*1
Laura L.
v. Oklahoma, Appellee. STATE of F-2004-621. No. Appeals of Oklahoma. Court of Criminal July
231 *3 Edmondson, Attorney
W.A. Drew General Oklahoma, Self, Assistant Donald D. At- OK, General, torney City, Oklahoma attor- neys appellee appeal.
OPINION
CHAPEL, Presiding Judge. 1 Laura L. tried Dunkle was Murder, First-Degree under 21 convicted O.S.2001, 701.7, County, § Grady Case No. jury’s with the CF-2003-147. In accordance *4 recommendation, the Honorable Richard G. Dyck imprison- Dunkle to life Van sentenced parole. possibility ment without the Dun- appeals kle her conviction and her sentence. White, Gary age 2 was Benton killed chest, single gunshot a to the wound 6, 2003, just shortly May after midnight on sharing with outside the home he was his Dibble, fiancée, Dunkle, Laura Oklahoma. gave at the Dunkle various statements scene happened. morning and later that about what White, shooting consistently denied She maintaining instead that he either shot him- accidentally that he as self or was shot she attempted prevent to him from him- self.
¶ Shortly midnight morning 3 on the after 6, 2003, frantically May called friend, Merrel, call asking Lois her to ambulance, get and an because there had Gary an had been shot. been accident Dunkle said Merrel testified that she not get and could had tried herself through.1 testified that Dunkle Merrel also hand, Gary having gun to a his a referred mouth, carrying cigarette in his his lunch go pail as he his truck headed toward Norman, OK, Smith, Douglas attorney J. wobbly work, when he on the back stumbled for at trial. defendant accidentally himself.2 steps and shot Merrell Lesley March, Attorney, Assistant District 911 and went to Dunkle’s home. called later Christian, Attorney, Robert E. District Chic- Grady Sergeant Tommy Payne, kasha, OK, attorney for the State at trial. Office, County first to was the ar- Sheriffs that Dunkle Pybas, Appellate rive the scene. He testified Jamie D. Defense Coun- sel, OK, Gary Norman, attorney appellant flagged him him to where on down and led back, laying on his with his appeal. White was flat acknowledged placed call from 2. Merrel on cross examination 1. A was to 911 Dunkle's resi- statement, described that in her she Dun- morning, written early dence but when the 911 accident," referring simply "gun a with- kle answered, get operator response did not on she carrying things out of the details about White hung up. the line caller had and assumed the stumbling. heading to his truck steps of gun feet toward the back the trailer 7 Dunkle stated that White had his home, open case single gunshot the kitchen island and was with a wound his trying gun. to load get pulse Dunkle stated that Payne could not chest. said, “No, that,” you she don’t do and tried to dead.3 asked When what believed White him, get gun away pushed stated, but he happened, Dunkle “He shot him- had got up, down. She stated that as she was, gun Dun- self.” asked where the When White went out the back door and down the stated, around here kle “It’s somewhere.” steps, light, and she saw a flash of Payne gun, a Colt .45 caliber then located something just hit the rocks outside the trail- pistol, behind where Dunkle semi-automatic gun er when the went off. When asked if standing, steps near the foot of the off, facing gun White was her when the went the home and over five feet and to the left of “pitch Dunkle stated that it was black” and left foot. The was chambered White’s “nothing.” point she couldn’t see At this firing position.4 and cocked in the willing Foster asked Dunkle if she would be Payne asked Dunkle where it When tape to allow him to record what she was responded, “In happened, the kitch- him, telling because he could not write as home, Payne en.” he entered the When speaking. fast as she agreed casing laying in noticed a .45 caliber shell so, car, got patrol do in Foster’s so doorway leading threshold of the to the they could record what was said. kitchen, steps. Payne On an island *5 ¶ tape recording 8 The of Dunkle’s subse- small, open containing discovered a suitcase quent Foster, along conversation with awith guns. sign struggle no a other There was transcription of recording, was entered point or blood inside the kitchen. At that into evidence at trial. Dunkle added a num- Foster, Corporal Grady County John of the account, ber of details including to her that Office, accompanied Sheriffs arrived and White had to get come back into the house to car, patrol Dunkle to over his where he something forgotten he had and that she happened. asked her what couldn’t hear what he said at the bedroom ¶ 6 Dunkle told Foster that she had awak- door to due noise from a fan. Dunkle added White, boyfriend, Gary ened her around that after being shoved down on her first p.m., get ready 10:00 so that he could White, attempt get gun to she tried work. She stated that she made coffee and get gun time, using a second a maneu- they did the dishes and that talked about class, ver she learned in a CLEET mandate plans. their future Dunkle stated that she struggle in a with White near the back door. going go lay told White she was down in Dunkle stated that she and White were both sons, sleeping the bedroom of her two which off, steps outside on the gun when the went she did. that Dunkle stated she later saw light, and that after the flash of she saw hallway White in the outside the bedroom holding coughing.5 White his sides and Dun- door, carrying the small attaché case matters, kle also talked about various other kept guns, which he his and that he said including was, guy what a wonderful White something she couldn’t understand. Dunkle good children, how he was with her how got up stated that she him and followed into respectful guns, he was of were to kitchen, feeling a 26, 2003, because she had some- May be married on and that White thing going happen. bad was happiest was guy “the in the world.”6 Dun- arm, spatter ground right Some blood was gun dropped by found on the and that the was foot, near White's left but the position facing lack of other blood Dunkle from her on the stairs White, (beyond body) at the scene that on and point-blank range below the after she shot him at suggested moving stopped approached. that White around he being soon after shot. regard- Dunkle's recorded statement is unclear ing whether she had The State maintained that if White had control or contact with been fired, gun holding at at the time it the time it went off. would have right fallen somewhere closer to the side of his White, body. The State essentially maintained that who 6. Dunkle's defense at trial was right-handed, carrying keys attempting a set of at White was to commit suicide or at shot, the time he was which were found near his least that Dunkle—who had both a brother and incident, agreed. Dunkle to which in- about the widely during the varied kle’s demeanor office in then taken to the OSBI Dunkle was terview. Grady County Law Enforcement Center by the conclusion testified 9 Foster Perske, preferred indicating that after she interview, suspicious he became of this Dunkle was then inter- ride with Perske.9 shooting, suspect in the Dunkle could be Linn, extensively by while Perske viewed in her inconsistencies of the due to some room, beginning around 5:00 remained asked Consequently, Foster statements. a.m.10 willing to write out if would be printed her the and then read her statement acknowledged at trial that he did 11 Linn volun- warnings top at the Miranda her Miranda rights.11 He not read Dunkle listing provided, form that he tary statement length Dunkle’s various testified 1:15 a.m. Foster testified the time as interview, relying during this statements understood her him that she Dunkle advised interview, report of the which mainly on his willing talk to rights and that she was still Dur- days later.12 began preparing he few state- provided a written him. Dunkle then in- provided more ing the interview ment, at trial.7 was admitted White, relationship formation about morning, 4:00 a.m. 10 Around hauling gravel, and job truck driver his as a Linn arrived Special Agent Tom O.S.B.I. again background. She her children and regarding his ob- scene. Linn testified previous eve- the events of the summarized victim, includ- and the of the scene servations surrounding the circumstances ning and the keys laying near presence of a set of ing the story was of Dunkle’s consis- shooting. Most He right aim of White.8 the outstretched accounts, particular, earlier tent with her Dunkle to search permission from obtained going to shoot thought that she White approach so. He then her home and did himself.13 Dunkle, Irene who was in Undersheriff however, noted, that in Dunkle’s 12 Linn car, willing to if she was Perske’s and asked *6 him, seeing a described version to she by Linn Perske first and further interviewed Although Dunkle had at trial Linn noted that who committed suicide—believed. an ex-husband Mirandized,” preliminary already Yet Dun- hear- about to shoot himself. "been that White was any cogent explanation of presented kle why Mirandize Dunkle ing never testified that he did not he White, consistently described witnesses who arrest” and that she she wasn’t under "because want to kill himself. "happy-go-lucky,” would as argument in its The State’s was free to leave. hand, State, maintained On the other "be- not Mirandize Dunkle that Linn did brief White, intentionally likewise shot already of those been advised cause she had regarding any significant evidence offered never misleading, rights,” since there is no evidence is shooting her husband-to-be. her motive was aware that Foster record that Linn morning. Dunkle earlier had Mirandized detailed, statement, though less 7. The written tape-record- essentially with Dunkle's consistent acknowledged did record or that he 12. Linn ed statement. interview, though interview videotape even significance Although potential of these recording equipment were equipped with rooms trial, pre- keys emphasized the evidence was years of that in his “33 He testified available. they what were for or sented did not establish FBI,” years plus in the and 25 law enforcement they belonged. evidence did establish whom videotaped an inter- recorded or he had "never” keys truck were found in White's to his notes, but that that he took notes, Linn testified view. ignition. compliance destroyed with these in he completed his final re- policy, after he O.S.B.I. wearing nightgown 9. Dunkle was barefoot completing a port. testified that after Linn also at the scene. She officers arrived when transported rough report, with Perske he consulted draft night- still in her and interviewed report. completing the final before recall gown, Linn nor Perske could and neither any obtain was allowed to whether or not she type of shoes. shot ex-husband had that her 13. Dunkle noted helped year, preceding that she had himself remained, Although take she did not Perske attempting to stop her brothers who one of her to take Linn did not ask notes—since handgun, that another himself with shoot independent professed rec- no notes—and almost did commit suicide. brothers later one of her what Dunkle said. ollection of steps, light boyfriend flash of after White ran down the been shot and thought having he was a heart threatening charge and that she officers were her with bending first-degree attack when she saw him over at the if murder she did not confess to (Dunkle insisted) him, shooting Linn that Dunkle de- though waist. noted also even White, laying next to to talk to scribed down she did not shoot him. they help, him while waited for and that Dunkle, speaking 15 After feeling
because she was nervous speak McCracken asked to with Linn and stressed, cigarette lighter removed a arrest, inquired whether Dunkle was under (near pocket from his left front shirt replied, to which Linn “No.” McCracken wound) gunshot cigarette and smoked the as then asked whether Dunkle was free to she waited. leave, responded to which Linn that she was leave, they free to but would have to make 13 Linn testified that he told Dunkle that arrangements. some in- When McCracken her account was inconsistent with evidence at quired then, ready go whether Dunkle was the scene and she then “revised” her they Linn “taking noted that that under story. provided Linn testified that Dunkle advisement” and that account, would have to including more details this second attorney’s consult with the district office. placement of White’s hands and her McCracken Linn informed that he had in- gun hands on the at the it fired —even time interview, structed Dunkle to discontinue the getting specific Dunkle to demonstrate the Shortly which was done. thereafter Dunkle placement replica of their on a hands wooden custody. was arrested and taken into Linn of a revolver. testified that Dunkle stated, taking “I don’t remember control of ¶ 16 The Agent State established that gun him touching the Linn, case, investigator lead was a trigger. gun fired It accident. expert particularly firearms familiar with an accident.” Linn testified that this ver- type gun used to shoot White.14 Linn sion Dunkle stated that White was on the great functioning testified detail about the step fired, gun though bottom when the pistol of the semi-automatic found at the shortly thereafter provided another scene, including safety the various mecha- story, version of the in which she was on the prevent firings. nisms intended to accidental top step ground and White was on the when Linn improper handling described how fired. weapon prevent cycling would it from properly. Linn testified that if the victim ¶ 14 Linn testified that he continued positioned Dunkle’s hands were Dun- insist that Dunkle’s account didn’t match the *7 kle gun had demonstrated at the time the push details, scene and to for more until fired, gun properly cycled the would not have stated, a.m., shortly before 8:00 that and the victim’s hands would have been in- give she would them more details after she jured.15 Evidence from the scene estab- attorney question. asked an one At this gun ground lished that the found on the point they stopped interviewing her and properly cycled ready and was cocked and attempts made a number to contact attor- again. be fired White’s hands were not in- a.m., neys. attorney Greg At 8:51 McCrack- jured.16 calls, en returned one of their and Dunkle spoke him phone, telling examiner, on the after the Jeffrey Gofton, The medical they officers that could remain the room. testified that the bullet that killed White During back, this call Dunkle told McCracken that slightly traveled from front to down- gunshot 14. Linn noted that the .45 caliber semi-automatic residue test on either Dunkle or White pistol handgun.” was his "favorite (to determine whether either of them was in fired), proximity gun close to the at the time it say 15. Linn testified: "And I can this with au- case, that there was no DNA evidence in the thority. holding weapon If someone is that im- White, that never found the bullet that killed properly, person's severely.” it will cut that hand helped which would have establish the relative positions gun of White and the at the time it cross-examination, Agent 16. On Linn acknowl- fired. edged fingerprints that Dunkle's were not found gun, perform on the that the State failed to that the evidence was sufficient left, directly through conclude passing and to the ward Based exiting first-degree his back. malice murder. Dunkle of heart convict White’s around the entrance stippling upon Dun- jury could have chosen to believe was wound, the bullet testified Gofton himself or story that either shot kle’s White distance, he an intermediate fired from accidentally, but it did not do so. was shot millime- range from several as a described jury was entitled to draw the conclusion four feet. Gofton up to three or ters i.e., did, that Dunkle’s apparently “extremely rare” for it was testified how inconsistent statements about White using handgun committing suicide someone ineffectual at- were the result shot dis- an intermediate weapon to fire that she intentional- tempts to hide the truth tance, typically involve such suicides since presented ly him herself. The evidence shot Robertson, an contact wounds.17 Gordon contested, trial, sufficient to though at criminalist, testified senior O.S.B.I. guilt.22 support jury’s finding pat- comparison powder upon his based test-firing gun recovered by terns caused II, argues Proposition 19 In pattern on powder with the at the scene Agent Tom Linn statements to OSBI shirt, at a gun was fired distance White’s suppressed, because he did should been away from the shirt.18 than 18 inches of less her of her Miranda properly advise at trial will be presented Other evidence acknowledged that he rights.23 Linn has propositions of error. in relevant discussed Dunkle of her Miranda never informed I, Proposition Dunkle ar chal- rights. response to this The State’s presented at trial was the evidence gues that (1) lenge Dunkle waived this is as follows: mal first-degree to convict her of insufficient objection to by failing to renew her issue challenges are evaluated ice murder. Such (2) trial; Miranda warn- testimony at Linn’s laid out standard under the well-established required, as the Linn interview ings were not Virgin v. in Jackson by Supreme Court (3) interrogation; and was not a custodial Spuehler v. State.20 ia19 this Court earlier Miranda warnings given Officer “whether, determine this test we must Under of her adequately apprised Dunkle Foster light most viewing the evidence after by Linn. questioning rights regarding the any rational prosecution, to the favorable could have found essential trier of fact Dunkle waived all agree We charged beyond a rea crime elements of the claim, when plain regarding this but error reviewing totali Upon sonable doubt.”21 trial, objection to Linn’s to renew her at we she failed ty presented of the evidence 319-20, Jackson, injuries 99 S.Ct. 443 U.S. wound” defined "contact Gofton original); Spuehler, CR (emphasis 1985 OK range muzzle of the from the include Jackson). 132, 7,¶ (quoting P.2d at 203-04 touching up millim- actually victim to several away. eters according to the juiy instructed 22. Dunkle's gun- hypothesis" instruc- uniform former "reasonable testified that based 18. Robertson evidence, shirt, involving firing patterns cases circumstantial powder on White’s tion for shot *8 Easlick v. this Court in contact to 18 inches." which was abolished State, would be "from distance 556, 21, 15, 559. CR 90 P.3d a contact wound 2004 OK that it "was not He testified special in- benefit of this powder dispersement around the Thus Dunkle had the because of the struction, higher wound," seemingly conviction “there was some with its but also noted relying evi- on circumstantial tearing large that can be for cases holes in the shirt standard we review contact-type We conclude that whether wound." Robertson dence. made with a challenge sufficiency away the evidence acknowledged, far Dunkle's “we don't know” how Easlick, was, adopted approach" gun that the muzzle of under the "unified but concluded 557, contact, 4,¶ pre- our or under away ... but id. at 90 P.3d than was "farther challenge jurisprudence, fails. the shirt.” Easlick than 18 inches from less 436, 2781, 2789, Arizona, 307, 319-20, U.S. 86 S.Ct. 61 v. 384 U.S. 99 S.Ct. 23. See Miranda 19. 443 1602, (1966). (1979). pre-trial 694 16 L.Ed.2d L.Ed.2d 560 suppress on this basis her statements motion to 202, 132, 7, by the trial court. was overruled P.2d 203-04. OK CR 709 1985 236 specific decline to questioning at trial.24 We determine tion with interrogation Linn’s of Dunkle was
whether shooting death of her husband. Less than point from the outset became some later, four hours another law enforcement “custodial,” such that Miranda warnings (Linn) began questioning officer her about Instead, required.25 we find that the shooting. the same Dunkle remained in the warnings provided by Miranda earlier Fos presence during of law enforcement officers rights Dunkle of her adequately ter informed period. certainly this entire She was aware interrogation by regarding later Linn.26 investigating officers were the shoot- ing of her husband and that were fo- ¶21 interesting argu- Dunkle makes the upon determining cused how it had occurred custody was not in at the time ment that she might and what role played. have This her; precau- hence Foster interviewed his entirely situation is Miranda “wholly gratuitous” unlike the tionary scenarios essentially early, warnings addition, weré too the cited authorities. the fact in regard therefore did not “count” to her that Dunkle speak attorney asked to to an interrogation by Linn. Dun- later custodial strongly suggests that she was aware of her Supreme kle relies Court and an right plain to do so. Hence there was no opinion by Virginia Supreme the West Court error. support of this claim.27 The discussions in not, however, 23 We do condone Officer inapposite.28 these cases are purposeful
Linn’s
decision not to
apparently
¶22
Mirandize Dunkle.
sup-
Dunkle was
The record does not
Mirandized
one
(Foster)
law
officer
port
enforcement
connec-
claim
State’s
that Linn was aware of
State,
73, 64,
(1991);
Bradshaw,
519,
v.
1998
CR
See Wilson
OK
983
State v.
193 W.Va.
457
448,
456,
(1995).
Although
P.2d
reply
Dunkle filed a
S.E.2d
467
brief,
respond
any
she did not
to
of the State’s
'
arguments regarding Proposition II.
possibili-
28.The
footnote in McNeil discusses the
ty
attempting,
preliminary
of a defendant
at his
case,
Keohane,
99, 112,
hearing
Thompson
being ap-
25. See
v.
in one
516 U.S.
to ward off
457, 465,
(1995) (de
proached by
regard
S.Ct.
officers in
237
principle
25
a fundamental
of
warnings
by
It is
provided
Foster.29
earlier
that,
exceptions,
provide any
with limited
Linn
evidence law
the State or
Nor does
“[ejvidence
a trait
person’s
a
character or
decision not to
of
legitimate rationale for Linn’s
Dunkle, who,
is not admissible for the
[her]
under the circum-
of
character
Mirandize
conformity
stances,
purpose
proving action in
clearly
to be a sus-
of
considered
particular
therewith on a
occasion.”32 Yet
of White. The
pect
death
appears
case at
by
poten-
much of
trial
rights protected Miranda
the State’s
establishing
Dun-
garnered
directed
that Laura
importance of
information
toward
tial
mother,
a
an
person
of
are
kle was
bad
through
questioning
this kind
both too
bad
—a
fiancée,
unloyal
manipulator,
jeopardized by a failure to
a self-absorbed
to
do
precious
even,
person
literally, a witch. The State
easily
quite
inform the
is so
done:
what
character,
rights under Mi-
repeatedly emphasized
interrogated
Dunkle’s
being
of their
seemingly,
attempt
to persuade
in an
Although
Fifth Amend-
randa.
Dunkle’s
any readily
by
despite
Linn’s
the lack of
deci-
rights
ment
were not violated
was,
motive,
person
her,
apparent
she was the kind of
the decision
not to Mirandize
sion
nevertheless,
would
her husband-to-be.33 Much
a bad
who
shoot
one.
by
presented
of
evidence
the State
III,
Proposition
24 In
Dunkle ar
issue,
charge
the murder
not relevant to
in allowing
the trial
erred
gues that
court
present
most
irrelevant
evidence
prejudicial
introduce
to
irrelevant
State
ed was character evidence.34
review such
character evidence at trial. We
The
its
to focus
of
fur
26
State revealed
intent
for abuse
discretion.30 Dunkle
claims
prior
emphasis
upon
character
to trial.
argues
Dunkle’s
ther
the State’s
in li-
prosecuto-
counsel filed motion
improper
constituted
Hence defense
evidence
asking
prohibit
mine
the trial court to
Hence this Court must de
rial misconduct.
(among
relating to
presentation
evidence and
of evidence
improper
whether
termine
(1)
things):
“religious
be-
so infected Dun- other
prosecutorial misconduct
(2)
liefs,”
fundamentally
involvement with Dunkle and
that it
DHS
kle’s trial
was rendered
(3)
children,
unfair,
sent
Dunkle to
jury’s
letters
such that the
verdicts cannot be
(4)
Kelly
jail,
phone
recorded
upon.31
Mike
relied
(“The general
put
began
warning
one is
questioning
rule is
when
"didn’t
—hence
trial,
by evi-
one
convicted—if at
is to be
count.”
all—
the
guilty
one
offense
dence which shows
State,
16,
spoke
only
charged....");
¶¶
to
v.
OK CR
29. Linn testified that he
Foster
Wilkett
1984
10-12,
573,
(while
576
State has
“very, very briefly”
morning.
674 P.2d
good
right
rebut defense evidence
limited
¶36, 30,
State,
character,
general
present
v.
OK CR
right
30. See Davis
has no
70,
character).
P.3d
evidence of bad
present any
or
evidence
33. The State did
637,
DeChristoforo,
Donnelly v.
416 U.S.
31. See
any
theory
why
particular
offer
1868,
1872,
(1974)
So
once
to Mike
to this is
from or heard their record-
who she is
person
phone
and this is the
ed
Regarding
that she
conversations.
the let-
is,
ters,
and I think
prosecutor
we’re entitled to
argued
they
show
that
contain
information,37
whether —she’s an
person,
unusual
relevant
and
and defense counsel
going
trial,
requested
that’s
to come out in
they
be redacted to eliminate
just
this is
one of
aspects
the unusual
irrelevant references to the DHS case.38 Re-
about this
garding
jailhouse
calls,
defendant.
phone
prose-
cutor asserted that she was unsure how
Defense counsel countered that Dunkle’s “re-
many
presented, beyond
calls would be
those
ligious practices”
anything
did not have
to do
May
July 2, 2003,
because she
White,
with
or not
whether
she shot
and that
didn’t
advantage
want to “take
of the Court
they
relevant,
even if
they
were somehow
jury”
or the
or “bore them to tears.”39 Once
they
should be excluded because
were so
again, the court deferred
ruling
its
on this
prejudicial. The court ruled that the State
until
evidence
trial.
approach
should
asking any
the bench before
questions dealing with this issue.
¶ 30 At the trial the
State focused
Dunkle’s character from start
to finish. For
argued
Defense counsel also
example,
prosecutor’s
opening
State should not
statement
be allowed to introduce
began as follows:
relating
family’s
to the
involvement
DHS,
since most of this evidence was
Ladies and
Jury,
Gentlemen of the
we
both
prejudicial.
irrelevant
particu-
In
anticipate that the State’s evidence in this
lar, defense counsel
noted
some DHS
prove
case will
show
the defen-
allegations
dant,
records
Dunlde,
contained
that Laura L.
like a black widow
previously given
“sleeping
spider,
her sons
Gary
sub-
lured
Benton
into
White
help
web,
stances” to
sleep.
argued
lies,
them
He
death,
a web of
and destruction.
allegation
35.
ap-
phetamine"
Defense counsel noted that
boys.
investigation
in both
Later
peared in
boys
some DHS materials and that
prescribed
on the
revealed that the
had been
Adde-
XR,
night
shooting,
(ages
amphetamine
of the
rall
commonly prescribed
Dunkle's sons
9 and
an
time)
at the
Hyperactivity
for Attention Deficit
were asked whether their mom
Disorder.
witchcraft)
things" (referring
did "church
home,
they
answered "no.” The State noted
particular,
the State noted that Dunkle's
that witchcraft was also referred to in one of the
Kelly
diary
insistence that
find her son’s
telephone
recorded
Kelly.
conversations with
significant, as
previous
was a reference to a
"quarrel” between Dunlde and White.
night
shooting,
On the
officers had a
very
waking
boys
difficult time
the two
be-
Defense counsel’s motion in limine also re-
they might
quested
came
concerned
phone
that if
been
the letters or
calls
admitted,
drugged. They questioned
boys
they
redacted to
wheth-
eliminate
prejudicial
given
anything,
er
references to irrelevant
Dunkle had
them
and one of
informa-
being
tion.
given
them referred to
"headache" medi-
boys
cine. Hence
decided to have the
tested
drugs.
urinalysis
negative
Their
tests were
responded
just
39. Defense counsel
that he would
substance,
every
for barbiturates and
other tested
going
like notice of which calls were
to be used
though they
presence
did
object
reveal the
of an "am-
and he could
at trial.
*11
tionable,
entitled
Laura
I believe this
will
that
evidence
be
The State’s
only
Gary
this defendant
The trial court
L.
wanted
Benton White
know who
is.”
Dunkle
obtaining her children back
was “sort
a rock
noted that it
of between
assist
here,
will
from
Our evidence
place
knowing
Child Welfare.40
a
the relevance
hard
selfish,
possessive,
and self-
yet,”
be that she is
answer
ruled that
of
but
she
[Perske’s]
will be
The State’s evidence
centered.
anyway.
question
answer the church
could
unknowing
Gary
that
Benton White was an
question
pending
then answered the
Perske
defendant.
“church,”
victim of this
by
had
why she
asked about
about
prior to
interview
stating that
the second
of
spi-
as
predatory
Dunkle
a
depiction
The
of
something
up,
was
that came
boys, “there
argu-
closing
in the
repeated
der
State’s
was
church,
possibility
something about
about
as
portraying this defendant
ments.41 And
something
that fact.”44
of witchcraft or
of
key
a
theme
frightening and “unusual” was
though
case—even
the actual
of
State’s
cross examination defense counsel
33 On
single-bullet shooting were not
facts of this
testimony from Perske that when the
elicited
strange.42
particularly creepy or
boys were asked
their mother
two
about
in-
suggestion that Dunkle was
31 The
stuff,” they
said that she
doing “church
both
during the
volved
first came out
in witchcraft
any church
at home.” On
“didn’t do
stuff
Perske.
questioning of Undersheriff
Irene
prosecutor then
redirect examination the
had
bench,
approaching the
Without
first
following exchange with Perske:
ques-
of
prosecutor
Perske what kind
asked
Now,
ques-
a
Q.
right.
going
All
back
tions
church” she had asked
“about
you.
Mr.
Nei-
tion that
Smith asked
night
shooting,
of
younger
on the
son
boys
ther of the
either
—did
ques-
purpose
asking
that
“what was the
boys actually say
their’ mother
that
coun-
tion
reference to church?”. Defense
not involved in
was
witchcraft?
objected
during
immediately
argued,
sel
No, they did
A.
not.
followed,
that
that
the bench conference
Q. Okay.
question
they
And
that
motion in
matter addressed
his
you
gave
and the
asked
answer
limine,
any witchcraft reference would
church was about whether she
about
the court
“highly prejudicial,”
be
and that
home;
anything church wise
did
would
a can of worms”
allow-
“opening
isn’t that correct?
ing
testimony.
in the
correct.
A. That’s
responded by
prosecutor
assert-
The
trial the
elicited tes-
really
prosecutor
ing
was not sure about
Later
that she
Priest,
and co-
timony from Michael
a friend
knowledge regarding the
extent of Perske’s
White,
impression
his first
allegation.43
prosecutor
The
then worker
witchcraft
objec-
that “she
like a witch.”45
argued,
though they
Dunkle was
looked
find
“[E]ven
White,
presented
first saw
with
"cold
Although
evidence
that when she
the State
some
my spine.”
hearings
up
elicited testi-
went
She also
attended
Dunkle as she
chills
White
with
ex-wife,
White,
children,
custody
mony
regain
Sharon
White’s
attempted
no
from
of her
allega-
"gave
reason.”
substantiating
for some
presented
me
willies
relationship
tion
Dunkle's motivation for her
get-
prosecutor
obtaining
stated that if Perske "knows
43. The
with White was
ting
his assistance
that,
only going
dropped
anything
it’s
to be
she
The
about
children back.
State
her
why
something
closing argument.
that is
she
allegation
that and
its
heard
from
added,
going
She
“We’re not
into
asked them.”
long
closing
prose-
anything
about that sub-
During
argument,
[sic]
and sorted
final
ject.”
again argued
cutor
that "this defendant lured
deceit, lies,
web,
[Gary
into her
web of
White]
continued, "Gary
where
asked on cross examination
She
44. When
and destruction....”
mistake,
gotten the "church stuff” informa-
mis-
had
and that fatal
Perske
White made
fatal
tion,
where she
hooking up
stated that she did not recall
take
Be-
this defendant.
heard,
cause,
gotten that
you’ve
a black
information.
now
she is like
spider
all around
is death.”
widow
argues in
that Priest's an-
State
its brief
45. The
question
unresponsive
to the State's
prosecutor
Robin
swer was
elicited
The
White's,
impression
of Dunkle.
State’s
Klinglesmith,
about his first
a co-worker and friend of
during
Reviewing
compact
the trial as a whole leaves little
dence
the trial.
actual
*12
discussion,
containing
prosecutor
to leave
disc
the entire
howev-
the
intended
doubt
er,
not
jury
that she
altered and was admitted into
impression
Dunkle’s
with the
witchcraft,
Unfortunately,
as
evidence
Exhibit 15A.
the
involved in
whether she did
jury
not
record does
reveal whether
the
“church
not.46
stuff’ at home or
this
replayed
recording
could have
the
of
entire
recognizes
This Court
the State
34
May 30
during
conversation
its delibera-
that Dun-
had substantial basis for its belief
tions.48 Hence this Court
know for
does not
tape
was involved in
The
kle
witchcraft.
jurors
or not
sure whether
received
2003,
30,
recording
May
phone
of Dunkle’s
or reviewed this evidence.
Kelly
jail certainly sup-
to Mike
call
Leitner,49
¶35
jury
In State v.
this
If Dunkle’s
ports
Supreme
conclusion.47
conversation,
May
it
heard the entire
30
Kansas
Court of
addressed a similar situa
where,
likely
tion,
that Dun-
first-degree
would
have been convinced
in a
murder trial of
prior
ex-husband,
Just
was involved with witchcraft.
who
kle
a woman
shot her
the State
however,
playing
recording,
to the
of this
cross-examined the
her in
defendant about
objected,
court
defense counsel
and the
ruled
with
volvement
Wicca and “witchcraft.”50
stopped prior
The Leitner court examined the
recording
Supreme
that the
should
be
of
materi-
Court’s decisions in Dawson v. Delaware51
the discussion
Dunkle’s witchcraft
Abel,52
v.
and United States
jury
Hence the
did not hear this evi-
well
als.
as a
however,
craft,
paralleled
ques-
questioning,
its earlier
he later ruled that
defendant
door,”
tioning
"opened
prosecutor
of the witnesses
that Dunkle
who testified
and allowed the
gave them
willies.”
"cold chills” and "the
The
about the
to ask
defendant’s
with
involvement
correctly notes that
counsel failed
State
defense
"pagan religion.”
"witchcraft” and
at
Id.
51-54.
object
any
testimony.
of
Delaware,
159,
51. See Dawson v.
112
503 U.S.
transcripts
46.
is hard to read
trial
1093,
It
the entire
(1992) (finding
S.Ct.
¶36
emphasized
inflammatory
unduly prejudic
the
Leitner
court
dence
evidence, noting
cogent
The trial
offered no
rea
prejudicial nature of such
ial.60
court
testimony,
allowing
witchcraft
generated
“the idea of witchcraft has
son for
the
that
find
that
contempt
throughout American
and we can
none.61 We conclude
terror and
witness,
gotten
impeach
that she
involved
witch-
defense
where
evidence
her was
had
other
ceremony.
showing
Aryan
attended Wicca
at 52.
presented
Broth-
Id.
that members of
craft
other).
erhood are sworn to lie on behalf of each
55, 56.
57.
Id. at
Abel,
recognized
Supreme
the
Court
that the
In
erect an
ban on
Constitution does not
absolute
58.
Id. at 56.
constitutionally
evidence about a defendant’s
protected
the
beliefs and associations. Where
at
testified that
tried to
59.
Id.
57. Leitner
the
State can establish a connection between
during
husband
times
mar-
kill her
two
their
jury,
issue
the
and an
before
beliefs/associations
coffee,
by putting
poison
riage
rat
in his
—once
regarding a defendant’s
evidence
beliefs/associa-
thought
poi-
putting
were
and once
what she
52-54,
at
tions will sometimes
admissible. Id.
Id.
47. She
mushrooms in his omelette.
at
son
at
105 S.Ct.
469-70.
people
boys
various
she and
would
told
financially
be better off
if
ex-husband
Flanagan
v.
53. The Leitner court noted
dead;
shooting
the
and she
to
him in
admitted
State,
(1993),
times,
846 P.2d
the
109 Nev.
range, using
differ-
three
at close
two
head
following
Supreme
derived
Nevada
Court
Supreme
guns.
at
ent
Id.
56. Hence
Kansas
"Evidence of a constitution-
rule from Dawson:
"overwhelming
evidence
Court concluded
ally protected activity
only
stoiy
if it is
admissible
Id.
contradicts Leitner’s
self-defense.”
general
something
used for
more than
character
at 57.
Leitner,
(quoting
at 54
Flan-
evidence.”
34 P.3d
Dawson,
Supreme Court
1056).
60.
In
observed
agan,
P.2d
feeling
present
record one is left with the
"on
Aryan
evidence was em-
Brotherhood
Leitner, 34
54.
P.3d at 55.
simply
jury
ployed
would
these
because
find
morally reprehensible." 503 U.S. at
beliefs
"the
show-
Id. The court found that
evidence
draw a
S.Ct.
1098. It is difficult
to
ing
participated
bears no
Leitner
Wicca
present
parallel conclusion in the
case.
charged against
relevance
the crimes
her."
probative
it
Id. The
Id. Hence had "no
value.”
argument
reject
We
the State’s
that Dunkle
court also concluded that the
witchcraft
witchcraft,” by
"opened the door
the issue of
impeach
did not
the defendant. Id. at 56
asking
it
examination. Defense
on cross
repeatedly objected to
witch-
had
this
counsel
struggled
keep
at 55.
Leitner
out of
Id.
The Slate maintained that
craft evidence and
door,” by
"opened
testifying
has
that her
trial. We will not find
Dunkle's
reason,
right
challenge the
no
admission
husband had beaten her for
because
waived her
evidence,
State)
simply
at-
(argued
because her counsel
real reason
beaten
this
he had
entirely
witchcraft
evidence was
irrele-
er character evidence. Yet defense counsel
unduly prejudicial.
object
vant and
find that
failed to
We
at trial to much of the evi-
dence now challenged
appeal.64
partic-
court abused its discretion
admit-
ular,
evidence,
challenges
ting
attempt
violated Dunkle’s
State’s
suggest
drugged
that she
rights
her children on
under
the First
and Fourteenth
night
shooting.
of the
Despite pretrial
Amendments.
keep
out, however,
efforts to
this evidence
potential prejudice
38 The
from the
defense
object
counsel failed to
at trial to
substantial,
witchcraft references
even if
Undersheriffs Perske’s
about how
May
not hear
did
the entire
difficult it
towas wake Dunkle’s sons on the
note that
discussion.62 We
the evidence in
night
shooting
and to Dick Jones’s
case, though certainly
sup-
sufficient to
testimony about the DHS decision to have
conviction,
port Dunkle’s
was not “over-
tested,
boys
looking
because
“were
whelming.”
history,
Dunkle had no criminal
possibility
at the
being drugged.”65
of them
consistently
denied
her husband-to-
Thus this issue has been waived.66 Further-
be, and had no known motive to kill him.
more, although the relevance of the testimo-
*14
fired,
Only one shot was
and the State failed
limited,
ny was
suggesting
and
that Dunkle
conclusively
through gun
to
shot
establish —
drugged
appears
her sons
unfairly prejudi-
residue,
DNA,
fingerprints,
compa-
or other
(in light
urinalysis results),
cial
we
rable evidence—that Dunkle ever touched
reject
likewise
prosecutori-
Dunkle’s claim of
proximity
or that she was in close
to
al
regard.67
misconduct
it
it
when fired.63
¶ 41
challenges
Dunkle also
¶ 39 We also note that the witchcraft refer-
admission into evidence of State’s Exhibit
part
larger
pattern
ences were
of a
State
14,
No.
long,
which is a
rambling letter she
character,
attacking
by
Dunkle’s
portraying
wrote
Kelly
jail.68
to Mike
Despite
from
frightening
her
a
person.
as
and unlikable
raising pretrial objections and requesting
potential prejudice
Hence we evaluate the
redacted,
however,
the letter be
defense
from
considering
this evidence
it in combi-
counsel stated that
objection”
he had “no
nation with the other character evidence that
it at trial. Hence
regarding
Dunkle’s claim
challenged
appeal.
is
this letter has been
plain
waived absent
er
III,
Proposition
Within
Dun-
Although
ror.
certainly
the letter
contains
kle
challenges
attempt
State’s
unduly
material,69
irrelevant and
prejudicial
paint her
through
as an unfit mother
improp-
it also contains relevant and admissible mate-
tempted
impact
to blunt its
urinalysis
when the trial court
that the
tests done on Dunkle’s sons
allowed it in.
presence
any sleeping pills,
did not reveal the
sedatives, or
reject
barbiturates. Hence we also
prejudice analysis
62. This Court’s
does not as-
(undeveloped)
Dunkle’s
ineffective assistance
discussion,
jury
sume that
though
heard this
VIII).
regard (Proposition
claim in this
recognize
we
that if the
did listen to the
deliberations,
during
entire discussion
its
66.
plain
And
there
no
error.
witchcraft references therein would have been
extremely prejudicial.
67. We note that the
closing
State's remark in its
63.
totally
argument
Thus the evidence
sleepiness
in Dunkle's case was
of Dunkle's sons
unlike the evidence in Leitner.
arguing
was "not normal” is not the same as
they
drugged.
were
particular,
64.
In
object
defense counsel failed to
Jones,
testimony
to the
of Dick
a DHS child
only
68. This was the
letter offered into evidence
specialist,
why
welfare
about
DHS was involved
at trial.
family
with the
displayed
and the lack of emotion
they
Dunkle's sons when
were informed of the
example,
request
Kelly
For
Dunkle's
con-
shooting
jail.
and told that their mother was in
car,
give
tact her sister and
her Dunkle's
so she
fact,
boys”
Washington,
can take "the
appears
suggests
In
with her to
record
that Dunkle's
unduly prejudicial,
counsel
irrelevant
strategic
made a
and
reasonable
since
decision to
suggests
trying
allow this
and
rebut
Dunkle is
then
it with the
to have her sons
urinalysis
away
During
permission.
results from the
taken
tests.
without DHS
the mo-
The letter
hearing,
tion
defense
ranting
counsel stated that he had
also contains substantial irrelevant
problem”
presenting
case,
“no
attorneys
with the State
family’s
involved in the
DHS
her,
addition,
gets
him to do all kinds of favors for
contains mate-
the letter
rial.70
animals,
including
gathering
her
plain
caring
find
Dunkle.71
do not
helpful
rial
We
valuables, dealing with
protecting
her
error in its admission.72
attorneys, communicating
fami-
her
with her
recordings of Dun-
42 The six different
bills,
ly, paying
dealing
her credi-
her
Kelly
jail,
telephone calls Mike
kle’s
tors,
money
get
of her bank
trying to
out
however,
story.
phone
are another
re-
accounts,
etc.
Kelly
Although initially
is un-
27,
13,
May 8, May May May
cordings from
through
looking
the idea of
comfortable with
2003,
2,
July
all of
would
June
purse,74
Dunkle’s
within a
he is
few weeks
play at
over 80 minutes to
trial.73
have taken
car,
home,
driving
living in
powerful support for
they provided
And
sleeping in her bedroom.75
a
theme that Dunkle was
bad
State’s
¶ Despite
romance between
person
spider.”
Review-
obvious
“black widow
calls,
order,
recordings
Kelly
phone
in the later
sequential
ing these
jury,
having any theory
trial the
they
played for
the listener
State denied
Kelly
Kelly
out
was involved
White
can hear how Dunkle seeks
—who
offering
is,
first,
help
get
(subsequent)
and also
quite reluctant
renounced
how,
way
Dunkle/Kelly
possible
in a
romance as
motive
short
involved
—and
Although
time,
for the murder of
him into her various schemes
"White.76
she draws
suggests
history,
that he
taken her
how unfair her bond
should have
Dunkle's work
Blanchard,”
boys and
with them
so
"hid out
amount is.
away.
get
Kelly
taken
notes that
wouldn't
"kidnapping.”
that would he
Kelly
youn-
find her
instruction that
*15
ger
diary
anyone else finds it"
son's
"before
call,
May
Similarly,
the
13
when Dunkle
in
admissible,
possible
suggests
appears
it
evi-
since
get Kelly
tries to
to make sure White's tools
tampering
guilt.
of
dence
and consciousness
them),
(so
Kelly
are secure
his ex-wife won't steal
up
Similarly,
I screw
I
the
"When
statement
Laura,
responds,
going
get
I'm
to
"Now
not
appears
around do
also
admissi-
don't mess
I!!”
trying
put
in-
involved
You're
to
me
in that.
ble.
Near
volved in
I shouldn’t be involved in."
shit
afraid to
the end of the call he states that he is
praises
admiringly
letter
White
and
Dunkle's
notes,
anything
home
"Like
touch
in her
and
and
were "soul-mate[s]”
states that he
said,
my
getting
in shit
Mama
I'm
shit involved
"this is a
accident.” It also
and that
horrendous
getting
I’m
that I
know what
into.”
don't
accident!;]
states,
very tragic
a
not
"This is
way
trying
any possible
anything
I was
else.
May
phone call to
75. Dunkle concludes the
going
prevent
happening.
wasn’t
He
out
to
help
Kelly by
appreciation
and
expressing
for his
coyotes
planned
<&
to
I
knock the
to shoot
had
stating,
you very
doing this.
"I love
much for
his hand....”
out of
you.” Kelly responds, "Bye.”
is
Thank
There
phone
sign
May
call.
still no
romance in
of
reject
(undeveloped)
call, however,
We likewise
Kelly
By
phone
May
is
Proposition
letters,”
VIII
assistance claim in
ineffective
urging
write him
"love
Dunkle to
some
regard,
explain how
which
defense
doest
by
concludes
call
thank-
and when Dunkle
their
prejudiced Dunkle.
counsel's failures
love,
responds,
ing
expressing
"I
him
her
he
and
calling
you
June
are
love
too.” And
names, carrying
pair
by pet
a
May
each
on like
playing
other
total assumes the
of
73. This
against
short,
cooing/cursing
doing
love birds
battle
recording was cut
as the court ordered.
world,
having exchanges like: "I love
compact
Exhibit 15A
disc that constitutes
22, 2003,
you.”
you
you
“I
May
"I
more.” "I love
best.”
recording
love
of a
also contains
During
you
Kelly,
love
this same conversation
better."
conversation between Dunkle
putting
as her
that she is
him down
Dunkle states
play
chose not to
at trial.
the State
(husband)
signing her
law”
and is
"common
parental rights
to him.
over
8,May
get
Kelly,
to
Dunkle asks
her
74. When
phone
purse
her
and a
num-
and find
medication
"Laura,
inside,
whines,
closing
prose-
During
argument, the
Kelly
final
I don’t want to
her
ber
relationship
Mi-
through your purse."
Kelly
cutor
"The
between
go
initial
asserted:
In this
call
Dunkle,
very important.
Kelly
chael
this defendant is
help
to
dubious
reluctant
about
sounds
conspiracy.
saying
Mi-
very
getting
that there's a
story,
We're not
himself
worried
boy,
Kelly just
old dumb
who obvious-
chael
is
an
example,
For
he states
if he is
in trouble.
Dunkle,
telling
home,
ly
him
go
loves
she starts
going
wants to have the
Laura
he
jail.”
observe,
gets
get
as she
what
do as soon
there to
so he doesn't
himself
sheriff
added,
Kelly just an
prosecutor
Kelly
later
"Michael
expresses shock when
trouble.
¶45
prosecutor
appeal,
reviewed
contents of the tele-
On
the State offers a
calls,
phone
length,
possible
why
number of
during
her final clos-
reasons
the record
relevant,
ings were
which we
ing
up
take
argument,
exclusively
she focused almost
First,
turn.80
argues
State
on what the‘calls revealed about Dunkle’s
phone
(along
calls
Kelly)
the letter to
emphasized
phone
character. She
that the
Dunkle,” ie.,
“are relevant to
guilt
show consciousness of
“the real Laura
calls revealed
by the defendant and her romantic relation
cold,
who is
calculating,
the Laura Dunkle
ship with
Kelly,
Mr.
which is evidence of
self-absorbed, manipulative, angry,
al-
motive
kill
defendant to
her fiancée
regret
totally
grief
void of
most
about the
specifically
[sic].”81 Yet at trial the State
death of her husband-to-be.77
denied that the romance between Dunkle and
Although
¶44
the trial court had Kelly
being
offered as evidence of “mo
ruling
admissibility
deferred
on the
acknowledged
tive” and
that it did not have
jailhouse telephone recordings,
the record
any
regarding
Dunkle’s motive for
suggests that both defense counsel and the
Furthermore,
shooting White.
the State’s
mistakenly
trial court
believed that the court
regarding
candor
sup
this issue is
already
record,
ported by
found this evidence admissible.
which contains no evi
suggesting
although
dence
preserved
Hence
defense counsel
romance between
Kelly pre-dated
objection
Dunkle’s earlier-stated
to the ad
White. Hence
recordings
were not
evidence,
ad
missibility of this
he did not rearti-
missible as
evidence motive.
arguments
culate
excluding
his
the re
cordings.
provide any
And the court did not
¶ 46 The State also asserts that the
explanation for its decision to admit them.78 telephone recordings “were relevant to show
Nor was there
discussion of defense
inconsistencies
the defendant’s various
request
counsel’s earlier
that the recordings
happened
versions of
night
what
redacted,
to eliminate
references
irrele
victim was killed.” Yet the State does not
prejudicial
vant and
information. This Court
provide
single example
from the recordings
reviews the trial court’s decision to admit
giving
of Dunkle
an inconsistent version of
recordings
these
for abuse of
happened
discretion.79 what
night
on the
shooting.82
*16
unwitting
When,
assistant after the fact
(containing
for Laura Dun-
78.
15A
Exhibit
the recorded
conversations)
telephone
kle.''
was offered into evi-
dence,
following exchange
occurred:
prosecutor apologized
length
77. The
for the
already
DEFENSE COUNSEL: You've
ruled
noted, “[Tjhere's
recordings,
something
but
this,
on
standing objec-
but we would have a
very important
phone
calls.
She mak
tion to this.
ing plans
Kelly
days
with Michael
two
after she
Okay. Objection
THE COURT:
is noted.
Gary,
feelings,
killed
and she has no
concern
no
Overruled.
anyone
gives
other than
She
herself.
more
feeling
dogs
to her
and to her cats. That's what
79. Since defense counsel failed to rearticulate his
prosecutor
she's concerned about." The
noted
arguments
excluding
recordings,
we will
call,
May
jurors
that in the
could hear
also consider whether the admission of these
Dunkle’s "hardness of her heart and callous
toto,
recordings,
plain
constituted
error.
ness,” particularly in her obvious enthusiasm
upon learning
story
shooting
that the
of White’s
however,
response,
80. The State offers no
newspaper
picture
had made the
and that her
argument
Dunkle's
recordings
page.
prosecutor
was on the front
The
com
unduly
filled
prejudicial
with material that was
hearing
mented that Dunlde’s reaction to
to her.
paper
give anybody
she had made the
"should
cold chills”:
telephone
The State also asserts that Dunkle's
"expression
Kelly,"
of love for Mr.
lottery.
her state-
You would think she won the
You
listing
ment that she is
him as her common law
joy
talking
don’t hear that much
when she’s
killing
husband "show a motive for
the victim to
about her children. You sat and looked at this
get
way."
out
him of the
defendant as she sat here this week. These
phone
you
calls show
the real Laura Dunkle.
him,
You hear
Kelly.
how she talks to
Although
Michael
the State focused
inconsisten-
anger,
You hear how she curses. You hear her
investigators,
cies in Dunkle's statements to
it
attorney.
directed at
argued
her own
You
phone
hear her
never
calls contained
anger, you
examples
changing
story.
hear the real Laura Dunkle.
of Dunkle
separate
of the other
conversation or
recordings
tire
review of
this Court’s
And
prosecutor’s arguments
not,
that,
Dunkle was
conversations.
truthful
reveals
purpose
the real
story
suggest
that she
Kelly
same basic
telling
i.e.,
expose the
was to
playing
this conversation
investigators,
that White
had told
(and nauseating) love
keep him from commit-
to the irrelevant
tried to
as she
shot
Kelly.86
an “accident.”83
Dunkle and
that it was
banter of
ting suicide and
Furthermore,
surprisingly, Dun-
perhaps
argues
Finally,
the State
actually
barely
to what
Kelly
refer
kle
remarks,
recording
Dunkle’s
shooting.
night of
on the
happened
18, 2003,
anything
won’t do
that she
June
on
not admissible
recordings were
Hence the
as a statement
“stupid” again was admissible
this basis.
agrees. This
against
This Court
interest.87
asserts that
47 The
State
was relevant to
portion conversation
their
Dunkle’s
to show
recordings were admissible
not un
charge against Dunkle and was
attempt
to conceal
“continuing
por
fairly prejudicial to her. This isolated
it to her new attor
Kelly
give
telling Mr.
however,
not
single recording,
did
tion of a
”
‘big part of the case.’
ney
it is a
because
justify
court’s admission of the five
the trial
final recorded
occurs in the
reference
other conversations.
conversation,
to is
being
“it”
referred
and the
finds that
49 This Court
younger
diary of
apparently the
admitting
its discretion
trial court abused
Kelly
The conversation indicates
son.
conversations,
together
the five other
give
him to
diary, and Dunkle tells
found the
minutes, with
no rele
over 69
almost
lasted
going to be a
attorney,
it is
to her
because
content that was
content and substantial
vant
It is unclear whether
“big part of the case.”
unduly prejudicial. We
irrelevant and
po
both
supports
even
the State’s
this discussion
deci
if we
the court’s
that even
review
conceal note
attempting to
that Dunkle was
sition
recordings
playing of the
to allow the
certainly
best evi
sion
not the
evidence.84 It is
error,
should
Furthermore,
plain
the trial court
only for
indi
State
dence of such.
realized, upon hearing the re
quickly
offering the
at trial
cated
trial,
and how
cordings at
how irrelevant
at
evidence of an
phone conversations as
were,
them
and cut
unfairly prejudicial
This Court
tempt
to conceal evidence.85
happen.
find that the
did not
We
off. This
portion
if a small
that even
finds
to limit or constrain
admissible,
total failure
trial court’s
July
conversation
plain error.88
this evidence was
of the en-
justify the admission
this did not
tape
call,
and all
woman on the
Remember the
During May
to the
that?
Dunkle refers
phone
Kelly
calls.”
those
"a
accident" and tells
dreadful
accident,”
show that it was an
that "the forensics
*17
"proves my innocence.”
discussing how much
In the midst of
87.
get
wait for Dunkle to
other and can't
miss each
states,
doing any-
particular
jail,
discussion
"I'm not
from this
out of
Dunkle
It is unclear
attempting
stupid,
it.” She
thing
"conceal” the
I swear. This is
more
whether Dunkle
states,
right?”,
stupidness,
diary
simply wanted to find it to
whether she
"No more
later
support
"Yup.”
help
Kelly responds,
her defense case.
although
chosen
specifically noted that it had
Dunkle fails to
85. The State
notes that
88. This Court
22,May
play
of
as-
fully develop
Proposition
the recorded conversation
VIII ineffective
not to
n
2003,
already
claim,
on this issue was
since evidence
we
reviewed re-
sistance
record
jury through
letter. We note
Proposition
supports
Dunkle's
ineffective
garding
before the
III
recording,
(unplayed) May
Dunkle
that in the
Defense counsel’s fail-
claim as well.
assistance
diary
Kelly find the
objections
insistent that
fully
is much more
at trial and
articulate his
ure to
it,
"anyone"
get
it is "the
recordings
else
because
and not let
request that the
re-
his
to renew
important piece
we have.”
part
of evidence
most
inadequate performance and not
dacted was
Furthermore,
strategy.
this
any
of
reasonable
job and
had done
finds that if counsel
prosecu-
Court
closing,
his
the end of her final
86. Near
recordings
kept
out of Dunkle's
the inadmissible
argued:
you
when
look over
this
tor
"And
trial,
defendant,
probability
courtroom,
of
was a reasonable
there
person
in this
here
jury's guilty
and in
result in the
verdict
do
different
yourself,
a little
like this
ask
can
woman
don’t
¶
things
him
50 We conclude
the trial
that “bothered”
about her state-
unfairly ments,
court’s admission of irrelevant and
speculate
why
might
prejudicial character evidence entitles Dun- have acted as she did.91 Yet defense counsel
particular,
In
empha
to a
trial.
we
objection
kle
new
offered almost no
to Linn’s testimo-
potential prejudice
size the serious error and
issue,
ny. Although we need not decide this
of the “witchcraft” evi
from the admission
III,
Proposition
due to our
of
resolution
we
recordings
dence and the
of Dunkle’s tele
case,
caution that in
of
retrial
both
Kelly,
with
summa
phone conversations
as
parties should strive to ensure that witness
above. We further conclude that the
rized
testimony, particularly expert testimony, be
prosecutor’s improper
reliance
and em
proper
within
constrained
limits.92
unduly prejudi
phasis of this irrelevant and
V,
Proposition
challenges
Dunkle
cial character evidence rendered Dunkle’s
computer-generated
the State’s use of
crime
unfair,
fundamentally
such that
“reenactments,” during
testimony
scene
jury’s guilty
upon.
verdict cannot be relied
expert
of its crime scene reconstruction
simply
confidently
cannot
This Court
con
witness,
Agent
Dailey.93
final
OSBI
Iris
clude,
trial,
in the
context
challenged
admissibility
Dunkle
of the
improperly
admitted evidence and the
computer-generated
request-
animations and
prosecutor’s
impact
misconduct did not
hearing
ed a Daubert
on the exhibit and the
verdict in this case.89 Hence Dunkle’s con
methodology
by Dailey
develop
used
it.94
first-degree
viction for
murder must be re
agreed
The trial court
argu-
the State’s
versed.
Dailey’s presentation
ment that
was “not a
IV,
Proposition
challenges
51 In
issue,”
Daubert
noted that the reenactments
portions
Special
O.S.B.I.
“just
aid,”
a demonstrative
and over-
Linn,
Agent Tom
testified both as
who
objections.95
ruled Dunkle’s
investigator
lead
case and
a fire-
parties agree
expert.
argues that Linn
53 The
that the cur
arms
re-
question
peatedly
improper
speculative
governed by
rent
offered
our decision
State,96
opinion testimony.
Agent
Harris v.
We note that
Linn
which we
addressed
opinion
admissibility
computer-generated
did offer his own
about whether Dun-
of such
exh
truth,90
Harris,
telling
kle was
comment on ibits.97 In
we reviewed the South
parole.
thoughts straight
Dunkle's sentence of life
answering questions
without
See
instead of
668, 687-88,
Washington,
operator may
Strickland v.
466 U.S.
that the 911
ask.”
694,
2052,
(1984) (inef-
104 S.Ct.
247
testimony”
explain
expert’s
the
to such
aids used to
Supreme
approach
Court’s
Carolina
Cantrell,98
they
well as
not
v.
as
that
should
made available
in Clark
and
be
evidence,99
major
deliberations,
jury during
they
the
treatises
some of
for the
as
used
three-part
that the
test
independent evidentiary
and determined
value.”103
have “no
in
standard
appropriate
in
Clark was
¶
Hams,
three
55
victim was shot
We
Oklahoma as well.100 wrote:
of the
times
the head
once
the side
crime
computer
a video
In order for
or
abdomen,
passenger’s
while seated in the
by jury,
be seen
scene reenactment
seat of vehicle.104
video reenactment
expert
an
testi-
an aid to illustrate
witness’
upon
in that case
based
bullet
used
(1) that it
mony,
require
court should
through
trajectories
body
and head of the
should
authenticated —the trial court
be
of the
panels
victim into the seat
side
representa-
that it is a correct
determine
computer-generated
anima-
vehicle.105
object portrayed,
that it is a
of the
or
tion
trajectory of the
tion was based
representation of the evi-
fair and accurate
through
passing
bullet
the victim’s abdomen
(2)
relates,
it
that
it is
to which
dence
into the vehicle seat.106
found that
We
(3)
relevant,
is
probative
value
its
through
exhibits were authenticated
both
“substantially
by the dan-
outweighed
expert
witness
State’s
prejudice,
of the
ger of unfair
confusion
representations
objects and
“correct
of the
issues,
delay,
misleading
jury,
undue
accu-
portrayed”
scenes
and were “fair and
presentation
cumulative evi-
needless
representations of
to which
rate
the evidence
dence,
surprise.”101
unfair and
or
harmful
Thus we
they relate.”107
concluded that
¶
Harris,
held,
54 We
were “both
and rele-
exhibits
authenticated
juries
re
specifically
instructed
should
108
vant.”
garding such reenactments:
instruction,
give
¶
con-
The court should
an
proba-
In our evaluation of the
56
the evidence
temporaneous
the time
tive/prejudicial value of
ex-
the reenactment
represents
presented,
exhibition
hibits,
measure-
we noted
“[w]ith
only
proponent’s
ver-
a re-creation
trajectories, entry
of the bullet
ments
event;
way
that it should in no
sion of the
wounds,
possible through
it was
scienti-
exit
as an actual recreation of
be viewed
analysis to come to a
fic
technical
and/or
crime,
evidence, may be
and like all
position
the victim’s
conclusion about
rejected
part.102
accepted or
in whole or
shooting.”109
body at the time of the
Hence
probative val-
determined that the
and com-
this Court
further noted
such video
We
“was not sub-
properly
“are
ue of the reenactment exhibits
puter-generated reenactments
stantially outweighed by any
dangers
categorized as
or demonstrative
illustrative
¶ 6,
opportu-
dispute
given
that she was
ticated
told.
second and third
them, the record
not establish
created
does
upon particu-
animations are
based
likewise
truly
questions
they
relevant to the
Dunkle,
lar statements
to
attributed
but
trial,
in Dunkle’s
since the record
issue
many
out
leave
other statements attributed
they
not
were “fair and
her,
does
establish
justification
to
without
for the choice
representations of the evidence to
accurate
statements,
particular
to “animate”
but not
which
The evidence in this
related.”
others.
adequately support
not
simply
ease
did
the
¶ Unfortunately,
67
of
none Dunkle’s state-
implicit in each of
four ani-
assumptions
the
ments,
conjunction
in
even looked at
with
mations,
positioning
in
the
of
particular,
the
evidence,
complete
other
or
enough
was clear
body
pictured
male victim’s
and the
distance
justify
“picture”
specific
depicted
to
in
gun.
and the
Nor does
between the victim
Rather,
each of the first
three scenarios.
Dailey’s
support
choices
defin-
the record
appears
simply
that the State
used the first
ing
possible
of Dunkle’s
the three
“versions”
three animations as “straw men” or “red
story.
herrings,” to be
down
dispensed
knocked
recognize
potential
65
we
value
While
with, in
up
order to set
the final
as
animation
trials,
computer-based
of
animations within
“only
one” that
consistent
was
with all
recognize
potential danger,
their
we likewise
the evidence.
Supreme
as
Carolina
Court in
did the South
computer
Clark:
animation can mislead
“[A]
computer-based
use of
animations
jury just
easily
a
as
as it can educate them.
potential
highly prejudicial
has the
to be
only
good
underly-
An animation is
as
as the
misleading,
computer-based images
since the
data,
ing testimony, physical
engineering
an air of
lend
technical and scientific certain-
assumptions
images.
drive its
The com-
evidence,
ty to the
may
“reenacted”
which
or
in,
puter
‘garbage
ap-
maxim
garbage out’
may
justified.122
not be
example,
For
in the
plies to computer animations.”121 We con-
case,
Dailey’s
current
used
the State
four
underlying
clude that
data
the current
animations,
computer
conjunction
with her
physical evidence, analysis
including
of
testimony,
suggest
Dailey’s
expert
case—
evidence at
scene,
crime
and statements
testimony conclusively established the false-
simply
adequately sup-
from
did not
Dunkle —
of
ness Dunkle’s
and the
stories
correctness
port Dailey’s computer animations. Hence
case,
theory
of the State’s
of
when in
kept
the trial court should have
these anima-
fact, Dailey’s analysis was not
based
tions out of Dunkle’s trial.
math, science,
principles of
physics.
In
reality, Dailey’s “crime scene reconstruction”
perhaps
The first animation is
testimony was
entirely upon
based almost
misleading.
stated,
most
While
analysis
“consistency”
times,
particular
of the
attempting
various
was
White
(or
by
statements
kill
other
thought
himself
at least that
evidence
she
he
was)
put
himself,”
the State at trial:
and that he “shot
she
evidence about
never
occur,
“usually”
how
gun
described a
in which
a
suicides
evidence
scenario
he held
arm,
placement
pulled
keys
one foot
in front of
near the
out
his chest
victim’s
trigger,
meekly
helplessly
scrape”
evidence of a
“heel
the dirt be-
watched.
legs,
The animation is intended make
tween the victim’s
evidence about the
story appear
workings
found,
Dunkle’s
suicide
ridiculous and
and how it was
so; yet
story depicted
does
is not
Although Dailey’s
one
etc.
use of
computer-
Clark,
conclusion,”
(quoting
121. See
S.E.2d
at 536
article
reach
"may
a
and thus
Bulletin);
Lawyer
Harris,
in South Carolina Trial
see
independent evidentiary value.” See
Harris,
5,
2000 OK CR
12 n.
were based
by comparing
police
pellant made to
physical evi-
to the actual
those statements
thoroughly cross-
Defense counsel
dence.
Agent Dailey
the re-enact-
examined
the basis for her conclusions.
ments and
testimony
Any
or
inconsistencies
support
her conclusions
the evidence used
issues
in her
themselves were
conclusions
weigh,
this Court.
jury
di-
upon her
in both
3 Based
cross-examination,
no
there was
rect and
into be-
danger
be confused
would
images
lieving
were actual
the re-enactments
clear-
the crime. The re-enactments were
Dai-
possibilities
Agent
ly presented as
commenting
of each
ley
on the likelihood
physical
expert
review
based
relevant
The re-enactments were
evidence.
Appellant’s claims that
to rebut
an
or suicide. Con-
accident
State
notes
failed
that Dunkle
to
State,130
any
v.
that
in
Anderson
and
retrial
request this instruction at trial. Due to our
case should
in
with
this
be conducted
accord
V,
Propositions
resolution of
III and we need
authority.
this
appeal.
not decide
claim in
the current
note, however,
We
that
assertion
the State’s
¶
VIII,
Proposition
In75
Dunkle raises an
appeal
on
there was “no
to
evidence”
ineffective assistance of counsel claim. This
support
shooting
Dunkle’s defense that the
claim,
fully
developed,
is not
has been
i.e.,
accidental,
was
that it would have been
by
moot
jury’s
rendered
our reversal of the
improper
jury
to
instruct
on excusable
in this
verdict
case.
homicide,
certainly wrong.128
is
Evidence
presented
support
claim
¶
to
Dunkle’s
For the
76
reasons discussed in connec-
by accident,
White was shot
as Dunkle at-
V,
Propositions
III
tion
and
Dunkle’s
tempted
prevent
committing
him from
sui-
for first-degree
conviction
murder
believed,
cide. If
this evidence would estab-
parole
sentence of life
re-
without
must be
“excusable,”
lish
shooting
versed.
thus
Although disputed,
not a
at all.
crime
presented
evidence
within
first
Decision
adequate
support
giving
the cited
in
instructions
this case.
Judgment
77 The
and Sentence of the
VII,
REVERSED,
Proposition
challenges
73 In
district court is
case
jury
the trial
REMANDED
court’s failure to instruct her
is
FOR RETRIAL. Pursuant
3.15,
regarding parole eligibility
jury
Rule
when
Rules
the Oklahoma Court
questions
22,
sent
following
during
Appeals,
Ch.18,
out
App.
delib- Cnminal
Title
State,
64, 8,
630,
adopt
126. We
here
sey
do not
an instruction for
v.
1990 OK CR
798 P.2d
computer
involving
technology-
("This
cases
or other
consistently
Court
has
held that
"simulations,”
supra
based
discussed
in note
is
an
defendant
entitled to
instruction
his
on
122, since this case does not involve such evi-
theory of defense where there is
evidence
potentially
dence and
independent evidentiary
such
could
it,
discredited.”)
support
even if such evidence is
value,
beyond merely il-
(citation omitted);
State,
Cipriano v.
CR
2001 OK
lustrating
of a witness or other
¶25, 30,
869,
("It
32 P.3d
is well established
evidence.
defendant is
to an
entitled
instruction
evidence,
theory
supported by
of defense
particular,
127. In
Dunkle asserts
long
theory
as that
is tenable as a matter of
according
should have
instructed
been
OUJI-
law.”) (citation omitted).
8-27, 8-28,
CR 2d
and 8-30.
presented
128. The State itself
evidence that the
O.S.2001,
O.S.Supp.
§
See 21
12.1
and 21
"accident,”
shooting
by presenting
was an
Dun-
2002,
provisions
§
together
13.1. These two
kle's
that it
statements
was an accident. The
comprise the
Rule.”
"85%
position
State's
these
should
statements
not
change
be believed
not
the fact that
does
OK CR 6,
130. 2006