*1 CR 45 OK CUMMINGS, Appellant, Jessie James Oklahoma, Appellee.
STATE of
No. F-96-657. Appeals of Oklahoma.
Court of Criminal
Aug.
Rehearing Denied Nov. *6 Faulk, Norman, Minter,
Paul Joseph 0. Madill, for Defendant at trial. Durant, McPhail, Thornley,
James John Atoka, for at trial. the State Luker, Indigent William H. Oklahoma De- Norman, System, Appellant ap- fense for on peal. Edmondson, General, Attorney
W.A. Drew Whitaker, Attorney Robert Assistant Gener- al, City, Appellee appeal. Oklahoma OPINION STRUBHAR, Judge. Presiding Vice ¶ Appellant, Cummings, Jessie James Degree was convicted of First Malice Afore (Count I) thought Degree and First Murder (Count II), Felony Murder in the District CF-94-32, County, Court of Coal Case No. jury after a trial held before the Honorable Gabbard, Doug II.1 As to of these both counts, the filed a Bill of Particulars State (1) alleging aggravating two circumstances: III, Appellant charged stage was also with Count at the end of the first of trial. Child was Abuse. this count dismissed gunshot her neck committed for the wounds to head and and the murders were body wrapped quilt was in a and a mat- preventing her purpose avoiding a lawful month, October, (2) pad. following in and, tress The prosecution;2 the existence arrest or located the skeletal remains Melissa were probability Appellant would commit of a bridge Boggy the side of a over the Clear violence that would constitute criminal acts of County. River in Choctaw Due to the skele- society.3 continuing threat to As to Count body, an exact cause of tonization aggra jury the existence of one found be but evidence death could not determined circumstance, prob vating the existence of a sharp injuries several ribs was force ability Appellant would commit criminal noted. violence that would constitute a con acts of II, tinuing society. threat to As to Count for al- 5 The case remained unsolved jury alleged ag found of both time, the existence years. During Appel- most three gravating circumstances. The assessed Phillips, lant his two wives from and moved Oklahoma, punishment Lehigh, at death on each count. The In the Oklahoma. accordingly. Appellant trial court sentenced summer of Juanita went to work for a Fields. told Judgment From this and minister named Edward Juanita Sentence Judy Ap- Fields that she had shot perfected appeal.4 has pellant had made her do it. She also stated had wanted her to kill Melissa FACTS got it. but she sick and could do She September 2 In lived Judy told Fields that after she killed she Oklahoma, in Phillips, a residence he got Judy’s went to work and when she back wife, Sherry Cummings, shared with his first body gone was and so was Melissa. wife, Cummings, Appel- his second Juanita Subsequently, charged Juanita was Debra, Sherry’s daughter, lant’s and Juani- Degree with First Murder for the death of Robbie, father, Appellant’s ta’s son Jesse Judy, Sherry charged with First Cummings. Appellant had married Samuel Degree Murder for the death of Melissa. 1987, and, her, divorcing without Degree charges dropped were First Murder He, effect, had married Juanita in 1989. plea against Sherry when she entered a had two wives. agreement pled guilty with the State September 3 On Accessory After the Fact and two counts of *7 County to Atoka Office went the Sheriffs Permitting a Child to be one count sister, Judy Moody Ann reported and his Degree charges Murder were Abused. First Mayo, daughter, Moody, her Melissa as and pleaded dropped against Juanita and she missing. Appellant clerk that told the Both guilty Degree to Murder. Second had told him that his sister’s vehicle friends Sherry implicated Appellant and Juanita parked been seen at Atoka Lake on had and testified the commission of the crimes down as Highway 43 and that it had broken against him at trial. Appellant opened. were its hood and doors September Sherry that on testified daughter reported what his sister and her sister, 1991, Appellant to take his told her disap- wearing at time of their had been the Judy Judy, and to shoot to look at houses He also that someone had pearance. said they got empty when to an from behind picked up. Appellant them showed possibly morning, September on house. The next Judy pictures clerk and Melissa. the early Appellant left to drive his father to morning, day, September Judy’s hospital City. That 4 The next on Oklahoma pond Sherry Judy at She did body floating in a small took to look houses. was found they looking were Judy while adjacent Lake. had suffered shoot to Atoka She at» O.S.1991, 701.12(5). July and the State's § Chief was filed on 2. 21 4, 1997. Response was filed on November Brief O.S.1991, 701.12(7). § 3. 21 this Court on Novem- The case was submitted to 26, 1997, argument heard on and oral was ber Appellant's in this Petition-in-Error was filed 4. March His Brief-in- Court on November they meet they looking Appellant going at and said were to houses. When had finished Sherry they houses, asleep her fell while Judy Appel- returned momma. Sherry and to up stopped. when Judy, drove she woke the car Sherry, and lant’s residence. and Juanita kids, Appellant the car Melissa got out of and told and the De- watched TV in the house get and They to out. walked behind the car bra, Robbie Melissa were outside. and fif- railing. They gone climbed leave, over a were Judy ready she was to When indicated twenty minutes he re- teen and when Sherry went to the bathroom. While she car, Appellant was alone. turned to the gone gunshots. she was heard five When Sherry hands stated that he had blood on his living Judy room she returned to the she saw Appellant and the front of his coveralls. sitting slumped on couch over. Juanita stopped Lake on drove back to Atoka and Sherry brought had shot her. and Juanita opposite the lake he side of from where house, covering all three kids their into away Judy. up, had He cleaned threw taken eyes they passed through living when they his shoes and drove back toward room, in a they put and them back room. way Appellant there threw house. On the They pulled Judy through then house they his coveralls out the window. When They outside the cellar. and into cleaned house, Appellant arrived at the and back couch, living off the the floor and blood They and were Juanita took the couch left. cleaned, they had room wall. After Robbie gone they an hour before returned. about Debra outside and went back Juanita left Queen go Dairy to work at the in Atoka. Sherry testified that when she was stayed in the room. locked back questioned by Judy first authorities about work Juanita returned from around 11:00 disappearance she them Melissa’s told night. they left in a dark or black blue pickup that had come the house. She ¶8 Appellant from returned Oklahoma given claimed to have statement because City night. got later that same When he Appellant her to. told Sherry met him home and Juanita and Juani- Judy. told him killed The ta that she had against Appel- 11 Juanita also testified Judy’s body three of them retrieved from the lant trial. testified that on the morn- She pulled Appellant her truck. cellar her to ing her September told got something went to the house and white sister, Judy, kill that he her to wanted Judy. he wrapped around and he to use do it. wanted her the .38 to Judy’s drove truck followed left to father then take his stayed car. at the Juanita house. Sher- City. Oklahoma Juanita testified that on the ry followed toward Lake. Atoka morning September she took Melissa parked Appel- waited She her car and while department When welfare with her. he lant drove further. When came back house, they at the was arrived back Juanita Judy longer no in the truck. Appellant Sherry, Judy The there with and the kids. *8 parked Judy’s the side truck off of the road playing. Sherry to kids were outside went a raised the bridge. next to He hood and porch her to there. and called come out Appellant truck left the there. drove home Sherry her to do what knew she told she Sherry. in the car with brought needed to do and she Juanita gun. Juanita went back into the house and ¶ Sherry they that when ar- 9 testified Judy. Sherry brought and shot Juanita house, Appellant rived back and Juani- play and told in kids into the house them to into where ta went the bedroom Melissa was They drug Judy’s body then the bedroom. They cuffed the bed. there hand to were They to the cleaned and cellar. the house twenty minutes. from fifteen to Juanita went at the couch and then Juanita to work Appellant first came out and then followed. Dairy Queen. keys Appellant to the handed Juanita ¶ bring to out 12 testified that arrived hand cuffs and told her Melissa Juanita she got Sherry told back at around 11:00. When she Appellant of the room. then and home go get Sherry car. home into the bedroom where Mel- Melissa to in the testified she went they going lying Melissa handcuffed and bed. asked where were issa was
829 ¶ applying 16 In this law to the facts living Appel- went back into the room. She case, midnight. present of the we find that the murders a little after He lant came home Judy Mayo daughter part of replied that and her were if it was done and she asked her a criminal acts which were related Sherry Appellant left the series of it was. Then and Although they keys the truck to one another. were not and with the car and house by exactly the same means or at the keys. stay to in the house. killed Juanita was told time, Judy were help move exact same and Melissa testified that she did not She again. twelve hours of each other. Judy’s body she never saw it murdered within but Further, although Judy and were not Melissa ¶ Sherry Appellant and came 13 When location, killed in the same the residence back, Sherry Appellant told and Juanita Sherry Appellant shared with Juanita and and un- go the bedroom and unhandeuff Judy murders. was actu was central both stay in Melissa. He then made them dress captive ally killed there and Melissa was held raped Melissa. After- the room while he n thereuntil immediately before she was taken ward, Sherry Appellant, and Melissa left the Finally, to the where she was killed. location Only Sherry returned. house. proof each does we find that as to transaction returned, wearing he When overlap to indicate a common scheme or so as only pair a of shorts. He had been dressed suggests Appellant ei plan. The evidence the house. He told in coveralls when he left initially Judy to kill both ther intended help him load the couch on the Juanita to initially kill that he intended to Melissa or they bridge near truck and took it to a Judy it only Judy but after was killed be threw it over the side of the Centrahoma and necessary daughter. kill her came bridge. logical relationship There was a between offenses. questioned authorities Jua- When sleeping in them that had been nita told she also contends that pull up to her room when she heard someone joinder was in error because of offenses Judy that she and the house and hollered severely argues him. He that if prejudiced it leaving. Melissa were separately I had been tried from Count III, not have Counts II and would PRETRIAL ISSUES testimony raped killed heard that he as this would have been inadmissible argues his first that these evidence of other crimes. We find deny proposition that the trial court erred closely were so related that evi two crimes I, ing motion to sever his trial for Count part murder was admissible as dence of one Mayo, II Judy from Counts the murder Accordingly, other. gestae of the res III, the murder and child abuse of Melis joinder find that the of offenses we cannot “joinder Moody. sa This Court has held that right a fair severely Appellant’s prejudiced permit separately punishable offenses is merit. trial. This is without separate if offenses arise out one ted transaction, part act or or are criminal of criminal acts or transactions.”
series ISSUES FIRST STAGE CR Glass v. OK prop- Appellant argues in his second Further, respect with to a series of Cummings osition that and Juanita transactions, “joinder of of criminal acts or *9 murders of accomplices to the joined were each proper is where the counts so fenses Melissa, accordingly, their Judy and and both type occurring refer to the same of offenses testimony regarding involvement in the time, his relatively period in a short of over location, required cor- commission of these offenses proof and approximately the same that the testi- He also contends overlaps transaction so as to evi roboration. as to each Sherry was not suffi- plan.” mony Id. of and Juanita a scheme or See dence common State, 109, ciently support his conviction corroborated to v. 1991 OK CR 819 P.2d also Pack 280, murders. for these 282. was that, Evidence supports this assertion. ord “[t]he has held 19 This Court in Okla- that was presented an at trial person a is determining whether
test for that at the time City with his father have homa he or she could accomplice is whether Judy. There was evidence killed Juanita charged the crime for which with been days State, missing three his sister reported he v. on trial.” Bannister accused is prosecution The she was killed. The record after 1179. 930 P.2d OK CR notebooks actually three small Cummings offered into evidence was reveals that Juanita in which he had written kept by Appellant for the Degree Murder charged with First after his Although Sherry which occurred Judy Mayo.5 Cum details of events killing of any during in the investi- charged disappearance with crime and mings not sister’s was homicide, in Mayo’s disappearance. the trial Nowhere regard Judy gation into her accomplice anything an write that she was notebooks did court ruled these ruling Mayo’s This Judy matter of law. in this offense as a of his involvement indicative testimony Sherry was by reveals that supported was The trial record also murder. time that Juanita police in the house at the present statement to the Appellant had made a Sherry Judy gave Juanita helping drag and that shot in which he admitted this, Judy. kill From we gun that was used to dumping body pickup to her and sister’s Sherry were ac and find that both Juanita this evidence body into the lake. While her I. complices to Count accessory implicates Appellant as an clearly fact, finding support not a after the it does Having found that Juanita by aiding principal, a either that he acted as correctly a matter Sherry were ruled as Appel- As abetting his sister’s murder. accomplices to the murder of to be of law contends, testimony of outside of lant question Judy Mayo, turn next to the of we only sup- Sherry, the evidence Juanita and testimony Appel implicating their whether Appellant assisted his ports finding a sufficiently at trial corroborated lant was covering police and in lying to the wives Appellant’s involve independent evidence of independently It not up the crime. does of the offense. ment in the commission Judy of him to the actual commission connect testimony an of general rule is “[T]he Accordingly, Appellant’s Mayo’s murder. evi accomplice be corroborated with must I reversed with for Count must be conviction alone,' dence, link standing tends to to dismiss. instructions crime commission of the defendant to the v. charged....” Sadler Appellant’s next 22 We address necessary that It is not 846 P.2d 383. II, of his the murder conviction for Count testimony accomplice’s be corroborated an Sherry Cummings niece, Moody. Melissa State, 1987 respects. all material Johns Degree Mur initially charged with First only It is 742 P.2d 1146. OK CR Moody.6 By her the death of Melissa der for materi required that there to be at least one testimony, Sherry helped hold the child own that tends to independent evidence al fact of with captive and went of with the commission connect the defendant Melissa was place where in the car to Further, evi circumstantial the crime. Id. charged killed. Juanita was taken and adequate to corroborate can be dence homicide. The conjunction with Melissa’s testimony. Pierce v. accomplice’s to consider trial court did not direct CR OK a Sherry accomplices as matter Juanita the murder of Melissa. regarding law argues from the that aside sufficient to as the evidence was Sherry, there was testimony of Juanita charge Sherry of First over on trial can be bind presented at which no evidence Melissa, for the death of we Degree Murder him with the independently connect found to finding that supports a Sher- find that it also Judy’s The trial rec- murder. commission plea Cummings subsequently entered subsequently plea Cummings entered a 5. Juanita Accessory After the guilty counts of to two Degree guilty of Second to the lesser crime Permitting a Child to be one count of Fact and Judy Mayo. Murder for the homicide *10 Abused.
831
Appellant’s guilt
as a
of
as to Count II and
ry
accomplice
was an
to this crime
dence
Appellant’s
matter of law.
that
conviction on this count was
by
supported
corroborating
sufficient
evi-
Juanita, Appellant
23 As to
dence, we find this error to have been harm-
she, too,
accomplice.
asserts that
was an
less.
trial,
presented
the evidence
at
Juani
Under
for Melissa’s murder
ta could
be indicted
originally charged
25
was
no
that
intended to
as there is
evidence
she
Degree
with First
Malice Murder for the
participate in the crime or aided or abetted
Moody.
charges
death of Melissa
These
Accordingly,
its commission.
we find that
prejudice by
without
were dismissed
accomplice
Juanita was not an
to Melissa’s magistrate upon
finding
County
a
that Coal
testimony
murder and her
can be considered
lacked venue for that crime.7 The State
independent
connecting Appellant
evidence
lodged
appeal
ruling pursuant
an
to this
to the commission of this crime. See Bowie
6,
Rule
Rules
Oklahoma Court
State,
4,
759,
v.
833
177,
Rodriguez,
substantially outweighed
probative
linois v.
497 U.S.
110 S.Ct.
value is
2793,
(1990);
by
danger
prejudice. Hooks v.
ing the remains of
on the child’s skeletonized
the bracelets
admitted into
Moody should not have been
friendship
proba
wrist. The
bracelets were
evidence.
identity
remains.
tive to the
of the skeletal
photograph
ac
admissibility Admission of both a
and the
34 The test for
they
grue
tual twine bracelets was cumulative. Howev
photographs is not whether
are
er,
not find that the admission of this
inflammatory, but whether
their
we do
some or
Alabama,
v.
ruling in Beck
requires
Al-Mosawi
reversal. See
evidence
(1980).
65 L.Ed.2d
929 P.2d
S.Ct.
—
145, 139
denied,
U.S. -,
118 S.Ct.
cert.
charged
41 In Beck
defendant
L.Ed.2d
robbery-intentional
capital
with the
crime of
*13
option of
jury
given the
killing. The
was
¶38 Appellant
that
the
contends
imposing
convicting the
and
defendant
either
indicating that he had
receipt
of a
admission
acquitting
him. On
penalty
of
the death
5,
Special
a .22 rifle for a .38
on June
traded
jury
the
appeal
argued
defendant
that
the
not
error as
evidence was
1990 was
on the lesser
have been instructed
should
gun
nev
particular
was
relevant because this
felony
of
which was
offense
murder
included
weapon. Be
as the murder
er established
would have
the evidence and
warranted
using
gun
a
to
cause Juanita
admitted
jury
and choose
the
to convict him
allowed
Judy Mayo, the
kept
the house to kill
at
death,
penalties
life or life
the
of
between
ownership
gun
regarding
of the
particulars
The
possibility
parole.
the
Su-
without
so,
find
not in issue.
we cannot
were
Even
can-
held
a death sentence
preme Court
admission
evidence affected
that the
of this
jury
constitutionally upheld after a
not be
in this
This error was
the verdict
case.
jury
capital
the
was
verdict of a
offense when
harmless.
of a less-
permitted to consider a verdict
not
Appellant argues that
Finally,
39
Id,
non-capital
er included
offense.
hand cuffs and
were admitted
the
notebooks
626,100
at
S.Ct.
they
Both Sher
in error as
were irrelevant.
ruling
pres-
the
inapposite
42 This
is
to
use
ry
Juanita had testified about their
First,
two
as we have
ent case for
reasons.
prior
hand cuffs on
to when
noted,
already
accessory
the fact is
after
Ap
They
killed.
testified that
she was
degree
first
separate substantive crime than
kept
wrote
pellant
in which he
notebooks
It is not a
included crime.
murder.
lesser
they
police. These
what
had told the
down
Second, upon
crime of first
conviction for the
they
items of evidence were relevant as
were
murder under
law one is
degree
Oklahoma
Further,
subject
testimony.
of trial
the
the
automatically
penalty
the death
assessed
outweighed
probative effect
this evidence
Rather,
jury
case in
the
is
as was the
Beck.
especially
true
prejudicial
its
effect. This is
given
opportunity
choose between
the
to
very
light
the fact
was
little
in
that there
life,
options;
the
penalty
three
life without
prej
in the
was
information
notebooks which
Accordingly,
parole
possibility of
and death.
Appellant.
argument war
udicial to
This
unpersuasive
Appellant’s argument
we find
relief.
rants no
not err in
and hold that
trial court did
on
refusing
give
requested
instruction
to
¶40
Ap
proposition
In
eighth
his
accessory after the fact.
in
argues that
court erred
pellant
the trial
in
declining
give
requested
ISSUES AFFECTING BOTH
accessory
on the
after
struction
offense
TRIAL
STAGES OF
Appellant acknowledges that this
fact.
that,
in his
past
“being
complains
in
an
43
has
held
Court
accessory
separate
substan
ninth
numerous instances
felony
to a
is a
offense,
deprived him of a
prosecutorial
in
misconduct
and is not a lesser offense
tive
VanWoundenberg
sentencing proceeding.
felony.”
fair trial and reliable
within the
cluded
State,
argued
argues
prosecutor
720 P.2d
He first
1986 OK CR
v.
denied,
during
stages of
93
not in evidence
both
107 S.Ct.
facts
cert.
U.S.
(1986).
explain
jury why
trial
in order
also Williams
L.Ed.2d
See
clothing
at the same
P.2d
Melissa’s
was found
1980 OK CR
clothing. He also
her
Accordingly, we
that instructions
location as
mother’s
have held
prosecutor improperly
re
accessory
appropri
complains that
after the fact are not
on
raped
Appellant had
requests this
ferred to evidence that
Id.
ate.
the trial
had dismissed
holding
capital
cases Melissa after
court
reconsider this
Court
III,
rape
end of the
charge,
at the
Supreme Court’s Count
light
of the United States
stage
Finally, Appellant
first
of trial.
con
tence.
contends that
the State’s
prosecution unnecessary
theory
brutal,
tends
ridi
of the case was that he was a
couple
manipulative person
All
culed him.
but a
of the comments
who exercised such com-
complained
objected
plete control
of were not
to at trial.
over adult women that he could
remarks,
Accordingly,
order them to commit
as to these
all but
and assist murder
rape.
plain
He
error has been waived.
contends
defense counsel
Freeman v.
failing
put
ineffective for
character
denied,
1022, 115
psychological
590, 130
evidence which
cert.
would have
U.S.
S.Ct.
prosecution’s portrayal
countered the
of his
L.Ed.2d 503
domineering personality
interpersonal
¶44 Our review of the record
skills.
application
has filed an
many
reveals that of the
comments which
*14
evidentiary
an
hearing regarding the issue of
timely objection,
were not met with
none can whether trial counsel was ineffective for fail-
Also,
plain
be deemed
error.
of the few ing to utilize this available evidence.
objected to,
comments which were
none
¶47 Appellant requests
evidentiary
this
egregious
require
were so
as to
reversal.
hearing
upon
3.11(B)(3)(b),
based
Rule
Rules
“Allegations
prosecutorial
of
misconduct do
the
Appeals,
Oklahoma Court Criminal
of
of
not warrant reversal of a conviction unless
18,
(1997).
App.
Title
Ch.
This rule al-
the
deprive
cumulative effect was such to
the
appellant
request
lows an
to
evidentiary
an
defendant of a fair trial.” Duckett v.
hearing
alleged
appeal
when it is
that trial
7,19.
919 P.2d
Because we
counsel
failing
was ineffective for
to “utilize
inappropriate
do not find that
comments de
adequately investigate
available evidence or
trial,
prived Appellant
affecting
of a fair
identify
to
evidence which could have been
jury’s finding
guilt
of
or assessment of the
during
made available
the course of the tri-
penalty,
death
grant
we decline to
relief on
application
al....”
prop-
Once an
has been
proposition.
this
erly
along
supporting
submitted
with
affida-
vits,
¶45
application
this Court reviews the
to see
Appellant argues in his tenth
if it contains “sufficient evidence to show this
proposition that
trial
made
counsel
several
by
convincing
Court
clear and
evidence there
during
errors
stages
both
of trial which de
strong possibility
is a
trial counsel was inef-
him
nied
effective assistance of counsel. To
failing
identify
fective for
to utilize or
counsel,
show ineffective
of
assistance
a de
complained-of
evidence.”
Rule
two-pronged
fendant must meet the
test set
3.11(B)(3)(b)(i),Rules
the Oklahoma Court
Washington,
out
Strickland v.
466 U.S.
Appeals,
App.
Criminal
Title
Ch.
(1984).
104 S.Ct.
¶46 alleged It is first that trial alleges counsel ineffective because he failed to also that tri investigate and use to available evidence con al counsel was ineffective because he failed cerning object Appellant’s personality prosecution’s improper argu and character to the theory improper alleged that was inconsistent with the ment State’s references to guilt justification rape Moody and its for a death sen- trial after the court Moody Appellant killed Melissa charges. finding that abuse/rape child dismissed prosecution for this crime. counsel have to avoid arrest or would agree We defense circumstances, Appellant’s con- object prosecu- to advised to these been well Under how clothes evidence was insufficient speculation tor’s about Melissa’s tention that the jury’s lake her moth- he Mel- support finding came be found in the with killed agree Moody prevent prose- that defense arrest or er’s clothes. We lawful issa objected prosecu- to the Accordingly, aggrava- counsel should have this cution has merit. alleged rape in first tor’s to the references must ting circumstance fail. during the sec- stage closing argument and in his first contends not find stage ond of trial. we do his death sentence twelfth perfor- errors rendered counsel’s these “continuing should be vacated because prejudiced he was mance deficient circumstance, as inter aggravating threat” Strickland, performance. deficient case, applied created preted and Accordingly, we 104 S.Ct. at arbitrary imposition of capricious risk of grant allegation on this decline to relief acknowledges penalty. Appellant the death error. consistently upheld the that this has Court constitutionality “continuing threat SECOND STAGE ISSUES *15 Duckett, society” circumstance. aggravating ¶ Appellant argues in his elev 50 State, 26; Knighton OK 919 P.2d at v. 1996 the was not proposition enth that evidence — 878, denied, 2, 895, 912 cert. CR P.2d support jury’s finding that sufficient to the -, 120, 71 117 136 L.Ed.2d U.S. S.Ct. Moody purpose for of he killed Melissa the (1996); State, 67, 908 Richie v. or avoiding preventing lawful arrest — denied, U.S.-, 117 P.2d cert. prosecution. prosecution alleged The two (1996); L.Ed.2d Malone v. S.Ct. 136 64 predicate aggravating crimes circum to this State, 1994 P.2d 715-16. OK CR 876 Appel Bill stance in the of Particulars: that rul urges us to reconsider this he prosecution
lant
killed
to
had
Melissa
avoid
Appellant
ing. We find the law is settled
raped
prosecu
to
having
for
her and
avoid
any
give
compelling
this
has failed to
Court
Appel
having
her
tion for
killed
mother.11
to
this issue now.
reason
revisit
lant
because the trial court
contends that
III,
Next,
challenges
charge,
Appellant
the
Count
dismissed
child abuse
unadjudicated
trial,
of
stage
the
the State’s use of evidence
of the first
of
State
the end
“continuing
support
to
the
threat”
rely upon
stage
first
evidence
crimes
could not
the
Ap
Specifically,
raped
aggravating
circumstance.
Appellant
that
had abused
complains
aggravating
that this
cir
argue
pellant
in
he killed her to avoid
to
that
order
only by
supported
the un
rape.
the
We find
cumstance was
prosecution
arrest of
for
Yaws,
testimony
Lohoma
Appellant’s argument
evidence
corroborated
merit to
sister,
Sherry Cummings’
charge
have been
should not
the dismissed
years
raped
when she was fourteen
support
aggravating circum
had
her
used to
this
reported
was
matter of old. This crime
to
The trial court found as a
stance.
police
as Ms. Yaws testified
guilty
was not
law
kill her
her
if
charged12
ac
to
mother
child
as
threatened
crime of
abuse
they
happened. Appellant
told what
cordingly,
alleged
acts that
the State
process
it is
to due
charge should not
contends that
offensive
upon
support
this
relied
un
prohibition against
cruel and
support
aggravating circum
and to
be
this
used
Similarly,
punishments that he was sentenced
this
found
usual
stance.
because
Court
unreliable evi
insuf
death
the basis
such
Proposition
in
II that the evidence was
Appellant acknowledges that
Again,
support Appellant’s conviction
dence.
ficient to
long
the use of
Mayo,
the evi
this Court has
allowed
Judy
it follows that
killing
“eon-
unadjudicated
support
crimes
support a
must also be insufficient to
dence
Record,
IV, 855-56; Original
Record,
Transcript
Original
12. Trial
316.
timing
aggravating
rape.
ample
threat”
circumstance.
He had
information and time to
present
explanation
have held that evidence relevant to the
a defense or an
We
for the
proof
aggravating
alleged
of this
circumstance in
conduct. This error is harmless.
convictions,
prior
prior unadjudicated
cludes
Appellant requested
jury
pattern
crimes and other acts which show a
be instructed that the
mitigat
existence of a
propensity
conduct that would indicate a
ing
proven
circumstance did not have to be
likely
toward violence that
would continue
beyond
doubt,
a reasonable
but could be
State,
in the future.
v.
See Johnson
if
any
considered
there was
substantial evi
309, 317-18;
OK CR
928 P.2d
Charm v.
support
dence to
it.13 The trial court de
762-63,
1996 OK
CR
give Appellant’s requested
clined to
instruc
—
denied,
-,
ert.
U.S.
117 S.Ct.
c
tion and
asserts
his fourteenth
(1997); Perry
838
15,
State,
Moody
purpose
pellant
1997
CR
killed
again.
Bryan v.
OK
See
—
denied,
U.S.-,
or
364,
preventing a lawful arrest
338,
avoiding
or
cert.
935 P.2d
(1997);
an
383,
invalidates
prosecution.
L.Ed.2d 299
When this Court
118
139
S.Ct.
(and
circumstance,
cited
and at
one
aggravating
cases
least
Knighton,
P.2d at 896
912
therein).
remains,
may re
aggravator
the Court
valid
against
mitigating
evidence
weigh
¶58
complains
aggravating
to determine
valid
circumstances
the issue
given to the
on
the instructions
improper aggrava
weight of the
whether the
jurors
ignore
to
permitted the
mitigation
harmless,
death
is
and the sentence of
tor
seriously
altogether and
mitigating evidence
18,
State,
v.
1995 OK CR
still valid. Valdez
mitigating evi
diminished the effect
denied,
967,
516
P.2d
cert.
U.S.
900
has
presented in
case. This Court
dence
(1995).
425,
This
MANDATORY AND OF MITIGATING REWEIGHING ¶ required to con 63 This Court is EVIDENCE AGGRAVATING impose analysis a all cases which duct final (1) XI, to determine whether Proposition penalty this the death 60 In imposed influ under the evi the sentence was that there was insufficient Court found any arbi- Ap- passion, prejudice, or other jury’s finding that ence of support the dence to factor, (2) trary support stage whether the of Melissa second aggrava- evidence supports judge’s rape jury’s finding the or of a tors. The should be treated in the way unadjudicated statutory aggravating same we treat an circumstance. See 21 offense. 701.13(C). O.S.1991, agree alleged rape, § While I that the a crime acquitted, of which could not deciding 64 In the course of this predicate be used as support crime to sentence, appeal affirming the death we aggravator committing a murder specifically have determined sentence purpose avoiding preventing or a lawful imposed passion, prejudice, was not under I prosecution, arrest or believe the alleged any arbitrary other factor. We have also rape support continuing could be used to supports determined the evidence one of the aggravator. threat A acquittal “verdict of two aggravating by circumstances found prevent sentencing does not court from sentencing jury. reweighed have We considering underlying acquitted conduct aggravator against mitigating valid evi charge, long so as conduct has been dence and determined the sentence of death proved by preponderance of a the evidence.” appropriate factually is both substantiat Watts, v. U.S. 519 U.S. 117 S.Ct. ed. (1997). 638, 136 Here, L.Ed.2d the testi occurred, mony rape from that a Juanita CHAPEL, P.J., JOHNSON, LANE and supported by which was somewhat the testi JJ., concur. mony Sherry, together with the other facts case, prove of the rape is sufficient LUMPKIN, J., concurs results. preponderance was committed LUMPKIN, Judge, concurs in results. evidence. The fact that Juanita and possible accomplices were to the 1 I result crime of concur in the reached in this rape stage is irrelevant in the second because opinion analysis. and much of the Court’s O.S.1991, § require 742 does not I corrobo points. write to address two stage accomplice testimony. ration of second First, as I have stated numerous before, addressing times when ineffective as- counsel,
sistance of we should not focus on
whether has shown “the outcome Rather,
would have been different”. we CIV APP 1998 OK must look at the verdict whether was reli- able, i.e. “that errors were so counsel’s seri- INDEMNITY SPECIAL trial, deprive ous as to of a fair the defendant Petitioner, FUND, a trial reliable.” whose result is Strickland v. Washington, 104 S.Ct. Leroy D. MAPLES and the Workers’ 80 L.Ed.2d “To set *18 Court, Compensation solely aside a conviction or sentence because Respondents. the outcome would have been different but grant may for counsel’s error the defendant a 90,172. No. windfall to which law does not entitle Fretwell, him.” Lockhart v. 369-370, 842-843, 113 S.Ct. L.Ed.2d Oklahoma, Appeals Court of Civil apply We should the Strickland No. 1. Division
test, as established United States 26, 1998. June Court, Supreme in accordance with that applicabili- Court’s further delineation of its Rehearing Aug. Denied Fretwell, ty. In Lockhart v. Court clear- Oct. Certiorari Denied ly legal stated a outcome is not the different criteria to use. disagree Secondly, I with the notion Appellant’s alleged rape
that we cannot use notes were he told by use of false statements wherein who searched without a warrant without moth taking that he was her to her Melissa acknowledges consent. that his alleged It also had er. Cummings, in the who lived resi Juanita secretly Melissa imprison to confine or intent search, him at with the time of dence Appellant argues her will.10 against However, he to the search. ar consented presented the evidence fifth gues that Juanita’s consent to search was felony support the at trial was insufficient to prove insufficient as did not State conviction because the did murder State authority to to the search had consent she felony, prove underlying each element in the the items the area home where namely the intent to con found. issue were her will. imprison against fine or Melissa evidence 31 The Fourth Amendment’s Appellant contends that the State’s against entry taking prohibition of a that his intent warrantless shows her, apply County person’s was kill not to con home does not situations Choctaw obtained, voluntary has been imprison her. contends where consent fine or He also property from the individual whose is does not show that Melissa either the evidence searched, possess trip party who against during her her or from third being held will premises. authority II- County. es common over Choctaw Record, Record, Original Original 10. 290.