. statements made about and direct examina- psychometrics field of Parke Appellant told Detective proceeded. the witness tion of apartment into the coaxed him victim expert During direct examination toward made sexual advances threats witness, following objection was voiced then out” him in the kitchen. He “blacked prosecutor: by up in bedroom. When asked and woke time, thisAt based MR. LITCHFIELD: her, why ap- by another witness killed remark, interpose her last would on “flipped pellant told the witness that he findings as objection any further un- explanation killing, out.” m-i-c-i-c-e,whatev- particular this е-c-m-i— any other evidence corroborated gave. she it is tests that er contradictory evi- physical to the direct 1050). reporter did (Tr. Although the court presented, support fails to a man- dence such, supplemental it report as not slaughter find instruction. Because we Wallace, defense counsel of Ron affidavit trial did not its discre- court abuse prosecutor appellant, avers that tion, fail. assignment this of error must “Mickey Mouse” actually spelled the words objection. It referring to tests in his in IV. whether to tell from record is difficult fact, did, object prosecutor RELATING TO PUNISHMENT ISSUES affi- counsel states manner defense not the affi- The State does refute davit. saying it allegation other than A. or the

davit need appear in We not the record. does In his of er fourteenth actually said be- speculate not what ror, improper that he appellant argues prosecu- if we did find cause even to death because the State ly sentenced “Mickey tests referred to the tor cir aggravating used an unconstitutional Mouse,” we find that this comment now cumstance, wit, especial murder remark, al- derogatory the earlier heinous, Appellant atrocious or cruel. ly unprofession- though highly improper and contends, assignment, in his sixteenth also not al, unfairly prejudicial and did were sup there was insufficient evidence warranting impropriety rise to the level of aggravating port this circumstance. Thompson, See or modification. reversal (Okl. 742 P.2d Stouffer 724 P.2d Cr.1987) (Opinion Rehearing), cert. de F. . 1036, 108 nied U.S. aggra held that this L.Ed.2d as his sixth asserts murders vating is limited to circumstance court erred in refus

signment that the trial physical preceded torture serious includ jury on lesser ing to instruct the abuse. See also Castro Manslaughter. Degree offense First ed cert. denied jury on trial court is to instruct the 99 L.Ed.2d 446 degree which the evi every of homicide given in the second suggests. instructions reasonable view dence C. and D. clearly set forth stage 215).2 (O.R. standard. asserts his twelfth as supports the the evidence find that We signment error that he did not receive torture or serious jury’s determination adequate notice of the evidence the State preceded death. victim physical abuse present stage in the second of intended to (12) The assail- times. was stabbed twelve the trial. He further contends in his thir the victim’s began the attack outside ant assignment that the trial court erro teenth attacking her continued apartment and neously his Motion to Produce overruled the kitchen throughout apartment Aggravation. in Evidence area, livingroom down the hall and Bill The State filed its of Particulars on Clearly, the vic- baby’s into the bedroom. 23, (O.R. 52). September 1985. physical recipient of serious tim was the (2) produce Septem- filed motions to on two the attack beginning abuse from (O.R. 70-74). 30, 1985. 65 and One ber as died from the wounds evi- until she motions, specifically addressed testimony the forensic by the denced sentencing evidence in the State’s Furthermore, the victim was ex- scientist. 21, on 1985. stage, was overruled October body the head and tensively beaten about (O.R. 5). However, the other motion was strangled with her own bi- apparently general aspects and covered all of the trial. assign- top. find no error in these kini We appearance docket discloses that this ments. encompassing complied motion towas be (O.R. 6). Moreover, an with the State. B. hearing prior conducted in camera assign seventeenth following recorded: trial at ‍‌‌‌​‌​​​​​‌‌‌​‌​​​​​‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​​‌​‌‌‍which the error, “continu he claims that the ment of Judge, previ- I MR. WALLACE: had circumstance, 21 aggravating ing threat” motion, my ously filed—this is last O.S.1981, 701.12(7), vague is and over- inspection in of the motion for camera broad, particularized guidance has that no time, I like State’s files and at this would same, that it provided been to construe for the formally withdraw that motion manner, arbitrary in being evaluated an is have, I numerous occa- reason that specifi should have and that the trial court sions, Mr. Litchfield for the talked to has elements. This Court cally defined its have, Edwards, they and Mr. State and held addressed these issues previously file knowledge, gone through their my spe aggravating is that “this circumstance They have been on numerous occasions. cific, readily understanda vague, and is providing myself and forthright in very State, 1025, 1031 ble.” Liles v. Silva, Silva, co-counsel Mr. Pete 1164, (Okl.Cr.1985), cert. denied 476 U.S. case, any of the items that we have with 2291, (1986).3 We 90 L.Ed.2d 106 S.Ct. pro- motion to entitled tо under our been this circumstance is not have also held that two having dealt with these duce. And arbitrary manner. being evaluated in cases, in I feel that counsel before P.2d v. Foster whatsoever, if they have no hesitation 873, 107 479 U.S. t. denied cer something they they should come across also 93 L.Ed.2d 173 See overlooked, they inadvertently may have Texas, Jurek possi- us soon as provide it to (1976). Accordingly, would 49 L.Ed.2d 929 always and exhibit- They have ble. assignment meritless. deem this prepared presently writer is "not opinion 3. While this Although this writer is heinous, aggrava- validity my opinion regarding or cruel” “especially atrocious abandon vague circumstance, unconstitutionally agree ting ‘continuing is I circumstance threat’ applied, Foster v. and as see guidance on its face both is appellant that more definitive (Parks, (Okl.Cr.1989) P.2d needed." Boltz P.J., concurring), yield to the "torture specially I P.J., concurring). (Okl.Cr.1990) (Parks, specially adopted in standard or serious abuse” Stouffer stare decisis. as a matter of probability in he would highest order shows com- ed conduct I dealt with them. past when have mit further acts of violenсe the future cases they to doubt that I no reason continuing have that would constitute threat that in this case. any less than would do society is that the defendant wanted Honor, just for Your Mississippi MR. EDWARDS: for parole violations and is Record, my knowledge the best sought the State Alabama and, say to Mr. Litchfield would think Rape crime of defendant has knowledge, we have our [best of] Robbery been involved crimes of they legitimately given everything them Further, in the State of Texas. Assault to. are entitled the callous nature of the instant that the Record indicate THE Let COURT: alleged probabili- offense herein shows then, of on behalf the that motion ty that the defendant would commit fu- has withdrawn. Defendant of ture acts violence. Thus, (Tr. 7-8). expressed defense counsel (O.R. 79). possession he of all that he was that was in language The set forth is similar above law. entitled to under the to to that which we found constitute suffi hearing, defense counsel At the same State, in cient notice Ross v. 717 P.2d urged in limine and motions to motions (Okl.Cr.1986), in 122-23 Ross v. affirmed which suppress in-court identifications Oklahoma, 81, 108 S.Ct. 101 9, 1985, on December well over werе filed (1988). in holding 80 L.Ed.2d Our Ross of the trial. Three the two months before supports thus the trial court’s denial of aggrava- in limine concerned the motions note, appellant’s But also as motion. we occurring in of the tion evidence incidents Ross, purpose did Alabama and Texas. Mississippi, States of requirement notice is to allow the accused appellant which The in-court identifications prepare an opportunity to a defense. Id. attempted suppress by to were witnesses pertinent We have further held that infor call the State intended to in the second aggravation to evidence can mation as the rape stage respect to a that occurred with verbally strengthen be communicated to Clearly, appellant aware in Alabama. already the written notice filed. Wilson v. aggravation the called in witnesses be (Okl.Cr.1988); identify 1245 they possibly would him and that rape. in the Alabama He P.2d 273 being involved Walker 995, 107 was also aware that another witness would rt. denied U.S. ce robbery testify an assault and sup about L.Ed.2d The State be Texas and that the witness would able plemented the record with an affidavit identify appellant. Another witness prosecuting attorney in which he the appellant at the scene the place would he stated that and defense counsel dis Texas crimes. aggravation length evidence at cussed not several occasions. does Aggravation its Notice Evidence supplement refute this the record. We Punishment, the State set forth suffi- above-quoted language find that the prove how it intended to cient facts to show notice, along State’s formal with written heinous, especially murder was “[t]he information that defense counsel received O.S.1981, or cruel.” 701.- atrocious lists, pursuant compliances witness 12(4). following excerpt from the doc- The produce and had motions to conversations language the ument sets forth the State appellant prosecution, with the afforded put appellant used to on notice of sec- prepare State use to sufficient a defense or an stage ond evidence the would notice “continuing alleged prove explanation was a criminal con society”: Walker, threat to supra. Nguyen, duct. See also 769 P.2d at Johnson That state mind exhibited defendant, (Okl.Cr.1982). assign Both Clayton P.2d William Robert Clayton, error are Randy Clayton aka aka Robin ments of dismissed. preventing prosecu- E. lawful arrest or (O.R. 228). tion.” That circumstance was Similarly, we dismiss alleged by the in the Bill State argues eleventh incorrectly Particulars and was listed on erroneously trial court admitted form. the verdict in-court identification of during two aforementioned witnesses During deliberations, noticed the stage. identi the second Both witnesses discrepancy and the foreman sent a note to appellant’s photograph as the man who fied asking why trial court did this form not raped one of the witnesses and threatened comport aggravating with the cir- second boyfriend rape. prior that witness’ Particulars, cumstance listed on the Bill of photograph photographic was part of a being probability existence of a “[t]he day lineup given to the on the witnesses that the defendant would commit criminal following witness incident. Neither acts of violenсe that would constitute a appellant’s photo to identify hesitated (O.R. 139). continuing threat to society.” they graph, identify anyone nor did else court an in conducted camera lineup; both were certain that hearing arguments and heard from both rapist. They certain was were also the counsel. Defense counsel admitted that he they when appellant that was the assailant the approved had verdict form earlier but him in identified court. thereupon objected to the form on the preju- the grounds that mistake in the form correctly picture notes that his prosecutor diced the defendant. The ar- only Polaroid-type one the made with a gued jury a deci- had not reached argues He since the white camera. that regarding aggravating sion circumstances different picture around the border by the as evidenced fact that the boxes on pictures, lineup from the the blank, thus, form were the defen- the suggestive impermissibly and tainted the prejudiced. dant was not The trial court disagree. All in-court identification. We appellant prej- that nо determined suffered long, pictures depicted men of the judge udice due to the incorrect form. The the men dark hair and mustaches. All of part then made the erroneous form a of the age appeared roughly to be the same record, jury called the court- back into the lineup physical We find that the build. room, a form con- submitted new verdict suggestive and did impermissibly was not proper taining aggravating the circum- give very rise to a likeli- substantial stances, jury jury and sent the back the irreparable hood of misidentification. See to continue room deliberations. 377, States, v. United Simmons 967, 971, L.Ed.2d 1247 88 S.Ct. urges this Court to consider Bryson did this situation the same manner we is, (Okl.Cr.1985). assignment (Okl.Cr.1980). 617 P.2d 588 Irvin v. therefore, without merit. There, erroneously sent court jury for further deliberations after back P. jury had a non-unani- returned with assignment, appellant In his tenth mous verdict. This modified the Court subsequent it jury’s that the trial court erred when death sentence life claims containing imprisonment verdict an im found that the a form because we submitted aggravating circumstance. One trial court’s actions constituted directed O.S.1971, aggrava the verdict form listed the and violated 22 part of verdict § problem jury could not find a directed verdict ting circumstances which the We do jury jury case. did not return exist with boxes for the in the instant find to they aggrava improper the courtroom with an verdict particular mark if found that Irvin, jury rather noticed ting as did the but circumstance was established prior marking their deci- discrepancy Listed on as a circum evidence. the form Furthermore, “murder on the verdict form. to consider was that the sion stance avoiding complied the trial with the purpose for the note that court was committed situation, Carolina, 494 U.S. 22 O.S. North for the applicable statute 1227, 108 disagree. L.Ed.2d 369 We necessary steps and took way inwas to insure that Supreme McKoy, In Mills and both incident. See Starr prejudiced by the sen- capital addressed the issue of Court (Okl.Cr.1979). Conse- tencing required una- instructions in the trial court’s no error quently, we find jurors they per- nimity among before were form corrected verdict to submit decision particular mitigating mitted to consider consideration. We jury for their jury was in- circumstance. Mills preju- was not also conclude unanimously agree it must structed form which listed by the first verdict diced mitigating upon any the existence of aggravating circumstance. reversing an incorrect presented. In circumstances sentence, Supreme

petitioner’s death verdict held that the instructions and G. probability “a form created substantial Appellant’s fifteenth may jurors ... well have reasonable “anti-sympa of error concerns the so-called thought they precluded were from consid- given punishment thy” instruction ering mitigating all 12 evidence unless stage Specifically, trial. claims particu- agreed on existence of a jurors precluded the instruction Mills, U.S. at lar such circumstance.” punish considering sympathy in their McKoy, at 1860. therefore, and, violated ment deliberations the sentence death be- Court reversed rights. The instructions his fundamental instructions and verdict form cause “the complains are virtu about which expressly jury’s limited the consideration which a ally identical to the instructions unanimously mitigating circumstances in majority of this Court found to be 444, McKoy, at 110 found.” 494 U.S. S.Ct. 562 Fox v. at 1234 n. 8. Both decisions reiterated the 1060, 1538, 110 S.Ct. denied 494 U.S. cеrt. principle jury may precluded that a not be (1990). Moreover, the 108 L.Ed.2d 777 any mitigating considering from relevant re Supreme Court has also United States Mills, proffered defendant. evidence at and found the instruction issue viewed 373, 1865; McKoy, U.S. 108 S.Ct. at 486 at Parks, use not error. v. that its was Saffle 1233, 441, at 110 at 108 494 U.S. S.Ct. 1257, 484, L.Ed.2d 494 110 S.Ct. 108 U.S. Skipper 380. L.Ed.2d at See also v. South (1990).4 Therefore, we find that the 415 1, Carolina, 4, 1669, 476 106 U.S. S.Ct. given correctly instructions as stated 1670-71, (1986), 1 Eddings 90 L.Ed.2d v. appellant’s law were not violative of and ‍‌‌‌​‌​​​​​‌‌‌​‌​​​​​‌​​‌‌‌‌​​‌​‌​​​‌‌‌​​‌‌​​‌​‌‌‍104, 110, Oklahoma, 455 102 U.S. S.Ct. rights. (1982), 1 and 71 L.Ed.2d Lockett 586, 604, Ohio, 98 438 U.S. v. H. 2964-65, (1978). “[Ajllow- 57 L.Ed.2d prevent the other ing juror a ‘holdout’ eighteenth assignment As mitigating considering from evi- jurors error, appellant alleges the trial court principle. McKoy, this dence” violates failing jury to inform in sua erred at-, 110 S.Ct. at 108 L.Ed.2d U.S. agreement upon the sponte that unanimous at 377. mitigating required circumstances was not readily consider them. On juror each could find the instant case before We basis, distinguishable that his sentence of from above cited deci this he contends the Su imposed McKoy, in violation of In both Mills and death was Mills sions. unanimity require held that preme Maryland, mitigating circumstances concerning McKoy ment L.Ed.2d Fox, Eighth opinion of the Amendment.” be of this writer violation continues to It P.J., (Parks, Concurring ‘anti-sympathy’ instruction in the use of an in "that Part/Dis- mitigating stage, Part). However, majori- has yield where evidence senting the second in introduced, improperly undermines the ty decisis. view as a matter stare mitigating jury’s consideration of evidence Thus, again ag- -infirm death nation. we find that the constitutionally resulted decision man gravating neither circumstance that the murder sentence. capital instruct a heinous, that a trial court dates especially atrocious or cruel unanimity not re sentencing jury that is properly found. juror can consider a quired before each 111(B) opinion, In Part of this we reaf- mitigating circumstance. Be

particular prior firmed this decisions concern- Court’s forms in the instructions and verdict cause ing propriety “continuing of the threat” require unanimity not present case did aggravating pres- circumstance. Evidence circumstances, mitigating nor regarding in support ented of this circumstance in- reasonably interpret they have been could cluded an identification of as the such, require wе hold that ed raped a man who witness and threatened considering any precluded boyfriend the witness’ Alabama and an proffered by appel mitigating evidence robbery a man in assault and Texas Accordingly, is dis lant. alleged which witnesses beat missed. causing the man in the head awith wrench permanent injuries. The State severe Y. also referred to the circumstances of the MANDATORY SENTENCE REVIEW proving murder at issue in A. continuing society. was a threat We pres- believe that sufficient evidence was Finally, pursuant O.S.Supp.1985, jury’s finding support ented to of this (1) 701.13(C),we must determine whether § aggravating circumstance as well. imposed under the sentence of death was passion, prejudice, the influence of Upon careful consideration of the evi- (2) factor, arbitrary and whether support aggravating of the dence cir- supports jury’s finding evidence cumstances, evidence of- statutory aggravating circumstances as mitigation, fered iii find the sentence of O.S.1981, 701.12(4) in 21 enumerated § factually un- death substantiated and valid 701.13(F). O.S.Supp.1986, der 21 1. warranting Finding no error modification reversal, Judgment and Sentence is rеcord, or can- From our review of the by AFFIRMED. say not that the was influenced arbitrary passion, prejudice, 701.13(C)(1). contrary

factor to § V.P.J., LANE, P.J., LUMPKIN, JOHNSON, JJ., BRETT and concur. respect aggravating With LUMPKIN, Judge, Presiding Vice circumstances, the record indicates concurring. especially that the murder was jury found in this I concur in the Court’s decision heinous, cruel, atrocious or and that there case, however, agree not do probability would existed a implication Mary that a Mills v. Court’s acts of violence that would commit criminal land, 486 U.S. society. continuing threat constitute analysis required is L.Ed.2d 384 O.S.1981, 701.12(4) (7). In See simply should note this case. The Court III(A) opinion, we held that Part of this applicable is not to the Okla that Mills unconstitutionally sen appellant was capital sentencing procedure. homa aggrava under the first of the two tenced distinctly Maryland sentencing procedure is circumstances, ting initially because applied in procedure from the different appropriate standard un jury applied Therefore, the Court should Oklahoma. instruction, additionally be der the misconception creating a supported their determi- refrain from cause the evidence sentencing procedure addresses Mills

utilized Oklahoma. FORD, Appellant/Counter- A.

Carol

Appellee, FORD, Appellee/Counter-

Michael R.

Appellant.

No. 77573. Oklahoma, Appeals of No. 1.

Division 6, 1992.

Oct.

Case Details

Case Name: Clayton v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 24, 1992

Citation: 840 P.2d 18

Docket Number: F-86-165

Court Abbreviation: Okla. Crim. App.