Dodd v. State

2004 OK CR 31 DODD, Appellant

Rocky Eugene Oklahoma, Appellee.

STATE

No. D-2002-286. Appeals of Oklahoma. of Criminal

Court 21, 2004.

Oct. of Okla- Appeal

An from the District Court County; Twyla Mason the Honorable homa Judge. Gray, District Solomon, 'Hammarsten, Mitch Catherine De- Assistant Public Hollingsworth, Norman OK, fenders, Attorneys for City, Oklahoma at trial. Defendant Williams, Wintory, Richard Cassandra McCormick, Attor- Joellyn Assistant District OK, Attorneys for City, neys, Oklahoma at trial. State Sutton, Public De- B. Assistant Wendell OK, fender, Attorney Ap- City, for Oklahoma appeal. on pellant Edmondson, Attorney Drew began W.A. General 3 Detectives processing the scene Oklahoma, Whittaker, Robert Assistant interviewing and witnesses. Mclnturff and General, OK, Attorney City, Oklahoma Attor- by anyone Sloniker had not been seen since neys appeal. State early morning Sunday, hours of Novem- They ber spent had much of Satur-

OPINION day company friends, in the of two Brian Way. Brown and Lisa Brown JOHNSON, testified that Presiding Judge: apartment Saturday while the victims’ ¶ Appellant, Rocky Dodd, Eugene afternoon, he saw come over and jury County convicted in Oklahoma hand Mclnturff a check for Mcln- $70.00. Court, CF-94-7724, District Case No. of two turff later showed Brown another $70.00 Murder, O.S.1991, FirsL-Degree counts of given check that him earlier in 701.7(A). Jury § trial January was held day. Brown stated that the checks were through February before the Hon- payments methamphetamine that Mcln- Twyla Gray, Judge. orable Mason District supplied turff had Appellant. count, As to each recommended the penalty having death after found the exis- Brown, evening, Later that Way, Lisa aggravating tence two of the four circum- and the two victims went pool to a local hall (1) alleged by stances State: smoking marijuana after methamphet- and previously lant had been felony convicted of a apartment. amine at the victims’ Way Lisa involving the use or threat of violence to the testified that kept the victims a stash of (2) person, and knowingly cre- drugs couch, in á living box under their room great ated risk of death to more than one and that the box was under the couch when person.1 Judgment and Sentence im- play pool. They foursome left to arrived posed on Appellant timely March pool at the approximately hall at p.m. 10:30 perfected appeal.2 approximately and left at 1:30 a.m. Brown dropped off the group A. rest of the FACTS apartment home; victims’ and went the vic- ¶ 2 Monday, On the afternoon of Novem- Way tims up invited to come and watch a ber the bodies of Shane Mclnturff spend night movie and apart- at their fiancé, Sloniker, and his Keri were found ment, Way accepted. Upon entering the side, lying side pool face-down in a apartment, Mclnturff asked Keri to roll a blood, in the bedroom of their Edmond joint. According Way’s testimony, when apartment. Appellant apartment lived in an pulled couch, Keri the box from under the immediately next door to the victims with his she saw that the drugs missing. cache of wife, Dodd, Shelly daughter. their infant loud, Mclnturff extremely angry became Appellant and Shane Mclnturff were also co- kicking the wall common between his and the workers at a local business. The bodies were apartment, Dodds’ loudly accusing father, Ap- Mclnturff, found Shane’s Robert pellant stealing drugs. the Mclnturff Appellant reported after then that Shane had not went Appellant’s apartment, next door to up day. shown for Appellant work that ac- companied exchange where a heated place. Robert took gained Mclnturff as he Soon entry after Mclnturff apartment. Upon apartment, into the to seeing the returned his bodies, Appellant Robert Mclnturff help; called for followed and told Mclnturff to emergency personnel police keep and arrived with- the noise down because his child was in minutes. trying sleep. aggravating The two alleged by Appellant's circumstances 2. This was second trial on these (1) by jury, the but not found the were: charges; his murder convictions and death sen- Appellant that committed the murders to avoid resulting tences from the first trial were reversed prevent (2) prosecution; lawful arrest or and by this Court. Dodd v. 2000 OK CR 993 probability the Appellant existence of a that P.2d 778. would commit criminal acts of violence that continuing society. would constitute a threat to O.S.2001, § See 21 701.12. key apartment the Ap- a to the from he obtained Part of confrontation between the by landlord. was also witnessed and Mclnturff

pellant Kersh, apartment lived an who Dennis apartment, Upon entering the Mr. complex. breezeway of the small the across on two bodies face-down Mclnturff observed Sunday morning, a.m. approximately At 2:00 Mclnturff testified the bedroom floor. Mr. by loud a noise outside. was awakened Kersh light not turn on the bedroom and that he did yell the “fuck” from then heard someone He the door. Appellant that remained near front apartment. From of the victims’ direction yelled Appellant call 911. Mclnturff window, Appellant over to saw run his Kersh position of the of the location and Because Kersh, According apartment. the victims’ bodies, Mr. stated that he was Mclnturff apartment he Appellant entered to determine the manner which unable going on.” yelled, “what fuck is and Keri killed. He noticed that Shane lying open living wallet was in the Shane’s Way, According Appellant Lisa after room. apartment, began the victims discuss- left the Appellant the two checks ing plan cash emergency that of the earliest day, that and tell given earlier had Mclnturff personnel police were able to tell the using drugs. still Appellant’s wife that he was manner in which the victims had killed been cause They problems would believed this Monday approximately p.m. 9:25 eve- (who Appellant’s wife Appellant, because discovery, ning, several hours after the when time) at had happened to be of town out were moved for the first time the bodies ever Appellant if she examiner, threatened leave who determined that the medical drugs Way using again. he found out very cut had throats with a the victims their all, night and stay not to after that, decided sharp bladed instrument. Before a.m. apartment victims’ at about 3:00 left the assumption had that the victims were been anyone last Sunday. was the time on This being ques- Appellant in the head. shot Keri alive. Mclnturff and Sloniker saw Shane police at at the station the time tioned Sunday, s that Brown found Mclnturff key Later In a true cause of death was revealed. approximately At 5:00 paycheck his car. evidence, spoke Dale piece with apartment p.m., work, Brown went victims’ Ketler, supervisor p.m. at 6:41 his paycheck, but no answered to return one Monday evening half-hour after the on —a Appellant, on the door. when knocked him had been found' —and informed bodies apartment, told sitting outside who been that Keri had murdered Shane Keri that Brown he not seen Shane or been cut. In another that their throats had day. evidence, that key at work earlier piece large, day, Appellant fixed-blade returned morn- police told on the from a hunting knife he had borrowed 7th, Monday, ing of November he went co-worker, Al He left the knife Ames. give apartment Mclnturff the victims’ workstation, a note of thanks for Ames’ with responded work. one ride to No adding knife and getting to borrow the knocks, report did not to work Mclnturff had a to use it. news he never chance When have a day. the victims did not Because workplace spread murders around the messages left several telephone, Tuesday, turned the knife and Ames day answering ma- throughout police. over to note parents, express- s chine of Shane Mclnturff Investigation scene re- where- crime ing concern Shane Keri’s about may have that someone work at the vealed trace evidence was off abouts. the victims’ bathroom when washed blood down apartment complex later that afternoon missing A towel from that bath- his son. hand Mclnturff arrived to check on sink. Robert locked, complex apartment found in the Mcln- room was The front door was and Mr. analysis dumpster, with blood. DNA apartment stained first to enter the turff tried window, the source either victim as a which the victims could exclude through front unlocked; Except the fact that Keri’s routinely that blood. known leave were out, well, victims’ dumped the however, purse so had been the window locked intact, nothing apartment apartment opened with of known Melnturffs father the late afternoon, taken; Monday engagement ring (Appellant) Keri’s he saw the value by finger. sign weapon No cheeks Melnturffs wallet and took them still on her of a explain To found, although posi- then. the fact that no evidence of the were and victims dumpster, the checks had been they might found tioned as if have been bound events, again Appellant altered his version of wrists, ligatures ligature no marks claiming that he had run back to his own were No traces of blood were discovered. apartment, upon finding nauseated knife found on the had borrowed and, vomiting were dead friends while sign strug- from Al There was no of a Ames. toilet, up tore the checks and tossed them in gle wounds with the victims defensive as well. sign on their There was no forced bodies. entry, found and Robert Mclnturff had trial, Appellant At that admitted he apartment front door to locked. Police hunting had a knife from borrowed his co- apartment found the front window to the worker, Ames, Al a weeks few before the unlocked, though Mclnturff even Robert murders, day and returned it the the bodies unsuccessfully stated that he had tried to However, Appellant were discovered. he, accompanied open when that window claimed he did not access to the knife at

Appellant, gain first tried to access murders, of the the time because his wife had Monday apartment late afternoon. weekend, out of traveled town for the and he placed the trunk of had knife their car Brown, Way Appellant, were all Friday rebuttal, before In Ap- she left. questioned police night the bodies wife, pellant’s Shelly Dodd, testified she was questioned were discovered. When about out of the car trunk several times that the two checks that had seen in Brown $70.00 weekend, and that not recall seeing she did possession, Appellant first Melnturffs knife Ames’s therein. money claimed he had loaned Mclnturff uncle, buy a car from Melnturffs and that a explana- also offered new actually Mclnturff returned the checks later why tion at trial for Dale he told Ketler that Saturday because uncle was afternoon cut, the victims had their throats even selling the car someone else. though the cause of death was not deter- claimed that he tore the checks into several until mined several hours later. pieces them in and tossed the trash. just originally police told he that assumed a apparently Way lant was unaware that Lisa knife been used of all the because blood early apartment had returned the victims’ surrounding however, the bodies. At Sunday morning playing pool, after and had Appellant claimed for the first time that he seen the checks at that He was two time. emergency responders had observed the murdered, also that unaware before she was scene, talking with each other at the and saw Keri Sloniker had entered the two checks gesture them one of make a across his throat register depos- into her check and filled out rebuttal, with his thumb. In pre- State slip apartment A it search of them. sented the first responding complex dumpster Ap- revealed from trash personnel. emergency None them re- pellant’s apartment, but no making any gesture, called such and all testi- checks. Mclnturff Robert cast further doubt gesture that such a highly fied would be on Appellant’s initial claim he when testified unprofessional conduct at a homicide scene. arrangements he had made to loan emergency responders One of the first also money buy Shane a car from his brother testified when he first came on the scene in Arkansas. spoke Appellant, Appellant with claimed playing pool had been with he the vic- trial, Appellant 12 At on his own testified previous night. Saturday tims the behalf modified his version events. First, During he apart- admitted the two checks a search of the Dodds’ $70.00 payment Monday police he had written to Mclnturff evening, ment on seized a items, for methamphetamine, pair and not a car loan as including number of wet blue initially jeans copy claimed. He that when claimed of the “Anarchist Cook- noted, Appellant testified on his Appel- 18 As book,” had lent to Brian Brown which trial, any partic- and denied describes, own behalf among other and which lant presented also ipation in the murders. He person efficiently with a how kill a things, to expert suggesting that it would In his testimo- by cutting their throat. knife unlikely person that one could explanation have been give no ny, Appellant could Mullins, having to have subdued two victims without jeans. Appellant’s Martin wet of them with some sort of father-in-law, restrain either Appellant that had testified presented facts will be binding. Additional laundry at his on the afternoon of home done 5; they to apart- as become relevant our discussion Saturday, the Dodds’ November dryer. Mul- the issues below. have a ment did not washer returning to Appellant his lins did not recall B. TO BE DEFENDANT’S RIGHT clothing that after- apartment with wet PROCEEDINGS PRESENT DURING noon, days which two full before wet Shelly jeans Dodd testified that were seized. 19 In any jeans after she she did not hand-wash present right claims his to be he was denied Sunday trip her weekend returned from proceedings. stages at all critical of the trial evening. claim, to support points To this he various hearings pretrial motion and status confer Mullins, Appel- According to while ences, hearing during and to in camera one drying, laundry washing lant’s present. physically he where afternoon, Saturday his Appellant spent time hearings, Appellant’s trial At some of these in Mullins’ back- shooting pistol a crossbow necessity purported waive the counsel sharpening hunting knives yard and several appearance. Appellant claims the record his brought had with him. over personally that he is insufficient to show brought had Mullins recalled present right at these hear waived his to be folding-blade knife knife fixed-blade ings. Ap- knife sharpening. to his home for The from a fixed- pellant had borrowed Ames was “right present” 20 The be knife, found it be blade detectives pri claims is rooted was violated sharp According very when obtained it. marily in the Sixth Amendment defendant’s knife found in police, fixed-blade against him. right to confront the witnesses blade, Appellant’s apartment sug- had a dull right process The Fifth to due Amendment fact, not, sharpen did gesting that he may implicated, if ab also be Saturday knife at Mullins’ home on be- portion proceedings sence from some trial, Appellant the murders. At fore ability impaired his to de is shown have folding-blade only sharpened two claimed he Gagnon, v. fend himself.3 See United States knives Mullins’ home. 1482, 1484, 105 S.Ct. U.S. (1985); Snyder v. Massachu also that after L.Ed.2d 486 17 Mullins testified 105-106, setts, charged with the mur- lant was arrested and ders, The defendant’s 78 L.Ed. 674 helped daughter he move out said, also right present “at the trial” is packing, Mullins to be apartment. While O.S.2001, 583; § magazines photos protected statute. devoted to found several Ryder kill people, how to includ- and articles about 856, 864; Mullins, Perry OK that, according one ing ¶ 25, specific con target’s 527-28. story your to cut cover about “How “right pres to be Shelly stitutional sources of leave no evidence.” throat cousin, Anderson, its limitations. An accused does ent” reveal Malinda testified Dodd’s right magazines in an absolute constitutional seen similar that she had mid-1993, every present at in camera discussion she when Dodds’ bedroom counsel, during even court and spent night between her husband there. course, milting disruptive removal, results in his may voluntarily conduct which absent 3. Of a defendant intentionally appear. things failing None by doing proceedings such himself from presented here. waiving right present, situations are expressly to be corn- those 1028 State, 153, performance juror v.

trial itself. Davis 1988 OK CR of his duties as a in accor ¶ 12, 1033, 1036. Nor does the with his instructions and 759 P.2d dance his oath.” Witt, statutory present Wainwright the trial” v. 469 right to be “at U.S. 105 844, 852, hearings extend to or other mat- L.Ed.2d 841 This in camera 83 jury’s presence. require prospective ters outside the Reid v. standard does not that a 149, 988, juror’s incompetence 999- to serve be established 1000, clarity.” P.2d 915. on the record with “unmistakable modified 424-25, 412, 844, Id. at 469 U.S. 105 S.Ct. hearings Appellant 21 All of the refers give great L.Ed.2d We must deference to, one, save occurred before trial. Most of judges regarding to trial in matters nothing these were more than status confer- selection. See Patton v. ences between the court and counsel. Two ¶66, 16, 281-82, 270, purely legal dealt with no issues where testi- 120 S.Ct. L.Ed.2d mony hearing Appel- At the was taken. one (1999); Ledbetter v. complains during lant of which occurred ¶ 4, proposed the court sec- and counsel reviewed jury’s ond-stage pres- outside the ¶23 Appellant claims the trial court right ence. was never denied his merely Mr. “general removed Garcia for a present confront witnesses. He was dur- opposition penalty,” ized death to the ing all proceedings jury. before the He does describes Mr. views on Garcia’s the death demonstrate, allege, much less that his “equivocal.” penalty as The record shows ability any way himself defend panelists being While otherwise. asked compromised by pro- his absence at these any might about medical conditions that af Reid, (no ceedings.4 id. See error where service, fect their Mr. Garcia volunteered to presence at hearing defendant’s in camera opposed the court he was to the death just was not to a fair essential determi- penalty. The Mr. gave court Garcia addi discussed). prop- nation of the matters This subject. tional time to think about After osition is denied. completing inquiry panelists’ her about medi issues, cal the court returned Mr. Garcia C. JURY SELECTION ISSUES if and asked he had had time to consider ¶22 In capital punishment fully. issue more Mr. claims error in the trial opposed court’s decision to Garcia reiterated that he was to the panel pro penalty. remove Mr. from inquired Garcia death court fur The trial spective jurors “So, position Garcia, your of his con position because ther: Mr. about cerning penalty. Witherspoon it, the death In penalty, if death I understand such is Illinois, regardless v. of the facts and circum (1968), Supreme case, L.Ed.2d 776 particular you held Court stances would jurors prospective express who con imposing punishment consider of death?” against scruples penalty, scientious replied, the death Mr. Garcia “Correct.” The trial impose penalty and who question would not the death court’s was clear and appropriate, any circumstances, under set of could be response positive and Mr. Garcia’s jury panel excused from the being given for cause. The after made time for further con simply pa By decisive issue is not reiterating whether sideration. that he could not personal nelist has reservations about the penalty consider death under circum penalty, stances, death panelist telling but whether the can Mr. Garcia was the trial court set aside such put reservations and follow the that he could not aside his beliefs words, law—in panelist’s other whether the follow the law and court’s instructions. “prevent substantially impair views Douglas OK knowingly 4. The inapposite, right present cases relies on are danl to be waived trial); ability dealt deposition with the defendant's either which was used Larson (10th Cir.1990) present Tansy, confront witnesses or otherwise 911 F.2d 394-97 (error proceedings Sowders, jury. Compare before Carter v. where not include record did defendant's Cir.1993) (er- (6th personal right present 5 F.3d 980-82 during waiver of to be charge jury). ror where record failed to establish that defen- trial court's to the denied, police questioning, the 651, 660, ing product were of an cert. (1998). illegal sup- The trial arrest should been 142 L.Ed.2d 159 S.Ct. excusing pressed its discretion in under to court did not abuse the Fourth Amendment the II, is panelist. Proposition 10 denied. this Constitution and Article United States First, § 30 of the Oklahoma Constitution. Appellant 24 In Appellant go to claims his decisions tainted when the complains that his was station, police questions, and the answer then jurors prospective “indoctrinated” prosecutor apartment of consent to search his were all prosecu circumstantial evidence. The about involuntary. Alternatively, he claims that all the of inquired generally kinds tor about prior police the information had to his formal panelists helpful, find if the would evidence later, lawfully, if arrest hours even obtained essential, any criminal case. He probable was insufficient to establish cause. particulars of stayed mentioning of the clear disagree We on both counts. actually the intended the evidence that State Appellant authority for present. cites no evening 26 On the of November prosecutor’s manner of his claim that the 7, police processing were the scene and crime improper. purpose was The questioning witnesses, potential among interviewing them is to determine whether there are voir dire Brown, Appellant police Brian who told about challenge prospective jurors, for grounds to Saturday bringing checks on Mclnturff two bias, permit implied or and to either actual afternoon, police Way, Lisa who told peremptory chal intelligent exercise about the altercation between Mclnturff and lenges. Walker Appellant night. Based on this later ¶ 12, 516 U.S. information, they police and other decided (1995). 166, 133 L.Ed.2d 108 pres Appellant, wanted to interview who right find if prosecutor had a out discovered, ent when the bodies were lived unable, jurors as either prospective victims, watching next door simple principle matter of misunderstand investigation evening. all the crime scene ing, give circumstantial evidence the same Appellant “under Whether arrest” when evidence, as weight accorded to direct question depends him police asked to require them OUJI- law would to do. See in his circum person whether a reasonable (2nd) fact, In No. as the State 9-4. stances would have felt free to decline out, points the discussion revealed one D., request. v. Hodari officers’ simply law in panelist could not follow the California regard, and she later excused the ultimate test L.Ed.2d 690 While challenge. peremptory We find State with one, objective may an we consider the is claims that a Appellant no error here. also subjective impressions of the motivations and him presumption guilt was built around e.g. McCarty participants. See portions prosecutor’s discus because ¶48, 110, 121. 36, 904 P.2d OK CR occasionally hypothetical to a sion referred Having perpetrator as the “defendant.” Appellant claims that when offi- context, entirety exchanges read the questioning, in for cers asked him to come nothing improper. we find Dennis v. target already picked him a had ¶34, 24, 1227, 1233-34. part record suspicion, prior because of his proposition This is denied. ignores that of criminal violence. Brian and Lisa police had also asked Brown D. GUILT-STAGE EVIDENTIARY IS- ques- Way to the station to come down SUES suppression hearing, At the offi- tioning. pur- Admissibility evidence obtained asked if he would cers testified that when Appellant’s questioning suant questions, for additional accompany them consent to search freely agreed. Appellant did not hearing, testify although coun- Proposition Appellant In con wanting explored from sel the officers’ motives physical evidence taken tends further, presented question him made him dur- apartment, and statements forced, coerced, appeared sharp no that he was to have been shaved with a traveling object. police into to the sta- intimidated (In fact, testified tion. totality 30 Reviewing the of the evidence freely police accompanied that he to the time, known them at we find that the station.) Considering at the police probable Appel cause to arrest difficulty suppression hearing, we have no lant. Mollett v. concluding in person Ap- that a reasonable 1, 6-7,

pellant’s situation would not have forced felt L.Ed.2d This comply request. to with the officers’ McCar- proposition is denied. ¶ 36, ty, OK at 121. 904 P.2d station, police Appellant Once at the relating 2. Evidence and instructions to silence, right agreed of his to advised to and Appellant’s post-offense suicide at- questions anyway. signed answer He also tempt police formal consent to allow to his search Proposition Appellant 31 In Again, reviewing transcript home. after alleges error in the admission of evidence suppression hearing, we no evi- find argument relating post-arrest and to his sui compulsion. dence of Hommer v. attempt; alleges in he cide ¶¶2, 10-14, Ap- OK that the trial court’s to the instruction pellant’s questioning decisions to submit to how to on evaluate this confus apartment and to a search of volun- his arrest, ing. Approximately a month his after tary. Appellant attempted jail suicide in his cell. act, committing Appellant Before wrote ¶28 police probable had cause family, despairing letters to his and wife of Appellant place to search under arrest after maintaining his situation but his innocence of apartment ing police returning his and to the the ci’imes. He then cut his neck several By time, police station. had also talked quickly with a Appellant times razor blade. with Brown Way, Appellant’s and and ac change help; had heart called he count of the events of November 5-6 was at lying found Ap face-down on his bunk. odds with their statements about the checks pellant suffered substantial blood loss and they he had written to Mclnturff and what hospital was taken to a where he underwent Appellant apparently were for. unaware wounds, surgery. recovering While from his Way was with the victims later officer, “They’re going told an evening and had seen the in the vic cheeks witnesses, anyway, kill me man. I have no apartment tims’ hours after alibi, ex-convict, I’m no an don’t believe Mclnturff claimed had returned them. anyway, I’m depressive me a manic I just don’t care.” ¶29 The checks were found ¶32 scene, deposit slip, letters, crime but Appellant’s Sloniker’s re- Evidence of two them, Furthermore, ferring surrounding was. circumstances the sui during lant told pre-arrest attempt, Detective Fike cide were admitted into evidence questioning standing Appellant’s objection. that from front over Appellant had doorway apartment, “fig- the victims’ moved limine to exclude this evidence. cut; Fike, ured” the victims’ throats were argued Appellant’s The State suicide scene, personally who attempt had been testi- tending was relevant as show his fied that identity could not deter- guilt, consciousness of ie. his as the vantage point, mined this from perpetrator and that of the murders. re fact, police sponded ambiguous surmised victims died that the evidence was too gunshot from any probative wounds to the head until later parties to have value. Both Monday evening Appellant was al- maintain arguments appeal. these Be —after ready police at the Appellant timely objected station —when the Medi- cause to the evi cal question, Examiner was first to turn preserved any the bodies dence he has er still, over. Further appellate Detective Fike testified Bryan ror review. ¶ 33, patch that a of skin forearm 1997 OK CR it physical appearance). Whether amounts parties cite no Oklahoma authori- 33 The admissibility departure directly addressing immediate from the crime ty evidence, scene, of none. subject we are aware subsequent failure himself such analogies evi- parties between process, any attempt draw legal Both to otherwise attempt- post-offense him, a defendant’s against dence of proceedings influence the de- a defendant’s and evidence of ed suicide may be post-offense fendant’s conduct rele- appro- term of art most flight. “Flight” is a identity perpetra- vant to establish as the the defendant’s priate describe evidence of original tor of the offense. shortly after departure from the crime scene case, in this Turning particulars to the Flight evi- the commission of the offense. Appellant’s attempt- find the evidence of we category post-offense one dence is but as it to show ed suicide was relevant tended conduct, “admis- sometimes referred identity guilt, his consciousness conduct,” may relevant to sions which primary perpetrator the was the contested guilt, consciousness of show the defendant’s in issue the case. contends it i.e., identity perpetrator of the as the his just for would have been as reasonable the Although charged admissions offense. jury Appellant attempted to infer that suicide of always constitute evidence conduct do not despondency being to a of “out of due fear acts, crimes, 12 or wrongs, bad see other certainly prove to his innocence.” unable We O.S.2001, 2404(B), overlap. § the two often agree an could be that innocent inference State, v. OK generally Anderson 1999 See supported by Appellant’s own ¶¶ 10-15, 409, 44, P.2d CR 992 depression, his the of the about substance ¶ contexts, long variety we have 34 In a attempt, before the and the letters wrote issue evidence is admissible the held such made after it. But statements he identity guilt.” For or “consciousness admissibility particu- the of this has confused has example, the defendant evidence support a sufficiency lar evidence with its to threatened, intimidated, attempted to by itself. conviction might called to testi bribe witnesses who be against original him is fy for the offense particular piece The that a 36 fact State, e.g. Powell v. generally admissible. See subject interpreta varying to of evidence is (intim 510, 527 2000 OK 995 P.2d CR not, itself, render it inadmissi tions does idating change testimony); to Gideon witness always is Relevant evidence almost ble. ¶ 10, State, 112, 721 P.2d v. subject interpretations. to alternative Such 1336, “drop (threatening to 1338 witness normally jury to are for the considerations 140, State, charges”); OK Wills v. 1981 CR post-offense A con consider. defendant’s ¶¶ 372, 9-10, (attempting to 636 P.2d 375-76 any degree if in to is it tends duct relevant court). appear in Evi to not bribe witness guilt, should not and show consciousness attempted alter dence that the defendant unless it concerns matters that be excluded destroy physical evidence also admissible. in case and the issues would overshadow State, 1993 OK 867 Paxton v. CR jury punishing into defen distract 1317, 886, 1309, 513 person. See 12 simply being a bad dant 227, Evi 130 L.Ed.2d 153 O.S.2001, may §§ 2401-04. be mor Suicide attempted to es the defendant dence some, we not ally but do believe offensive himself, confinement, cape conceal alter person attempt it tends to characterize detection, appearance to or otherwise avoid morally person deserves ing it as a bad who judicial proceedings may also tried to evade certainly not an act punished; and it is to be guilt. be to show consciousness of relevant inflammatory nature to distract of such State, 76, e.g. Honeycutt OK v. CR See jury it. from the issues before (defendant ¶ 19, jumped 754 P.2d ¶ Moreover, Ap- ¶¶ which manner in bail); 15- v. OK Smith was, (defendant life in the State’s pellant tried to end his attempted estimation, trial); greater significance than the jailer appear failed to bribe razor blade 464, 188 attempt used a P. itself. v. 17 Okl.Cr. Almerigi (1920) (defendant cuts to his neck. The to make two cuts altered facts, significant jury deep enough bleeding, cause ince of the to determine the death the conclusions to be drawn from them. almost bled to before him. authorities rescued The victims ¶ 40 not Those concerns are relevant here. case death similar circum- bled to under identity person committing The stances, prosecutor argued Ap- case, post-offense conduct—in this the sui- pellant’s had the conduct showed he “mental attempt—was dispute. cide Nor was toughness” “put living cold steel to a jury presume anything Ap- told to about similarity way throat.” between pellant’s jury conduct. The was instructed killed, way which the victims were and the Ap- that it should alone determine whether himself, kill Appellant attempted which pellant’s in cutting conduct his own throat entitled to something con- guilt was done with both a consciousness weight might sider for whatever it deserve. so, punishment, desire avoid and if weight, any,

what if should attached long 38 We have held in order instruction, that evidence. We find the sub- relevant, to be evidence need counsel, conclusive sufficiently mitted defense ly, directly, or even establish defendant’s fairly applicable clear' and stated the law. legal guilt. “Any from which the See Roldan jury may guilt 285, 287; adduce the or innocence of the Saugstad if, defendant admissible is when taken with Proposi- OK CR case, other in evidence the it tends to estab 2 are tions and 3 denied.

lish a fact in material issue.” Ashlock v. relating of evidence Exclusion to vic- State, 134, ¶7, 669 OK P.2d possibility tims’ bad character and the 310; O.S.2001, § see also 2401. The evi suspects of alternative admitted, prosecuto- dence properly was commentary rial which might inferences trial, Appellant proffered 41 At ev it permissible. be drawn from was concerning drug idence Shane Mclnturffs activities, purchases, gambling and financial ¶ 39 we Ap- Because find the evidence of preceding worries in the months his death. admissible, pellant’s attempt we suicide need This, along pieces with various other of evi only jury consider whether the instruction dence, guilt stage was offered the to show confusing regarding it was so as to have possibility the may that else someone of misled the finder fact. We first note that victims, killed the and was re-offered in the by the was prepared instruction defense punishment stage to counter evidence of objection given by counsel and without the by good presented Mclnturffs character State or modification court. the impact the victim witnesses. The trial court argues lant now that court the trial erred in refused to stage admit evidence either giving attorney the instruction that his craft- Proposition Appellant of trial. In claims ed attempting because he never denied sui- the denied him his exclusion constitutional cide, and because he never admitted commit- rights present to confront a witnesses ting the murders. These considerations are disagree. defense. We language dealing derived from in cases with ¶42 Questions concerning the rele flight evidence of a defendant’s from the vancy particular of are within evidence the flight scene of the crime. held that We have court, discretion of the trial and its (1) resolution improper pre- instructions are if of will those issues not be disturbed a sume, law, absent unexplained as a matter of that abuse, showing accompanied by clear of prej departure from the crime scene demon- udice to the accused. v. Dennis guilt, strates see consciousness Wilson v. ¶ 15, OK 139-140, Re 96 Okl.Cr. garding (2) suspects, evidence of alternative (1952); we 74-75 person or that the assume have held: defendant, leaving the was scene the when [Ejvidence dispute, that fact is in see that Mitchell offered to show some other ¶56, 13, person charged OK CR 685. In committed the crime must ease, fact; prov- either court person the has invaded the connect other with such deny right. Appellant him this part anoth- worked to on the is some overt act what, presenting simply was barred from of the crime the commission er towards determination, discretionary acts the trial court’s evidence of There must be itself. probative fact clearly point to did not tend tend circumstances fact, Appellant And in another, issue. able [It than the accused.... rather argument many present possible motive on evidence enough to show is] subjects another; alternative-suspect he lists as must part of example, person evidence. For was made by the third an overt act show possessed parapher- that the victims of a crime. aware commission toward the only drugs, ingesting nalia not but for ¶ 47, OK CR Woodruff testimony distributing Expert them as well. DNA recovered showed that some from 349, 126 L.Ed.2d not match vic- bloody hand towel did either proffered the defense 43 The evidence Appellant, and that numerous latent tim or act an overt failed establish from crime did fingerprints lifted scene fundamentally, it failed party, third but more Appellant. not match either the victims with a party identifiable third to establish an addition, Appellant presented expert testi- In Mclnturff or Sloniker. motive harm either mony that a as- as to unlikelihood lone of evi proffered pieces several The defense victims in sub- sailant could have held two was, dence, specific one item but the more restraining them in mission without some with likely more it inconsistent oth manner, presented addition, its own In the State made ers. killing was reminiscent of the manner representations of the proffer, from the Thus, Appellant gang permit- violence. hearing prosecutor pretrial motion ted, parameters Evidence within defense), (which by the it were not contested Code, attempt support to advance and appears investigation along these alter existed that he claim that reasonable doubt actually dispelled of the native most lines perpetrator. was the by proffer. suspicions raised the defense’s whole, proffered evidence Taken as a ¶ agree Appellant 45 Nor do we with drug that MclnturfFs suggested Shane any proffered that evidence became this him have caused gambling use and could stage in coun punishment admissible any people. with number be on bad terms by impressions impact left the victim teract point any in evidence did Because the testimony. simply it was relevant Some per particular particular or to direction cu character. The rest was to the victims’ son, only to it amounted evidence mulative, in if it was admissible even character, such, and as was inad victim’s bad give punishment stage to details additional guilt stage of trial. See Con missible in the character, any error in its bad victims’ ¶¶6, 25-27, CR over OK beyond a reasonable exclusion harmless 904, proffered 912. Because evi Conover, Compare OK doubt. entirely specula ambiguous and dence was (trial ¶¶ 77-80, at 922-23 court 933 P.2d suspect, potential as to alternative tive preventing defense from counteract erred in its in court did not abuse discretion trial impact good ing evidence of victim’s victim excluding guilt stage of trial to it from the use). drug with evidence of his character O.S.2001, avoid of the issues. confusion the evidence The was well aware from 2401-03; OK §§ Romano v. guilt stage in of trial that the presented aff'd., 847 P.2d using, purchasing, were involved victims 2004, 129 L.Ed.2d illegal drugs. secret selling The victims’ acknowledged drugs was reject involvement with Appellant’s claim that We also family testifying as members his constitu- some of barring evidence violated do not believe impact We right prevented it victim witnesses. to fair because tional impression of would jury’s the victims mounting Appellant has him from a defense. materially altered additional general been that the rules not demonstrated Code, gamble, or that liked relevancy, evidence Mclnturff codified in our Evidence by specific drug purchases. of his instances Brown testified that Mclnturff “seemed a angry Rocky owing money.” proposition This is denied. little about him testimony Appel Brown’s that hearsay 4. Admission of and evidence of approximately lant owed Mclnturff for $800 Appellant’s other bad acts drugs hearsay, and was met with a timely objection grounds. defense on those Proposition Appellant challenges In46 personal knowledge had no Brown of how various introduced at trial on statements money, any, Appellant much if owed Mcln- grounds they that constituted inadmissible turff, and explanation why the State’s hearsay improper other-crimes or and/or necessarily statement was as admissible bad-acts evidence. Moreover, that it sumed was true. the state ¶47 presented that State murders, ment made before the months Appellant obtaining methamphet- had been money so its relevance as to amount preced- amine from Mclnturff the months However, allegedly questionable. owed is we ing the murdei-s. The State endeavored say prejudiced Appellant, cannot this error that show the murders were motivated evidence, given particularly other Appellant’s Appellant’s fear that Mclnturff about to testimony, buying own that he had been Appellant’s drug reveal use to methamphetamine from Mclnturff for some wife. Most of this evidence came from Brian time before the murders. Smith v. Way. outset, Brown and Lisa At the we note 17, ¶ 9, regard testimony with most of the ¶ 50 it Because referred to concerning various statements Mclnturff observations, them, own Brown’s made to made in presence, their Saturday, the afternoon of November Appellant lodge contemporaneous failed to Appellant saw deliver one objection, check to Mcln- objected grounds on technical turff, saw a second check from not relevant here. wallet, hearsay. Mclnturffs was not Orn hearsay objection, 48 Over a defense Bri- ato Brown an testified Mclnturff had once 286, Moreover, preju could be there no (Mclnturff) him said owed about giving dice because admitted Brown, drugs. According Mcln- $800 afternoon, Mclnturff two checks suspected turff breaking into his eventually drugs. admitted were for apartment early stealing 1994 and why own Brown’s advice to Mclnturff as to Way drugs. gave cache of Lisa similar testi- quickly he should cash the checks was not mony. Brown that testified on November 6 hearsay, rely as it on any did not the truth of he Appellant observed come to the victims’ declarant; by any other statement other as check, apartment a and deliver which Mcln- testimony, we read the Brown’s advice was placed Appellant turff in his wallet. After regardless offered in whether Mclnturff left, opened Mclnturff his wallet showed and Shelly to tell Appellant’s tended Dodd about check, along Brown the with a second $70 drug use. check, Appellant also from and for the same amount. Appellant Brown testified that was 51 Mclnturffs pro statements repaying “crank,” Mclnturff for fessing Appellant or metham- a belief that had stolen phetamine. day money drugs apartment Brown testified that on the and from his earlier checks, Appellant have him the yéar hearsay, they two that were not because $70 Mclnturff considering giving had, said he was prove the were not offered to that fact, Appellant’s “letting theft, checks to wife and her committed and the did things going falsity know of some on.” depend When asked the truth or that claim. meant, Rather, replied, “Drug that what Brown use.” explain were offered Mcln- reaction, Brown testified specifically anger that advised Mclnturff to turff s his toward quickly [Appellant cash the checks Appellant, “while when he realized someone had got money up has] still drugs again night back stolen his on the of No defense, objection checks.” With no vember 1994. Mclnturffs accusation that however, larger question, is the drugs his on November Appellant had stolen the ultimate fact that the relevance of State its truth. Mclnturffs offered for 6 was not trying to establish —Mcln- suspicion it was solely on that claimed his anger was based Appellant. Nothing alleged fear of that turffs culprit, and while Appellant was depended theory of the case part in Mclnturffs about may played a State’s anger to frater- Appellant’s such fear. Melnturff continued to reveal to threaten motivation drugs. In- wife, with and sell him it was Mclnturffs nize drug use deed, anger inno- confrontation Appellant’s guilt actual or Mclnturffs and threat —not provided missing drugs, motive over the cence as to the theft —that with O.S.2001, drug report Appellant’s to kill. See 12 for his threats to use Omaha, 2801(A); wife, dampened by P.2d at 297. Even apparently § crimes suggested any part. Wadley if this evidence other fear on Mclnturffs See it by Appellant, wrongs possibly committed 1976 OK (“[W]here just particu- reasons otherwise admissible at a was hostile emotions tending case, specified, probative proved and its value time to be in a lar are the murders was not establish a motive for the same emotion in the same existence evidence”) prejudicial substantially outweighed proper its at time is person another 2803(3). added). O.S.2001, 2404(B), alleged §§ (emphasis Even if the Fer- effect. pause, give incident Melnturff

ris Wheel did simply fact not relevant to the on direct 52 Brown asked Rather, point case. the obvious had ever de issues this whether Melnturff examination portray Appellant this as behavior on of evidence was “obscure weird” scribed person with “obscure or part. generally Brown a bad testified murders, behavior, person regard with little weird” unspecified some time before improper it Ap human life. As him an incident where such Melnturff told evidence, driving; which had no visible pellant gone Melnturff had bad-character murders, park, to the trial upon passing Appel an amusement connection car, it. 12 pointed a should not have admitted O.S. allegedly got out of the court lant 2401-04; Rushing §§ park’s gun in the direction of the Ferris Wheel, According to 850-51. and fired several shots. Brown, put this him Melnturff said incident possi- a reasonable 55 Whether there is prompt life.

in fear of his When defense bility that affected the outcome this evidence hearsay ly objected as trial, however, separate question. is a evidence, the State irrelevant other-crimes guilt properly admitted From evidence it argued it was tended admissible stage was aware of mind.” show Mclnturffs “state See collection of knives other lant 2803(3). O.S.2001, agreed, § The trial court copy of weaponry, had a borrowed lethal determining exactly what testi without first which described “The Anarchist Cookbook” mony anticipated. ways killing people, had his own of efficient ¶ 2803(3) kill magazines describing how to collection of of the Evidence Code 53 Section (discussed 8), Proposition and had a in people made an out-of-court permits statements beginning early an history of violent criminal declarant which show the declarant’s state flavor of the mind, age. of Unlike the indiscriminate specifically it bars “statement[s] but incident, the murders alleged fact Ferris Wheel memory prove to the remem- or belief very personal assault If intended in this case involved or believed.” the State bered jury motive. The was of an identifiable only that Melnturff was afraid with show Appellant’s other that evidence expression that of fear instructed Appellant, then merely however, not or bad acts was offered hearsay; supporting the details crimes conformity in therewith. Con- hearsay, show he acted fear were because Mclnturffs that which sidering the other character evidence necessarily depended whether the fear trial, is, this properly we find truth the admitted the incident occurred —that beyond a reasonable error was harmless matter asserted. 1036 excluded; automatically 2 before trial is not

doubt. Welch party 356, opposing simply given the must be 370. opportunity prepare

fair for its admission. (E)(2). O.S.2001,§§ 2002(D), 22 See of evidence homicide lit- Admission Appellant’s erature in home The record indicates that 8, objects Proposition Appellant In prosecutors promptly informed defense coun testimony concerning maga- newly-discovered trial “homicide sel of the evidence on Janu apartment. Appellant’s ary in began. zines” found about a trial week before Mullins, father-in-law, nothing Martin testified in suggest that There is the record to arrest, that Appellant’s deliberately about a after while the State knew about and week helped daughter prior move out of withheld the evidence to that date. magazines ample opportunity Defense counsel had apartment, he found several in it, were, it, prepare given jury selection con put which as he bedroom trial; sumed the first two do it.” weeks of testi “related to murder and how to One of mony actually presented to the magazines photograph had a with the twenty-five days some after the defense was your target’s caption, to cut throat and “How notified. magazines leave no evidence.” The them- evidence; selves were not into introduced objected 59 Defense counsel when Mullins testified that he had thrown them offered, testimony counsel admitted away cleaning apartment, when under receiving supplemental discovery State’s assumption police already seized trial; claim, notice before counsel did not everything felt was relevant. Mullins demonstrate, much inability less an either prosecutors first in early told about his find prepare diligence for the evidence or lack of January years 2002—over seven after the part obtaining on the or relaying State’s it. murders, about a week before this part We find no misconduct on the testimony began. trial Mullins’s about the prejudice no unfair Appellant. was, however, magazines corroborated to See Powell v. degree by testimony some of Malinda denied, cert. 531 U.S. Anderson, cousin, Shelly Dodd’s who stated 5.Ct. 148 L.Ed.2d 258. Given the man magazines she saw similar the Dodds’ killed, ner in which the victims were bedroom in mid-1993. Anderson discussed testimony unfairly prej was relevant prosecutors her but find with Mullins O.S.2001, §§ udicial. 2403-04. Cf. of her unaware information well until ¶¶ Slaughter 22-27, CROK January 2002. 839, 849-850, ¶57 L.Ed.2d 163 testimony claims that proposition This is denied. (1) excluded,

should have been because (2) it, diligence obtaining State lacked regarding Admission notify State failed counsel defense about it crime-scene bloodstains (3) days within ten before it was unfairly prejudicial. disagree. We The Crim- 60 In Appellant complains Code, O.S.2001, inal Discovery § expert testimony regarding 2001 et bloodstains seq., provides for fair disclosure found at the crime was improperly scene anticipated Generally, Douglas Perkins, to be used at trial. spe- admitted. forensic days required. disclosure ten is within of trial cialist with the Oklahoma Bureau State 2002(D). O.S.2001, parties § Investigation, are un- testified about the results of continuing duty a promptly scene, der to luminol disclose tests conducted at the crime any newly-discovered they primarily information antici- in and around bathroom the sink. 2002(C). O.S.2001, pate using § trial. 22 specialist Perkins and forensic Tom Bevel specifically contemplates Given that Code a swipe the testified about blood on found the possibility foot, the becoming right new evidence bottom of Keri Sloniker’s and id., begun, comparisons after trial shape available even has see between its and the di- days hunting evidence that is than discovered less ten mensions of A1Ames’s knife. Prior

1037 State, 74, ¶ 25, P.2d 909 evidence Appellant moved exclude denied, 855, 151, 117 519 136 lim- cert. U.S. testing, because the regarding luminol (1996) (improper opinion regard procedure per- L.Ed.2d 96 in the and inherent itations evidence); McCarty blood-spatter v. particular ing in its use in this deficiencies ceived 271, ¶¶ 6-8, 765 OK CR P.2d mo- 1988 investigation. The trial court denied the 1215, opinion regarding objections (improper 1218-19 did not renew tion. evidence). testified, hair-comparison Bevel so we Perkins or when either Simpson v. error. only plain for review jury “no Appellant’s 63 claims that the ¶ 2, CR 876 1994 OK that a luminol reaction con doubt” assumed finding possible testified Perkins clusively presence the of human indicated in victims’ bath- blood, blood the traces diluted that was Perkins’ presence or defense, sink. The absence blood room simply the “devastating” to are conclusively sink was never deter- in the by the it supported record. Perkins made that the also testified blood say mined. Perkins could not with explicitly clear that he was not inconsistent swipe on foot Sloniker’s certainty areas which reacted whether the knife, hunting the of Ames’s actually with dimensions luminol contained the victims’ shape of with the blood, it was inconsistent but any blood for that matter. He Appellant’s apartment. knives found thoroughly the limi on was cross-examined murdering his theory was that after testing. State’s of luminol own tations victims, wiped the perpetrator blood off the expert also testified about luminol’s of Sloniker’s weapon onto the bottom murder strengths v. and weaknesses. See Harris foot, bathroom, and 20, ¶¶ 27-28, into the washed walked A weapon the sink. denied, himself the 489, 496-497, and/or cert. (2001).

hand towel from the victims’ bathroom 121 S.Ct. 149 L.Ed.2d apartment complex dumpster, relevant, found the as The luminol results were was linked drop and a of blood on towel may perpetrator have suggested that through testing to Shane Mclnturff. DNA something with the victims’ washed covered sink. This the victims’ bathroom blood ¶ Appellant Perkins’ testi claims be corroborated other inference could mony should not have been admitted because injuries facts: that the fatal cre undeniable unreliable, testing is and therefore luminol blood, weap no large amount of that ated dis opinions lacked foundation. We Perkins’ scene, that hand was left- at testing, luminol agree. have held that We towel, belonging to the victims and found sufficiently procedure, is reliable a scientific murders, apartment after the dumpster purports presumptively for what it do: An also with blood. inference stained possible presence of blood. See indicate the may cleaned him perpetrator ¶ 22, Robedeaux OK weapon before leav the murder self and/or reach, nor was not difficult to ing the scene Appel 130 L.Ed.2d “devastating” arguably it even mistakenly presumptive, i.e. equates lant defense, on the claim that which focused inconclusive, procedure with an un scientific simply perpetrator, inadmissible, reliable, To and therefore one. no emphasized which traces admissible, need not be irrefut effects, Appellant, were found on blood anything; it ably conclusive of must from A1 he had borrowed or the knife particular of a tend make existence Ames. probable. consequence fact of more or less opinions O.S.2001, As Perkins’ and Bevel’s Regarding § scientific swipe foot was is on Sloniker’s specialized knowledge, inquiry the relevant blood knife, hunting with Ames’ procedure is reliable “consistent” whether used by that knife: there “could have” been made enough purpose, its and whether stated opinions were these conclusions is no indication was misled as specialized knowl- any particular based be drawn therefrom. See which could the di- 2403, 2702-05; edge, comparison between O.S.2001, §§ Romano 1038 suspected weapon truly identity contested

mensions of the murder issue was of the swipe jurors was one perpetrator. and the blood could He claims the also evidence him, expert unfairly prejudicial See make without assistance. Wac was to because the ¶ 22, State, 55, oche grisly likely v. 1982 OK CR nature of the evidence was to 568, testify (experts should about an response jury. 573 evoke emotional from the jurors matters which the can determine for is no error There here. We have often noted themselves). Yet, lodge trial gruesome counsel gruesome did that crimes make for objection contemporaneous to testimo photographs; this crime-scene the issue is wheth ny, thereby waiving plain probative all error. but er the of the value evidence is 61, 60, McCarty substantially by v. 977 outweighed prejudicial its 1116, Appel O.S.2001, 2401-03; fail 12 §§ P.2d 1132. We to see how effect. Le v. testimony. 55, prejudiced 25, lant Both this OK cert. denied, experts they it clear that could not made 524 U.S. 118 S.Ct. (1998). any particular “match” knife the blood to L.Ed.2d 702 The State was entitled swipe, although felt confident that the to corroborate the of its forensic in Appellant’s experts knives own collection were too about the nature of the wounds and weapons narrow to have made the mark. Defense kinds of that could have inflicted highlight them, was, fact, counsel chose to that fact cross- which a contested issue. prosecutors’ McGregor examination. The comments at points during victim), various trial that Ames’s knife (photographs 1378-79 (or effect) swipe denied, matched the words cert. overstated, jury (1995);

were at times but the L.Ed.2d Smith (victim’s instructed that comments not evi these were 1370-71 dence; noted, and as the limitations of the clothing), blood-stained apparent evidence itself were from the ex 97 L.Ed.2d 780 fact, pert testimony. closing, In in final manner of death in this case was itself prosecutor jurors handle gruesome; invited perpetrator’s evidence of the physical during evidence deliberations and hardly handiwork could Any otherwise. response determine the issue themselves. emotional elicited this evidence product perpetrator, was a not the ¶ 65 Error occurs when the offers State proposition This State. denied. is reasonably scientific conclusions cannot procedure be drawn from the such used. No E. GUILT-STAGE PROSECUTOR MIS- error here. occurred The State’s forensic CONDUCT experts’ findings were relevant the man- ner in which the victims were killed. The Proposition In com- methodologies, limitations of their and the plains prosecutor improper used conclusions, resulting qualifications on their techniques cross-examination on him when explored thoroughly cross-examina- guilt stage he testified in the of the trial. through presentation tion and 16(A), of defense Proposition In Appellant lists numer- expert misled, testimony. The which, was not prosecutor ous instances of conduct by testimony argument, either claims, as to the denied him fair trial in the which could inferences be drawn from this guilt stage.

evidence. 4 is denied. ¶ Appellant complains first of several prosecutor instances where attempted, gruesome 7. Admission of ev- crime-scene objection, get over him admit certain idence obligated prove elements the State was 66 At the State offered into either a obtain murder conviction a death clothing evidence the worn the victims at sentence. The trial cut off court some of death, photo time of questions their and several these sua sponte, sustained graphs of objections others, the victims at In the crime scene. defense such as whether Proposition 12, Appellant claims believed the victims had been irrelevant, aforethought, because killed with malice whether the police using illegal he to to learn that was great risk of death want posed a killer’s acts drugs, particularly he a convicted the killer’s since was person, whether than one more continuing threat felon. posed he conduct showed the victims were society, and whether

to subject of reaching the When prosecution. to lawful arrest or killed avoid prior felony Appellant the lant’s details it, ap- police about defense counsel gave to the trial court refused 69 Because questions, trial proached such the bench and informed the Appellant to answer permit if, pursuant to trial Torres v. 1998 OK court that the court’s was no error. there 17, limine, ¶40, 3, 45, ruling in that offense 962 P.2d the details of impeachment 142 L.Ed.2d 683 going 119 S.Ct. were to be admissible for (1999). by the questions permitted purposes, she would rather them be revealed along lines to issues court these related We find that under trial on direct examination. (1) clearly dispute, circumstances, such as the fact not the rul- these trial court’s killed, they people had been proper, particulars two as ing in limine was did unlawfully. Defense counsel killed prior been under offense were admissible object prosecutor Appel asked 2608(B)(1) when the § im- of the Evidence Code to of a previously (2) if been convicted lant he had credibility; defense peach Appellant’s violence; of felony involving the use threat by choosing error to counsel waived felony ad prior conviction was examination, subject on direct broach the credibility a wit impeach his as missible “sting” having thereby avoiding of them O.S.2001,§ ness. See on prosecutor cross- first revealed examination, Jones v. see complains also (3) 830, 834-35;5 surrounding his crimi that the factual details Appellant’s criminal record was es- because during history improperly were admitted nal explanation, his witness sential prior stage. a witness’s con guilt While stand, during police ques- why of he lied to offenses, any crime felony victions for tioning, counsel’s considered strate- defense generally dishonesty, are admissi involving inquiry line of gy opening the door this witness, credibility impeach his as ble reasonable, professionally see Strickland prior offense the nature and details Washington, 466 U.S. relevant, unduly may may not be 80 L.Ed.2d if is accused. See prejudicial the witness id.; State, 1987 OK Robinson ¶ Appellant opened also the door However, specific 1090-91. specific instances cross-examination about (whether instances of the witness’s conduct may not have prior criminal conduct which conviction) they in a criminal or not resulted conviction, and all of which in a resulted they if on cross-examination are admissible dishonesty commit when were involved for on his “character truthfulness.” bear Again, Appellant did on direct ex ted. 2608(B)(1). O.S.2001, § amination, volunteering information about ¶71 probation prior conduct while on Appellant’s criminal his The details of probation robbery, implying that he had history directly to his credibili- relevant minor, technical, or unfair rea first ty revoked as witness. When cross-examination, ease, pressed on police sons. When questioned in this were aware interview, probation had that his During the admitted his criminal record. part to the fact large due an at- been revoked Appellant made false statements larceny, that he at robbery. he prior in a committed tempt diminish his role escape custody proba tempted to During direct examination at away and by pushing her crash tion officer police he about several explained that lied A probation office window. writing ing through things, purpose such of his Mclnturff, offers one-sided versions not witness who because did two checks States, prior direct examina- evidence of conviction v. United 5. See also Ohler appeal may that admission tion not claim on 146 L.Ed.2d error). (2000) (defendant preemptively such evidence who introduces subjects graph responsive past prose- own himself to cross- test were to the conduct showing jury aimed at the questions examination any cutor’s and were not met with telling the whole truth about that objection he is not by defense counsel.6 The results of therefore, conduct, cannot be trusted and to jury that test never were disclosed. The was tell about other matters the truth either. specifically any instructed that references to surrounding Appellant’s prior The details fel- polygraph were not it to tests consider. ony probation conviction revocation were Any Shep- error was either waived cured. on cross-examination admissible because pard v. 1983 OK CR they credibility were relevant to his as a 604, 605-06. O.S.2001, 2608(B)(1); §

witness. 12 Haw- ¶¶ 7-8, kins v. Appellant lists several other 1158-59. guilt-stage prosecutor instances of commen tary improper. which he were contends cross-examination, during Also timely objection, Most not met were with a prosecutor Appellant why the asked his wife any and we find no error in reversible had never been offered as a witness to cor them. nothing improper There was about that A1 roborate sudden claim Ames’s dire, prosecutor stating, in voir that the knife had in her all been car weekend. specifically State would ask the death nothing improper ques about There was this case, penalty in Appellant this cites no tion. Where evidence indicates that an authority relevant holding otherwise. Al other witness has information corroborate though Appellant complains prosecu that the account, improper the defendant’s it is not referring tor Appellant’s made comments prosecutor for the on comment the failure sentence, note, prior trial death we from present of the defense that witness. Jack dire, many jurors voir record of had son v. vague procedural some information about 388, 389. history required of this case. Jurors are not ¶ Appellant prosecutor claims ignorant totally to be of the case are deliberately referring tricked him into to the empaneled try. Both counsel and the previously fact that had he been sentenced to great pains throughout court took this trial case, death in this and to the fact that he had avoid, possible, any much as references previously polygraph taken a examination. to “the first trial.” We no find evidence that subjects brought up by We find both prosecutor deliberately interjected any himself, Appellant prosecutor. not the The jurors might information some not have al prosecutor inquired about Internet sites de known, ready sought or that he to dimmish scribing Appellant’s Appel case whether jurors’ responsibility sense of for deter lant approved He them. did this to and, mining guilt or if necessary, innocence impeach credibility, Appellant’s because Romano, appropriate punishment. 1995 OK much of the information about case on ¶¶ 49-52, 114-15; 909 P.2d at Bre particular simply one site was inaccurate and cheen v. It Appel slanted favor. lant, prosecutor, not the who described a 1063, 122 L.Ed.2d 368 organization second with Internet informa comment, prosecutor’s tion case “all prisoners during about his as one for opening objection, death row.” statement and Defense counsel did not without object swipe ask be admonished the blood foot Sloniker’s disregard Similarly, Appellant’s “perfect answer. match” with Ames’s knife was several having poly- references to taken a expert clarified considerable forensic tes- fidentiality by volunteering, claims trial rendered counsel ineffec- concerns in front of attorney-client tive assistance violated the the trial jury, interjected subject fact that he court, privilege telling out of the polygraph against tests the advice of counsel. hearing jury, that she had advised O.S.2001, § See 12 fails to dem- any polygraph lant that the results of examina- prejudiced onstrate how counsel’s argument tion were inadmissible at This trial. is statement the court. Appellant personally waived meritless. con- experienced, prepared, and zealous advo- timony subject. See discussion of on the may single 4. A comment made with cates. That zeal have overtaken them incriminating objection force about the times. concedes in his briefly out Appel found magazines reproach. the homicide beyond neither brief that side apartment, of the medical lant’s reiteration considered the We have instances that these knife examiner’s in complains carefully, light of of the entire worst he had ever some of the wounds were conduct, record, say and cannot that this seen, secretly un implying that accumulation, alone in out- or affected the living victims’ room window when locked the This is proposition come of the trial. denied. inside the the bodies were first discovered (to make it look like the apartment locked F. OF THE EVIDENCE SUFFICIENCY permission), perpetrator entered without SUPPORT CONVICTION TO required Appellant such evidence that ¶ 9, story,” closing-argu up Proposition Appellant with a In contends “come 79 a “bru presented ment assertions evidence at trial in- improper, killing were not tal amateur” support his convictions. sufficient in fair comments and reasonable but were argues lant that because the State’s case presented. on the evidence evidence, ferences based largely consisted of circumstantial State, ¶ 38, 20, OK CR 13 Harris v. 2000 stringent sufficiency-of-the-evidenee a more Eliciting testimony Appel P.3d apply test should on direct review. dis-We had, murders, lant months before the agree. pain feigned illness to medication was obtain ¶ prior by invited counsel’s cross-ex defense no 80 The law makes distinc timely and was not met with a amination tion direct and circumstantial evi between State, 44, objection. Mayes v. either, two, dence; any or of combination denied, 88, 1311, 1288, P.2d cert. 513 887 support may be sufficient conviction. 1260, 1194, 115 S.Ct. 131 L.Ed.2d 140 U.S. State, 79, 8, CR Clark v. 1983 OK (1995). (2nd) 1065, 1066; 9-4. No. Rare OUJI-CR ever, ly, against if is the case a crimi State’s ¶ Appellant 78 also makes several entirely entirely cir nal defendant direct complaints characterizing prosecu the lead nature Regardless of the cumstantial. general, in tor’s conduct melodramatic evidence, one which there is but standard particular, sarcastic about proven of must be each element the offense during testimony. emotional demeanor conviction, by proof and that is to obtain prose cross-examining Appellant, the While beyond Winship, re a reasonable doubt. In question as a cutor made a comment couched 1068, 1073, 358, 364, 25 397 90 S.Ct. U.S. asked, you’re when “This is hard when (1970); Flores OK L.Ed.2d 368 v. 1995 having fly, type it on isn’t it?” This to do ¶ 15, denied, 9, P.2d cert. CR 896 expecta question, asked without real 1002, 548, L.Ed.2d 450 516 116 S.Ct. 133 U.S. purpose for the tion of an answer and (1995); CR D.R.R. v. 1987 OK credibility, gratu attacking is the witness’s 310, jury in is 311. Just as However, improper. it is not im itous and give equal attention to structed to direct prosecutor to comment rea proper for evidence, task on direct circumstantial our on the defendant’s sonable inferences based regardless of the nature is the same review demeanor, when the defendant offers himself any factu We must resolve the evidence. State, 1994 OK as a witness. Mitchell v. CR 1203, cert. issues, question of including al the ultimate denied, P.2d evidence, sufficiency with deference 133 L.Ed.2d light in a most favorable the fact finder and prosecutor’s was at times The conduct melo If circumstan prevailing party below. dramatic, sidebar comments about alternative infer tial lends itself to would have been the defendant’s demeanor must, ences, appeal, the infer we consider closing The argument. better reserved forcefully logically and long ences which most case and sometimes trial this support jury’s verdict. See parties for both were emotional. Counsel Woodruff ¶7, 19, impeached by 1993 OK nations themselves testi- mony presented rebuttal. State’s (1993); Hightower 126 L.Ed.2d evidence, In evaluating kind of this we 162, ¶ 8, guided are this Court’s observations about parte Jefferies, in Ex circumstantial evidence (1912): 548, 124 7 Okl.Cr. P. 924 pre case single may standing A fact itself be of physi with sented an interconnected web evidence; value as no two three or more evidence, eyewitness testimony, cal and in together facts or circumstances taken consistent statements the accused. The justify might not be a convic- sufficient presented testimony State tion; but where a multitude of facts or people was one of last seen the circumstances, may some of which alive, that in victims he was involved an slight, together proven are taken to be time; them altercation with at that that he true, they irresistibly may compel jury opportunity had to both motive commit a in guilt to return verdict of a case of the crimes; he weap that had a collection of serious In cases depending most moment. knives, onry, particularly in an interest meth upon testimony, direct but where few facts killing, ods of and access to knife in one involved, very easy are it is a matter to particular' that was consistent with the attrib fabricate the in such a evidence manner as weapon utes of whatever was knife used —a make impossible. detection almost just Appellant happened which return greatest danger lies the Herein cases day its owner the after the murders. upon depending direct evidence. In cases evidence, depending upon circumstantial pair jeans 82 A wet blue was found falsely may witnesses swear as to the cir- Appellant’s apartment day after or so upon; experience cumstances relied but testified, he murders. When that it impossible shows is to fabricate why explanation jeans no for wet. consistency in the circumstances them- Appellant’s had been out town wife selves, many where facts are involved. murder's, weekend of the and she testified 548, Jefferies, 7 124 P. Okl.Cr. at at 925- Moreover, that she did not wash them. it 26. unlikely jeans would have been that Friday would have remained wet from the piece While each present of evidence Monday evening that she left until the when jury might, ed to the when viewed in iso they were seized. lation, permitted inferences which are innocence, Appellant’s with consistent we ¶ Many Appellant’s original state- must, jury, like the all consider of the evi police ments to were made he before realized together. dence This has Court often held physical eyewitness that evidence would against that when the evidence the accused is together work to contradict him. nature, circumstantial the evidence should changed try then his version of events every theory exclude reasonable of the defen facts, why accommodate these new such as Riley e.g. dant’s innocence.7 See Mclnturff, he had written checks to when 144, ¶ 6, CR 1988 OK 199. back, got and how he checks and what he Appellant claims that the evidence his trial dispose did to them. test, yet failed to meet this nowhere does he ¶84 specify When he attempt hypothe testified at what alternative existed, entirely explanations why offered new some much ses less create a very damaging pieces guilt. of circumstantial evi- reasonable doubt as to his The dence, knowledge such of how give particularly as advance instructed to was careful murdered, the victims were access to and his consideration to circumstantial evidence. hunting expla- Reviewing whole, A1 Ames’s knife. These new including evidence as Recently, Jury higher proof 7. Court amended the Uniform burden of the State. Easlick v. regarding Instruction circumstantial evidence 556. P.3d place make it clear that such evidence does not O.S.2001, 2609(D). defense, here, § bility. But by the we be- presented evidence prosecutor presenting was not juror have determined could lieve a rational juvenile adjudication of a to show that guilt reason- Appellant’s that witness; rather, lant was not a credible he further, presented, and hypothesis able inquiring underlying into the bad con- beyond a proven reason- hypothesis opinion duct itself to test another witness’s able Smith doubt. Appellant’s purpose which character—-a is proposition This is P.2d 1362. Douglas, § scope not within of 2609. See denied. ¶79, 35, 951 1997 OK RELATING TO PUNISH- G. ISSUES opin find Mrs. Dodd’s We MENT ion, general good character as to child, prosecutor as a entitled the to ask her Punishment-stage prosecutor miscon- opinion whether with knowl formed duct edge evincing Appel specific of a instance part Proposition In the latter lant’s Parker v. character violence. 16(B), lists numer- ¶¶ 34-36, 917 which, prosecutor ous conduct instances 980, 987-88, claims, punish- him a in the fair trial denied con 136 L.Ed.2d 721 prosecu- stage. ment We first address in not inadmissi question duct was otherwise Appellant’s grand- tor’s cross-examination of capital sentencing in a See proceeding. ble Dodd, mother, Mary presented a who was as ¶ 41, Medlock gen- witness. Dodd testified mitigation Mrs. (defendant’s violent conduct good erally why Appellant per- was a about juvenile a as as is admissible substantive penalty. not the death son who did deserve posed continuing a threat to evidence that he things, Dodd she Among other Mrs. said denied, society), cert. Appellant being anything but could not recall 310, 133 Because the L.Ed.2d “sweet, prosecutor a child.” The chal- sweet jury did find to a “continu not by asking if lenged opinion Dodd’s her Mrs. society” punishment ing to in the threat fourteen, age that she aware at stage, question in was not and the evidence knifepoint. paperboy lant robbed a germane aggravator, other question improper claims this any prejudice. cannot McGre- demonstrate reasons, suggests trial that several ¶ gor v. 1994 OK CR perform- counsel deficient defense rendered prejudice, As there was no 1382-83. avoiding by successfully it. ance commentary on this any prosecutor we find the defendant calls witnesses to 88 When beyond subject argument closing harmless character, give good about the opinions prej lack of a doubt. Besides the reasonable cross-examination, explore may, in the State udice, tactical deci counsel’s we find defense opinions by inquiring those into basis for as a Appellant’s grandmother sion to call specific of the defendant’s bad instances gambit; a mitigation witness was reasonable character, is whether the character witness testifying family as to a defendant’s members them, not, and if whether wit- aware of the mitigation good are often essential character by opinion is the revelation. ness’s altered evidence, unlikely that evidence of and it was inquiry type permissible cross- juvenile conduct could bad depends type the of character examination avoided, Appel particularly as have been by defense. See evidence offered the testify also lant’s called mother 2405(A). O.S.2001, 2401(A)(1), § mitigation the inci personally recalled 687, 104 Strickland, 466 U.S. S.Ct. at dent. Appellant complains the ev it was inadmissible because related idence other in Appellant lists several juvenile offense. Unlike convictions inquiry and commen dishonesty, prosecutor stances of felony and crimes of evi crimes improper. In generally tary contends were juvenile adjudications is that he dence of prosecutor the told the closing argument, a witness’s credi- impeach admissible jury mony had admitted three of presented punishment the stage the aggravating alleged support circumstances trial. Before the victim-impact State’s seven penalty. of the death We discussed actu the actually stand, witnesses took the the trial questions put Appellant al in our discus spent court considerable time with counsel first-stage prosecutor sion of misconduct. reviewing proposed testimony the of each. object Defense counsel did not to these com The expressed by concerns the defense ments, prejudice; jury and we find no prompted the court several editorial and/or rejected aggravators one of the prepared revisions to impact victim state- conceded, prosecutor claimed was and the ments. aggravators by two found ¶ 95 In sentencing phase capital of a overwhelmingly established the evidence. may present the State evidence “about Pickens v. 910 the victim and about impact of the mur 1063, 1068. family der on the of the victim.” 21 O.S. prosecutor’s 92 As for the speculation 701.10(C). 2001, § Members of the victim’s Way might Lisa have been a third victim family,” “immediate as that term is defined stay had she night, decided to his com statute, may offer evidence about ment on the confrontational Ap demeanor of financial, emotional, psychological, phys witness, pellant’s former cellmate as a crime; ical effects of the these immediate references to the photographs, crime-scene family may designate person members also implication Appellant and his in the bur speak on them behalf. This “victim im glary of apartment, the victims’ these were pact may evidence” include information all reasonable inferences from guilt-stage victim, about the surrounding circumstances evidence, objected were not crime, the manner in which the crime defense. Black v. perpetrated, and a recommendation as appropriate generally sentence. See 1004, 122 483, S.Ct. 151 L.Ed.2d 396. O.S.2001, 984, 22 §§ general 984.1. The ad missibility impact of victim evidence in a prosecutor’s 93 The brief com capital sentencing proceeding approved was ment on lack of remorse was by the United Supreme States Court improper, as maintained his inno Payne Tennessee, 808, v. 501 U.S. 111 S.Ct. trial; throughout cence defense counsel’s ob 2597, (1991). 720, 115 L.Ed.2d 735 In Car jection quickly was prose sustained and the State, ¶¶ gle 77, 74-78, v. subject. cutor said no more Any about the 806, 827-29, denied, 831, cert. State, error was cured. v. Walker 1989 OK 100, (1996), 136 L.Ed.2d 54 we es ¶64, 13, 838, CR 781 P.2d prosecu 841. The guidelines tablished to assist trial courts tor’s claims that only appropri death was the evaluating propriety impact the of victim evi ate sentence were not objection, met with an dence with accordance the relevant stat nothing and we find improper about them. utes as well as constitutional concerns. Throughout closing, prosecutor pointed the support evidence to his claim that a death matter, 96 As an initial Appel only sentence was the “reasoned moral re lant complains that the trial court did not sponse,” echoing language by used the Su find the aggravating existence of an circum preme Payne, 836, Court. See U.S. permitting stance before impact victim testi (citations omitted). 111 S.Ct. at 2614 Simi mony. Cargle require does not the trial larly, prosecutor’s the discussion of how miti weigh court to sufficiency the of the evidence gating evidence should be evaluated was a regarding circumstances, aggravating fair characterization of the law. Slaughter, that there “already present be some evidence ¶¶ 78, 79-80, 950 P.2d at 861 in support the record” to aggravating an (plurality opinion). There was no error here. Cargle, circumstance. 1995 OK CR 77 at ¶ 76, 909 P.2d at 828. failed to impact 2. Victim evidence request express judicial an finding to this Proposition 94 In Appellant raises aggravators effect. One of the the ulti objections several impact found, to the victim mately testi- great i.e. the risk of death to overwhelmingly family specified statute. the members person, one was more than ¶¶ (see v. CR dis Hanson 2003 OK first-stage evidence See proven the (error niece, 27-28, 14), for victim’s 72 P.3d 54-55 that evidence cussion family representative, testify testifying the as incorporated beginning the family, Testimony including her supporting impact extended stage. punishment (also self, testify felony” aggravator victim’s sister about “prior violent the son). impact on her We also ex presented also before own jury) the found pressed stand. concern about the relevance of testi impact witnesses took the the victim mony that of the vic specific to make find focuses on memories court’s failure The trial the beyond plans a rea tim’s childhood or victim had harmless ings was therefore v. 2001 OK CR the future. See Brown 1998 OK doubt. Miller sonable (statements 1077, 1085. about childhood); Phillips the victim’s impact offered victim 97 Five witnesses ¶38, 100, Mclnturffs on Shane behalf: (statements plans), about the victim’s future father, sister, mother, brother, aunt and an family representa- a designated as appearing however, recognize, L.Ed.2d We witnesses on behalf impact tive. Victim nicely relationships human cannot sister. her mother and Keri Sloniker included compartmentalized. impact victim evi While complains designated that as a upon mem dence looks the loss inflicted Sanford, family representative, Donna family,” of the “immediate bers victim’s of, aunt, have testified in lieu should Shane’s vacuum, rarely apart in a from loss occurs to, any fami- in addition other immediate experiences family of other members. ly complains that members. He also Sanford Similarly, necessarily pain of loss de how not have allowed mention should been things: pends on the combination two personally, her as she death affected Shane’s experiences remem past survivor family represen- role of appearing in the one, having loved and the with the lost bers testify eligible and was not herself tative has, by experiences new survivor § family” “immediate under loss, been virtue forever denied. of Debi lant contends that taken; concerns the value of life first Nelson, mother, recounting Keri Sloniker’s pain inflicted on second concerns relationship history of Shane Keri’s left behind. Both demonstrate lives needlessly cumulative. He contends defendant,” by the see “specific caused harm Mclnturff, by a comment Anne Shane’s Payne, 501 mother, to the that Shane would effect our to the and are admissible under statutes life had he their given his for Keri believed financial, they emotion extent show speculative jeopardy, lives al, psychological, physical of the effects complains gen- also too emotional. 984(1). O.S.2001,§ murder. occasions, erally that on various the victim “improperly impact testimony focused” ¶ legislature placed has Our future, on and Keri’s speculation about Shane eligible limits on the number of otherwise no childhood, on how “irrelevant” Shane’s may testify family as victim members who family “immediate” mem- those other than 984.1(A). O.S.2001, § impact witnesses.8 by been Shane and Keri’s bers had affected that, involving a deceased It is true a case deaths. victim, appears § language of crime 984.1 any eligible of permit § victim number of members 98 It is violation of 984 for a testify, single family or a testify to the of the the victim’s impact witness to effect family to designated representative other one of death on someone than victim’s points impact just the number der victims—to be as relevant as out that victim individually, testimony pages transcript. Viewed (including preliminary questions and of record) impact comprises seven some of each of the victim other of the statement formalities concise; relatively pages transcript. com- twenty-six witnesses none We find the num- is, transcript, prised pages and several impact over five ber of victim witnesses—which course, directly comprised pages two mur- or less. the number of affected testify, persons but not both. See Lott v. 2004 for occasional references other ¶ 109, Testify- family, reject OK CR than immediate we ing designated family representative, as a they improperly claim that focused on those third-person per- Donna Sanford offered a persons. Occasional references Shane’s spective on how Shane Mclnturffs death af- gave glimpse” childhood a “brief into family, particularly parents. fected his character, formation of his which in turn parents Given Shane Mclnturffs also provided personal a basis for witnesses’ impact testified on their own behalf as victim him; knowledge relationship of and with like witnesses, permitting testify Sanford the brief references to Shane and Keri’s However, § compliance not in with 984.1. future, plans they for the were relevant to Sanford’s was brief and did not psychological the emotional and loss caused aspects focus on the emotional of Shane’s Welch, the crimes.11 Similarly, part death. because she was not 2 P.3d at 373. statutorily-defined family,” “immediate Finally, Appellant complains that the impact to the Sanford’s references Shane’s impact victim witnesses should not have been compli- death on herself were not in strict penalty allowed to recommend the death § ance with 984. While it was error for the 984(1) appropriate punishment. an Section testimony, trial court to allow such consider- specifically permits recommendations, such ing entirety, Sanford’s statement its we have cautioned that should be largely the fact that it was cumulative to straight-forward, limited to “a concise re testimony, proper say other we cannot it sponse question asking to a what the recom “improperly weighted against Ap- scales” mendation is” or “a short statement of rec pellant, improperly or that it influenced the statement, ommendation in a written without Payne, trial.9 outcome 501 U.S. at Welch, amplification.” 2606-07; Chapman 111 S.Ct. at v. Cali- Compare Willingham P.3d at 374. fornia, 386 U.S. 62, ¶ 74, L.Ed.2d 705 (allowing murder victim’s son to describe the Similarly, Debi Nelson’s recol conditions under which he believed the de met, lection of how Shane and Keri and fell put error, fendant should be to death was love, extremely an part concise of an harmless). albeit Those admonitions were otherwise brief statement. As a fundamental observed here. We decline to reconsider our life, part of her reflection on Keri’s it was not position. “needlessly” guilt-stage cumulative to evi dence, prejudice and we find no unfair in it. assuming 102 Even there is Anne question Mclnturffs belief her son would propriety as to the of the victim evidence, clearly impact have tried to save Keri’s life was preju to determine unfair personal dice, based her assessment of Shane’s strength we look to the of the State’s character, say and we cannot it aggravation was too case in and whether the trial improper.10 emotional or properly otherwise court While instructed the on the use impact parsed Welch, the victim can impact statements be of victim g evidence. 9. claims the sheer number of other comments that have caused us some concern in family aggravated who members testified past. Compare Hain v. 1996 OK CR perceived error. refers to six other 26, 49-53, ¶¶ 1130, (allowing 919 P.2d 1144 family immediate members who testified. In murder victim's mother state she wished her fact, two of those witnesses testified as Keri Slo- death, gentle son could have died a such as the impact niker's victim witnesses. euthanized, family dog experienced when error, harmless), denied, though cert. 519 prefaced by Mrs. Mclnturffs comment was 1031, U.S. 117 S.Ct. 136 L.Ed.2d 517 hap- her admission that she did not know what (1996); 64, ¶ 37, Hooper v. 1997 OK CR pened night on the of the murders and did not (allowing impact 1105 victim know; immediately by want to it was followed speculate witness to that the defendant looked "always pro- her observation that Shane was so "big, eyes” into the victim’s beautiful brown be everyone tective of he loved.” error, harmless). killing fore her was albeit 11. The statements offered in this case came no- graphic unduly where near the emotional

1047 felony” aggravating a. “Prior violent ¶42, we have at 373. As circumstance observed, circum aggravating already jury by the were established stances found that offenses Appellant contends 104 trial— guilt phase overwhelmingly juvenile should not while he was committed murder of the double by the nature one support prior-violent- admissible to be to a itself, by Appellant’s admission the other However, as the State felony aggravator. clearly jury paid violence. The past crime of out, “juvenile” Appellant was not a points applied it to the to the law as close attention robbery at the armed he committed when aggrava facts, rejected it two other because age. the seriousness years of Given sixteen Ap by the alleged State. ting circumstances was, offense, Appellant under Okla- find, claim, we do not pellant does adult, law, charged and convicted as an homa trial court’s victim in the impropriety any public himself of and he cannot avail note that from We also impact instructions. juve- against admission of policy arguments it surrounding the crime the circumstances adjudications. Appellant states nile While self, phase and incor guilt in the presented juve- one is a offenses committed when jury phase, the punishment porated into the necessarily accurately predict “do not nile involvement of the victims’ well aware adult,” jury in this actions as an one’s pre jury The was thus illegal drugs. with as a Appellant’s not use conduct case did sketch of with a well-balanced sented actions, future sixteen-year-old predict say im cannot the victim victims’ lives. We Appellant to a “continu- it did not find jury from ren pact evidence distracted Rather, jury only society.” ing threat to “reasoned, of a moral dering punishment out par- the conduct as evidence of considered crimes. response” to the Williams prior for a historical conviction ticular fact — ¶ 62, cert. law, which, by felony ren- violent offense— denied, 1092, 122 eligible penalty. for the death See ders one (2002). Therefore, any minor L.Ed.2d ¶9, 100, Williams, 22 P.3d at testimony impact victim impropriety in the “con- (noting purposes between different beyond a doubt. harmless reasonable felony” ag- “prior violent tinuing threat” and 87 S.Ct. Chapman, 386 U.S. gravators). (1967). is de proposition This L.Ed.2d 705 nied. any prejudice find 105 Nor do we photo

in the admission by injuries concerning sustained graphs Sufficiency aggravating of evidence on robbery offense. prior in the the victim circumstances light the circumstances They shed more 14, Appellant com- In more than mere documen offense much relating aggravating to the errors plains of Specifically, a conviction. tary evidence of jury support found circumstances was not that the offense they tended to show only two The found penalty. the death violent, indisputably so. just potentially but alleged aggravating circumstances of the four present was entitled State (1) previ- Appellant had the State: to estab Judgment and Sentence beyond the felony in- of a offense ously been convicted prior offense. nature of the lish the violent (2) violence, and volving the use or threat of ¶¶ 35-43, OK CR Brewer v. great risk of Appellant’s posed conduct person. The first more than one death to 794, L.Ed.2d 999 established aggravating circumstance was admissions, including own proof, than death to more risk of b. “Great in a participated age the of sixteen he that at aggravating person” circum- one elderly woman robbery beat an wherein he stance fireplace log. The second with a on the head ¶ challenges the Appellant also was established aggravating circumstance death “great risk of case, supporting the people were in two fact that this aggravating cir- person” to more than one place. at the same time murdered likelihood, eligibil- Noting that in all circumstance narrows death-sentence eurastance. only have cut the throat of in perpetrator ity particular could conditions not inherent time, case, at a claims that every constitutionally one victim which is all it is “great California, there was no risk death” either required Tuilaepa to do. See victim’s throat was 2630, 2635, victim while the other seriously being (1994); cut. We cannot entertain McElmurry, 2002 L.Ed.2d 750 OK The evidence showed that the this assertion. proposition 60 P.3d at 27. This manner, victims were killed in the same at is denied. essentially place, same and at the same time, example presenting a classic of the Constitutionality penal- c. of the death “great aggravating circum- risk of death” ty applied in this case McElmurry stance. See Proposition 109 In ¶40, 106, 60 P.3d and numerous imposition penalty contends that of the death therein. cases cited protection violates his constitutional from arguments con punishment12 cruel or unusual when it is cerning constitutionality aggrava imposed guilt in cases where the defendant’s unavailing. ting circumstance are likewise “solely” is based on circumstantial evidence. collaterally estopped claims the He State already sufficiency We have considered the using from evidence of either victim’s murder support Appellant’s of the evidence to convic support “great aggrava risk of death” Proposition in tions our discussion of 9. For ting circumstance relative to the other. This therein, reasons enunciated it makes no Appel fact argument is meritless. The sense to treat circumstantial evidence as nec guilty lant had been found of each murder in essarily inferior to direct evidence. For the not, guilt stage of the trial did under the reasons, same it makes no to treat a sense estoppel, prevent doctrine of collateral illegitimate inherently death sentence as considering from the cumulative effect suspect when it rests on more of one kind of again in punish of this same evidence evidence than the other. Circumstantial evi stage rejected ment of the trial. We have infinitely trustworthy dence can be more past. in similar claims Bowie v. single than the “direct” observations of a ¶4, 759, 762; 1995 OK CR 906 P.2d “eyewitness,” purported may who have a mo ¶¶ Romano, 83-88, 1993 OK CR 847 P.2d lie, may simply tive to or who mistaken in be reject at 387-88. We this one as well. Regardless his or her observations. complains also supporting nature of the evidence a defen “great aggravating risk of death” circum conviction, may dant’s a sentence of death is invalid it does not effective stance because imposed rigorous pro after the most ly narrow the field of intentional murders system justice. Ap cedures known to our eligible penalty. Appellant for the death pellant authority directly support offers no aggravating claims this circumstance results ing position, and we are aware of none. eligibility” in “automatic death whenever proposition This is denied. person than one more is murdered place. it same time and So does. The fault 4. Miscellaneous issues course, Appellant’s argument, is that he 110 In cata- comparing is one subclass of intentional mur which, logues a number of issues he con- with itself. The real is ders issue whether cedes, previously rejected. this Court has aggravating circumstance results “au Patton, See eligibility every tomatic” death-sentence 298; first-degree Obviously, all see also Walker v. murder case. ¶3, 5, (urging appellate

intentional murders are committed in circum pose great any arguably counsel to raise stances which risk of death to meritorious person. aggravating appeal more than one This claims on direct avoid forfeiture (banning (banning punish- §§ ments). 12. See U.S. Const. Amend. VIII “cruel "cruel or unusual” Const, II, punishments); and unusual” Okla. art.

1049 (2) deficient, denied, prejudiced by that he was 521 proceedings), cert. subsequent State, 2524, performance. Black v. 1125, 138 L.Ed.2d 1024 the deficient 117 S.Ct. U.S. ¶ 65, 1047, 1070, 5, (1997). unique 21 P.3d cert. are to 2001 OK CR Most of these issues denied, 1004, 483, ci 122 151 Appellant provides 534 U.S. S.Ct. prosecutions. capital Strickland, (2001); see also 466 where the issues L.Ed.2d 396 appeal record tations to the 2064, 687, 104 below, at 80 L.Ed.2d 674 to case law at citations U.S. were raised (1984). them, prove either of the ele ruled on Failure previously where we Ap claim. each one. ments is fatal to an ineffective-counsel we reconsider requests that convincing why we Id. no reasons pellant offers issues, positions our on these

should reverse ¶ First, Appellant claims that counsel 113 thus decline to do so.13 and we permitting for Detective was ineffective hearsay description Yardley testify to a of OF H. INEFFECTIVE ASSISTANCE early clothing Appellant wearing was in the COUNSEL Sunday, 6. We find this hours November 18, ¶ Appellant ad- 111 In harmless, eyewitness an because attorneys trial ren- vances a claim (Dennis Kersh) seeing Appellant testified to performance constitutionally deficient dered time, apartment at that outside the victims’ him a fair trial. He references which denied as much in his own admitted else- claims made several ineffective-counsel Second, testimony. Appellant faults counsel brief, specifies several in his where Yardley specu- permitting Detective found no deficient more. Because we have late that could have unlocked prejudice preceding in the performance apartment while window in the victims’ Rob- claims, focus here on the new claims and we looking. Because this ert Mclnturff was not trial a cumulative assessment of counsel’s personal conclusion was based Yardle/s performance. at crime scene and was cor- observations ¶ testimony, by Mr. Mclnturff s own prevail on a claim of inef roborated 112 To therefore, counsel, improper; must it was not fective assistance failure to prejudiced counsel’s strong presumption that coun was overcome Third, range object. Appellant claims counsel fell within the wide sel’s conduct opening the door to cross-ex- professional assistance show ineffective reasonable (1) regarding amination the details of performance trial ing: counsel’s (7) refusing (1) Jury court did not err in to allow Instructions- The trial 13. The Oklahoma Uniform (OUJI-CR) adequately jury state the law on allow the defense Criminal allocution before the or to aggravating jury (8) evaluate how the should argue Id. The trial court did not err last. capital sentencing mitigating circumstances in a jury panel refusing quash because State State, 36, proceeding. v. 1996 OK CR Johnson exemptions jury permits from service for law 309, 317, denied, 31-33, ¶¶ P.2d cert. 522 disadvantaged persons. elderly economically 99, (1997). 832, 118 S.Ct. 139 L.Ed.2d 54 U.S. 203, ¶ State, 19, 7, CR 853 P.2d Trice v. 208, 1993 OK (2) barring dire court did not err in voir The trial 1025, 638, denied, 114 S.Ct. cert. on the mechanics of Oklahoma’s and evidence (9) (1993). trial court did L.Ed.2d 597 parole system. OK CR Williams v. refusing of vic a wholesale exclusion not err in denied, 6, 1046, 1049, ¶24, 534 U.S. 31 P.3d Harris, 1, testimony. impact tim 836, (2002); 122 S.Ct. 151 L.Ed.2d (10) did at The trial court 84 P.3d 752. Johnson, 36, 51, 928 P.2d at 320. jury refusing empanel separate for the err in (3) penalty unconstitutional as The death was not ¶ 52, phase at punishment trial. Harris id. implemented 2004 OK this case. Harris (11) attacking the at 751. A defense motion (4) ¶1, 52, 84 P.3d 751. Oklahoma’s CR jury qualification process constitutionality of the capital sentencing procedure is not invalid properly capital denied. cases Boltz findings jury special requiring the to make 1122-23, OK CR Patton, CR 973 P.2d fact. 1998 OK ert. c L.Ed.2d 109 (5) overruling did not err in The trial court (12) proper The trial court argument present evidence or defense motions ly doubt" for refused to define "reasonable and deterrent effect on the cost-effectiveness 1, ¶51, Harris, jury. CR 2004 OK Harris, penalty. death 2004 OK (13) unadju- to strike 750-51. A defense motion (6) P.3d at 751. The trial court did not err properly rejected. Darks v. dicated offenses presume declining to instruct the imposed would be carried out. Id. sentence it alleges, appeal, on that trial counsel was We found this to dant prior convictions. lant’s evidence, using not ineffective for available strategic a reasonable decision product of adequately investigating or for not certain Proposition Finally, of in our discussion trial, evidence which could have been used at Appellant claims counsel should have require that the issue in our Rules he raise punishment stage to opened door in the brief, addition, applica- in an and “submit paperboy a Appellant robbed evidence evidentiary hearing, together tion for an with juvenile, by a knifepoint at when he was setting alleged affidavits out those items grandmother mitiga- as a calling Appellant’s constitute ineffective assistance of trial coun- in addressed this issue our tion witness. We 3.11(B)(3)(b). Appellant sel.” Rule must do misconduct, prosecutor of see discussion present more than additional information 16(B), found neither defi- and that could been used trial counsel. have prejudice. performance nor unfair cient ¶44, 113, Mayes, 1994 See OK CR Next, Appellant claims trial counsel recognize strong at 1314. Because we failing to use available was ineffective presumption competency as to the of trial challenge of lumi- evidence to the admission counsel, Strickland, see at tests, analysis, blood-swipe nol application S.Ct. at “the and affidavits attempt. Pursuant to Rule lant’s suicide must contain sufficient information to show 3.11(B)(3)(b),Rules the Oklahoma Court convincing clear this Court evidence of of 18, App. Appeals, O.S. Ch. Criminal strong possibility there is a trial counsel (2003), timely Appellant filed a motion to failing identify to utilize or ineffective supplement appeal record with additional complained-of evidence.” Rule 3.11(B)(3)(b)(i). request- relating material to these issues and Appellant has not met that evidentiary hearing. ing an When a defen- burden here.14 We cannot conclude that the materials, blood-swipe respect supplementary to the luminol and demonstrate with his (1) is With evidence, was, supplement any fact, Appellant taking seeks evidence that he in Paxil general any during approximately record an article on considerations with time one week arrested; (2) preservation scene. of blood from crime of November 1994 before he was ably any taking The defense cross-examined the State’s fo- evidence that Paxil for such a short trial, ideation; experts subjects these and also period any rensic presented expert testimony of time has effect suicidal (3) of its own to refute any taking evidence that Paxil for even a techniques opin- experts' some of the State's very period short of time can induce suicidal Appellant present ions. does not affidavits ideation a after month the medication is ceased. suggesting or other that his own information important simply we These are facts that cannot experts testify, unqualified were that counsel presume. neglected explore expertise areas their Appellant The medical records includes in his completely would have discredited the State's Appellant supplementary materials show was ex- experts, or that such would have affected tire 1996; depression February amined for that he outcome of the case. seizures; history has a that in he March gesture prescription drugs made a suicidal with respect Appellant’s With suicide mother; argument after an with his and that in attempt, application contains literature about gesture November he made a similar "and anti-depressant drugs, effects of various having police tried to outrun officer” after Appellant's psy- well medical and as evidence of problems at the alternative school he had been chological Appellate pro- records. counsel has demonstrated, attending. Appellant has not stating vided an that the affidavit records evidence, convincing clear and that trial counsel obtained from trial defense counsel's files. Al- presenting was ineffective for not this informa- though Appellant provides no information as to Appellant's tion connection with December using whether trial counsel considered this infor- First, attempt. 1994 suicide the brief self-refer- mation, the record shows trial counsel was psychological February ral (1) evaluation from following: according aware year Appellant jailed charged over a Appellant's employer, records obtained from after case, Paxil, in this value. is little The fact that other anti-depressant, prescribed had been an 1994; past (2) traumatic events in remote Ap- "sometime in November” of might prompted ges- him to make pellant allegedly receiving suicidal not been arrest; (3) tures does not establish that is con- jail medication while after suicidal, suicidal, stantly easily rendered or oth- question that there was some in the medical mentally abrupt erwise ill. does not raise literature as to whether withdrawal from side-effects, insanity, incompetence including capacity, diminished Paxil can have serious precipitation thoughts. as issues in this of suicidal What the rec- stand or mental retardation show, seizures, history appeal. ord and what fails to As for his does prosecutors conduct of the to we found certain per amount se supplemental materials times, exemplary at but we less than trial to be convincing evidence” “clear and deficient, prejudiced to have not find that conduct constitutionally suffi did counsel rights. In other Appellant’s substantial evidentiary hearing. See an to warrant cient ¶ words, in 16, 33, errors did occur 45 while certain Matthews v. case, together, 1074, 123 considered were even 537 P.3d egregious or numerous as have There not so 665, 570 154 L.Ed.2d a Appellant a fair trial or reliable denied fore, supplement Appellant’s motion Chapman, evidentiary sentencing proceeding. request for an and his record 24, at 828. hearing are DENIED. O.S.2001, 701.13(C), § 21 117 Pursuant to AND MAN- ERROR

I. CUMULATIVE required Appellant’s to review we are also REVIEW DATORY SENTENCE (1) whether the death sentence to determine imposed under the 17, of death was Appellant essen- sentence Proposition In prejudice any other passion, of appropriateness of the influence tially challenges the (2) factor, the evi- arbitrary and whether we are stat- under the factors death sentence jury’s findings aggra- on supports the 22 O.S. dence utorily required to consider. See 701.13(C). 20, in 21 vating circumstances as enumerated Proposition he asks § In latter, O.S.2001, jury § 701.12. As to the cumulative effect to consider the this Court aggravating cir- the existence of two his conviction or found any all trial errors on of and (1) previous- cumstances: these related issues We consider sentence. felony involving of a ly convicted been together. person, violence to the and use or threat of repeatedly held that This Court has (2) great knowingly created a argument has no merit error a cumulative In person. than one of death to more risk any of the fails to sustain when this Court Proposition we noted our discussion of by Appellant. e.g. raised See other errors amply supported evidence. that each was ¶59, 31, Ashinsky cir- jury rejected aggravating two other preju- have been 209. When there P.2d alleged the State. cumstances during the course of irregularities dicial imposed to whether the sentences only if cumu- 118 As reversal is warranted product passion, prejudice, Appellant were the denied lative effect of all the errors factor, arbitrary we find no evi- any other fair trial. Bechtel v. OK addressed the vic- to this effect. We Although we dence in detail our discus- impact tim rejected Appellant’s claims have most found no material Proposition subjects special sion outright, a few deserve error found, presented improprieties there. already in our have mention. We tes- mitigation. Besides several witnesses that certain bad- discussion of pro- admitted, society adequately could be timony that improperly acts evidence was prison, committed to if hearsay, to the tected only as but as irrelevant sever- However, from presented the defense a substantial in the case. issues family, attesting to adversely bearing Ap- al members of amount of evidence character and ex- aspects of his character, credibility as a favorable and his pellant’s spared. life be pressing a desire that his witness, for various properly admitted punish- prosecutor in the conduct of the Propositions and 8. The reasons discussed phase improper. ment Propositions In our discussion of probative attempt, fact the more would fense suicide how this evidence fails to demonstrate point was the manner in any way. Appel- of view attempt from the State's bear on the suicide Finally, Ap- attempted records history it. which he about his told the lant himself proffers numerous references explanation pellant include depression, gave an innocent drug history use and Appellant's of adolescent attempt; protestations of December 1994 his aggressive general behavior—a antisocial and he wrote to were recorded in the letter innocence might wife, inquiry reason- that trial counsel line of admitted into evidence. which was ably post-of- chosen to avoid. impetus Appellant's Whatever the 22, Ch.18, (2001), I Appeals, App. nal Title Upon our review the record appellate aggravating circum- find the issues waived for review. weighing of the careful evidence, mitigating See also Walton and the we find stances (the explain failure to how prod- of death was not the that the sentence shortcoming at trial is error waives consid- prejudice, or other arbi- passion, uct of proposition appeal). eration of the warranting trary Finding factor. no error modification, Judgments reversal or are AFFIRMED.

Sentences

DECISION Judgment 120 The and Sentence court is AFFIRMED.

district 2004 OK CR 32 J., LILE, V.P.J., WINCHESTER, Ray Stephen THACKER, Appellant STRUBHAR, J.: concur. v. LUMPKIN, specially concurs. J.: Oklahoma, Appellee. The STATE of LUMPKIN, Judge, specially concurring. No. D-2003-21. agree convictions and sepa- affirmed. I write sentences should be Appeals of Court of Criminal Oklahoma. rately Propositions 21. to address 13 and Oct. reviewing sufficiency In the evi- As Corrected Oct. support Proposi- the convictions in dence apply tion we should the standard of re- forth in

view set Easlick OK (adopting a unified for direct and circumstan-

standard review evidence). However, apply

tial whether we hypothesis

Easlick or the reasonable stan-

dard of Smith OK CR

695 P.2d at the evidence is sufficient to

support guilty verdicts. Proposition 3 In admission of Donna impact testimony a vio-

Sanford’s victim 984.1(A). O.S.2001, § Lott v.

lation of See 98 P.3d 318.

However, agree improper I that its admis- improperly influence the out-

sion did of the trial.

come

¶4 Finally, issues, litany which con-

sets forth he previously rejected.

cedes this has Court Appellant provides

While citations to case previously

law where we have ruled on the

issues, provides argument no as to the

relevancy of the issues to his case. merely requests

lant that we reconsider our

previous decisions. As has failed any argument support

to offer of his re-

quest required by Rule for reconsideration

3.5C, Rules the Oklahoma Court Crimi-

Case Details

Case Name: Dodd v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 21, 2004

Citation: 100 P.3d 1017

Docket Number: D-2002-286

Court Abbreviation: Okla. Crim. App.