*1 CRAWFORD, Appellant, v. Joseph Oklahoma, Appellee.
STATE F-89-39. No. of Oklahoma. Appeals of Criminal Court Oct. 1992. Rehearing Denied Nov. *4 Luker, H. Appellate
William Asst. Public Defender, Norman, appellant. for Gen., H. Henry, Atty. Robert A. Diane Hammons, Gen., Atty. Asst. Oklahoma City, appellee. for
OPINION
LUMPKIN,
Presiding Judge:
Vice
Appellant Joseph
tried by
Crawford was
jury and convicted of Murder in the First
(21
Degree
O.S.Supp.1982, 701.7); First
§
Degree Burglary, After Former Conviction
(21 O.S.1981, 1431);
Felony
of a
Robbery
§
Force,
After Former
Conviction
O.S.1981,
(21
791);
Felony
Larceny
§
Automobile,
of an
After Former Conviction
(21
Felony
O.S.1981, 1720),
aof
Case No.
*5
CRF-88-41, in the District Court of Creek
County.
jury found the existence of
aggravating
one
circumstance and recom-
punishment
mended
of death for the mur-
imprisonment
ninety-
der conviction and
for
(99)
conviction;
years
burglary
nine
for
(45)
forty-five
years
robbery
for the
convic-
(20) years
twenty
larceny
tion and
for the
of an automobile conviction. The trial
accordingly.
court sentenced
From this
judgment
Appellant
per-
has
sentence
appeal.
fected this
(80)
Eighty
year old Nattie Jo Price was
Bristow,
missing from her
discovered
Okla-
Saturday morning,
homa home on
Febru-
ary
1988. The
chief
Bristow
Department
a phone
Police
received
call
Tuesday morning, February
con-
cerning
Appellant’s possible
involve-
disappearance of Ms.
ment in the
Price.
day
later that
was located
questioned by agents
Sapulpa. When
of Investiga-
State Bureau
Oklahoma
(OSBI),
tion
confessed
break-
night,
ing
Friday
Ms.
home on
into
Price’s
19, 1988,
February
stealing
and to
her tele-
agents
car. He told the
vision set and her
Price,
her
placing
Ms.
kidnapped
that he
he
car. He said that
took
the trunk
house in
Ms. Price to a shed
behind
her
He insisted
Sapulpa and left
there.
her.
when he left
that she was alive
directions,
Following Appellant’s
Price,
only in
agents found Ms.
dressed
her
Testimony
missing,
side screen door
the shed.
was
the wooden
nightgown,
inside
splintered
revealed that
door into the house was
medical examiner
and the
from the
(12)
for at least twelve
lock found across the room. A dresser in
she had been dead
four
being found and within
prior
hours
the decedent’s bedroom had been ran-
meal,
last
and that she
to six hours of her
sacked with items
on the floor. A
strewn
covering
body.
her
numerous wounds
lamp
living
had
in the
room had been knocked
determined to have
The cause of death
missing.
was
over and the television was
inju-
strangulation and blunt
manual
been
that,
Appellant also admitted
once inside
ries to the head.
house,
give
he demanded that Ms. Price
keys
him the
to her car. He then removed
TO THE GUILT-
I.
ISSUES RELATING
transported
Ms. Price from the house and
TRIAL
OF
INNOCENCE STAGE
her to the shed where she was found. Tes-
assignment
Appellant’s third
timony from the medical examiner estab-
error,
that the evidence of first
he contends
severely
lished that Ms. Price had been
degree murder was insufficient
strangled
manually
prior
beaten and
to be-
charged
guilty
verdict.
ing placed in the shed.
and, in
aforethought murder
with malice
We find this evidence sufficient for
alternative, felony-murder. We have
beyond
a rational trier of fact to find
previously held “where an information
reasonable doubt that
the decedent had
aforethought
charges
degree malice
first
been killed
the commission of the
murder,
may
felony-
for
a conviction
be had
Therefore,
burglary.
jury’s
as the
verdict
supported by
if
the evidence” re
murder
specify
does not
whether
charges
gardless of the fact the
guilty
malice-aforethought
found
mur
pled in the
Munson v.
alternative.
burglary-murder
robbery-murder,
der or
(Okl. 1988),
Cr.
cert. de
*6
interpreted
the verdict must be
as one of
1019,
820,
nied, 488
109 S.Ct.
102
U.S.
felony-murder
in order that
re
(1989).
proof
Because the
L.Ed.2d 809
ceive the benefit of the rule that a defen
felony-
in
of the
presented at trial
felony-murder
dant cannot be convicted of
direct and
charge
murder
consisted of both
Munson,
underlying felony.
and the
evidence, we will review the
circumstantial
P.2d at 332.
sufficiency of the evidence under the stan
State, 709
Spuehler
dard set forth in
v.
assignment
In
Ap
his sixth
of error
(Okl.Cr.1985); whether, after re
P.2d 202
pellant
compelled
contends that his
attend
viewing
light
in the
most fa
evidence
jail
bearing
ance at trial in
coveralls
trier of fact
vorable to the
a rational
words “Bristow Jail” on the back denied
found the existence of the es
could have
him a fair trial. Defense counsel did not
beyond rea
sential elements of the crime
a
bring
clothing
Appellant’s
to the atten
State, 788 P.2d
sonable doubt: Moore v.
until
tion of the trial court
after voir dire
387,
(Okl.Cr.1990).
again objected
had commenced. Counsel
completed
request
after voir dire was
felony-murder
A
for
re
conviction
Appellant’s
ed a dismissal of the case.
must have commit
quires that the accused
grounds
motion was overruled on the
that
of one
ted murder while
the commission
only Appel
a dismissal
if
was warranted
in 21
of the enumerated felonies found
jury in
lant was before the
handcuffs.
701.7(B).
O.S.Supp.1982,
In this
alleged
the information
that
the murder
compel
It is error to
an accused to
during the course of a first
committed
was
appear
prison clothing
a
before
degree burglary. Appellant confessed
request
made
timely
where a
has been
for
breaking
home
into the decedent’s
Williams,
clothing.
v.
civilian
Estelle
nighttime
the intent to steal her
with
1691,
501,
(1940).
error,
assignment
his seventh
of
(10th
S.Ct.
tape Appellant’s
introduce the audio
con
that,
Appeals
despite
held
Circuit Court
girlfriend,
versation with
timely
Carol Welch.
objection,
convic
absence
Again,
Appellant’s argu
not
reversed if the error was
we find merit
tion need
doubt,
beyond
con
harmless
a reasonable
ment but do not conclude that reversal is
overwhelming
sidering the fact of
evidence. warranted.
Harrington v.
395 U.S.
California,
See
tape
question
resulted
Ms.
when
(1969);
See also
apartment
into
where
located, prior
questioning
had been
to his
objection
Although Appellant’s
During
conversation,
by police.
Appel-
timely,
light
repeated objec
of his
any knowledge
lant denied
Price or
Ms.
tions, we do not feel that this lack of timeli
disappearance.
her
an objection
Over
negate
presence
ness is sufficient
counsel, the
court
defense
trial
denied ad-
compulsion necessary
establish
consti
tape
ruling
mission
into evidence
Williams,
tutional violation. Estelle
portions
inaudible,
1691, 1696,
U.S.
96 S.Ct.
speaker
there was no identification of the
However, based on the
L.Ed.2d
beginning
tape,
at the
that the de-
say
rule in
that this
we cannot
convic
Watt
merely
fendant’s statements were
self-
requires
previously
tion
dis
reversal. As
declarations,
serving
playing
cussed,
overwhelming
sup
evidence
“attempt
tape
put
for the
guilt
ports
finding
and therefore we
part
producing
of the defense
without
case
little,
any,
if
jail
find
had
effect
attire
live,_”
(Tr. 527-528)
witnesses
upon the verdict.
contentions,
Contrary to
are
Exculpatory statements which
Appellant’s clothing
we do
find that
*7
or on the
made
the same conversation
sentencing stage of
too
made the
trial
damaging
occasion as a confession or
same
to
heightened
unreliable meet the
standard
explain
cir
admission are
to
the
admissible
reliability
eighth
imposed
the
amend
v.
cumstances of the confession. Crane
the
and Article
ment of
federal constitution
2142, 90
Kentucky, 476 U.S.
106 S.Ct.
II,
Appel
of the State constitution.
§
(1986);
559
L.Ed.2d 636
Wells
stage
lant
the
testified
second
(Okl.Cr.1977). Wells, prose
In
family,
He identified his
admitted to
trial.
firearms, testimony
robbery
for
cution
with
prior felony
burglary
for
convictions
interrogated
police
from the
officer who
escape
emphasized
the fact that he had
relating that at
time of
the defendant
the
anyone.
light
hurt
of this evi
never
interrogation he told the defendant that
the
dence,
presence
jail
Appellant’s
coveralls
accomplice had admitted the armed rob
an
beyond
was harmless
reasonable doubt.
as it
to
bery was held admissible
tended
upon
particular
the
facts of this
Based
surrounding the
establish circumstances
case, including Appellant’s confession to all
oral confession.
defendant’s
Williams
Cf.
murder,
leading
his
offenses save the
(Okl.Cr.1975),
modi
542 P.2d
body
the
location of the
police
grounds
on other
U.S.
above,
remaining
evidence as discussed
fied
(1976) (tape
49 L.Ed.2d
S.Ct.
clothing
did not
we find
days prior
two
defendant’s
made
jury’s
Appel-
to the
verdict and
contribute
from confes
too remote
confession was
therefore not entitled to
reversal
lant is
sion).
nor
his
his conviction
modification of
case, Appellant
present
given
was
should have been
In the
warn-
Miranda
questioning
ing
for
police
initially transported,
station
when he was
taken to the
even
though questioning
with Ms.
shortly
place
after the conversation
did not take
at
given
Secondly,
was
within that
time.
argues
Welch and his confession
he
that the
Only
portion
totality
a small
of the
surrounding
the next
hours.
circumstances
Although
giving
tape
is inaudible.
the initial
of the statement were so coer-
speaker, setting forth the time and date of
cive as to render the statement
involun-
identified,
tape,
tary.
Ms.
Welch
sufficiently
Appellant are
identified to ren
agents
The record reflects that OSBI
Pat
provide
tape
der the
authentic and
Kennedy and
Appellant
Jim Otte met
at an
adequate guarantee of trustworthiness.
apartment
in Sapulpa,
identified them-
O.S.1981, 2901(B)(4).
See
selves and
him accompany
asked
them to
police
We find the conversation with Ms. Welch
Appel-
station for an interview.
sufficiently
to the confession so
related
by Agent Kennedy
lant was told
that he
tape
should have been submitted
Appellant
was not
agreed
under arrest.
weight
to the
for whatever
and credi- accompany the officers and followed them
it,
bility they
give
proper in-
would
under
Appellant
to their car.
again
was
told that
find the exclusion
structions. While we
of he was not under arrest. Once in the car
error,
requires
tape
we do not find this
way
station, Appellant
and on the
to the
“it is
reversal of the conviction as
not error
again
was
informed that he
under
requires
judg-
alone that
reversal
arrest. No further conversation occurred
conviction,
plus injury,
ment of
but error
in the car.
and the burden is on the
to es-
station,
police
shortly
At the
before 6:00
prejudiced
tablish the fact that he was
in p.m., Appellant was left in an interview
rights by
his substantial
the commission of
agents
room
while
located the officers
error.” Harrall v.
charge
investigation.
OSBI
Crane,
See also
476 U.S. at Agent
Page, accompanied by
David
Bris-
(this type
At trial and now on Custodial presents several issues for consideration. “questioning is defined as initiated law Initially, transporta- person he contends that his enforcement officers after a has apartment police tion from the custody to sta- been taken into or otherwise de- agents equivalent prived "any sig- tion the OSBI was the of his action in freedom of interrogation way”. Arizona, of custodial and that he nificant Miranda v. 384
635
1602, 1612,
444,
admissibility
16
When the
of a
436,
86 S.Ct.
U.S.
challenged,
is
(1966).
statement or confession
L.Ed.2d 694
show, by
is
to
a pre
burden
on
State
required
not
evidence,
Police officers are
ponderance of
that
was
every
warnings
State,
to
591,
voluntary. Young
to administer Miranda
670 P.2d
v.
requirement
(Okl.Cr.1983),
nor is the
they question,
citing Lego
Twomey,
one
594
v.
simply
619,
imposed
477,
to
because
warnings
be
404 U.S.
92 S.Ct.
formal arrest.
v.
California
although
Appellant contends that
77 L.Ed.2d
S.Ct.
U.S.
read,
given
to
he was
the waiver
State
State, 732 P.2d
(1983).
Casey
also
v.
See
prove
actually
that he
read and
failed
(Okl.Cr.1987).
proof
no
Appellant
understood it.
offers
he
unable to read or understand
that
was
presented
evidence
Under the
extremely
that
low
the form or
he was
find that
voluntari
we
understanding.
intelligence or
The record
accompanied
agents
the OSBI
and was
ly
completed the
shows that he had
10th
deprived
any signifi
freedom in
of his
not
school,
although
that
grade
level
Appellant was informed three
way.
cant
not ensure that he was
education does
able
he
not under ar
separate times that
was
read,
nothing
prove
Appellant offers
agents
Appel
if
testified that
rest and the
contrary.
accompany
lant had refused to
them
fully
the record
We have
reviewed
cooperate
way, they
in any
refused to
court that the state
agree with the trial
him.
premises
left the
without
would have
is
coerced.
record
de
ment
not
Appel
Additionally, the
did not ask
officers
offered to the
any
void of
inducements
at
arriving
until after
any questions
lant
exchange
for his confession.
police
transporta
We find this
station.
v.
688 P.2d
See Crawford
equivalent
tion of
(Okl.Cr.1984).
on nu
This
has held
Court
therefore the
interrogation,
custodial
that when evidence taken
merous occasions
given
warnings
Miranda
which were
the trial
in-camera
sufficient to
is
guarantee
constitutional
that
sufficient
ruling that
the defendant’s state
court's
safeguards were met.
voluntarily made and thus ad-
ment was
missable,
disturbed
ruling
will
confession,
regard
it is
With
763 P.2d
appeal. McAdams
test of
ultimate
well established
(Okl.Cr.1988);
Rosteck
is
of a confession wheth
the voluntariness
Accord
free
product
essentially
of an
er it
assignment of error is denied.
ingly, this
by its maker.
unconstrained choice
error,
assignment
1, 7,
In his ninth
Hogan, 378
S.Ct.
Malloy v.
U.S.
he
(1964).
was denied
1489, 1493,
To de
contends
L.Ed.2d 653
photo
by the introduction
will was over
fair trial
the maker’s
termine whether
*9
gruesome
were
borne,
totality
graphs
of the victim which
court must look to the
the
circumstances,
that the
repetitive.
It is well settled
surrounding
both the
the
a
photographs is matter
admissibility
de
of the accused
characteristics
Absent
court’s discretion.
v. within the trial
interrogation.
Schneckloth
tails
discretion,
2041,
this Court will
Bustamonte,
218,
of that
412
93 S.Ct.
an abuse
U.S.
ruling.
(1973);
State,
the trial court’s
Nuck
670 not reverse
Young
854
v.
36 L.Ed.2d
463,
(Okl.Cr.
470
690 P.2d
591,
(Okl.Cr.1983).
v.
ols
P.2d
594
challenges
1030,
Appellant also
the valid
denied,
105 S.Ct.
1984),
471 U.S.
cert
employed in this case.
(1985).
ity
analysis
of the
2050,
85 L.Ed.2d
method,
standard
He contends that the
photo
examined
We bave
case,
employed in this
involves
the one
admissible.
them to be
and find
graphs
mi
looking through
comparison
a
“merely
probative
relevant and
content is
Their
croscope at
hairs to determine whether
two
outweighs any prejudi
substantially
value
hairs are con
analyst
the two
believes
P.2d
v.
cial effect. Smith
over-simpli
find this to be an
sistent”. We
denied, 484 U.S.
(Okl.Cr.1987), cert
to Ms.
process
testified
fication
(1987);
L.Ed.2d 383
108 S.Ct.
Long.
(Okl.
v.
Oxendine
great
in
to the
Long testified
detail
Ms.
present
in the
Cr.1958).
photos
analyzing
used in
the hair evi-
procedures
(20)
photographs,
10 inch color
twenty
8 X
that she
We have no evidence
dence.
victim as found
accurately depicted the
accepted by
procedures
failed to follow
nature and ex
and the
police
officers
Appellant’s com-
community.
the scientific
tent of her wounds.
not ensure
procedures
that the
do
plaints
argues that
Appellant further
are better addressed to
accurate results
rele
by the State is not
slide offered
color
failed
community. Appellant has
scientific
dispute
to the
was no
as
because there
vant
sufficient reason to find
present
us with
the cause of her
identity of the victim and
testimony
test results
Long’s
Ms.
that
rejected
argument
This
death.
Further,
re-
improperly admitted.
we
were
(Okl.Cr.
State,
pellant contends argument that failure to introduce the his Long Mary concern- forensic chemist OSBI is error. These two physical evidence scientifically unrelia- ing hair evidence was Supreme Court from the Oklahoma cases reasons. for several ble testimony of a with the were concerned stated that a expert. The Court medical Initially, Appellant claims that Ms. expert always predicate his medical must comparison evi that hair Long boasted fact; premises howev- opinion on certain identification. To the was conclusive dence expert, er, opinion the medical based Long that Ms. contrary, the reflects record not to be admissi- X-ray, was found on an the limitations of properly testified that into X-ray had been admitted until the ble testify only analysis her to hair allowed help- cases do not find these evidence. We “microscopically con hairs were that two The State has present situation. ful to state, beyond could not sistent”. She this issue. failed to address doubt, that a certain hair be reasonable under- the facts or data (Tr. The disclosure of particular individual. longed to addressed in expert’s opinion is testimony lying 494, 496) not find her We do O.S.1981, specifically This section the credi improper attempt to bolster anbe *10 provides: bility of hair evidence. opin- mony. cautiously expert may testify correctly in terms of She testi-
The
give
regarding her
his reasons
fied
conclusions of the hair
ion or inference
prior
weight
of the
in this
disclosure
evidence
case. The
to be
therefor without
data,
given
testimony
exclusively
is
underlying
or
unless the court
this
within
facts
expert may
province
jury.
the
of the
assignment
otherwise. The
be
This
requires
facts
of
denied.
underlying
to disclose the
error is therefore
required
cross-examination.
or data on
assignment
In his fifteenth
of er
require the direct
ror, Appellant
This section does not
preju
contends that he was
bring
underlying
the
data
by
examiner to
out
participation
diced
the
of Mr.
Sam
Joe
expert’s opinion
Vassar,
is based.
upon which
prosecutors
one of the two
in the
However,
brought
data
not
out on
joining
if that
is
case. Prior to
the office of the
and if that data would
Attorney,
direct examination
repre
Mr.
had
District
Vassar
fact, may
brought
the trier of
be
assist
sented
in several criminal cases.
judgments
out on cross-examination.
The
sentences from three of
prior felony
in
those
cases were used
Here,
primary support
for Ms.
stage
trial to
second
of
enhance
hair
Long’s opinion would be the actual
punishment
non-capital
for the
offenses.
at the scene. This was
evidence found
argues
partic
that Mr. Vassar’s
by
No
evidence
offered into
State.
ipation
introducing
in
former
those
convic
objection
made
defense counsel
to the
tions indicated
even his
request
of this
No
the absence
evidence.
lawyer
given up
had
him.
former
Appellant prior to trial or
was made
during the direct or cross-examination testi-
argument, Appellant
of his
into
Long
of Ms.
to admit the hairs
mony
relies on Skelton v.
vance accused, because such a situation “cre disclosing underlying purpose improprie pervasive atmosphere ate^] credibility of is to test the facts twofold: ty which cannot be waived.” We do not expert witness and to assist the trier authority there is no persuasive find this as determining issue of fact in the ultimate changed Mr. sides evidence that Vassar Here, credibility Long Ms. the case. pendency of this case. comparison general in hair evidence adequately during cross-exami- tested In Thoreson Okl.Cr. de- specifically She was asked to nation. (1940), we stated of the hairs found scribe the characteristics attorney permitted that “an cannot they explain how at the scene prosecution a criminal case assist Appellant. those of consistent with if, professional relations by reason of his accused, acquired has a knowl with the he Admitting the actual hair would be of is edge upon prosecution of facts which dis- assistance to the as the doubtful predicated closely or are interwoven which may tinguishing qualities may not be Disqualification is to be deter therewith.” eye. to the naked Just as it discernable of each case. mined on the individual facts the State must offer not mandated that at Id. sample into the actual blood used evidence body upon typing the blood which record herein re- An examination performed, has it is not autopsy been disqualifi- which warrant the veals no facts analyzed hair requirement that the actual prosecution Mr. from the Vassar cation be admitted. His was neither im- case. conduct nor the of this State proper no under the laws upon foregoing, we find
Based Contrary Long’s of Professional Conduct.1 of Ms. testi- Code error the admission 1.11, pro- part: of Professional Conduct vides 1. Rule Rules *11 Appellant’s argument, inquiry by able ability doubt as to his to form the ' stage Mr. requisite Vassar second cross-ex- criminal intent. Id. amination which led to admit present only evidence of prior that his convictions vrere for “break- Appellant’s intoxication came from his own ing buildings by into or residences owned police statement to the that he “had been people” other an improper was not use of drinking utilizing drugs from between
privileged
Therefore,
information.
this as-
p.m.
5:00 and 6:00
until
p.m.”
about 10:30
signment of error is denied.
(Tr. 380-381) This is
Ap-
contrasted with
pellant’s detailed confession to the of-
allegations
The next series of
re
fenses. He described
particularity
with
stage jury
late to first
Appel
instructions.
conduct which lead him to the decedent’s
lant contends that the trial court erred in
home and his actions inside the house.
failing
He
jury
to instruct the
on the defense
described the nightgown Ms. Price
of intoxication
and the lesser included of
wearing
phone
and the
in her bedroom.
degree
fenses of second
murder and first
gave
He
very
officers
degree
specific
capacity
diminished
directions to
manslaughter.
the location of the
Specifically, Appellant
shed where the
argues that
decedent
his con
alcohol,
eventually
sumption
found.
marijuana
and PCP
day
of the murder left him so intoxicat We
find that
descrip
detailed
ed that he was
specific
unable to form the
tion of the burglary, robbery, larceny and
intent to
aforethought
commit malice
mur
surrounding circumstances demonstrates
der.
that he was in control of his mental facul
ties and not in the advanced state of intoxi
Appellant admits that he did not
attempts
cation he
to assert. See Grace v.
request any instructions on these issues at
State,
(Okl.Cr.1971);
480 P.2d
Jol
However,
trial.
the trial court has the
State,
ly v.
(Okl.Cr.1973).
permit,
lawyer serving
public
as a
officer or
You are instructed that the laws of the State
(1)
employee
participate
shall not:
in a matter
provide
pertinent part:
of Oklahoma
‘No act
lawyer participated personally
in which the
by person
committed
while in a state of volun-
substantially
private practice
while in
tary intoxication shall be deemed less criminal
nongovernmental employment, unless under
having
reason of his
been in such a condi-
is,
applicable
delega-
law no one
lawful
(O..R. 190).
tion.’
be,
may
tion
lawyer’s
authorized to act in the
stead in the matter.
*12
offense,
a
decedent constituted one
murder.
is not
defense
provides that intoxication
in
That this act could be established
either
guilt.
ways
charge
two
did not
of
two offenses.
objects
the ver
Appellant also
Therefore,
looking
instead of
to the first
jury
to the
in the first
provided
dict forms
the
portion of
section 404 as
the instructions
stage. He contends that
suggests,
phrase
our
is
the
of
focus
last
murder,
to the
pertaining
verdict forms
and
section,
may
the
“... where the offense
be
I,
aforethought
charged as Count malice
means,
of
the
committed
use
different
II,
felony-murder,
and Count
murder
in
may
plead
means
be
in the alternative
guilt.
a
verdict of
amounted to
directed
the same Count”. When alternative theo-
argues that the instructions and
supported by
of murder
ries
are
the evi-
give
for murder did not
the
verdict forms
dence,
specifically upheld
this Court has
finding guilt
upon
jury
option
the
of
based
pleading of
the
alternative theories of mur-
only
felony-
or
aforethought murder
malice
against a
der
defendant. See Plunkett
they
only
supplied
since
with
murder
Appellant guilty
finding
form
one verdict
murder,
1 and
degree
of first
Counts
Generally, however,
these alternative
finding
form
one verdict
the
theories as
the commission of
same
murder,
1 and
guilty
degree
of first
Counts
Here,
plead
single
in a
offense are
count.
2.
the
of mur-
pleading of
alternative theories
of 22
that the intent
Appellant asserts
separate
in
error
der
two
counts was
but
O.S.1981,
permitting
pleading
the
of
require a
of the first
§
does not
reversal
counts,
is
a
offense
alternative
criminal
degree murder conviction. The instruc-
selecting
option of
give
jury
the
the
given
jury, including
to the
an almost
tions
the
or more alternatives when
between two
statutory
recital of the
elements
verbatim
constitute more than
charged
acts
could
forethought
felony
murder and
of malice
interpretation
of
offense and that
one
murder,
jury
finding
of
informed
requires the
to find
jury
statute which
re-
guilt
degree
of first
murder could be
all or none of the alternatives will defeat
only upon
finding
turned
State
purpose of this section.
doubt,
proved, beyond a
all
had
reasonable
the elements of both counts
O.S.1981, 404, provides
per-
Title 22
effectively placed a
These instructions
part:
tinent
prove
both
higher burden on
State
must
The indictment or
information
jury
if
had
of murder than
theories
offense,
charge
one
but where the
but
properly instructed to choose between
been
may
different of-
same acts
constitute
alternative theories.
fenses,
proof may
or the
be uncertain as
or more offenses the
to which
two
Appellant’s argument that it was error
of,
may
guilty
the different
accused
be
rejecting
deny
jury
opportunity of
separate
may
set forth in
offenses
be
theory of murder in favor of
other
one
or infor-
counts in
same indictment
theory
is
that one
of murder
intimates
may
accused
convicted
mation and the
be
greater
offense than
other.
somehow
offense,
or
either
court
malice afore-
This
incorrect. Both
may
all
trying the cause
find
or either
felony-murder are
thought
murder
guilty
persons
of either of the of-
merely
degree
murder
first
subsections
charged, and the same offense
fenses
punishment.
subject to the same
and are
may be set forth
different forms
O.S.Supp.1982,
701.7 and 701.9.
§§
counts;
degrees under different
may be
where the offense
committed
Further,
contrary to
means, the means
the use of different
direct a
did not
arguments, the instructions
may
pled in the
in the
be
alternative
The above
guilt for murder.
verdict of
added)
(Emphasis
same count.
effectively told the
instructions
discussed
sufficient
they
if
did not find
Ap-
jury that
present
In the
the conduct
murder,
consider the
they could
of the
evidence of
pellant
resulted in the death
which
degree manslaugh-
guilty
lesser offense of first
was found
malice aforethought
ter.
murder
felony-murder,
as
pre
discussed
viously, “the
interpreted
verdict must be
as
also
contends that he
felony
one of
murder
order
Appel
verdict.
was denied a unanimous
Our con
lant receive the
benefit
rule that the
guarantee
stitutional
of a unanimous ver
defendant cannot
convicted
felony-
require
dict
does not
to indicate
*13
underlying
murder and
felony.”
the
Mun
upon
finding
the factual basis
which the
of
State,
324,
(Okl.Cr.1988),
son v.
758 P.2d
332
guilt
State,
v.
was made.
637 P.2d
James
denied,
1019, 109
rt.
U.S.
488
S.Ct.
ce
(Okl.Cr.1981);
862
See also Newsted v.
820,
(1989).
Next,
argues
Appellant
assignment
the absence
In his fifth
of error
specific
finding Appellant’s
a
intent to
contends that the evidence was
kill
eight
violates the
amendment
support
finding
distinc
insufficient to
of the sole
tion between intentional murder
aggravating
and unin
circumstance of “especially
recognized
heinous,
tentional
by
murder as
the Unit
atrocious or cruel”. The evidence
ed
Supreme
States
Court in
supporting
Tison v. Ari
finding
that the
murder
zona,
137,
1676,
481
107
especially heinous,
U.S.
S.Ct.
95
atrocious or cruel re
(1987),
L.Ed.2d 127
and
quires proof
Enmund v. Flori
preceded
that the death was
da,
782,
3368,
458 U.S.
S.Ct.
by
102
73
physical
L.Ed.2d
torture or serious
abuse.
(1982).
1140
We considered
State,
this issue in
(Okl.
v.
Stouffer
State,
(Okl.Cr. Cr.1987)
Hatch v.
has not
views,
us
our
Merchant,
Dr. M.F.
forensic pathologist
especially light
of the fact that Appellant who
autopsy
conducted the
on the dece-
acted alone in the commission of this of
dent, testified that the cause of death was
fense.
blunt force to
the head
manual stran-
error,
In a
proposition
gulation.
related
Appel
Contusions
fractures about
alleges
lant
burglary
his conviction for
the decedent’s face and head were inflicted
vacated,
must
that charge
as
in rapid
served as
succession and were the result of
felony
the underlying
However,
for
con
blunt force.
possi-
was not
viction
felony-murder.
While
jury’s
first,
ble to determine
occurred
which
verdict
specify
does not
whether
injuries
blunt force
strangulation.
or the
III.
found on
PROSECUTORIAL MISCONDUCT
that abrasions
He further noted
post-mor-
the feet were
hand and
the left
Appellant contends that he was
tem,
as a re-
injuries received
death
after
by improper
a fair trial
tactics in
denied
being dragged.
body
sult of
many photo
volving
introduction of
by
graphs
prosecu
the remarks of the
give
an exact
Merchant could
Dr.
argues that the
improperly
tor. He
State
only opine that the
could
time of death but
sympathy
invoked
for the victim due to the
(12)
had
dead at least twelve
been
decedent
injuries
of her
and that the
nature
State
she was found
by the time
hours
as
improperly characterized
crime
be
(6)
(4)
approximately four
to six
shed and
ing
for pecuniary
a cold blooded murder
testimony
No
last meal.
after her
hours
for
gain.
appeal
sympathy
He claims the
the State or
de-
was elicited
either
stage closing
continued
the second
suffering
level
as to the
fense
argument
when
extent
the victim’s
*14
losing
time
conscious-
or the
decedent
injuries
were addressed and the
was
ness,
testimony given concern-
any
was
nor
photos.
encouraged
review the
No
to
ob
or alive
ing
the decedent was dead
whether
jection was raised
defense counsel at
placed into
trunk
was
at the time she
alleged improper
trial to these
comments.
presented at
the car. While other evidence
object constitutes a
Such a failure to
waiv
struggle
on
trial
that
occurred
showed
it is fundamental.
er of error unless
Ash
bed,
pres-
no evidence was
the decedent’s
(Okl.Cr.1989).
insky v.
not
did
die
to show that
decedent
ented
comments
Both remarks were reasonable
strangulation.
instantly as a result
evidence,
is
upon
thus there
no revers
State, 628 P.2d
ible error.
v.
Holt
present
fails to
find that the record
We
upon
evidentiary
which a
sufficient
basis
and this Court
trier of fact
reasonable
Appellant also
that
contends
requisite
serious
find the
torture or
could
prosecution argued
that
not in
facts
were
especially
physical
to
abuse
our attention
Appellant
evidence.
directs
heinous, atrocious,
aggravating
or cruel
stage
first
to
made
clos
comments
O.S.1981,
701.11,
circumstance. See
§§
ing
fainted
argument
that
when
701.12(4). A
evidence
record so bereft of
body, although no
officers discovered the
to the
only
speculation
to
not
leads
to
that
one had communicated
drawing of reasonable inferences.
rational
find
do not
that
the victim was dead. We
relating
appalled by
are
the facts
While we
inten
rises to the level of an
this comment
murder,
affirm a death
we cannot
to this
argument
or
misstatement of facts
tional
solely
especially
on the
hei-
sentence based
The comment
not in evidence.
was
of facts
nous,
aggravating
cir-
atrocious
cruel
testimony
upon
from law enforce
based
pro-
when the evidence does
cumstance
and was well
officers at the scene
ment
upon which torture or serious
vide a basis
per
range
the liberal
of discussion
within
According-
inferred.
physical abuse can be
during closing argument.
mitted
finding
aggravating
of this
ly,
jury’s
alleged
thoroughly reviewed the
haveWe
must fail.
circumstance
no
and find
error war
improper comments
comments,
sin
The
both
ranting reversal.
aggravating
the sole
circumstance
When
combined,
improper,
thus
evidence,
gly
insufficient
falls
because
a fair trial. See
not denied
was
set aside the death sentence
Court will
(Okl.Cr.1987),
State,
S.Ct. an cludes affidavit from trial counsel in first, requires that the two-part attempts explain test which he his conduct at perfor- must that counsel’s trial. The in part defendant show affidavit states deficient, second, that the was Appellant’s drug mance counsel aware of use prejudiced the de- performance day but did deficient homicide not believe defendant both fense. Unless the makes issue the case. Counsel admits being showings, instructions, said that the con- “it cannot be shown the but that it viction ... resulted from a breakdown states never occurred to him to ask intoxication, adversary process voluntary the re- for an instruction on renders degree object Id. at at second murder or to sult unreliable.” S.Ct. given applies capital passion test instruction on heat of 2064. This same to a man- *15 slaughter. non-capital as case well as a case. Liles v. (Okl.1985). further strategy He states that his at persuade jury trial was to the test,
In the pronged addition to this two Appellant victim was still alive when left provides also that when claim Strickland her home and that was not the of counsel be dis- of ineffectiveness can person kind of violent could who have delib- ground of on of posed prejudice, the lack of erately killed Mrs. Price. that course should be followed. 466 U.S. at at 699. at S.Ct. L.Ed.2d states has Counsel that he no recollection prejudice, the To establish must seeing of the for verdict forms the murder probability show that there is reasonable charge, but does he admit that did not ask that, unprofessional but for er- counsel’s to see them. He confesses his contact rors, the proceeding the result of would Appellant’s family with was not extensive. proba- have been different. A reasonable private practitioner, mainly practicing As a bility is one that undermines confidence of prop- the areas domestic relations and Morrison, outcome. the Kimmelman v. law, erty accepted counsel states that he 365, 380,
477 U.S. 106 S.Ct. appointment reluctantly this court and that (1986); L.Ed.2d 305 Fisher v. prevented his limited financial resources (Okl.Cr.1987). P.2d This is doing him from extensive out-of-office in- begin pres- we the where will the review vestigation. being Counsel to admits told case. ent by Appellant juvenile at about his time Helena, at Taft centers but that he litany alleged offers a of pursue not to decided the matter. counsel, by during errors trial committed stage the first the second of trial. both Admittedly, trial counsel inis being resen- position As case is remanded for explain the best to his or her own tencing, necessary only However, it is to address trial conduct. we would advise stage of counsel’s conduct first counsel that affidavits this sort will of Appellant specifically alleges eye. with trial. reviewed a critical Pierce v. expert By counsel failed to introduce testimo ny review, concerning upon Appellant very appellate the effects of nature trial coun alcohol, ingestion marijuana performance years of and sel’s is reviewed several PCP; (3) request jury years elapsed the failure to instruc fact. after the Three voluntary prepara- tions the defense of intoxi- from the trial of this case to the reviewing V. MANDATORY SENTENCE REVIEW of counsel’s affidavit. tion appellate an court performance, counsel’s 21 O.S.Supp.1987, Pursuant 701.- § eliminate the every effort take must 13(C), (1) we must determine whether the hindsight. too So distorting effects of imposed sentence of death was under be careful subse- trial counsel should passion, prejudice any other influence of at- preparing affidavits reflection in quent factor, (2) arbitrary whether the evi- performance.3 testing prior to their supports jury’s finding dence an aggravating circumstance as enumerated not find that was Initially we O.S.1981, Having in 21 701.12. found expert testi- by the absence prejudiced not that the evidence does sole use, by mony regarding drug his aggravating circumstance found on that issue. instructions absence jury, we have no alternative but RE- discussed, Appellant's de- previously As TRIAL MAND THE CASE FOR A NEW concern- to the authorities statement tailed Accordingly, ON SENTENCING. so he ing the offenses showed Robbery by judgment and sentences for on it as a rely to be able to intoxicated as Force, After Former Conviction of Felo- Therefore, he not harmed defense. Automobile, ny, Larceny of After any expert introduce testimo- the failure to Felony of a are AF- Former Conviction evidence, on intoxication. Without ny FIRMED, and sentence for judgment voluntary intoxication were instructions on Burglary is Degree First REVERSED object necessary. failure Counsel’s REMANDED with instructions DIS- forms and the instructions and verdict MISS, guilt judgment and while request additional instruc- failure to AFFIRMED, Murder, Degree, is First the adversarial nature did not effect tions of death for Murder the First sentence given prop- the case as the instructions for Degree is REMANDED RESENTENC- applicable resentencing law. for erly stated the ING. Since the remand *16 sup- insufficiency of the evidence due to of trial counsel’s After a careful review circumstance, the port aggravating sen- allega- light in performance, resentencing tencing are limited options at tions, say we cannot that counsel’s conduct for life life without imprisonment functioning proper undermined the so parole. process that the trial cannot the adversarial just having produced a relied on as be JOHNSON, P.J., LANE, BRETT and Appellant has show that failed to result. JJ., concur. guilty was rendered unreliable verdict J., PARKS, dissents. adversary process breakdown PARKS, dissenting: Judge, by alleged deficiencies counsel’s caused on a of the case at Based review conduct. circumstances of the facts and Under trial, strategy was time of counsel’s proper for the case, would have been it Accordingly, and his defense viable. sound any instruction on intoxi- court to omit trial denied ef- However, judge was not de- we find that once the trial cation. as- he and this an instruction is warranted assistance of counsel cides that fective instruction to ensure that the duty has a is denied. signment of error legal instances, particular significance hindsight bring perfect of certain facts or can some completely appreciate the understood and we can- so that all is a case. While vision issues in explained as to arrive at the desirous result. many so are of these affidavits dor with which However, hazy it lead to vision wherein can also may be prepared, tantamount such a statement particulars forgotten what once clear are legal malpractice. This an admission incomprehensible. As do not at- we becomes many light resources particularly true strategy, guess neither tempt trial to second state; attorneys re- across available guess attempt to second should trial counsel readily upon coun- available which are sources herself. him or request for assistance. sel’s about admissions also cautioned Counsel is legal or she did understand that he given complete and accurate statement is a In this the trial court’s in- law. (see 2), Majority
struction at 638 n. was an incomplete concerning instruction intoxi- Majority recognizes, there
cation. As the
O.S.1981, 153,
exception
is an
applies
intoxi-
“where the accused was so
totally
cated that his mental
abilities
impossi-
overcome and it therefore became
(Ma-
him
ble for
to form criminal intent.”
638).
jority at
This
considered an
Court
identical issue
(Okl.Cr.
cation should then the in struction submitted should instruct pertaining on all law to intoxication Williams, and homicide.” Id. at 339. In give we found that the failure to a com plete instruction on intoxication was revers
ible error. Stanley Id. See also (Okl.Cr.1988) (when appropriate, instruction on intoxication is is reversible error not to instruct the negate specific can intoxication intent kill). Accordingly, I would reverse and remand for a new trial. *17 Oklahoma, Appellant,
STATE of SHEPHERD, Eugene Appellee. Robert No. S-88-631. Appeals Court Criminal of Oklahoma. Oct.