OPINION
Lоnnie Joe Dutton was convicted by a jury of Murder in the First Degree in the District Court of Oklahoma County. The death penalty was imposed.
Dale Eugene Gray, the deceased, was gunned down after being robbed on January 2, 1979, while working in the Cottage Bar in Oklahoma City. His mother, Wanda Honeycutt, was also shot, but recovered and testified at appellant’s trial, identifying Dutton. On January 5, and January 11, 1979, appellant admitted to police officers that he shot both victims while his confederate, Carl Sheldon Morgan, waited in the car. He also gave written statements concerning his involvement in another robbery-murder of one Wilma Speaks on January 1, 1979 at the Agnew Bar in Oklahoma City, Oklahoma.
Appellant first assigns as error the trial court’s failure to grant his pre-trial motion for change of venue. Appellant’s confederate, Carl Sheldon Morgan, was granted a change of venue and was tried in Tulsa County. Dutton argues that the publicity was equаlly damaging for both, and that his motion should have been granted.
We first point out that appellant failed to follow the procedure prescribed by 22 O.S.1971, § 561 in presenting his change of venue motion to the trial court. A written and verified petition is not contained in the record, nor were affidavits of credible witnеsses submitted. The petition, not being properly before the trial court, is not properly before the appellate Court.
Ake v. State,
Appellant had the burden to demonstrate that he could not get a fair trial in Oklahoma County. He provided no evidence to prove this, but rather relies on the fact thаt Carl Sheldon Morgan was granted a change of venue supposedly on the basis of adverse pre-trial publicity. Appellant has failed to overcome the presumption that he was able to receive a fair trial.
Hammons v. State,
Appellant next assigns as error the trial court’s refusal to conduct a competency hearing prior to trial. His attorney states that Dutton made an outburst at trial and refused to assist counsel in his own defense.
Appellant was tried in May of 1979. The controlling statute at that time was 22 O.S.1971, § 1162 (now 22 O.S.1981, § 1162). It required that a jury be impaneled to determine a criminal defendant’s competency to stand trial or to be sentenced when “a doubt arises” as to defendant’s present sаni
*1138
ty. The doubt referred to in the statute is that in the trial judge’s mind after an evaluation of the facts, source of information, and motive. The trial judge’s finding is not disturbed on appeal absent a showing of clear abuse of discretion.
Beck v. State,
In the present case, the trial judge made a determination that appellant was competent to stand trial based upon his own observations as well as the opinions of two psychiatrists who examined appellant at his attorney’s request on the second day of trial. They reported that appellant was simply “scared stiff”. Appellant’s lack of cooperаtion with his attorney was due to his fear of the possible consequences if found guilty, as opposed to an inability to appreciate the proceedings. The trial court had ample opportunity to observe appellant’s conduct during the trial and prior to sentencing.
Reynolds v. State,
Appellant next contends that two prospective jurors were improperly dismissed for cause under
Witherspoon v. Illinois,
Appellant assigns as error the admission into evidence of his statements to police officers after he was arrested on January 5, 1979, but prior to his arraignment on January 11, 1979. Appellant urges that the delay in arraigning him was unnecessary and infringed upon his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution, rendering his statements involuntary.
The right to come before a magistrate without unnecessary delay is a statutory (22 O.S.1981, § 181), not a federal constitutional right.
Delaney v. Gladden,
[Tjhis court has never held that taking a statement or confession of an accused person prior to his arraignment will per se vitiate such statement or confession nor render it inadmissible upon a subsequent trial of the accused.
In re Dare,
Each of appellant’s statements were introduced only after the trial judge conducted a Jackson v. Denno 1 hearing and found them voluntary. The jury was instructed that they should not consider this evidence unless they found it to be voluntarily given. Upon a review of the record, we are satisfied that the delay in arraigning aрpellant did not coerce the admissions.
Appellant next asserts that the trial court, prosecutor, and his own counsel made unconstitutional comments on his refusal to testify. During trial, appellant was not responsive to his appointed counsel unlike prior to trial. Appellant was examinеd by *1139 two psychiatrists and found to be “scared”, but competent to stand trial. These doctors advised the trial judge that delaying appellant’s trial would only worsen this condition. The trial proceeded, and defense counsel announced during opening statement that appellant would testify. The defensе theory was that appellant committed the crimes under duress from his accomplice. Appellant did not respond when called by his attorney to testify. The trial judge immediately called the attorneys and appellant into chambers and there advised appellant of his right to testify or to not tеstify. He advised appellant that he could be cross-examined about prior felony convictions if he did take the witness stand. The appellant would not respond to the judge. Court was again called into session and defense counsel again called appellant to testify. Appellant did nоt respond to his attorney’s calls and the defense rested, having no further evidence. The trial judge twice ordered the record to show that the “Defendant sits silent” and declines to testify, and once stated that the defense rested, “there being no evidence presented to the jury.” During closing arguments, defеnse counsel remarked that his client was “physically unable” to testify. The prosecutor objected that there was no evidence of that nature, and the judge sustained the objection.
From a review of the record, it is apparent that any error which may have occurred was invited by defendant and his trial counsel. We have previously held that a defendant may not complain of error he has invited, and that reversal cannot be predicated upon such error.
Fox v. State,
The judge’s remarks were made simply to clarify for the record what had occurred. Moreover, the objection by the prosecution and the trial judge’s ruling did not constitute a comment upon appellant’s refusal to testify.
Wills v. State,
Appellant implies that he received ineffective assistance of counsel in this regard. A criminal defendant should receive reasonably competent assistance of counsel.
Johnson v. State,
As appellant’s sixth allegation of error, he asserts that the trial court erred in admitting several photographs of the deceased on the floor of the bar. The pictures depicted the gun shot wound to the head, as well as the position of the body in relation to the room. Appellant complains that the photographs were not accurate since the body, which originally lay face down, had been turned upright, and that they served no other purpose than to inflame the passions of the jury.
We disagrеe. The jury was made aware that the body had been moved. Furthermore, the photographs were not unduly gruesome and helped the jury to visualize the crime scene, and tended to corroborate the pathologist’s testimony of the cause of death. Thus, we find its probative value outweighed any prejudicial effect.
Boutwell
v.
State,
Appellant next assigns as error the trial court’s failure to instruct the jury,
sua sponte,
that they could draw no adverse inferences from appellant’s refusal to testify. Appellant’s authority for such an assignment,
Carter v. Kentucky,
The failure to limit the jurors’ -speculation on the meaning of that silence, when the defendant makes a timely request that a prophylactic instruction be given, exacts an impermissible toll on the full *1140 and free exercise of the privilege. Accordingly, we hold that a state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify. (Emphasis added.)
The obligation to so instruct does not arise until a proper request is made. We reject appellant’s assertion that a trial judge is obligated to give a cautionary instruction on its own initiative. See also
Cole v. State,
Appellant further complains, citing
Sandstrom v. Montana,
This Court has previously held that in certain instances it is proper for the trial judge to instruct the jury that it should view identification testimony with caution.
Melot v. State,
In a capital case, this Court will carefully review the record and consider all matters presented which are supported by the record.
Hathcox v. State,
We are unable to discern from the record what testimony in mitigation appellant’s mother would have presented. The exclusion of evidence is not ground for error unless a party makes a record of the proposed evidence or the propоsed evidence is obvious from the context. 12 O.S.1981, § 2104(A)(2). Appellant’s mother and father testified prior to formal sentencing that appellant had been committed to hospitals on several occasions for treatment of his emotional problems. Each occasion had been preciрitated by drug abuse, according to her statements. Assuming that this is the same evidence the mother would have given in mitigation, there was no harm resulting to appellant. There was no claimed defense of insanity or drug intoxication. The hospitalization she described occurred four or five years prior to thе alleged crime. This evidence was inconsequential to the defense of duress.
As appellant’s final assignment of error, he asserts that he should have received a preliminary hearing on the aggravating circumstances the State intended to prove. We have previously denied such a requirement, and do likewise here. See
Stafford v. State,
On review of the record, we find that the sentence of death was not imposed under the influence of passion, prejudice, or *1141-1145 any other arbitrary factor. 21 O.S.1981, § 701.13(C)(1). We also find that the evidence supports the jury’s finding that two aggravating circumstances existed: that the aрpellant knowingly created a great risk of death to more than one person; and, that there existed a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. 21 O.S.1981, § 701.12(2) &(7).
By appellant’s statements to police officеrs, he participated in a murder in addition to the killing of the decedent herein, and the shooting of the decedent’s mother. His statements also reflect that he was the one who borrowed the gun for the purpose of committing robberies. His claim that he acted out of fear of his accompliсe are contradicted by statements in his confession that he never tried to get away from Morgan. Rather, he continued his course of crime, and even performed the task of dividing the loot. There was testimony from Joseph James Seija, another robbery victim of appellant and his accomplice, Morgan, that appellant told Morgan that they should kill their victims. Morgan refused this suggestion. This record sufficiently supports the jury’s findings.
We further find that the sentence is not excessive nor disproportionate compared with the penalty imposed in similar cases, considering both the crime and the defendant. 21 O.S.1981, § 701.13(C)(3). Comparison has been made with several prior decisions in which the death sentence was affirmed,
Coleman
v.
State,
The judgment and sentence of death is AFFIRMED.
Notes
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