James CODDINGTON, Appellant, v. STATE of Oklahoma, Appellee.
No. D-2008-655.
Court of Criminal Appeals of Oklahoma.
May 13, 2011.
2011 OK CR 17
Sandra Elliot, Suzanne Lister, Assistant District Attorneys, Oklahoma City, OK, for State at trial.
Marva A. Banks, Andrea Digilio Miller, Assistant Public Defenders, Oklahoma City, OK, for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S. Branham, Assistant Attorney General, Oklahoma City, OK, for appellee on appeal.
OPINION
SMITH, Judge.
¶ 1 James A. Coddington was tried by jury and convicted of Murder in the First Degree
¶ 2 The full facts of the case are set forth in Coddington, 2006 OK CR 34, ¶¶ 3-8, 142 P.3d at 442. Briefly, Coddington, a recovering drug addict, resumed using crack cocaine in March, 1997. On March 5, 1997, Coddington visited his friend Albert Hale at Hale‘s home, hoping to borrow money for crack cocaine. Coddington knew Hale routinely carried large amounts of cash. Hale refused to loan Coddington money and asked him to leave. Coddington picked up a claw hammer in Hale‘s kitchen, hit Hale at least three times in the head, and took $525.00 from Hale‘s pocket. Coddington left Hale for dead, but Hale regained consciousness, tried to clean himself up, and lay down in bed. He was found by his son several hours later, semiconscious and in pain. Hale died at the hospital approximately a day later. In the days immediately before and after his attack on Hale, Coddington robbed several gas stations and convenience stores, threatening the clerks at knifepoint. Coddington was arrested and confessed to the robberies and murder. He expressed remorse for Hale‘s death.
JURY SELECTION
¶ 3 Coddington claims in Proposition II that the trial court violated his right to a fair and impartial jury by removing prospective jurors for cause over objection and absent proper questioning, before it was adequately established that those jurors could not follow the law and consider the death penalty. Because Coddington had already been found guilty of first degree murder, the primary issue in jury selection was whether potential jurors could consider all three punishments. Coddington complains that the trial court removed 22 jurors for cause because the jurors were unable to consider imposing the death penalty, over his objection and without allowing him to rehabilitate the jurors. Of these 22 potential jurors, five were questioned as alternates.1 Coddington cannot show prejudice from any alleged error which may have occurred when questioning these jurors, as the record does not show any alternate jurors sat on Coddington‘s jury. Black v. State, 2001 OK CR 5, ¶ 37, 21 P.3d 1047, 1075; Powell v. State, 2000 OK CR 5, ¶ 36, 995 P.2d 510, 522.
¶ 4 Coddington objected to excusal of each juror on the grounds that he was entitled to jurors representing a fair cross-section of the community, including people opposed to the death penalty. This is not an accurate statement of law. “A prospective capital juror should be excused for cause when the juror‘s views on capital punishment would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.‘” Sanchez v. State, 2009 OK CR 31, ¶ 44, 223 P.3d 980, 997, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 852, 83 L.Ed.2d 841 (1985). A juror who would under no circumstances vote for capital punishment is not impartial and must be removed for cause. Morgan v. Illinois, 504 U.S. 719, 728, 112 S.Ct. 2222, 2229, 119 L.Ed.2d 492 (1992). On its face Coddington‘s objection would have required the trial court to allow on the panel a juror who could not fulfill her duties and would be ineligible to serve. It is possible that the defense attorney intended to say that Coddington had a right to a jury which included people who objected generally to the death penalty, as long as those persons
¶ 5 Voir dire examination allows both sides to gather enough information about prospective jurors to discover grounds for challenges for cause, and to permit the intelligent use of peremptory challenges. Sanchez, 2009 OK CR 31, ¶ 44, 223 P.3d at 997. The manner and extent of voir dire are within the trial court‘s discretion. Id. A capital juror must be willing to consider all three punishments provided by law. Hogan v. State, 2006 OK CR 19, ¶ 17, 139 P.3d 907, 918; Mitchell v. State, 2006 OK CR 20, ¶ 39, 136 P.3d 671, 688-89. Jurors need not flatly say they will automatically vote against the death penalty, and a juror‘s bias need not be proved with unmistakable clarity. Jones v. State, 2009 OK CR 1, ¶ 14, 201 P.3d 869, 877; Hanson v. State, 2003 OK CR 12, ¶ 10, 72 P.3d 40, 48. Because the trial court is in a position to assess each juror‘s response to questions, including non-verbal responses which may not appear in a cold transcript, we defer to the trial court‘s personal observations. Harmon v. State, 2011 OK CR 6, ¶ 14, 248 P.3d 918, 929; Jones, 2009 OK CR 1, ¶ 14, 201 P.3d at 877.
¶ 6 Coddington complains that the trial court did not question jurors correctly. This Court has upheld the “always” and “never” line of questions similar to that used here. Harmon, 2011 OK CR 6, ¶ 22, 248 P.3d at 930-31; Stouffer v. State, 2006 OK CR 46, ¶¶ 14-16, 147 P.3d 245, 257. The trial court correctly instructed jurors regarding aggravating circumstances, mitigating evidence, the three punishments provided by law, and the jury‘s duty to consider all three punishments. The trial court explained that jurors could only consider the death penalty if they found at least one aggravating circumstance beyond a reasonable doubt, and then unanimously found that the aggravating circumstance outweighed any mitigating evidence. The trial court asked jurors whether they could give meaningful consideration to all three possible alternative penalties. The court told potential jurors that each had to keep an open mind and consciously, and conscientiously, consider all three punishments. After this, the trial court told jurors that some people would “always” impose the death penalty and others would “never” do so. He asked each juror if he or she was in either of those categories. The trial court excused the jurors who said they would “always” impose the death penalty. Coddington did not object to this procedure and in fact joined the State in asking that the “always” panelists be excused for cause. Coddington also asked that one prospective alternate juror who answered “always” be excused for cause.
¶ 7 Despite accepting the process for jurors who would automatically impose the death penalty, Coddington claims the trial court improperly excused the jurors who said they were included in the “never” category. These prospective jurors were questioned individually regarding their ability to consider the death penalty in this particular case. The trial court told each juror the law required them to meaningfully consider all three punishments, asked if he or she could do so, and asked whether each juror was irrevocably committed to a position on punishment before the trial began. Contrary to Coddington‘s claim, fifteen prospective jurors unequivocally stated they would or could not consider imposing the death penalty in this case.2 The trial court asked the prospective jurors if they refused to give the death penalty in this case no matter what the law and evidence were, if they refused to deliberate or would be unable to deliberate, and if they could follow the law. The trial court asked each panelist if they were firm in their an-
dice. He claims that the trial court‘s absence might have suggested to jurors that Hood‘s videotaped testimony was not important. As the Fourth Circuit said, this encourages the Court to grant relief based on speculation. Love, 134 F.3d at 605. Neither the trial record nor Coddington‘s affidavits indicate that he was prejudiced in any way if the trial judge briefly left the bench.¶ 40 We hold that, under the facts presented here, a trial judge‘s absence from the bench during the course of proceedings is a trial error, not a structural error, and subject to harmless error analysis. This claim of error may be waived, either by a defendant‘s express consent to the judge‘s absence, or by implication if a defendant fails to object. The trial court may cure error by ceasing proceedings during its absence, or by explaining the absence to jurors, being available to make relevant rulings, giving notice to all parties, and getting the parties’ consent to any absence. Assuming without deciding that the trial court in this case may have briefly left the courtroom while Hood‘s videotape was played for jurors, Coddington fails to show any prejudice.
¶ 41 This Court wishes to emphasize to trial judges the importance of remaining on the bench throughout trial proceedings. If, for any reason, the judge must leave the courtroom, the judge should at a minimum notify all parties, offer an explanation, and grant a brief continuance until the judge returns to the courtroom.
TRIAL ISSUES
¶ 42 In Proposition V, Coddington claims his right to notice and an opportunity to be heard were violated by the State‘s reliance on statements he made while testifying at his prior trial to support the “avoid arrest” aggravating circumstance. Coddington testified at his first trial, explaining the circumstances of the crime. His entire testimony was admitted into evidence in the resentencing trial. The State relied on Coddington‘s testimony that he committed the murder to avoid arrest or prosecution in support of that alleged aggravating circumstance. Coddington claims the State failed to give him sufficient notice that it intended to use this testimony to support that aggravating circumstance. While Coddington objected generally to admission of his previous testimony by transcript, on the grounds of fairness, he did not object on these grounds and has waived all but plain error. Walker v. State, 1994 OK CR 66, ¶ 53, 887 P.2d 301, 317.
¶ 43 The State must give a defendant notice before trial of evidence it intends to offer in support of alleged aggravating circumstances.
¶ 44 The State gave primary notice of the evidence it planned to offer in support of alleged aggravating circumstances through its “Statement making More Definite and Certain On Re-trial,” filed July 23, 2007 [Statement]. Coddington argues that this Statement did not give notice that the State intended to use his trial testimony against him. The first sentence of the section concerning the avoid arrest aggravating statements says, “The State will offer all of the
The testimony will prove that the defendant worked with the victim, Albert Troy Hale, at the Honda Car Parts Store located at 10115 N.E.23rd Street in Nicoma Park, Oklahoma. The defendant was well known to the victim and could easily be identified by the victim if the victim were left alive. The defendant robbed the victim and thought he had left him dead when he left the residence.
All this information is contained within Coddington‘s trial testimony, and further gave notice that the State intended to use that testimony. The Statement then describes certain statements Coddington made to police after his arrest. There is no question that Coddington was generally on notice that his trial testimony would be used to support this aggravating circumstance. Mitchell, 2006 OK CR 20, ¶ 28, 136 P.3d at 685-86.
¶ 45 Coddington correctly argues that the Statement did not specifically put him on notice that the State planned to use his testimony that he committed the crime because he didn‘t want to get caught, and to avoid arrest and prosecution. This Court must decide whether this particular testimony is substantively different from Coddington‘s other statements which were clearly contained within the Statement, such that he was prejudiced by the lack of specific notice. Black, 2001 OK CR 5, ¶ 94, 21 P.3d at 1077. This is not a case where the defendant was unaware of the specific content, or even the nature, of the testimony until after trial began. See Littlejohn, 2004 OK CR 6, ¶ 18, 85 P.3d at 295 (pretrial notice of witness‘s testimony omitted relevant and very damaging statements by defendant). The use of the evidence is a factor in determining the importance of its omission from the Statement. Littlejohn, 2004 OK CR 6, ¶ 22, 85 P.3d at 296. The State relied heavily on this statement to support this aggravating circumstance. However, other evidence also supported a conclusion that Coddington committed the murder to avoid arrest or prosecution. This included portions of the transcript to which Coddington does not object, and his own statements to police describing the circumstances of the crime. Coddington claims that the prejudice flows entirely from the State‘s reliance on this testimony. He offers no other way in which he was prejudiced by admission of this testimony, and fails to describe any way in which he would have defended against this material differently had he known the State intended to rely on this specific testimony. Black, 2001 OK CR 5, ¶ 94, 21 P.3d at 1077. Coddington fails to show he was prejudiced by any possible deficiencies in the State‘s notice regarding evidence in aggravation.
¶ 46 In Proposition VI, Coddington claims the State presented insufficient evidence to prove that he killed Hale in order to avoid arrest or prosecution, and asks the Court to vacate the “avoid arrest” aggravating circumstance. As discussed in Proposition V, the State relied in part on Coddington‘s testimony to prove that he murdered Hale to avoid arrest or prosecution. Coddington claims that his testimony was insufficient to prove this aggravating circumstance. When considering a challenge to evidence of an aggravating circumstance, this Court considers whether, in the light most favorable to the State, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. Hanson v. State, 2009 OK CR 13, ¶ 42, 206 P.3d 1020, 1032-33. The State must support this aggravating circumstance with proof that Coddington committed a predicate crime, separate from Hale‘s murder, and killed Hale to avoid arrest or prosecution for that predicate crime. Hanson, 2009 OK CR 13, ¶ 49, 206 P.3d at 1033; Lay v. State, 2008 OK CR 7, ¶ 34, 179 P.3d 615, 624. The State alleged that the predicate crime here was robbery, and that Coddington killed Hale to avoid arrest for taking $525 in cash from him.
¶ 47 Coddington argues that his testimony from the first trial cannot support this aggravating circumstance. He testified that he left Hale‘s house without calling police because he did not want to get caught,
¶ 48 Sufficient evidence also supports a conclusion beyond a reasonable doubt that Coddington killed Hale to avoid arrest or prosecution for the robbery. “[A] defendant‘s intent is critical to a determination of whether he killed to avoid arrest or prosecution.” Wackerly, 2000 OK CR 15, ¶ 42, 12 P.3d at 14. Ample evidence showed that Hale knew Coddington well and could identify him. Coddington‘s statements to police, as well as his testimony at his first trial, show that he wanted to avoid being caught for this robbery. This was supported by evidence that Coddington also attempted to avoid being arrested for the other robberies he committed during this same period of time. Direct and circumstantial evidence support the jury‘s finding of this aggravating circumstance. Wackerly, 2000 OK CR 15, ¶ 43, 12 P.3d at 14-15.
¶ 49 In Proposition VII, Coddington asks this Court to reconsider its holding in Hogan v. State, 2006 OK CR 19, 139 P.3d 907, that jeopardy does not attach when a court dismisses or the jury does not find an aggravating circumstance. At Coddington‘s first trial, the State alleged four aggravating circumstances: that the murder was heinous, atrocious or cruel, that Coddington committed the murder to avoid arrest or prosecution, that Coddington had been previously convicted of a felony involving the use or threat of violence, and that Coddington posed a continuing threat to society. The aggravating circumstance that Coddington committed the murder to avoid arrest was not submitted to the jury. Jurors found that the murder was heinous, atrocious or cruel, and that Coddington had been previously convicted of a felony involving the use or threat of violence. Upon this Court‘s remand for resentencing, the State re-alleged all four aggravating circumstances in the Bill of Particulars. Coddington filed an objection to the re-allegation of the “avoid arrest” and continuing threat aggravating circumstances. Coddington argued that, because the jurors in the first trial failed to find these aggravating circumstances, the State‘s use of them in the resentencing proceeding violated double jeopardy and due process. Coddington admitted that our case law is contrary to this position. The trial court heard argument on this motion after voir dire was completed and before the jury was sworn, and overruled it.
¶ 50 Coddington raises the issue again on appeal. This Court rejected this claim in Hogan, 2006 OK CR 19, ¶¶ 52-59, 139 P.3d at 926-30. The Court thoroughly examined all aspects of this issue in Hogan, and concluded that the jury‘s failure to find a particular aggravating circumstance did not amount to an acquittal of the death penalty, where jurors found at least one aggravating circumstance. Hogan, 2006 OK CR 19, ¶ 56, 139 P.3d at 928. The Court further found that the jury‘s failure to unanimously find a particular aggravating circumstance beyond a reasonable doubt did not amount to a unanimous finding that the aggravating circumstance did not exist at all. Hogan, 2006 OK CR 19, ¶ 58, 139 P.3d at 929-30. Coddington
¶ 51 In Proposition VIII, Coddington argues that the admission of juvenile offenses to support the “continuing threat” aggravating circumstance violates the Eighth Amendment prohibition against cruel and unusual punishment. Among the evidence the State offered to support the continuing threat aggravating circumstance were two offenses Coddington committed as a juvenile. Nina Taylor testified that Coddington came to her house late one night in 1988, banged on the door, and broke a window before fleeing. He was caught by sheriff‘s deputies shortly afterwards. Coddington was fifteen. Michael Oxley testified that in 1985, when Coddington was thirteen, Coddington beat him up and stole his bicycle. Although Coddington was apparently adjudicated delinquent in connection with each incident, the State did not admit evidence of the delinquency adjudications. Coddington did not object to this evidence, and we review this claim for plain error. Malone v. State, 2007 OK CR 34, ¶ 84, 168 P.3d 185, 218.
¶ 52 Coddington now complains that evidence of juvenile offenses should not have been admitted to support the State‘s allegation that he poses a continuing threat to society. This court has previously held unadjudicated offenses and juvenile offenses are admissible to support a claim that the defendant is a continuing threat. Douglas v. State, 1997 OK CR 79, ¶¶ 85-87, 951 P.2d 651, 675-76. Coddington argues that the use of juvenile offenses violates the Eighth Amendment under Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (execution of persons who were under 18 when they committed a crime violates the Eighth and Fourteenth Amendments). The Court thoroughly reviewed and rejected this claim in Mitchell v. State, 2010 OK CR 14, ¶¶ 83-87, 235 P.3d 640, 659-60. Coddington offers no reason to revisit this decision.4
¶ 53 In Proposition IX, Coddington argues the use of non-violent felony convictions to prove the “prior violent felony” aggravating circumstance violated his right to a fair trial and reliable sentencing proceeding, and claims the evidence should have been excluded in the required Brewer hearing. The State alleged that Coddington had been previously convicted of a felony involving the use or threat of violence. To prove this the State must show beyond a reasonable doubt that he had been previously convicted of a felony involving violence or the threat of violence to a person.
¶ 54 Coddington argues this aggravating circumstance must be dismissed because there was no evidence that he had any prior convictions involving the use or threat of violence. He admits the State offered six convictions for first degree robbery to support this aggravating circumstance. Those robberies occurred in the short span of time before and after Coddington murdered Hale. He confessed to them at the same time he confessed to Hale‘s murder, and was not convicted of them until after he was charged with murder. Coddington argues that for this reason these convictions may not be used to support this allegation. On the contrary, this Court has held that prior violent felony convictions include any convictions Coddington had before the sentencing date of the charged crime. Hammon v. State, 2000 OK CR 7, ¶ 40, 999 P.2d 1082, 1092; Miller v. State, 1998 OK CR 59, ¶ 55, 977 P.2d 1099, 1111. These convictions alone support a
¶ 55 In addition to the robbery convictions, the State presented evidence that Coddington had three prior convictions for second degree burglary, and one conviction for unauthorized use of a motor vehicle. To support the latter conviction the State presented the victim, Marcos. Marcos testified that Coddington accosted him one night as Marcos pulled into a parking lot. Coddington yelled at him, kicked Marcos‘s car and threw punches at him. When Marcos got out, Coddington ran away and returned with a baseball bat. As Marcos tried to drive away Coddington hit him and the car with the bat. When Marcos escaped from the car Coddington took it and crashed it. Although unauthorized use of a motor vehicle is not inherently a crime of violence, Marcos‘s testimony proved that this particular conviction did involve the use and threat of violence to his person. It was properly admitted to prove that Coddington had prior violent felony convictions. On the other hand, the State does not attempt to argue that Coddington‘s second degree burglary convictions were properly admitted in support of this aggravating circumstance. Nothing in the record suggests they involved the use or threat of violence, and they should not have been admitted.
¶ 56 Coddington correctly states that the record does not reflect the trial court conducted a Brewer hearing on the evidence offered to support this aggravating circumstance.5 However, this failure does not require relief. The details of the convictions alleged to support the allegation that Coddington had prior violent felonies were admissible in support of the State‘s claim that Coddington presented a continuing threat to society. Cole v. State, 2007 OK CR 27, ¶ 50, 164 P.3d 1089, 1100.
¶ 57 Coddington claims that use of the same evidence to show both that he had prior violent felonies and that he poses a continuing threat to society is duplicative and cumulative. This court has rejected this claim. Rojem v. State, 2006 OK CR 7, ¶ 65, 130 P.3d 287, 300. Evidence of the robberies and the circumstances surrounding Coddington‘s unauthorized use of Marcos‘s vehicle, along with evidence of other criminal or violent encounters, was offered to show that Coddington routinely attacked others or used threats of violence to get his way, and to suggest that he would continue to do so.
¶ 58 Evidence that Coddington had three convictions for second degree burglary should not have been admitted to support this aggravating circumstance. However, ample evidence that Coddington had prior convictions which involved the use or threat of violence was properly admitted to support this allegation. Given the admissible evidence supporting the jury‘s finding, the error in admitting evidence of Coddington‘s burglary convictions is harmless.
¶ 59 In Proposition X, Coddington claims the overbroad application of the heinous, atrocious, or cruel aggravating circumstance renders the aggravator invalid under the federal and Oklahoma constitutions. Before trial Coddington filed a motion to strike the heinous, atrocious or cruel aggravating circumstance as unconstitutionally vague and overbroad. This motion was denied after a hearing. On appeal, Coddington again claims the aggravating circumstance is unconstitutional. Coddington admits this Court has narrowed the jury‘s discretion in applying this aggravating circumstance. DeRosa v. State, 2004 OK CR 19, ¶¶ 94-96, 89 P.3d 1124, 1155-57. To support this aggravating circumstance the State must prove beyond a reasonable doubt that the defendant inflicted either torture, including great physical anguish or extreme mental cruelty, or serious physical abuse, and that, for great physical anguish or serious physical abuse, the victim experienced conscious physical suffering be
¶ 60 Coddington suggests that the OUJI-CR(2d) instruction on this aggravating circumstance, and the aggravating circumstance itself, are inadequate because they do not require that the torture or serious physical abuse are separate, intentional acts apart from the homicide itself. That is, Coddington would add a separate requirement that the defendant must have intended to torture or abuse the victim, in addition to committing whatever action resulted in the victim‘s death. This is not the law, and Coddington offers no authority suggesting it should be. Coddington refers to this Court‘s comment that violence supporting the heinous, atrocious or cruel aggravating circumstance should be gratuitous. Hawkins v. State, 1994 OK CR 83, ¶ 43, 891 P.2d 586, 596-97. This Court held in DeRosa that the reference to “gratuitous” violence was not a binding definition of “serious physical abuse“. DeRosa, 2004 OK CR 19, ¶ 93, 89 P.3d at 1155. We recently reaffirmed our holding that this aggravating circumstance does not require proof of gratuitous violence. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 80, 241 P.3d at 238-39. This Court has determined that the death penalty should be reserved for the “worst of the worst murderers“. Eizember, 2007 OK CR 29, ¶ 150, 164 P.3d at 243. Through our discussion in DeRosa, the adoption of OUJI-CR(2d) 4-73, and its use in subsequent cases, this Court has appropriately narrowed the factfinder‘s discretion in capital cases as it considers allegations that a murder was especially heinous, atrocious or cruel.
¶ 61 Coddington‘s proposed requirement would reduce the focus of this aggravating circumstance solely to the defendant‘s intentions. This is not compatible with the nature of this particular aggravating circumstance. Guided by the text of a statute, this Court must give effect to the Legislature‘s intentions; this is particularly true when the statute is designed for a specific situation. King v. State, 2008 OK CR 13, ¶ 7, 182 P.3d 842, 844. Aggravating circumstances are determined by the Legislature and set forth in statute.
¶ 62 Within this proposition Coddington argues that the evidence was insufficient to support the jury‘s finding that the murder was especially heinous, atrocious or cruel. When considering a challenge to evidence of an aggravating circumstance, this Court considers whether, in the light most favorable to the State, any rational trier of fact could have found the aggravating circumstance beyond a reasonable doubt. DeRosa, 2004 OK CR 19, ¶ 85, 89 P.3d at 1153. Coddington wants the Court to impose this requirement of intent on this aggravating circumstance because he argues that, if it were applied here, the evidence would not sustain a finding that he himself intentionally inflicted torture or serious physical abuse on Hale. The jury heard Coddington tell police that he left Hale for dead immediately after attacking and robbing him. The testimony concerning Hale‘s injuries and conscious physical suffering involved Hale‘s actions after Coddington left the scene. However, this Court should not create an intent requirement when considering whether the proof was sufficient for this aggravating circumstance.
¶ 63 In a single sentence, Coddington states, “If the Court finds that the aggravator does not require a finding that the torture or great physical abuse was inflicted with the intention of causing further suffering, the evidence does not sustain the aggravator in this case.” This sentence appears to claim that, should the Court reject Coddington‘s suggestion that an intent requirement must be imposed, the evidence is insufficient to support the aggravating circumstance using the traditional analysis. Coddington offers no argument in support of this claim. It is not supported by the record. The jury heard Coddington‘s statements that Hale was on the kitchen floor when he left the house. Several witnesses testified that Hale was semi-conscious, moaning, in great pain, and attempting to communicate when he was found several hours after the crime. The medical evidence showed that Hale had defensive wounds as well as several extremely serious wounds to the head and skull, which would have been very painful. Blood pools, blood spatter, transferred blood, bloody handprints, clothing and rags, and feces were found throughout Hale‘s kitchen, bathroom and bedroom. This evidence suggested that Hale had lost control of his bowels, regained consciousness, got up from the kitchen floor, moved into the bathroom, took off his clothes and tried to clean himself, and finally lay down on his bed. Taken in the light most favorable to the State, any rational trier of fact could find from this evidence that Hale‘s murder was especially heinous, atrocious or cruel.
¶ 64 The heinous, atrocious or cruel aggravating circumstance is not unconstitutional. Evidence supported the jury‘s finding that Hale‘s murder was heinous, atrocious or cruel.
¶ 65 In Proposition XI, Coddington claims the trial court erred in allowing the presentation of cumulative evidence, which unfairly prejudiced him and resulted in an unfair sentencing determination. The State introduced testimony of four witnesses who described the scene of the crime and Hale‘s condition when he was found. Coddington claims this testimony, taken together, was prejudicially cumulative. Coddington neither cross-examined these witnesses nor objected to this testimony. We review these claims for plain error. There is none. Admission of evidence is within the trial court‘s discretion. Goode v. State, 2010 OK CR 10, ¶ 44, 236 P.3d 671, 680; Coddington, 2006 OK CR 34, ¶ 62, 142 P.3d at 454. Coddington raised a similar claim in his appeal from his first trial. There, we concluded that the trial court did not abuse its discretion in allowing two witnesses to testify about the scene, and a third to introduce photographs of the scene and the victim. Coddington, 2006 OK CR 34, ¶ 64, 142 P.3d at 454-55. The record in this trial supports the same conclusion.
¶ 66 Each of these four witnesses had a different role at the scene and testified to different observations. The first two responded while Hale was at the house and testified to Hale‘s condition and their initial impressions of the crime scene. Archer, an
¶ 67 The other two witnesses were law enforcement officers who testified about their role in the investigation. Gunn, an Oklahoma County sheriff‘s deputy, collected evidence after Hale was taken to the hospital. Gunn described the blood and feces evidence she saw throughout the house, including a large puddle of blood on Hale‘s bed, and her professional assessment of its significance. She testified that it appeared the assault occurred in the kitchen. Gunn collected soiled rags, underwear and Hale‘s bedding, as well as Hale‘s clothing. Several crime scene photographs were admitted during Gunn‘s testimony. Brandon was the Oklahoma County Sheriff‘s technical investigator. He testified about blood spatter interpretation and crime scene reconstruction he conducted. While Brandon‘s descriptions of the blood at the scene were similar to those of the previous witnesses, the focus of his testimony was different. Brandon discussed the ways in which blood spatter showed both the likely number of blows and their directionality, and how one could reconstruct both the attack and Hale‘s subsequent movements through the blood trail, transfers and smears from the kitchen to the bedroom. Brandon also described the defensive wounds on Hale‘s arms and hands. Several evidentiary photographs were admitted through Brandon‘s testimony.
¶ 68 The trial court did not abuse its discretion in allowing four witnesses to testify regarding different aspects of the same evidence. The testimony was relevant to the allegations that the murder was heinous, atrocious or cruel, and to corroborate other evidence including Coddington‘s account of the crime to police. The evidence was not so cumulative as to be prejudicial.
INSTRUCTIONS
¶ 69 In Proposition XIII, Coddington claims reversible error occurred when the trial court modified OUJI-CR (2d) 4-77, eliminating the reasonable hypothesis standard from the instruction, and resulting in the jury being improperly instructed on the applicable standard of proof. The State offered both direct and circumstantial evidence to support the aggravating circumstances. Instruction 4-77, which sets forth the State‘s burden of proof regarding second stage circumstantial evidence, states: “All of the facts and circumstances, taken together, must be inconsistent with any reasonable theory or conclusion other than the existence of the aggravating circumstance. All of the facts and circumstances, taken together, must establish to your satisfaction the existence of the aggravating circumstance beyond a reasonable doubt.” The trial court modified the instruction by removing the language in italics above. This modification conformed the language of the instruction to that in Easlick v. State, 2004 OK CR 21, 90 P.3d 556. Defense counsel objected generally to the instructions because several of the requested defense instructions were not given. Defense counsel did not object to this instruction at trial, and in fact defense counsel affirmatively agreed that this was among the instructions given which followed the uniform instructions. Coddington argues on appeal that this Court should not find the error waived for appellate review because counsel relied on the trial court‘s representation that this instruction was taken from OUJI-CR and had not been modified. There is no special exemption for counsel who fail to object because they rely on the trial court‘s statements. We review this claim for plain error.
¶ 71 In Proposition XIV, Coddington argues his sentencing proceeding was fundamentally flawed because his jury was not instructed that it must find that any aggravating factors must outweigh the mitigating circumstances beyond a reasonable doubt. The trial court overruled Coddington‘s request that jurors be instructed they must find the aggravating circumstances outweighed any mitigating evidence beyond a reasonable doubt. Coddington claims on appeal that a jury‘s finding of an aggravating circumstance is a fact increasing his penalty which must be proved beyond a reasonable doubt, and must outweigh any mitigating evidence beyond a reasonable doubt. We have repeatedly rejected this claim. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 102, 241 P.3d at 244; Mitchell, 2010 OK CR 14, ¶ 127, 235 P.3d at 665; Glossip v. State, 2007 OK CR 12, ¶ 118, 157 P.3d 143, 161. Coddington‘s suggestion that this Court reconsider these decisions is not persuasive.
ISSUES AFFECTING THE ENTIRE TRIAL
¶ 72 In Proposition XII, Coddington claims willful and accidental incidents of prosecutorial misconduct, from voir dire through closing argument, deprived him of a fair sentencing proceeding. He failed to object to any of the comments or arguments, and we review for plain error. Browning v. State, 2006 OK CR 8, ¶ 39, 134 P.3d 816, 840. Both parties have wide latitude to argue the evidence and inferences from it, and this Court will only find error where a grossly unwarranted argument affects a defendant‘s rights. Browning, 2006 OK CR 8, ¶ 35, 134 P.3d at 839. We evaluate claims of prosecutorial misconduct within the context of the whole trial, and will only grant relief if the misconduct effectively deprives the defendant of a fair and reliable sentencing proceeding. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 96, 241 P.3d at 243.
¶ 73 Coddington first complains that the prosecutor equated justice with a death penalty verdict. The record does not support this claim. During voir dire the prosecutor asked virtually every prospective juror whether he or she agreed that the end result of the trial process should be justice, whatever that person considered justice to be, based on the law and evidence. Occasionally the prosecutor varied the question, asking whether potential jurors agreed that the end result should be justice no matter what that was, or no matter which of the three penalties it might be. In first closing, the prosecutor argued that based on the law and evidence jurors would render justice to Coddington by finding all the alleged aggravating circumstances and sentencing him to death. In second closing, the prosecutor argued that the jurors’ verdict would represent what they believed to be justice based on the law and evidence, and that every person had their own feeling about what justice meant. The State argued that, based on the law and evidence, a verdict of death would represent justice. Taken as a whole these questions and arguments did not improperly equate justice with a death sentence. The voir dire comments explicitly mentioned all three punishments, or referred to “justice” as a concept defined by each individual which could encompass all three outcomes. Mitchell, 2010 OK CR 14, ¶ 99, 235 P.3d at 661. The
¶ 74 Coddington claims the prosecutors improperly told jurors, in voir dire and argument, that Hale‘s family wanted a sentence of death.6 Before trial all parties agreed not to convey to jurors any recommendation of sentence made by Hale‘s family. The parties relied on Tenth Circuit case law which has held that previous law prohibiting families from recommending a sentence to jurors in a capital case had survived the U.S. Supreme Court decision allowing victim impact evidence in capital cases. Hain v. Gibson, 287 F.3d 1224, 1238-39 (10th Cir. 2002). By contrast, this Court has allowed families to recommend a sentence during victim impact testimony. Williams v. State, 2008 OK CR 19, ¶ 96, 188 P.3d 208, 227; Harris, 2007 OK CR 28, ¶ 12, 164 P.3d at 1110. Thus, if Coddington were correct, any error would not have violated Oklahoma law and would not require relief.
¶ 75 The record does not support Coddington‘s claim. The prosecutors did not tell jurors, either during voir dire or in argument, that Hale‘s family wanted a verdict of death. Throughout voir dire and again in argument the prosecutors told jurors that someone in the courtroom would be hurt by their verdict no matter what it was. Prosecutors stated several times that both families were hoping for an outcome. This statement implies that the families wanted different outcomes, but it does not say the victim‘s family members would ask jurors to recommend death.
¶ 76 Coddington complains that the State invaded the province of the jury by telling jurors not to pick apart the State‘s case. In context, the State told jurors it was not their job to pick apart the State‘s case or to play favorites for either side, but they were there to listen to the evidence fairly and impartially and render a true verdict. This neither suggested jurors should accept the State‘s case uncritically, nor suggested that jurors should disregard mitigating evidence. While awkwardly phrased, the comment did not misstate the jury‘s role.
¶ 77 In summary, the record does not support Coddington‘s claims of prosecutorial misconduct in voir dire and argument.
¶ 78 In Proposition XV, Coddington claims he received ineffective assistance of trial counsel. Coddington claims that trial counsel was ineffective in presenting mitigating evidence, and for failing to object when the trial court left the bench during Hood‘s videotape. To prevail on a claim of ineffective assistance Coddington must show first that counsel‘s performance was deficient, and that the deficient performance was prejudicial, depriving him of a fair trial and reliable result. Fisher v. State, 2009 OK CR 12, ¶ 7, 206 P.3d 607, 609; Wiggins v. Smith, 539 U.S. 510, 521, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Trial counsel‘s performance is measured by an objective standard of reasonableness under prevailing professional norms. Harris, 2007 OK CR 28, ¶ 29, 164 P.3d at 1114; Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 2462, 162 L.Ed.2d 360 (2005). Coddington must show a reasonable probability that, absent counsel‘s deficient performance, the jury would have concluded the balance of aggravating circumstances and mitigating evidence did not support the death penalty. Littlejohn v. State, 2008 OK CR 12, ¶ 27, 181 P.3d 736, 745; Harris, 2007 OK CR 28, ¶ 29, 164 P.3d at 1114. A reasonable probability is one
¶ 79 Coddington first claims counsel was ineffective in presenting mitigating evidence. During the first stage of Coddington‘s first trial, Dr. Smith, a board-certified psychologist, testified in support of Coddington‘s defense of voluntary intoxication. Defense counsel for Coddington‘s resentencing trial chose not to present Dr. Smith‘s testimony again, but instead presented Dr. Ruwe, a clinical neuropsychologist. Coddington claims this decision had no strategic value and prevented him from presenting to jurors the effect of his substance addictions and abuse. He argues that Smith‘s testimony differed so significantly from Ruwe‘s that jurors were not given the opportunity to consider the mitigating effects of chemical addiction and the impact of drugs on Coddington‘s brain. Coddington claims Smith‘s testimony regarding voluntary intoxication was important because (a) it rebutted evidence that the murder was committed to avoid arrest and that it was heinous, atrocious or cruel, and (b) it was clearly mitigating because it went to Coddington‘s moral culpability or blame. Coddington argues Smith‘s testimony showed that, because of his drug and alcohol addiction and use, he was unable to use good judgment or make wise decisions and could not have intentionally either killed Hale or made him suffer. In making this argument Coddington relies on his own interpretation of the heinous, atrocious or cruel aggravating circumstance, which would require an intent to torture or make the victim suffer. We rejected this interpretation in Proposition X.
¶ 80 The record does not support Coddington‘s claim. Smith‘s testimony was presented during the first stage of the first trial, not in mitigation. He reviewed Coddington‘s records, including a neuropsychological examination, a competency evaluation, hair analysis, Children‘s Hospital and other medical records, drug treatment, DHS and school records, family history, legal history, Coddington‘s statement to police, and the medical examiner and police reports. He also interviewed Coddington. Smith‘s testimony focused on the chemical, physical and psychological effects of cocaine and alcohol on the brain. He discussed the ways in which these substances affected the developing brain. Smith testified that Coddington was drug-dependent and addicted to cocaine. He specifically described the effect of cocaine use on various areas of the brain. Smith used Coddington‘s long history of head trauma and injuries, alcohol use, and substance abuse to illustrate the probable effects on Coddington‘s brain development. He testified that Coddington was unable to use good judgment, control his behavior, think, or make good decisions.
¶ 81 Ruwe‘s mitigation testimony was broader than Smith‘s, but substantially included the evidence Smith gave. Ruwe reviewed the records Smith reviewed, including Smith‘s own report and testimony, and conducted his own interview of Coddington. During his testimony, Ruwe testified as to Smith‘s findings and conclusions. Ruwe‘s testimony regarding alcohol and substance addiction was similar to, and in some ways more extensive than, Smith‘s. Ruwe emphasized the effects of substance abuse on the developing brain. Like Smith, he testified about the physical and neuropsychological characteristics of cocaine abuse and addiction on the brain, as well as on brain development. Ruwe discussed at length Coddington‘s probable delay in brain development and deficits in judgment, impulse control and ability to make good decisions. Ruwe explained how these characteristics were affected by Coddington‘s terrible childhood,
¶ 82 The record supports our conclusion that counsel‘s decision not to present Smith‘s testimony was sound trial strategy. Jones, 2009 OK CR 1, ¶ 91, 201 P.3d at 891. Counsel‘s focus in the resentencing trial was necessarily different from the trial strategy employed during the first trial. Smith‘s testimony was offered to show that Coddington could not have formed the intent necessary to commit first degree murder. Ruwe‘s testimony was more expansive, including medical evidence of the effects of cocaine and other substances on Coddington‘s brain, thinking and judgment, and the effects of his entire history and upbringing. Smith‘s opinion that Coddington was too intoxicated to form the intent to commit murder was of minimal relevance in the resentencing trial, which was not concerned with Coddington‘s guilt. The mitigating effect of that testimony was fulfilled by Ruwe‘s testimony. Counsel‘s decision to rely on Ruwe‘s evidence, rather than present Smith‘s prior testimony, was a viable option and a reasonable strategic decision. Id. at ¶ 93, 201 P.3d at 892. “[W]here counsel makes an informed decision to pursue a particular strategy to the exclusion of other strategies, this informed strategic choice is virtually unchallengeable.” Harris, 2007 OK CR 28, ¶ 33, 164 P.3d at 1116 (citation omitted).
¶ 83 Coddington claims that, as well as failing to present Smith‘s testimony, defense counsel failed to include as a mitigating circumstance that Coddington was severely impaired by cocaine intoxication. Insofar as this refers to a claim that Coddington was impaired at the time of the crime, the evidence to support such a claim is conflicting. Ruwe testified that Coddington admitted to both Smith and himself that he had used cocaine at Hale‘s house just before the crime, and had used methamphetamine and alcohol that day. Coddington neither told police officers this information in his statement, nor testified to it during his first trial. The record shows that jurors were instructed that Coddington was probably born drug-addicted, used drugs as a teenager, and voluntarily attended a drug treatment program. They were also instructed, “Head trauma, alcohol, illegal drugs, and a physically and emotionally impoverished home life during his formative years have harmed James Coddington neurologically. Damage remains to this day.” Jurors were sufficiently instructed that they could consider Coddington‘s impairment by cocaine addiction in mitigation.
¶ 84 Coddington also claims that counsel was ineffective for failing to object when the trial judge left the bench during Hood‘s testimony. We note once again that the record fails to support this claim. For the purposes of this proposition, we assume without deciding that such an event occurred. Coddington cannot show he was prejudiced by counsel‘s failure to object. In Proposition I, we thoroughly discussed the substantive legal issues surrounding a claim that the trial court was absent for part of the proceedings. We first determined that the error created by that action is trial error, not structural. We subsequently determined that Coddington failed to show any prejudice from the judge‘s brief absence, and concluded that the error, if any, was harmless. As Coddington was not harmed if the trial judge left the bench, he cannot show he was prejudiced by the error. In connection with this claim, Coddington filed a “Notice of Extra-Record Evidence Supporting Propositions I and XV of the Brief of Appellant and, Alternatively, Rule 3.11 Motion to Supplement Direct Appeal Record Or For An Evidentiary Hearing“. This document and its accompanying affidavits, do not show by clear and convincing evidence there is a strong possibility that trial counsel was ineffective for failing to object when the trial court left the bench, if that occurred.
¶ 85 Trial counsel made a reasonable strategic decision to present Ruwe‘s testimony rather than Smith‘s testimony from the previous trial. Coddington was not prejudiced by counsel‘s failure to object to the trial judge‘s absence from the bench, if that occurred. Coddington has failed to show counsel‘s performance was deficient. Trial counsel were not ineffective.
APPELLATE ISSUES PREVIOUSLY DECIDED
¶ 86 In Proposition XVI, Coddington raises eight claims challenging jury instructions, the constitutionality of Oklahoma‘s capital punishment process, and the manner of execution. As Coddington notes, this Court has previously rejected all these claims; our consideration of them in this appeal preserves the issues for subsequent state or federal appellate review.
¶ 87 Coddington argues that the jury instructions on mitigating evidence, taken from the uniform jury instructions, used permissive language and did not require jurors to consider mitigating evidence. The trial court overruled Coddington‘s motion objecting to the permissive language in OUJI-CR(2d) 4-78. However, Coddington‘s requested additional instruction on mitigating evidence also uses permissive language, stating “Mitigating circumstances are those which you may consider in fairness, sympathy and mercy.” This claim is waived. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 101, 241 P.3d at 244.
¶ 88 Coddington claims that jurors were not specifically instructed that they could consider life or life without parole after finding an aggravating circumstance. He argues that the language of OUJI-CR(2d) 4-76 implies jurors may only impose a life sentence if they fail to find any aggravating circumstances. We have held otherwise. Mitchell, 2010 OK CR 14, ¶ 122, 235 P.3d at 664. The record reflects that jurors were specifically instructed that if they found aggravating circumstances outweighed mitigating circumstances, they “may impose a sentence of life imprisonment with the possibility of parole or life imprisonment without the possibility of parole.” Throughout voir dire and in argument, both prosecutors and defense counsel reminded jurors that they were never required to impose the death penalty. There is no plain error.
¶ 89 Coddington argues that Oklahoma‘s death penalty scheme is unconstitutional for “claims of vagueness, overbreadth, abuse of prosecutorial discretion, arbitrariness and because it constitutes cruel and unusual punishment.” Coddington fails to either cite any authority or make any specific argument in support of this claim. Instead, he attempts to “incorporate by reference the authorities relied on in his pre-trial motions on this issue.” Id. Our Rules require all briefs to contain citations to authority and to the record, where appropriate, in support of a claim of error, and provide that a claim submitted without citation and argument is waived.
¶ 90 Coddington argues that Oklahoma‘s capital sentencing scheme requires jurors to make special findings of fact prohibited under
¶ 91 The trial court overruled Coddington‘s requests for allocution and to argue last. Coddington again asks the Court to reconsider earlier decisions, without supporting argument or authority. The issue is waived.
¶ 92 Coddington argues that Oklahoma‘s lethal injection procedure violates the Eighth Amendment prohibition against cruel and unusual punishment. He specifically claims the use of pancuronium bromide may make him helpless but alert without preventing the pain associated with administration and use
¶ 93 The trial court overruled the majority of Coddington‘s motions regarding victim impact evidence. On appeal, Coddington first claims that victim impact evidence acts as a “super-aggravator” in capital trials. He argues that this evidence diminishes the narrowing function aggravating circumstances are intended to provide, and asks the Court to reconsider its decisions rejecting that claim. Cuesta-Rodriguez, 2010 OK CR 23, ¶ 71, 241 P.3d at 236. Coddington offers no new arguments which would justify a different conclusion.
¶ 94 Coddington also argues that jurors were improperly instructed on the scope of victim impact evidence. The trial court gave OUJI-CR(2d) 9-45, which allows jurors to consider the victim as an individual whose death may represent a loss to society as well as his family. Coddington did not object to this instruction at trial, and we review for plain error. There is none. We thoroughly considered and rejected this argument in Cuesta-Rodriguez, 2010 OK CR 23, ¶ 74, 241 P.3d at 237.
ACCUMULATED ERROR
¶ 95 In Proposition XVII, Coddington claims that individual trial errors, which may have been found harmless, require sentencing relief when considered together. We found no error in the majority of Coddington‘s propositions. In Proposition I, we assumed without deciding that error may have occurred and concluded that, if any error occurred, it was harmless. We found in Proposition IX that Coddington‘s convictions for second-degree burglary should not have been admitted to support the allegation that he had prior convictions involving the use or threat of violence to the person. However, given the admissible evidence supporting that aggravating circumstance, we concluded the error was harmless. As we found only a single, harmless, error, there is no cumulative error. Rojem v. State, 2009 OK CR 15, ¶ 28, 207 P.3d 385, 396.
MANDATORY SENTENCE REVIEW
¶ 96 In Proposition XVIII, Coddington asks this Court to modify his sentence under its mandatory sentence review authority. This Court is required in every capital case to determine whether the sentences of death were imposed under the influence of passion, prejudice, or any other arbitrary factor, and whether the evidence supports the jury‘s findings of aggravating circumstances.
¶ 97 Coddington‘s jury was instructed on and found the existence of four aggravating circumstances: that the murder was heinous, atrocious or cruel, that Coddington committed the murder to avoid arrest or prosecution, that Coddington had been previously convicted of a felony involving the use or
¶ 98 Coddington presented evidence that his childhood was filled with trauma and physical and mental abuse; that he suffered injuries as a child and was a psychiatric inpatient for several months in Childrens’ Hospital; that he suffered from cocaine addiction and alcohol and drug dependency, and had abused alcohol and drugs since an early age; and that these factors impeded his brain development and impaired his judgment, impulse control and ability to make decisions. Coddington also presented evidence that his family members loved him and to an extent blamed themselves for giving him a poor environment and upbringing which led to his drug addiction and Hale‘s murder; that Coddington tried to take care of his younger brother when they were children; that as an adult he had a caring and loving relationship with his girlfriend and her children; that he successfully completed drug treatment to further that relationship; that he was gainfully employed and a good worker when not using cocaine; and that he has matured and tried to help others while in prison. Coddington also introduced evidence that he pled guilty to six robbery charges, is serving six life sentences for those crimes, and threatened but did not harm those victims. Coddington also presented evidence of remorse.
¶ 99 Upon reviewing the trial, we find the death penalty was not imposed under the influence of passion, prejudice or any other arbitrary factor. There was no improper evidence or argument which could have improperly affected the jury‘s verdict. Jurors had the opportunity to hear and consider Coddington‘s mitigating evidence, and the record provides no reason to disturb their verdict. The sentence of death is factually substantiated and appropriate.
DECISION
¶ 100 The Judgment and Sentence of the District Court of Oklahoma County is AFFIRMED. The Motion to Supplement the Record is GRANTED. The Motion for Evidentiary Hearing is DENIED. Pursuant to
A. JOHNSON, P.J., LEWIS, V.P.J., and C. JOHNSON, J, concur.
LUMPKIN, J., specially concur.
LUMPKIN, Judge: SPECIALLY CONCURRING.
¶ 1 I concur in the results reached in this case but write separately to address several issues.
¶ 2 As to Proposition I, the Court cannot use the affidavits submitted by Appellant and the State as substantive evidence regarding the issue raised. Warner v. State, 2006 OK CR 40, ¶ 14, 144 P.3d 838, 858. These ex parte affidavits, which have not been subjected to cross-examination, only go to the determination whether an evidentiary hearing is required. Id., 2006 OK CR 40, ¶ 14 n. 3, 144 P.3d at 858 n. 3.
¶ 3 Further, we could have decided this issue based upon Oklahoma law and United States Supreme Court precedent without a tour of every jurisdiction in the United States. The Constitutional right at issue is the right to jury trial under the
¶ 4 However, the issue of a trial judge‘s absence is not a matter of first impression for this Court. We have long recognized that a judge‘s absence from the bench does not automatically require reversal. Instead, “[o]n principle and reason the determining test is whether the judge has lost control of the proceedings. If he has done so, the
¶ 5 Thus, when the trial judge is absent and has lost control of the proceedings, the error constitutes reversible error. This result is supported by the various rulings of the federal courts on this issue. In United States v. Mortimer, 161 F.3d 240, 241-42 (3rd Cir. 1998), the Third Circuit Court of Appeals found that the trial judge‘s absence constituted structural error when the prosecutor objected to defense counsel‘s closing argument but withdrew the objection “with the exclamation ‘The judge is not here.‘” In Riley v. Deeds, 56 F.3d 1117, 1119-22 (9th Cir. 1995), the Ninth Circuit Court of Appeals, in refusing to determine whether every instance of a trial judge‘s absence constituted structural error, determined that “the complete absence of judicial discretion” that occurred when the judge‘s law clerk presided over the jury‘s request to have testimony read back during deliberations constituted reversible error.
¶ 6 When the trial judge‘s absence does not result in a loss of control over the proceedings then the error does not constitute structural error and may be found harmless. In United States v. Kone, 307 F.3d 430, 441-43 (6th Cir. 2002), the Sixth Circuit Court of Appeals determined that structural error had not occurred when the trial judge was absent during jury deliberations and the return of the verdict. “This is not the case of a judge who completely abdicated his judicial responsibilities, as in Mortimer, but rather the case of a judge who presided telephonically at important stages of the trial.” Id., 307 F.3d at 443. The Second Circuit Court of Appeals in United States v. Pfingst, 477 F.2d 177, 195-97 (2nd Cir. 1973), determined that reversible error did not occur although the trial judge was absent during jury deliberations for approximately two hours while giving a speech and was unable to immediately address a jury question as the trial judge “was able to ‘assert authority’ over the situation by telephone.” See also United States v. Grant, 52 F.3d 448, 449 (2nd Cir. 1995) (recognizing “practical distinction” “between the judge‘s necessary presence while functional proceedings are in progress, and a presence serving only to satisfy symbolic ritual“). In United States v. Love, 134 F.3d 595, 604-05 (4th Cir. 1998), the Fourth Circuit Court of Appeals determined that a judge‘s absence during portions of the parties’ closing arguments explained in advance by the need to work on other matters and with the provision that he was available at all times to rule on any objections constituted harmless error. In Heflin v. United States, 125 F.2d 700, 700-01 (5th Cir. 1942), the Fifth Circuit found a defendant‘s substantial rights were not affected by the trial judge‘s unexpected absence during closing argument. The trial judge was absent for two or three minutes in an adjacent lavatory with the door closed. Id. No motion or objection occurred and counsel continued with closing argument. Id.
¶ 7 Most recently, the Tenth Circuit Court of Appeals in United States v. Solon, 596 F.3d 1206, 1210-12 (10th Cir. 2010), cert. denied, 562 U.S. 886, 131 S.Ct. 213, 178 L.Ed.2d 128 (2010), determined that a trial judge‘s absence from the bench for just un
¶ 8 Turning to the circumstances of the present case, regardless of the trial judge‘s presence at the bench the record reveals that the trial judge maintained authority and control over the proceedings. There were no objections to rule on or decision for the trial judge to make during the time that Appellant alleges that the trial judge was absent. If the trial judge left the courtroom, his absence occurred during the publication of the pre-admitted videotaped testimony of Appellant‘s mother and the trial judge was in an adjacent washroom and remained available to address any objection. Appellant‘s claim does not involve structural error. As he has not shown any prejudice from the alleged absence of the trial judge, reversal is not required. McCormick v. State, 1993 OK CR 6, ¶ 42, 845 P.2d 896, 903;
¶ 9 Our review of the challenge in Proposition II, is only for plain error as Appellant waived appellate review of the issue by failing to raise a timely challenge before the trial court. Simpson v. State, 1994 OK CR 40, ¶ 23, 876 P.2d 690, 698.
¶ 10 As to Proposition III, this Court has previously approved the struck juror method for seating a jury in a criminal case. Jones v. State, 2006 OK CR 5, ¶¶ 17-18, 128 P.3d 521, 533.
¶ 11 Our review of the challenge in Proposition IV, is only for plain error as Appellant waived appellate review of the issue by failing to raise a timely objection before the trial court. Simpson, 1994 OK CR 40, ¶ 23, 876 P.2d at 698. Further, this Court recently addressed this very issue in Harmon v. State, 2011 OK CR 6, ¶ 23, 248 P.3d 918, 931. “We have rejected this claim in the past and we find neither the bifurcated nature of this capital case nor the current practice of jury selection used in capital cases warrants a different conclusion.” Id. Plain error did not occur.
¶ 12 As to Proposition V, a separate notice for resentencing is not needed as
¶ 13 The opinion properly denies relief in Proposition IX. This Court has previously found that error in the admission of non-violent prior felony convictions is harmless in light of evidence establishing valid convictions for violent felonies. Pickens v. State, 1993 OK CR 15, ¶ 40, 850 P.2d 328, 338.
¶ 14 As to Proposition X, I see no need to pontificate on the outcome of this case were the Court to place an intent requirement upon proof of the especially heinous, atrocious, or cruel aggravating circumstance, since this is not the law. Appellant‘s single sentence allegation, within this proposition, that the evidence does not sustain the aggravating circumstance in this case is not supported by argument or authority. As such, we should not consider it.
¶ 15 As to Proposition XV, when a claim of ineffectiveness of counsel can be disposed of on the ground of lack of prejudice, that course should be followed. Phillips v. State, 1999 OK CR 38, ¶ 103, 989 P.2d 1017, 1043 (citing Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984)). Further, the opinion properly denies Appellant‘s Rule 3.11 motion as the motion does not meet the standard the Court set forth in Simpson v. State, 2010 OK CR 6, ¶ 53, 230 P.3d 888, 905-06.
¶ 16 Finally, as to Proposition XVI, I note that this Court has previously rejected claims that Oklahoma‘s lethal injection protocol violates the