Lead Opinion
OPINION
T1 Appellant Scott James Eizember was tried by jury and convicted of Second Degree Felony Murder (Count I) (21 0.8.2001, § TOL8(2)); First Degree Malice Murder (Count II) (21 0.8.2001, § 701.7(A)); Assault and Battery with a Dangerous Weapon (Count III) (21 0.98.2001, $ 645); Shooting with Intent to Kill (Count IV) @1 0.8. 2001, § 652); First Degree Burglary (Count V) (21 0.8.2001, § 1481); and Second Degree Burglary (Count VI) (21 0.9$.2001, § 1485), Case No. CF-2000-35, in the District Court of Canadian County.
€ 2 The State's evidence showed that on a late September afternoon in 2002, Appellant rode into Depew, Oklahoma. Literally. Riding a bicycle, Appellant stopped at the edge of a flower bed in front of the Methodist Church. There he met John Wright who was mowing the church lawn. Appellant told Mr. Wright he was riding his bicycle cross country from Detroit, Michigan, to San Diego, California, to raise money for victims of the September l1ith terrorist attacks. Appellant asked Mr. Wright if he could pitch a tent and sleep overnight on the church lawn. Mr. Wright offered to let Appellant spend the night in the air-conditioned fellowship hall inside the church. Appellant took Mr. Wright up on his offer, and even attended church services the following morning. Thus began a friendship between the two men. Mr. Wright introduced Appellant to church members, his neighbors, A.J. and Patsy Cantrell, and his family, Carla, his wife, and his daughter and son-in-law, Kathy and Mark Biggs.
T3 Mark Biggs had a machine he used in his boot and western wear store which was not working properly. Appellant said he had been an engineer at the Ford Motor Company and he could fix the machine. Mr. Wright took Appellant to the Biggs' home and Appellant worked on the machine. Appellant spent that night at the Biggs' home. A couple of days later, Appellant told the Wrights and the Biggs he needed to go to Edmond, Oklahoma. They advised Appellant it would not be safe to ride his bicycle, and agreed to drive him there.
115 During this time, Appellant and Kathy Biggs developed a romantic relationship. On December 13, Appellant told Mark Biggs he and Kathy were in love. Appellant said he was getting a court settlement from a trucking company for over one million dollars and he wanted Mark Biggs to move out. Biggs moved out that day.
T6 Mark and Kathy subsequently divoreed. Appellant and Kathy lived together until the summer of 2008 when their relationship soured. At that time, Appellant and Kathy shared an apartment in Tulsa. In July, Kathy worked as a registered nurse in Lawton, working six days on and six days off. When she was not working, she returned to the Tulsa apartment. However, by August 2003, she told Appellant to leave the apartment, had the utilities turned off, obtained a protective order against Appellant, and moved back to her parents' home in Depew. In September, she realized she had forgotten to contact the cable company. When she finally did, she learned that someone had been in the apartment watching the cable channels the past 24 to 36 hours. Sure that Appellant had broken into the apartment, Kathy immediately phoned the Tulsa Police Department. - Appellant was inside the apartment when the police arrived. He was arrested for burglarizing the apartment and incarcerated in the county jail. While awaiting disposition of the charges, he told a cellmate that his girlfriend was a "pharmaceutical rep", she was dealing drugs and that he was going to "get even" with her. Appellant was released from custody in October 2008.
T7 On October 18, 2003, Appellant broke into the home of A.J. and Patsy Cantrell. The elderly couple lived across the street from the Wrights. Once inside, Appellant found a .410 shotgun that he loaded with shells from the residence. Patsy Cantrell was soon dead from a gunshot to the back and AJ. Cantrell was dead from multiple blunt foree traumas to the head. Their bodies were later found on the bathroom floor, with Patsy's body lying on top of her husband. Their Chihuahua dog was found cowering in the bathroom near the bodies.
18 After killing the Cantrells, Appellant walked across the street to the Wright residence. He jerked open the front door and found 16 year old Tyler Montgomery, Kathy Biggs' son, seated in a recliner watching television. Montgomery saw Appellant come through the door carrying a shotgun with an "angry look on his face." Montgomery knew Appellant was not welcomed in the Wrights home. He immediately jumped up and ran towards the kitchen where his grandmother, Carla Wright, was baking cakes for her Sunday school class. Before Montgomery could get to the kitchen though he was struck in the lower back with shot from the shotgun. The force of the shotgun blast pushed Montgomery to the ground. Appellant stepped over Montgomery's body and entered the kitchen. There he proceeded to beat Carla Wright with the end of the shotgun, inflicting at least four severe blows to her head.
1 9 While Appellant was beating his grandmother, Montgomery was able to get up, although with great difficulty, and run to the back of the house looking for a weapon. Unbeknownst to Montgomery, the guns had been moved to another part of the house. Unable to find a weapon, Montgomery ran out the back door and jumped into his pickup. The armed Appellant saw this and followed him outside. Upon seeing Appellant, Montgomery locked the doors to the pickup and backed out of the driveway. Appellant jumped into the bed of the pickup and reloaded the shotgun. Montgomery drove erratically trying to throw Appellant out of the pickup. Appellant not only remained in the pickup, but fired at Montgomery through the back windshield of the pickup. The shot hit Montgomery in the shoulder.
T11 John Inman was driving down the street when he saw the bloodied Appellant. He had never met Appellant before, but heard the crash of the pickup and went to investigate. Inman told his girlfriend to get out of the car that he was going to offer Appellant a ride. Appellant accepted In-man's offer. Inman noticed when Appellant got into the car that the hammer on the shotgun was cocked. Appellant told Inman he was going to the Wrights' residence. In-man told Appellant he should go to the hospital due to the large gash on his forchead, which was bleeding profusely. Appellant agreed, but said he needed to get some personal items from home first.
T12 At Appellant's direction, Inman drove Appellant approximately seven miles east to Airport Road near Bristow. Finding himself on a country road, with the next road nearly three miles away, Inman became suspicious of Appellant and his intentions. Inman told Appellant to unload the shotgun. When Appellant refused, Inman repeated his demand. Appellant looked at the shotgun, opened the passenger door and began to slide out. As he did, he raised the barrel of the shotgun. Believing he was about to be shot, Inman grabbed the barrel of the shotgun and pushed it away from his head. Appellant fired and the shot barely missed Inman's hand and head. Inman threw his car into drive and sped off, In the rear view mirror, he saw Appellant running after him, reloading the gun. Inman drove straight to the police department.
T13 In the meantime, Carla Wright had managed to recover just enough from her beating to look for help. Barely able to see due to the blood dripping down her face, she walked across the street to the Cantrells' home. Despite talking to Pasty Cantrell earlier that day, Mrs. Wright received no response to her repeated knocks at the front door. So she opened the door and went inside. She walked through several rooms calling for the Cantrells. She walked past the bathroom and saw what turned out to be Pasty Cantrells' legs. However, at the time, through her blurred and bloodied vision, Mrs. Wright thought she saw a scarecrow, because her grandchildren had been stuffing scarecrows earlier in the day. Believing she had not found the Cantrells at home, Mrs. Wright left the house and found help from a passerby.
T 14 For the next eleven days, Appellant evaded capture despite a massive police search, largely by hiding in the rural wooded areas between Depew and Bristow. During this time, the home of Rodney Lewis, located near - Airport Road, was - burglarized. Clothes, including a pair of jeans and a shirt, food and a .380 handgun were taken. The handgun was not operational, as Mr. Lewis had lost the firing pin. Left behind was a bloody shirt and a pair of bloody jeans.
115 On November 23, 2008, seventy-five year old Doyce Pitre, a volunteer at the Depew Methodist Church food pantry, accidentally discovered Appellant hiding inside the building. Upon seeing the gun-wielding Appellant, Ms. Pitre ran screaming from the building. She left her keys hanging in the front door to the building. - Appellant grabbed the keys and used them to steal Ms. Pitre's car.
[16 That same day, Dr. Sam Peebles and his wife Suzanne, left Ft. Smith Arkansas, for their home in Nashville, Arkansas. Nearing the town of Waldron, Arkansas, they noticed a red Toyota on the side of the road. A man, Appellant, was standing beside the car shivering. The Peebles stopped and asked Appellant if he needed help. Appellant said he thought there was something wrong with his car because he had just filled up with gas. Appellant accepted the Pee-bles' offer to take him to a nearby convenience store to get help. Appellant told the Peebles his girlfriend had been in a wedding and he was on his way to Texarkana to pick
« 17 The gun in Appellant's possession was the .880 semi-automatic pistol he had taken in the burglary of the Lewis home. Unbeknownst to him, it didn't work. When Appellant first drew the gun on the Peebles, Mrs. Peebles tried to grab it away from Appellant. During the ensuing struggle, Appellant yelled that he was going to kill Dr. Peebles if she did not let go. He said, "that old man did the same thing and I killed his wife." Believing the gun had been used to previously kill someone, Mrs. Peebles let go.
{18 'After a while, the Peebles became convinced Appellant was going to kill them. During a roadside restroom break, Dr. Pee-bles drew his own handgun, a nine shot revolver, and shot Appellant multiple times. Despite being shot, Appellant wrestled with Dr. Peebles and took the revolver away. Appellant struck Dr. Peebles' in the head repeatedly with the .380 pistol. While Dr. Peebles was on the ground, Appellant kicked him in the head. When Mrs. Peebles attempted to help her husband, Appellant turned the gun on her. He said he wasn't going to kill her husband, he was going to kill her and he put the .380 pistol to her head. He cocked it and pulled the trigger, but the gun didn't fire. Appellant then hit her in the head with the gun and ran off. He drove off in the Peebles' van, leaving them injured on the side of the road. He went to a convenience store where a store clerk phoned the police. Appellant was subsequently taken to the hospital in Lufkin, Texas and later arrested by Texas authorities.
119 After being stabilized medically, Appellant dictated a detailed statement to the authorities. His statement was consistent with the State's evidence in certain parts, and inconsistent in others. He stated in part that in June 2002, he and his wife divorced and in September he left his home in Detroit, Michigan, on bicycle intending to ride to San Diego, California. He met Kathy Biggs in Depew, Oklahoma, on October 1, 2002. He stayed one day in Depew, then left to continue his bike ride to San Diego. Appellant said when he got to San Diego, he called Kathy and she asked him to come back to Depew for Thanksgiving. Appellant returned to Depew and remained there through December. On December 13, Kathy "threw her husband out of the house" and he and Kathy began a relationship, living together for approximately one month.
T20 Appellant further said that in March 2003, Kathy called him in Detroit and asked him to come and live with her. By the middle of April 2003, they were living in an apartment in Tulsa. Kathy had a nursing job in Lawton and told him he did not need to work. Their relationship was fine until July when problems with her children and money necessitated that he get a job. Appellant said he hitchhiked from Lawton to Tulsa to get his things out of the apartment when he found the locks had been changed. He pried the door open and found his things had been thrown out. Appellant admitted to spending two days in the apartment until the police arrested him for burglary and violation of the protection order. He admitted to throwing out all of Kathy's things in the apartment.
121 Appellant said he bonded out of jail one day before his preliminary hearing and hitchhiked to Depew. He spent the night in an abandoned car next door to the Cantrells' home. He said that while he was lying in the car, he heard the Cantrells leave their home. He then snuck around the back of the house and went in through an open window. He found a- single shot 410 shotgun and shells inside and loaded the gun. While he was in the house, the Cantrells returned. He confronted Mrs. Cantrell first and told her no one was going to get hurt. Mrs.
122 Appellant said he believed Mr. Cantrell was breathing but unconscious. He thought Mrs. Cantrell was dead. He dragged Mr. Cantrell's body to the bathroom first and left him on the floor. He then sat down for about an hour and had a snack. During that time, the phone rang two different times and someone came to the door, knocked a few times then left. Fearing that someone was really trying to get in touch with the victims, he dragged Mrs. Cantrell's body to the bathroom. He could see that Mr. Cantrell was still breathing, so he placed Mrs. Cantrell's body on top, to prevent Mr. Cantrell from rising up. Appellant returned to his snack and thought about a way to get out of there. He had decided to leave when he saw Tyler Montgomery pull up in the driveway across the street. He said was going to force Tyler to tell him where Kathy was.
€23 Appellant said he walked into the front door of the Wright home and told Tyler not to move. But when Tyler got up out of a chair and ran, Appellant fired at him. Appellant saw the shot mark in Tyler's back and Tyler fell to the floor. Appellant said he only meant to hit Tyler in the legs. Appellant saw Kathy's 60-year-old mother, Carla, in the kitchen and heard her scream. He stepped over Tyler's body to enter the kitchen and hit Mrs. Wright with the butt of the shotgun above her left eye. He then hit her two or three more times in the face with his fist. As she fell to the floor, he saw Tyler run out of the house. Appellant said he chased Tyler to his pickup and jumped in the back and Tyler started to drive away.
€24 Appellant admitted reloading the shotgun and firing a shot through the back windshield of the truck in an attempt to hit Tyler. Appellant said Tyler ducked. Appellant said he was only trying to get Tyler to stop the truck. When Tyler drove the truck into the pole, Appellant hit the cab of the truck. After Tyler ran off, Appellant got inside the truck and tried the key but the truck would not start. Appellant started walking when a guy picked him up and asked if he could take him to the hospital. Appellant said he got in the car and told the driver he needed to get some things from home first. But as they drove towards Bristow, the driver stopped at a house Appellant did not know. Appellant said he got out of the car and told the driver he would get himself to the hospital.
125 Appellant said he knew the police were looking for him and he stayed out in the fields, hiding in straw bales. "After patterning their routes", Appellant left that area and hid out in the woods near Bristow for three or four days. Appellant said he went into a house in Bristow, ate, stole some clothes, left his bloody clothes, and stole a .380 gun. He said he then headed west to the river and followed it for eleven days until he was back in Depew. He said he snuck into the Methodist Church storage building and stayed there for two to three weeks. Appellant said a woman came into the building two or three
126 Appellant said he stood by the car until a doctor and his wife, identified as Sammy ard Suzanne, picked him up. He admitted that about a quarter of mile down the road, he pulled out the .380 gun and told them he needed to take their van. Appellant said they told him they did not want to give him their car, that Sammy would drive Appellant wherever he needed. Appellant told them he didn't want to hurt anyone that he just needed to get out of there. He said they drove through Arkansas and into Texas. When they stopped for a break at Diboll, Texas, Sammy fired a gun at Appellant. Appellant said that although he had been shot, he wrestled with Sammy for the gun. Appellant said he hit Sammy in the head twice with the .380 gun because they had lost the gun Sammy used. When Suzanne came to help and asked him not to kill her husband, Appellant hit her in the head with the gun. Appellant said he then drove off in their van. He drove to a convenience store where he was asked about his injuries. When he said he had been shot, the police and an ambulance were called.
127 As a result of his crime spree, Appellant was convicted of second degree felony murder in Mrs. Cantrell's death, first degree malice murder of Mr. Cantrell, Assault and Battery with a Dangerous Weapon of Mrs. Wright, Shooting with Intent to Kill Tyler Montgomery, and First Degree Burglary of the Wright's home.
11 28 In the second stage of trial, the State sought the death penalty as punishment for Mr. Cantrell's murder and presented evidence supporting four aggravating cireum-stances: 1) during the commission of the murder, the defendant knowingly created a great risk of death to more than one person; 2) the murder was especially heinous, atrocious or eruel; 3) the murder was committed for the purpose of avoiding lawful arrest or prosecution; and 4) at the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society. See 21 O.S.2001, § 701.12(2)(4)(B) & (7).
129 In addition to all of the first stage evidence, which had been incorporated into the second stage, the State presented the testimony of ten witnesses to support the alleged aggravators. These witnesses included Ed Willingham, an investigator with the Creek County District Attorney's Office, who picked up Appellant from the Texas authorities in Paris, Texas, and transported him to Sapulpa, Oklahoma. Willingham testified in part, that during his interview with Appellant, he never expressed any remorse for his crimes, although he said he was not proud of what he had done, and he was angry that none of his victims did what he told them to do. Willingham said that onee they were back in Oklahoma, Appellant directed law enforcement to the location of the 410 shotgun and even went with officers to search. The first day's search proved fruitless, but on the second day of searching, the gun was located near a creek. It contained a shell casing which had not been fired. Experts determined the gun had been at that location for approximately four to five weeks.
830 Another of the State's witnesses was Appellant's ex-wife, Roberta Eizember. She testified she and Appellant, married from 1992 until 2008, lived in Detroit and had two children. She testified that Appellant was an alcoholic, had trouble keeping a job, and had physically abused her on more than one occasion. She said that beginning in May 2002, Appellant became increasingly withdrawn from his family. She testified that she knew nothing about his bicycle trip or time in Oklahoma.
131 In mitigation, the defense presented eleven witnesses. These included Appellant's co-workers from Detroit, personnel from the Okmulgee County Jail, Appellant's sister and aunt, and two psychologists.
T32 After hearing all of the evidence in aggravation and mitigation, the jury found the existence of two of the aggravators, "great risk of death to more than one person" and that the murder was especially
JURY SELECTION
133 In his first proposition of error, Appellant contends the trial court erred in failing to excuse for cause Jurors D.B. and J.S. Appellant argues both jurors were biased in favor of the death penalty to such an extent that he was denied a fair and impartial jury.
34 Jury selection in this case was begun by dividing the prospective jurors into three groups and giving each individual a twelve page juror questionnaire to fill out. The written questionnaires were completed prior to the commencement of oral voir dire.
135 After Appellant's portion of the life/ death qualification, defense counsel raised challenges for cause to several prospective jurors including Jurors D.B. and J.S. The trial court overruled the challenges. When it came time to exercise peremptory challenges, Juror D.B. took a seat in the jury box as a result of defense counsel's exercise of his eighth challenge. With his ninth peremptory challenge, Appellant removed prospective juror J.L. who was replaced on the panel by J.S. This left both Juror D.B. and Juror J.S. .on the jury. After exercising his final peremptory challenge, defense counsel again asked that Juror J.S. be excused for cause based upon his inability to consider all three possible punishments, and based upon the fact that in rescheduling a surgery, counsel surmised "he's just almost too interested in being a juror." The trial court overruled the challenge for cause. Defense counsel then informed the court that if the defense had been granted additional peremptory challenges, Jurors D.B. and J.S. would be struck from the jury.
136 In order to properly preserve for appellate review an objection to a denial of a challenge for cause, a defendant must demonstrate that he was foreed over objection to keep an unacceptable juror. Browning v. State,
137 Here, Appellant preserved any error relating to Juror J.S.'s service on the jury. Left with no further peremptory challenges, Appellant appropriately renewed his challenge for cause, requested additional peremptory challenges, and noted for the record which jurors he would excuse with additional peremptories.
188 As evidence of Juror J.S.'s partiality, Appellant cites to question number 73 on the juror questionnaire. This question asked if the potential juror were the defendant or the State of Oklahoma, "would you want yourself as a juror in this case?" Juror J.S. responded, "no", because "if guilty, he will be on death row and eventually executed." Appellant also directs us to Juror J.S.'s response to question number 66. That question asked, "Do you want to be a juror on this case?" Juror J.S. responded, "yes" "so that justice can be served."
T39 Appellant suggests the responses on the juror questionnaire are sufficient by themselves to excuse a prospective juror for cause based upon his or her views of the death penalty. Our research has yielded no capital cases where responses to pre-trial juror questionnaires, without voir dire, have been found sufficient to excuse jurors for cause, based upon their views of capital pun
€40 "Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges". Mu'Min v. Virginia,
141 The proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment is "whether the juror's views would 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath"'" Witt,
1 42 This Court has adhered to the principles set forth in Witt See Glossip v. State,
43 Applying the above principles to the present case, after having been advised of the three possible punishments for a convietion of first-degree murder, Juror J.S. stated unequivocally that he could consider all three punishment options, and follow the law and instructions given to him by the court.
T44 Questions on the written questionnaire regarding the death penalty, without an explanation of or any prospective provided as to the process to be used in determining the appropriate punishment, taint the credibility of any response given. That deficiency was a major flaw in the written questionnaire used in the present case. The jurors in this case needed the benefit of an oral voir dire to fully understand the process. The trial court and counsel also needed the oral voir dire in order to properly determine a prospective juror's bias.
145 Appellant also argues that J.S.'s rescheduling of rotator cuff surgery, instead of requesting to be excused for a hardship, indicates the juror was overly eager to serve
11 46 Contrary to Appellant's argument, the record reflects the juror was not sure about the dates for the surgery and indicated it would not be inconvenient to schedule the surgery to allow him to serve on the jury. J.S.'s response merely indicated a willingness to do his civic duty. If we were to find a prospective juror's willingness to serve on the jury reason for excusal, our judicial system would not survive. Further, during questioning by defense counsel, J.S. indicated he had heard about Appellant's case through the media, but stated he could set aside any preconceived ideas and decide the case based solely on the testimony and evidence introduced during trial.
T 47 Having reviewed the entirety of voir dire, oral as well as written responses, we have no doubts regarding his ability to be a fair and impartial juror. His responses clearly showed he did not hold views regarding punishment that would prevent or substantially impair the performance of his duty as a Juror in accordance with his instructions and oath as a juror. The trial court did not abuse its discretion in denying Appellant's for cause challenge.
148 As for D.B., Appellant's failure to exeuse the juror with an available peremptory challenge waives our review for all but plain error review. Appellant asserts any error was not waived as 1) federal law has pre-empted the Oklahoma law on preservation of error under United States v. Martinez-Salazar,
149 In Browning,
150 Further, while Appellant may have had a difficult choice in deciding whether to exeuse prospective juror J.L. or Juror D.B. with his last peremptory challenge, he did have a choice. "A hard choice is not the same as no choice." Id., quoting Martinez, Salazar,
151 In support of his argument, Appellant directs us to certain responses on the written questionnaire which he claims showed D.B. preferred death and "disdain[ed]" life without parole. Preferring not to limit our review to those few responses selected by Appellant, we look to the entirety of the responses on the written questionnaire regarding the death penalty. The juror questionnaire contains six (6) questions relating to the death penalty. Question No. 42 asked if the prospective juror had ever formed an opinion either in favor or against the death penalty and if so to explain. D.B. wrote, "I firmly believe if you take a life you should lose yours." In Question No. 61, prospective jurors were asked to explain their feelings about the death penalty. Juror D.B. wrote, "I have no reservations about seeing someone put to death so long as it has been proven the person is guilty, especially if they have taken the lives of others." To Question No. 62, which asked "what purpose do you think the death penalty serves in our society?" D.B. responded, "keeps taxpayers from having to support a criminal for the remainder of their life." Question No. 63 asked if the prospective juror thought the death penalty in Oklahoma is used too often. D.B. responded, "definitely not too often." Question No. 64 listed 5 alternatives and the prospective juror was instructed to select the one which best summarized their general views about capital punishment. The choices were as follows:
1. I am opposed to capital punishment under any cireumstances.
2. I am opposed to capital punishment except, in a few cases where it may be appropriate.
3. I am neither generally opposed, nor generally in favor of capital punishment.
4. I am in favor of capital punishment, except in a few cases where it may not be appropriate.
5. I am strongly in favor of capital punishment as an appropriate penalty.
D.B. checked the last alternative. tion No. 65 asked the following: Ques-
Assume you are on a jury to determine the sentence of a defendant who has already been convicted of a very serious crime. If the law gives you a choice of death or life imprisonment, or some other penalty; (check one)
1. I could not vote for the death penalty regardless of the facts and cireumstances of the case.
2. There are some kinds of cases in which I know I could not vote for the death penalty even if the law allowed me to, but others in which I would be willing to consider voting for it.
3. I would consider all of the penalties provided by law and the facts and cireum-stances of the particular case.
4. I would usually vote for the death penalty in a case where the law allows me to.
5. I would always vote for the death penalty in cases where the law allows me to.
T52 D.B. checked the third alternative that she "would consider all of the penalties provided by law and the facts and circumstances of the particular case." No other questions on the written questionnaire pertained to capital punishment.
T53 Under questioning by the prosecutor during voir dire, Juror D.B. said she could consider all three punishment options-the death penalty, life without parole, and life in prison. She said she would do so based on the evidence brought forth in the courtroom and the instructions given by the court. She said she could put aside any personal beliefs or predispositions and decide the case on the evidence, and she did not have any moral, ethical or religious obligations that would keep her from doing so.
1 54 Under questioning by defense counsel, Juror D.B. reiterated that she could consider all three possible punishments. When specifically asked if she could consider a life sentence if the defendant was found guilty of intentional murder, she replied, "I could consider a sentence of life." Defense counsel then asked if her consideration "would be any more meaningful than my consideration of moving furniture?" She replied, "yes." Defense counsel's voir dire of D.B. continued as follows:
MR. CORGAN (defense counsel): How about the sentence of life without parole, could you consider that as well?
PROSPECTIVE JUROR D.B.: If the death penalty was not an option.
MR. CORGAN: Okay, tell me what you mean by that.
PROSPECTIVE JUROR D.B.: If they're in prison for the remainder of their life without the possibility of parole why not the death penalty?
MR. CORGAN: All right, so are you, are you telling me then that if you had a situation where it was laid out on the table, life, life without parole or death, then you would automatically consider one of the those?
PROSPECTIVE JUROR D.B.: Automatically consider one of-
MR. CORGAN: One of those punishments over the others?
PROSPECTIVE JUROR D.B.; Probably.
MR. CORGAN: And-
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: And that would be death?
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: So-
PROSPECTIVE JUROR D.B:; Let me get you, you said that the evidence had already been there and it's over and it's the penalty phase, right?
MR. CORGAN: When we talk about punishment you've already made the determination of intentional murder beyond a reasonable doubt, okay?
PROSPECTIVE JUROR D.B: Ub-huh.
MR. CORGAN: That's where we are. Within that context are you telling me that you would automatically say it should be the death penalty?
PROSPECTIVE JUROR D.B: I would have to look at all three but just off the cuff, it would probably be death.
MR. CORGAN: And do you feel that you could give meaningful consideration to life?
PROSPECTIVE JUROR D.B: Yes.
MR. CORGAN: Do you feel that you could give meaningful consideration to life without parole?
PROSPECTIVE JUROR D.B: I would have to try hard.
MR. CORGAN: Okay and I appreciate that answer. In trying hard if you and my client were to switch places today and you were on trial would you want a juror with that type of mindset?
PROSPECTIVE JUROR D.B: Personally, yes.
MR. CORGAN: Okay.
PROSPECTIVE JUROR D.B: Okay.
MR. CORGAN: Do you feel like-
PROSPECTIVE JUROR D.B: I would not want to spend my life in prison without the possibility of parole.
1 55 Later during voir dire, defense counsel asked the panel if they understood that if the State does not prove an aggravating circumstance to the jury's satisfaction beyond a reasonable doubt then the jury would not be allowed to consider the option of death. When specifically asked if she understood, Juror D.B. replied, "if it's not an option I wouldn't have a problem with it" and that she could consider the other two punishments of life and life without parole. This was the extent of Juror D.B.'s voir dire on her views of capital punishment.
156 Reviewing D.B.'s responses in total, her responses do not demonstrate an impossible bias towards the death penalty. Individual responses read in isolation may suggest such a bias as Appellant claims. However, other responses indicate Juror D.B. could be a fair and impartial juror. This situation points out the importance of the oral voir dirs Although the juror questionnaire mentioned there were three possible punishments for a conviction for intentional murder, no options other than the death penalty were addressed. The questionnaire did not explain the law regarding proof of aggravators or weighing of the mitigating evidence against the aggravators. Despite these omissions, D.B. indicated she could consider all punishment options. It was not until voir dire, and specifically questioning by defense counsel, that the juror's views on the other punishment options were explored. D.B. did not say she would automatically consider the death sentence. Her response that "off the cuff" she would consider death as punishment for intentional murder does not indicate a predisposition toward the death penalty, but rather illustrates a "gut reaction." We are confident that any determination made during jury deliberations would be an informed decision and not merely "off the cuff."
157 As further evidence of her partiality, Appellant cites to Juror D.B.'s failure to state that she could "fairly" consider all three punishment options. See Hanson v. State,
158 In Proposition II, Appellant asserts the trial court abused its discretion in failing to remove prospective juror A.S. for cause. Unlike Jurors D.B. and J.S., A.S. did not ultimately serve on the jury as Appellant used his eighth peremptory challenge to excuse the prospective juror. Appellant argues, as he did at trial, that the prospective juror could not consider all three punishment options and that he was "pro death". Appellant asserts on appeal that A.S. "exhibited a state of mind that should have satisfied the court that he could not try the case impartially, without prejudice to the substantial rights of the party making the challenge."
T59 In his written questionnaire, A.S. set out his opinion on the death penalty in Question No. 42 by writing; "if a person is con-viected of a capital crime, I believe the death penalty should be carried out." Explaining his feelings about the death penalty in Question No. 61, A.S. wrote: "[1lf the defendant is found guilty of a capital crime I feel the death penalty should be carried out after an appeal." As for the purpose the death penalty serves in our society, A.S. wrote; "it rids society of the expense of housing & feeding & medical care for the rest of his or her life." He indicated that he thought the death penalty was not used to often or too seldom, but "just about right." He indicated the 4th alternative, that he was "in favor of capital punishment, except in a few cases where it may not be appropriate" best summarized his general views on capital punishment. In Question No. 65 he indicated that if he was given the choice of death or life imprisonment or some other penalty, he would "usually vote for the death penalty in a case where the law allows me to."
T60 During voir dire questioning by the prosecution, prospective juror A.S. said he could impose all three punishments based on the evidence; however he "would lean more toward death or life without parole". When asked if he would consider life in prison, A.S. replied, "if the judge instructs me to, yes, siz, I could". The prosecutor then asked the prospective juror whether, despite certain predispositions he might have, he could go ahead and base his decision on the evidence and the instructions from the court rather than personal bias or feelings he might have regarding the punishment options. AS. replied that he could.
1 61 Given the scenario by defense counsel that guilt had been determined and punishment was the only issue, A.S. said he could not consider life in prison. When asked to explain his answer, the prospective juror said, "as it's been pointed out earlier life imprisonment could be twenty years for a heinous crime, given good time and to me that's not just punishment for a crime that severe." The following exchange then occurred between defense counsel and the prospective juror:
MR. CORGAN [defense counsel]: ... if we get that far Judge Vassar will say jury, you are to consider life, life without parole and death, do I understand your answer to be, sir that if you had made a determination that this was intentional murder you just flat out could not consider life?
PROSPECTIVE JUROR AS.: No, sir, I couldn't.
MR. CORGAN: And, sir, with that mindset do you feel it would be better if you did not sit on this case as a juror?
PROSPECTIVE JUROR AS.: No, I feel I can be eligible to sit on this case as a juror and judge all the evidence.
MR. CORGAN: Even though that you could not consider the option of life?
PROSPECTIVE JUROR AS.: That would be my third choice obviously, that would be the lesser of the three choices. It would be, I would be having to vote with eleven other folks and listen to all of their, their evidence. That would be down on my list on the choices, let's put it that way.
MR. CORGAN: All right, sir, but are you telling me now that you could consider that?
PROSPECTIVE JUROR AS.: I could consider it, I'm not trying to back track or anything but I could consider that.
MR. CORGAN: All right, sir, what about the punishment of life without parole?
PROSPECTIVE JUROR AS.: That would be a better option for me based on the evidence if the evidence proves to be true.
£62 Later during voir dire the court asked all of the panel members if they had heard about the case in the media and if anything they bad heard would influence them as they sat as a juror. A.S. said he had read about the case in the newspaper but it had not influenced his opinion.
T63 When read in isolation, certain responses by A.S., both in his written questionnaire and oral voir dire, seem to indicate some partiality. However, when read in context of the remaining voir dire, his responses indicate his personal views on capital punishment. Responses on the written questionnaire indicating general support for the death penalty and the personal view that harsher punishment is necessary to rectify the burgeoning crime problem in society do not reflect an inherent bias against Appellant or in favor of the death penalty. A.S. stated at least four times he could follow the court's instructions and consider all punishment options. Capital jurors are not to be struck for cause unless they are unable to follow the court's instructions. Gray,
164 Any doubts regarding the ability of A.S. to be a fair and impartial juror were resolved by the trial court. Responses which, on the written record of appeal, may seem to substantially impair a prospective juror's ability to follow the law, may not appear the same to the trial judge who sees and hears the responses first hand. Here, the record supports the trial court's finding. Therefore, the trial court did not abuse its discretion in denying the for cause challenge, and this assignment of error is denied.
T66 Appellant argues this exchange between the prosecutor and P.M. tainted the entire second panel of prospective jurors so that they could not seriously consider the punishment option of life in prison. Appellant asserts the trial court should have taken curative measures such as continuing the examination of P.M. outside the hearing of the other jurors, excusing the entire second group, or instructing the prospective jurors that the law requires a defendant convicted of first degree murder must serve 85% of a life sentence before being considered for parole.
167 The manner and extent of voir dire is within the discretion of the trial court whose rulings will not be disturbed on appeal absent a clear abuse of discretion. Hogan v. State,
[ 68 Initially, the record suggests the trial court did not take the remedial measures now suggested by Appellant as defense counsel appeared to agree with the court's handling of the situation. During the prosecutor's exchange with prospective juror P.M., defense counsel raised no objections. While defense counsel did raise a challenge for cause as to the entire second panel due to P.M.'s responses, defense counsel at no time requested any type of cautionary instruction or 85% instruction. Acting sua sponte, the court advised the members of the second panel as follows:
Now I think we have got this seven or eight years floating around but there is just one figure missing and I am not, no one knows what life means, okay? We, all we tell you is life means life. That is all that we are allowed to say, all right but I certainly don't want to represent that there is some other figure, a magic figure and I don't know where seven or eight years came from ...13
1 69 The court's failure to individually voir dire P.M. once he began talking about the meaning of life in prison does not warrant relief. Whether to conduct individual voir dire is within the trial court's discretion. Childress v. State,
70 Further, the trial court did not abuse its discretion in denying Appellant's challenge for cause and excusing the entire see-ond group based upon concerns that "a vast majority of those people will not realistically consider all three options." " "Any claim of jury partiality must focus on the jurors who ultimately sat.
171 The record suggests the trial court did not sua sponte issue an instruction during voir dire on the 85% Rule because at the time of the trial in this case, the long standing rule was that the trial court should not comment or instruct the jury on parole eligibility. Anderson,
11 72 "The purpose of voir dire examination is to ascertain whether there are grounds to challenge prospective jurors for cause and to permit the intelligent use of peremptory challenges." Black v. State,
173 The failure of the court to advise the jury, during voir dire, that if convicted of murder, a defendant must serve 85% of his sentence before being considered for parole did not result in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 20 0.8.2001, § 3001.1. This assignment of error is therefore denied.
FIRST STAGE ISSUES
T74 In his eighth assignment of error, Appellant argues the trial court committed
¶ 75 Title 12 O.S.2001, § 2404(B) prohibits the admission of evidence of "other crimes, wrongs, or acts" to prove the character of a person in order to show action in conformity therewith absent one of the specifically listed exceptions. An act that is not a violation of the criminal law is nonetheless governed by § 2404(B) where it carries a stigma that could unduly prejudice an ac cused in the eyes of the jury. Freeman v. State,
176 "To be admissible, evidence of uncharged offenses or bad acts must be probative of a disputed issue of the crime charged, there must be a visible connection between the crimes, evidence of the other crime(s) must be necessary to support the State's burden of proof, proof of the other crime(s) must be clear and convincing, the probative value of the evidence must outweigh the prejudice to the accused and the trial court must issue contemporaneous and final limiting instructions." Lott v. State,
177 Evidence of bad acts or other crimes may also be admissible where they form a part of an "entire transaction" or where there is a "logical connection" with the offenses charged. Neill v. State,
178 John Wright testified to the cireamstances surrounding Appellant's arrival in Depew and his introduction of Appellant to his daughter and son-in-law. Mr. Wright also testified that by December 2002, Appellant and Kathy Biggs had developed a romantic relationship while Appellant stayed at the Biggs' residence in Depew. Mark Biggs also testified to the cireumstances surrounding his introduction to Appellant in September 2002. He stated that in November 2002, at Carla Wright's request, he picked Appellant up at the bus station. Mark Biggs testified that Appellant told him that his wife and children had been killed in a traffic accident. Biggs stated that on December 13, 2002, Appellant told him that he and Kathy
T79 No objection was raised by Appellant to Wright's testimony, at trial or now on appeal. In his appellate brief, Appellant admits Wright's testimony was necessary to establish the motive in this case. However, he argues that Biggs' testimony was not relevant to establishing a motive in this case and "is nothing but bad character evidence". At trial, defense counsel raised this same objection. While expressing a bit of skepticism about the relevance of the testimony, the court nevertheless overruled the objection and admitted the testimony.
1 80 Portions of Biggs' testimony concerning the relationship between Appellant and Kathy Biggs were cumulative to Wright's testimony. However, Biggs' testimony went into details not testified to by Wright, namely that it was Appellant who asked Biggs to move out, thus paving the way for Appellant to be with Kathy. Biggs' testimony concerning Appellant's statement about his wife and children illustrated how Appellant talked his way into the Wright and Biggs families and how he came to stay with the Biggs family over the Thanksgiving holiday and into early December-the time when the affair between Appellant and Kathy began.
1[ 81 No pre-trial notice of the evidence was given. However, none was required as the evidence was part of the res gestae of the offenses on trial as it incidentally emerged as Mark Biggs described how Appellant came to be in Depew, Oklahoma. The evidence was necessary to give the jury a complete understanding of the events they were to hear about during the trial. The cumulative nature of the evidence was not so great as to be unfairly prejudicial.
182 Kathy Biggs testified to the circumstances surrounding the burglary of her Tulsa apartment. Appellant argues the estranged nature of their relationship was presented through other witnesses and the State had no legitimate need to introduce evidence of an unrelated burglary occurring well before the erimes on trial.
183 Appellant's motive in committing the crimes on trial was to punish or "get even" with Kathy Biggs. To say that the reason behind this motive was their estranged relationship is to put it too simply. The estranged relationship plus Appellant's anger at the burglary charges and his inability to retain control over Kathy fueled his motive. Evidence of the burglary of Kathy Biggs Tulsa apartment was relevant in proving his intent to harm her. That the jury may have heard from more than one witness that Appellant and Kathy were estranged was not so prejudicial as to unfairly impact the outcome of the trial. Further, evidence of the Tulsa burglary also showed that Appellant's presence in Depew on October 18, 2003, was not an accident, that he planned to be in Kathy's hometown, and that he "didn't just show up . .. out of the clear blue sky."
184 Additionally, the trial court limited evidence of the burglary only to that necessary to establish Appellant's motive and intent. When Kathy Biggs testified she discovered that adult movies had been ordered "almost continuously for the last 24 to 36 hours" at the apartment, presumably by Appellant, the trial court sustained defense counsel's hearsay objection and admonished the jury to disregard the testimony. Further, the trial court agreed that evidence of the extensive damage Appellant did to the apartment could be presented by stipulation instead of witness testimony.
T 85 Appellant also challenges the testimony of "jailhouse snitch" Joel Weinstock. Mr. Weinstock was arrested for Driving Under the Influence (DUI) and held in the Tulsa County Jail overnight. He was placed into the cell occupied by Appellant, who was jailed on the charges stemming from the burglary of Kathy Biggs' Tulsa apartment. Weinstock testified that Appellant told him his girlfriend was a "pharmaceutical rep.", that she was dealing drugs, and that he was going to "get even" with her.
T87 Appellant also argues that Kathy Biggs was not a victim in this case therefore evidence of past altercations between the two of them was not admissible to prove motive or intent for the homicides and assaults in this case. Evidence of previous altercations between spouses is relevant to the issue of intent. Harris v. State,
88 Appellant's comparison of his case to United States v. Hogue,
T89 Appellant also challenges testimony by Kathy Biggs that Appellant "wouldn't stop" when he choked her. This testimony was elicited during re-direct examination to clarify Biggs' testimony on cross-examination that after the Tulsa burglary, Appellant phoned and told her "he wouldn't stop until he was finished". This was not other crimes evidence included in the State's pre-trial notice, but res gestae of the Depew crimes as it helped give the jury a more complete picture of the circumstances comprising the crimes on trial.
190 Appellant directs us next to testimony by John Inman. Appellant asserts that testimony by Inman to the cireum-stances surrounding his picking Appellant up after the crash at the Depew football field, "might arguably constitute part of the res gestae of the crime, the allegation that Appellant fired the shotgun at Mr. Inman was totally unnecessary and highly prejudicial."
T91 Appellant's pointing of the firearm was included in the State's pre-trial notice. The evidence was relevant in showing Appellant's possession and use of the murder weapon was not accidental. Further, Inman's entire testimony regarding his encounter with Appellant was admissible as res gestae as it was so closely connected to the
T 92 Appellant also complains the prosecutor "embellished" Inman's testimony during closing argument. In the absence of any objection from the defense we review for plain error only, and find none. See Bland v. State,
11 93 Appellant argues next that evidence of the burglaries he committed while eluding police was inadmissible as they were neither connected to nor facilitated by the Cantrell murders and amounted to nothing more than mere irrelevant and highly prejudicial character evidence.
194 The mere fact that an accused commits more than one crime in a defined period of time is not by itself sufficient to admit other crimes evidence. Knighton v. State,
1 95 Despite Appellant's confession to the crimes in Depew, the State still bore the burden of proving guilt beyond a reasonable doubt. Evidence of the burglary at Rodney Lewis's home four days after the crimes in Depew was relevant on the issue of identity of Appellant as the perpetrator of those crimes.
1 96 Evidence that after the Lewis burglary, Appellant went to Kathy Biggs' former residence and other abandoned trailers before camping in a shack near the Biggs former residence was admissible as part of the res gestae of the Depew crimes. Despite claims that Appellant went to the above places to find food and water, the evidence also suggests Appellant was returning to De-pew to find and potentially harm Kathy Biggs' and her family. Evidence that Appellant broke into the Methodist Church storage building and subsequently stole Ms. Pitre's car in order to leave Depew was all part of Appellant's attempts to escape apprehension and was all part of the res gestae of the crimes in Depew. Without this evidence, inexplicable gaps in time would have left the jury without a clear picture of the events surrounding Appellant's crimes.
197 Finally, Appellant complains about evidence of the kidnapping and assault of Samuel and Suzanne Peebles. Defense counsel's objection to the admission of this evidence was overruled. Now on appeal, Appellant admits that Mrs. Peebles' testimony that Appellant told her "that old man did the same thing and I killed his wife" might have some relevance to his intent as to Mrs. Cantrell's homicide, but argues there was no legitimate need to bring out the entire incident for that single statement.
199 Having fully reviewed Appellant's challenges to the other crimes evidence, we find the probative value of this evidence was not outweighed by the danger of unfair prejudice. See 12 O.S.2001, § 2403. Further, at the close of evidence, the trial court issued a limiting instruction directing the jury that evidence of other erimes or bad acts was not to be considered proof of guilt or innocence of the offenses on trial, but was to be considered solely as evidence of Appellant's intent, motive, and absence of mistake. As the trial court did not abuse its discretion in admitting the challenged evidence, this assignment of error is denied.
FIRST STAGE JURY INSTRUCTIONS
1100 In his fourth assignment of error, Appellant contends the trial court erred in failing to give his requested instruction on the "85% Rule". The record reflects that at the close of first stage evidence, the defense submitted a written instruction requesting the jury be advised of the "85% Rule", which the trial court refused. During subsequent deliberations, the jury sent out a note containing two questions. 'To the first question, "are the years in prison to be served back to back, or concurrently?" the court responded, "this is not for your consideration". To the second question, "can you impose a set number of years other than life sentence, such as 99 years?" the court responded, "yes, with the following explanation. A. If there is a maximum number of years stated for the crime in your instructions, you may not exceed that maximum. B. There is no limit on the number of years you may impose if the maximum sentence is life".
« 101 Four crimes for which Appellant was convicted were subject to the 85% Rule-First Degree Murder, Second Degree Murder, First Degree Burglary, and Shooting with Intent to Kill. See 21 O.S.2001, § 12.1 and 21 O.S. Supp.2005, §§ 18.1(1),(2), (5) & (12). This Court has held the failure to give an instruction on the 85% Rule when applicable is subject to harmless error review. Carter,
102 Contrary to Appellant's argument, the first question posed by the jury, regarding running sentences concurrently or consecutively, is not necessarily an indication that the jury wanted to ensure that Appellant never got out of jail. It often reflects the jury's desire to know how sentences imposed in multiple counts will be served. As for the jury's second question, the jury was presented with numerous sentencing options on the non-capital counts. Three of the non-capital counts had an express maximum number of years listed in the sentencing range. A life sentence was listed as the maximum sentence for a conviction for shooting with intent to kill and second degree murder. The punishment instructions on those two offenses did not state there was no limit to the number of years the jury could recommend in lieu of a life sentence. In light of the potentially confusing nature of the numerous punishment instructions, the jury's question is not necessarily an indication of prejudice as a result of the absence of an 85% instruction.
11103 Here, the record shows the jury ree-ommended severe and in some counts, the maximum sentence, based upon the strong
In his fifth assignment of error, Appellant contends the trial court gave an erroneous instruction on second-degree murder by imminently dangerous conduct. Appellant asserts that had the jury been properly instructed, the jury likely would have convicted him of this lesser offense in the death of Mr. Cantrell.
1 105 The instruction requested by Appellant set forth as the fifth element of the offense, "the conduct is not done with the intention of taking the life of any particular individual". However, in the instruction actually given to the jury the fifth element read, "the conduct is not done with the intention of taking the life of or harming any particular individual." In Willingham v. State,
£106 The jury in this case was not instructed on the current law of second-degree murder by imminently dangerous conduct. Despite Appellant's requested instruction, when the instructions were actually given to the jury no objection was raised to the improper instruction. Therefore, we review only for plain error. Simpson v. State,
1107 Misinstruction of the jury is subject to harmless error review. Carter,
1108 The record reflects that to both Counts I and II, the jury was instructed on first degree malice aforethought murder, second degree felony murder, and second degree murder by imminently dangerous conduct. The jury was clearly able to understand and apply the instructions as they found Appellant's culpability was the not the same in the two murders. That the jury returned a verdict for second-degree felony murder as to Count I, the murder of Mrs. Cantrell, shows that offense was an available option for first-degree malice aforethought murder. If the jury had believed Appellant's statements that he did not intend to kill Mr. Cantrell, they could have found Mr. Cantrell's murder occurred during the course of a burglary, as they found with Mrs. Cantrell's murder. The jury's first degree malice murder verdict in Count II, and by implication rejection of the second degree felony murder alternative, and the second degree felony murder verdict in Count I, demonstrates the misinstruction of the jury was not outcome determinative and the jury would not have convicted Appellant of second degree felony murder in Count II if properly instructed.
109 The viability of second degree felony murder as an alternative to a finding of first
T110 In his sixth assignment of error, Appellant finds error in the trial court's failure to instruct the jury on first-degree heat of passion manslaughter. We review only for plain error as Appellant neither requested such an instruction nor objected to its absence. Pickens v. State,
T111 The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Cipriano v. State,
T112 A homicide is first degree manslaughter "[when perpetrated without a design to effect death, and in a heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon...." 21 O.S.2001, § 711(2). The evidence must "reasonably suggest that [the accused] committed the murder in the heat of passion and without an intent to kill." Charm v. State,
1113 In support of his argument, Appellant directs us to statements he made to Texas authorities that he continued to hit Mr. Cantrell with the butt of the gun, after the initial blow, because Mr. Cantrell kept attempting to get up. Appellant said he finally succeeded in knocking Mr. Cantrell unconscious but assumed he was not fatally injured since his breathing was audible. Appellant told the authorities that when he hit Mr. Cantrell in the head with the gun it was just to "knock him out" and "I wasn't trying to kill him". Appellant admitted in hindsight he hit Mr. Cantrell too hard. He said he didn't mean to hit him so hard but things had just gotten out of control.
1 114 In Appellant's videotaped statement, he told police he leaned the shotgun against the kitchen table and walked toward Mrs. Cantrell, Mr. Cantrell grabbed the shotgun and fired a shot, which accidentally hit Mrs. Cantrell in the back. Appellant claimed several of the shotgun pellets from that blast struck his right hand. Appellant said that at that point, he grabbed the gun with both hands and screamed at Mr. Cantrell asking why he fired. Appellant said that he and Mr. Cantrell struggled for the gun, and that
1115 Even if we were to assume Appellant's statements were an accurate reflection of what transpired in the Cantrell home, he has not established the existence of sufficient provocation to warrant a heat of passion instruction.
T117 Appellant argues his statements to the authorities that he did not intend to kill Tyler Montgomery supported the instruction on the lesser offense. Specifically he directs us to statements that when he entered the Wright residence, he told Montgomery not to move and that he didn't want to chase him so he shot at him to prevent him from running away. Appellant told police he intended to hit Montgomery in the "ass or legs" and was surprised when told by investigators that he had actually struck Montgomery in the back. Appellant also claimed that his actions while riding in the back of Montgomery's truck were merely efforts to grab Montgomery and get him to stop the truck.
1118 The crime of assault and battery with a dangerous weapon is committed with the intent to harm or injure, not kill, another person. Favro v. State,
1119 Appellant's description of the attack upon Tyler Montgomery must be viewed in light of the other evidence offered at trial. Montgomery testified that when he first saw Appellant through the glass front door, he jumped up and ran because Appellant had an angry look on his face and he was carrying a shotgun. - Montgomery testified Appellant fired immediately upon opening the front door of the residence and did not say anything before or after firing the shotgun. Both Montgomery and Appellant said Montgomery was shot in the back from a distance of eight (8) to ten (10) feet. Despite Appellant's claim that he shot without intending to kill Montgomery, his firing directly at the victim in the confines of the small house, with at best, issuing a lone warning of "don't move" does not support an inference that Appellant did not shoot with the intent to kill the victim. Appellant's actions certainly do not support an inference that Appellant was merely trying to prevent Montgomery from running away.
{120 Further, Montgomery testified the shot forced him to the floor where Appellant stepped over him to go into the kitchen. With great difficulty, Montgomery got up and eventually got out of the house and into his pickup. Montgomery testified that Appellant chased him out of the house and jumped into the bed of the pickup. Montgomery said that as he drove away from the scene, he could see Appellant re-loading his shotgun. Appellant fired a second shot through the truck's rear windshield, which hit Montgomery in the back. Although Montgomery's erratic driving, an attempt to throw Appellant out of the truck, could have affected Appellant's aim, his firing in the victim's direction instead of away from him suggests Appellant intended to do more than merely get Montgomery's attention so he would stop the truck.
1121 Appellant's statement to police that he "never got to reload the third ... because he bounced the crap out of me ..." suggests Appellant intended to re-loaded the weapon for a third shot at the vietim but was prevented from doing do by the victim's driving. Montgomery testified that after the crash, he saw Appellant reach into his coat pocket where he kept the shotgun shells as if he were trying to re-load the shotgun. As a result of the two gunshot wounds received from Appellant, Montgomery endured six to seven surgeries to repair the damage, and was kept on a ventilator after having had a lung re-inflated. Appellant's armed pursuit of Montgomery clearly infers he intended to do more than merely injure the victim.
1122 Appellant's statements that he shot Montgomery with only the intent to injure
SECOND STAGE ISSUES
1123 In his ninth assignment of error, Appellant challenges the sufficiency of the evidence supporting the aggravating circumstance that he "knowingly created a great risk of death to more than one person."
1124 Appellant argues the State failed to establish "two qualifying restrictions"-that it was Appellant who killed Mrs. Cantrell and that her death was in close proximity to Mr. Cantrell's death in terms of intent as Appellant did not intend to kill or even harm Mrs. Cantrell. To support this argument, Appellant relies on the jury's verdict of the lesser offense of second degree felony murder as to Mrs. Cantrell's death and contends that the only inference to be drawn from the verdict is that the jury concluded that Mrs. Cantrell was accidentally shot by her husband and necessarily pre-deceased him.
1125 It is not the death of more than one person that satisfies this aggravator, but the acts of a defendant that create a great risk of death to at least one other person who is near to the homicide. Jackson,
1126 By illegally entering the Can-trells' home and holding the couple hostage at gunpoint, Appellant callously created a great risk of death to both individuals. Contrary to Appellant's argument that the see-ond-degree felony murder verdict showed Appellant did not kill Mrs. Cantrell, the verdict clearly showed the jury found Mrs. Cantrell's death was the result of eriminal conduct by Appellant. Although the jury may have believed Appellant's statement that he did not fire the shot that hit Mrs. Cantrell, the jury certainly believed he was responsible for her death.
1127 The second-degree felony murder verdict does not necessarily resolve the issue of who died first. Although Appellant claimed Mrs. Cantrell died first, when the bodies were discovered, her body was on top
1 128 Appellant points out that during closing argument, the prosecutor admitted the Mrs. Cantrell died first. However, reading his comments in context, such an admission was made for purposes of argument only and to support the finding of a predicate erime necessary for the alleged, but not found, aggravator that the murder was committed to avoid lawful arrest or prosecution.
1129 Here the evidence was sufficient to show that Appellant knowingly created a great risk of death to both Mr. and Mrs. Cantrell by holding them hostage at gunpoint. See Smith v. State,
1130 The State also argued at trial that Appellant's attacks on Tyler Montgomery and Carla Wright, occurring after the Cantrell murders and across the street, satisfied this aggravator. However, while we find legal and factual support for that finding, we do not need to address that issue at this time as we find the aggravator sufficiently established by Appellant's eriminal conduct toward Mrs. Cantrell.
1 131 Appellant next argues the prosecutor "materially misled the jury" about the proof necessary to establish the great risk of death aggravator. Appellant asserts the prosecutor told the jury that by their first stage verdicts the jury had decided the aggravator had been proven and that when two people are dead, the aggravator is automatically proven. Neither of the two comments now challenged were met with contemporaneous objections, therefore we review only for plain error. Bland,
1132 Reading the first challenged comment in context, the prosecutor stated during the first part of his closing argument:
You'll hear testimony about the next aggravating cireumstance, that of knowingly creating a great risk of death to more than one person. You'll hear no extra testimony in second stage on that. You've already found that through your verdicts Patsy was killed, Tyler was shot twice, Carla was attacked. It was all part of the same transaction and occurrence, the same time, the same place, practically.
Of great risk to more than one person, more than one person. You've heard the testimony about the two dead bodies and the injuries to folks across the street. You've convicted the defendant of all of those crimes. Risk of death to more than one person.25
[ 133 These were permissible comments on the evidence and the inferences to be drawn therefrom. Id.,
Let me move on to risk to more than one person. Another, quote, unquote, easy one to look at. You know what the evidence is in this case. You know the two people that have been dead. You've already convicted him of two murders. That's almost what we in the law call ipso factos. Just automatically proves danger to more than one person.26
1135 On its face, the comment may seem unfairly prejudicial. However, the prosecutor did not state that the aggravator was automatically proven, but that danger to more than one person was proven. Further, after this comment, the prosecutor reviewed the evidence of Appellant's crime spree in Depew and argued the totality of his criminal actions and the people he endangered supported the aggravator. Any misstatements by the prosecutor were not so egregious as to have denied Appellant a fair trial or to have affected the outcome of the trial. Id.,
{136 Finally, Appellant argues that a more specific instruction on the aggravator should have been given. In Instruction No. B7, the jury was informed:
You are instructed that, in arriving at your determination of punishment, you must first determine whether any one or more of the following aggravating cireumstances exists beyond a reasonable doubt:
1. During the commission of the murder, the defendant knowingly created a great risk of death to more than one person;
2. The murder was especially heinous, atrocious, or cruel;
3. The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution
4. At the present time there exists a probability that the defendant will commit criminal acts of violence that would constitute a continuing threat to society.27
1137 Additional uniform instructions were given for each of the alleged aggravators except for great risk of death. Appellant neither objected to the instruction given nor requested additional or modified instructions. Appellant now argues on appeal that a specific uniform instruction addressing only the great risk of death aggravator is necessary and that without such, the jury in his case was unable to appropriately apply the evidence to the law.
1 188 Much of Appellant's argument focuses on the sufficiency of the evidence supporting the aggravator. As addressed above, the evidence was sufficient to allow a reasonable trier of fact to find beyond a reasonable doubt that Appellant knowingly created a great risk of death to more than one person.
1 139 We have previously rejected requests to more specifically define the aggravator, finding the statutory language "readily understandable", Smith,
1140 In his tenth assignment of error, Appellant challenges the "especially heinous, atrocious or cruel" aggravator.
1141 Appellant told the authorities he hit Mr. Cantrell on his left side with the butt of the shotgun, causing Mr. Cantrell to fall backwards onto a table containing glass knickknacks. Mr. Cantrell got to his knees and started to get up when Appellant hit him again with the butt of the shotgun. After being knocked down, Mr. Cantrell again tried to get up when Appellant hit him in the back of the head with the butt of the shotgun. Appellant said he continued to hit Mr. Cantrell in the back of the head until he stopped attempting to get up. Appellant said Mr. Cantrell was breathing when he dragged his body into the bathroom and he heard him "kind of gagging" when Appellant tried to sit him up in the bathroom.
1142 Dr. Ronald Distefano, the medical examiner testified he found multiple injuries to Mr. Cantrell's head, consisting of five dis-tinet areas of lacerations and abrasions. The injuries included actual injury to Mr. Cantrell's brain surface and a skull fracture. He testified the five distinct areas were caused by an object forcefully striking the head and that it would have required a great deal of force to inflict the injuries. Dr. Distefano said any of the five injuries had the potential to result in unconsciousness and he could not specifically determine which of the five injuries occurred first. He also stated that a single blow might not necessarily cause unconsciousness and if the victim continued to respond after being struck, that would be an indication of consciousness.
{143 Appellant argues that two other "senior citizens" were beaten in the head with a gun and testified that because of the adrenaline rush, they felt no pain. Therefore, Mr. Cantrell probably did not feel any pain. Neither Mrs. Wright nor Dr. Peebles suffered the extent of injuries inflicted upon Mr. Cantrell nor did they suffer from chronic medical conditions, as did Mr. Cantrell. Just because Mrs. Wright and Dr. Peebles testified they felt no pain as result of their injuries, does not mean Mr. Cantrell didn't feel any pain. Mr. Cantrell was a chronically ill Ti-year-old man with limited mobility engaged in a fight for his life with Appellant. Dr. Smith, the Cantrells' personal physician, contradicted Appellant's account of the struggle with Mr. Cantrell as he testified Mr. Cantrell was physically unable to get to his hands and knees after falling to the floor. The repeated beatings with a shotgun endured by Mr. Cantrell and his determined resistance were sufficient to establish his conscious physical suffering at the hands of Appellant. Reviewing the evidence in the light most favorable to the State, we find a rational trier of fact could have found the facts necessary to support the aggravating cireumstance of heinous, atrocious or eruel beyond a reasonable doubt. Accordingly, this assignment of error is denied.
1144 In his eleventh proposition of error, Appellant repeats his challenges to the sufficiency of the evidence supporting the two aggravating cireumstances. He argues that if this Court concludes he was properly convicted of an aggravated murder and therefore eligible for the death sentence, this Court should vacate the death sentence because the aggravating factors did not outweigh the mitigating cireumstances.
€ 145 We consider this argument in conjunction with our mandatory sentence review. Pursuant to 21 O.S.2001, § 701.18(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating cireum-stances as enumerated in 21 00.98.2001, § T7OL.12%. We determined in Propositions Nine and Ten that sufficient evidence supported the great risk of death and especially heinous, atrocious, and cruel aggravating circumstances.
{146 In mitigation, Appellant presented eleven witnesses who testified that that he was under the influence of mental or emotional disturbances that affected his judg
1147 Appellant also presented evidence that his biological mother abused drugs and alcohol, and likely engaged in this abuse while pregnant with Appellant; his mother was in a tenuous emotional state during his infancy and committed suicide before he was nine months old; after his mother's suicide, he was cared for by his eight year old sister and an alcoholic and neglectful relative until his father remarried when Appellant was three years old; his father drank heavily and was emotionally detached and withdrawn from Appellant and his sister; Appellant was very close to his stepmother, Dorothy, and was devastated when she died of cirrhosis when Appellant was 15 years old; and the combined effects of Appellant's early life severely affected his psychological and emotional development.
1148 Other evidence showed he was a hardworking and responsible member of society before events in his life began to deteriorate; he was a good and loving father whose daughter still loves him and misses him very much; and Appellant has technical skills and aptitude that could be put to good use in the prison system. This mitigating evidence was set forth in jury Instruction No. B-13, along with the directive that the jury could decide that other mitigating cireumstances exist, and if so, they should consider those cireum-stances as well.
1149 "Specific standards for balance-ing aggravating and mitigating cireum-stances are not constitutionally required." Romano v. State,
1150 We have carefully reviewed and weighed the evidence supporting the aggravating circumstances, as well as the evidence offered in mitigation.
CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL
1151 In his twelfth assignment of error, Appellant challenges trial counsels' ef
$152 Appellant must demonstrate that counsel's representation was unreasonable under prevailing professional norms and that the challenged action could not be considered sound trial strategy. Id. The burden rests with Appellant to show that there is a reasonable probability that, but for any unprofessional errors by counsel, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id., citing Strickland,
T153 Appellant first alleges that trial counsel was ineffective for failing to properly preserve for appellate review a claim of error relating to the trial court's failure to excuse for cause Juror D.B. In Proposition I, above, we reviewed for plain error and found the trial court did not abuse its discretion in denying Appellant's for-cause challenge to Juror D.B. Thus, Appellant has failed to show there is a reasonable probability that, but for counsel's omission, the result of the proceeding would have been different. See Strickland,
€154 Appellant next argues counsel was ineffective for failing to object to the wording of the jury instruction for second-degree murder by imminently dangerous conduct. As discussed in Proposition V, counsel requested the correct instruction but an incorrect statement of the law was included in the instruction actually given to the jury, apparently overlooked by court and counsel alike. However, we found the error created by the misinstruction to the jury was harmless beyond a reasonable doubt as the jury was sufficiently instructed on other non-capital lesser offenses. Therefore, Appellant has not shown that but for counsel's failure to object to the instruction actually given to the jury the result of his trial would have been different.
1155 Appellant next directs us to Proposition VI where he asserts counsel was ineffective for failing to request a jury instruction on heat of passion manslaughter, and Proposition VII, where counsel failed to request a jury instruction on Assault and Battery with a Dangerous Weapon as a lesser offense of Shooting with Intent to Kill. As discussed previously in this opinion, the evidence did not warrant jury instructions on heat of passion manslaughter or assault and battery with a dangerous weapon. Any requests by defense counsel to give such instructions would have been overruled. Trial counsel will not be found ineffective for failing to raise objections which would have been overruled. Phillips v. State,
156 Appellant next complains that trial counsel was ineffective for failing to object to the prosecutor's misstatement and in failing to request a clarifying instruction regarding the great risk of death aggravator. In Proposition IX, we found the jury was properly instructed under the statutory language of the aggravator, and that the prosecutor did not mislead the jury as to the legal require
€{157 Finally, Appellant refers us to his Application for Evidentiary Hearing on Sixth Amendment Grounds filed contemporaneously with his direct appeal. We review that separately below. Reviewing the allegations raised in the direct appeal brief, we have considered counsel's challenged conduct on the facts of the case as viewed at the time and find Appellant has failed to meet his burden of showing a reasonable probability that, but for any unprofessional errors by counsel, the result of the trial would have been different as any errors or omissions by counsel did not influence the jury's determination of guilt or decision to impose the death sentence. Accordingly, we find that Appellant was not denied effective assistance of counsel and this assignment of error is denied.
ACCUMULATION OF ERROR CLAIM
1158 In his eighteenth assignment of error, Appellant contends that, even if no individual error merits reversal, the cumulative effect of such errors warrants either reversal of his conviction or a modification of his sentence. A cumulative error argument has no merit when this Court fails to sustain any of the other errors raised by Appellant. Warner,
APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS
159 Rule 3.11(B)(8)(6), Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001), allows an appellant to request an evidentiary hearing when it is alleged on appeal that trial counsel was ineffective for failing to "utilize available evidence which could have been made available during the course of trial...." Once an application has been properly submitted along with supporting affidavits, this Court reviews the application to see if it contains "sufficient evidence to show this Court by clear and convincing evidence there is a strong possibility trial counsel was ineffective for failing to utilize or identify the complained-of evidence." Rule 3.11(B)B)(b)G).
1160 Appellant asserts his application is related to Proposition VI from his appellate brief where he argued trial court error in failing to instruct the jury on heat of passion manslaughter. Appellant argues trial counsel was ineffective for failing to utilize available evidence which would have corroborated his statements that he was provoked by Mr. Cantrell's actions in grabbing the shotgun, accidentally shooting Mrs. Cantrell in the back and Appellant in the right hand, and that before his anger had time to cool, Appellant beat Mr. Cantrell with the shot, gun. Appellant relies in part on OUJI-Cr (2d) 4-98 to argue that Mr. Cantrell's actions in shooting Appellant in the hand qualified as adequate provocation as it showed "personal violence or aggression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant".
1161 Attached to Appellant's motion as Exhibit A is a signed affidavit from Barry J. Rouw, investigator for the Oklahoma Indigent Defense System (OIDS). Mr. Rouw states in part that in October 2005, while retrieving and transporting Appellant's files from the office of the Norman Capital Trial Division of OIDS to the Capital Direct Appeals Division, he found two documents, referred to as "Bates-stamped CDC 1120 and CDC 1121-222". These documents were copies of memos to the file prepared by Dale Anderson, Norman Capital Trial Division Investigator. The documents referred to herein were addressed to Appellant's team of
' 162 In the document marked CDC 1120, and dated January 29, 2004, Investigator Anderson states in pertinent part that he spoke to Captain James Galloway of the Angelina County Sheriffs Office, in Lufkin, Texas, who told him that he had taken photographs of Appellant's hand. Anderson states that Galloway said Appellant told him "that the old man shot him when the old man shot the woman and that it hit his hand". Captain Galloway said he thought he had the photographs and that they could be subpoenaed or obtained through the District Attorney. Galloway said he could not tell if the wounds were fresh, but there did look to be something wrong with Appellant's hand. Galloway said he could not tell "if BB's were the cause of the injury or how the wound occurred".
{163 In the document marked CDC 1121, dated October 1, 2004, Investigator Anderson again referred to an interview with Captain Galloway. Anderson said that Galloway told him that he had taken photographs of Appellant's band because Appellant told him he had injured it while in Oklahoma. Galloway said he would get the photos to the Creek County District Attorney's Office.
T164 Exhibit B contains another signed affidavit by Mr. Rouw and states that the attached photos were contained in Appellant's OIDS$S file in a folder labeled "Eizember pictures from San Angelina County". Mr. Rouw states the photographs were "Bates-stamped" at the OIDS Capital Direct Appeals Division, "CDC 8502, CDC 8508, CDC 8505". The attached photos are color photographs showing a small round healing wound to Appellant's thumb, a small round healing wound in the middle of the back of the wrist, a slight serape or healing wound between the middle and lower joints of the index finger, and a similar wound between the same two joints of the right middle finger.
1165 Setting aside questions we may have concerning the actual cause of Appellant's injuries, the evidence in this case, including Appellant's own statements, shows he was a burglar and home invader in the Cantrell residence.
T166 Therefore, trial counsel's failure to use the photographs (whether intentional or not) does not convince us by clear and convincing evidence there is a strong possibility that defense counsel was ineffective for failing to utilize the evidence at trial.
MANDATORY SENTENCE REVIEW
167 Pursuant to 21 0.8.2001, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury's finding of the aggravating cireum-stances as enumerated in 21 O0.8.2001, § 701.12. Turning to the second portion of this mandate, the jury found the existence of two (2) aggravating cireumstances: 1) Appellant knowingly created a great risk of death to more than one person; and 2) the murder
1 168 In proposition eleven we set out the mitigation evidence presented by Appellant. Upon our review of the record and careful weighing of the aggravating cireumstances and the mitigating evidence, we found the aggravating circumstances outweighed the mitigating evidence. Therefore, the sentence of death is factually substantiated and appropriate.
1169 Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 0.98.2001, § 701.18(C), in finding that the aggravating cirenmstances outweighed the mitigating evidence. Accordingly, finding no error warranting reversal or modification, the JUDGMENTS and SENTENCES are AFFIRMED and the APPLICATION FOR EVIDENTIARY HEARING ON SIXTH AMENDMENT CLAIMS IS DENIED. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
Notes
. Appellant was originally charged in Count I with First Degree Malice Aforethought Murder. The charges against Appellant were originally filed in the District Court of Creek County, Bris-tow Division, Case No. BCF-03-260. The case was later transferred upon Appellant's motion for a change of venue to the District Court of Canadian County, approximately 100 miles away from Bristow.
. In Count VI, the jury recommended seven years (7) imprisonment and a ten thousand dollar ($10,000.00) fine. However, at sentencing, the trial court dismissed Count VI finding it merged as a matter of law with Count I.
. Appellant's Petition in Error was filed in this Court on September 2, 2005. Appellant's brief was filed April 19, 2006. The State's brief was filed August 21, 2006. The case was submitted to the Court August 22, 2006. Appellant's reply brief was filed September 11, 2006. Oral argument was held April 17, 2007.
. The written questionnaires are included in the original record, thereby making them available for use in our appellate review.
. In Miller-El v. Dretke,
. - Notwithstanding our application of the law in this case, we urge trial judges to utilize written juror questionnaires as a pre-trial management tool to screen obviously unacceptable jurors and in turn make the voir dire process more efficient.
. - An "abuse of discretion" is defined as a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented. Stouffer v. State,
. During the State's voir dire of J.S. the following occurred:
MR. LOEFFLER (prosecutor): Mr. S[], we're up to you. The three penalties, you heard me talk about them?
PROSPECTIVE JUROR J.S.: Yes.
MR. LOEFFLER: No moral, religious, ethical obligations to keep you from returning a sentence of death if you, if you so find that the evidence warrants?
PROSPECTIVE JUROR J.S.: None.
MR. LOEFFLER: And if you find the Judge has instructed you that you can do that, you can consider that?
PROSPECTIVE JUROR J.S.: Yes, sir.
MR. LOEFFLER: And while it's a very serious matter you could, in fact, impose the death penalty if necessary?
PROSPECTIVE JUROR J.S.: Yes.
MR. LOEFFLER: You could consider the other two possibilities of punishment too though, couldn't you?
PROSPECTIVE JUROR J.S.: Yes, sir.
MR. LOEFFLER: And those would be equal in your eyes, they would start off at the same starting, starting line like it was a race so- to-speak?
PROSPECTIVE JUROR J.S.: Yes.
MR. LOEFFLER: And that would be your answer regardless of what your personal beliefs are for or against the death penalty?
PROSPECTIVE JUROR J.S.: Right.
MR. LOEFFLER: Thank you.
At another point in the State's voir dire, J.S. indicated he could follow the court's instructions "'for each specific homicide, for each possible aggravating circumstance" and in weighing 'those against the mitigators and everything the Court's going to instruct [] on". Defense counsel did not ask J.S. any questions regarding his views on capital punishment.
. - In Hanson, this Court found it significant that prospective juror Fulfaro was not asked if he could "fairly" consider all three punishment options.
. The deficiency of the juror questionnaires in this case in failing to inform and inquire if the potential jurors could follow the process required in the penalty phase of a capital trial reveals the importance of the trial judge explaining the process during voir dire. At the present time, the trial judge only inquires of potential jurors whether they can consider all three possible punishment options. See Oklahoma Uniform Jury Instructions-Criminal (2d) (OUJI-CR) 1-5. We request the OUJI-CR Instruction Committee to expand that introductory instruction to have the trial judge inform prospective jurors of the process they will be directed to follow by the final instructions and elicit a response as to their ability to follow that process, ie., the requirement that the State must prove beyond a reasonable doubt one or more aggravators and then the jury is to weigh the aggravating evidence against the mitigating evidence to determine the appropriate punishment.
. (Tr. Vol.1, pgs.200-201).
. 21 O.S.Supp.2003, § 13.1, the so-called "85% Rule," limiting parole eligibility for certain offenses, including murder. In Anderson v. State,
. (Tr. Vol.2, pg.260).
. Appellant compares his case to Lambert v. State,
. (Tr. Vol. 2, pg. 277).
. - (Tr.Mtn.Hrg. 1/26/05, pg. 11).
. In Short, the defendant had repeatedly threatened to kill his girlfriend and her family. Early one morning the defendant threw an explosive device at his girlfriend's apartment. The device ignited, burning the girlfriend's apartment and the one above it. The girlfriend escaped but the man in the upstairs apartment died in the fire. Although the defendant's girlfriend and her family were not murder victims, this Court held that evidence of the defendant's threats to kill and burn up his girlfriend and her family was relevant to proving his motive and intent in firebombing the apartment.
. - As relevant to showing Appellant's intent, motive, and absence of mistake, Inman's testimony was sufficient to establish by clear and convincing evidence that Appellant discharged the weapon. See Loft,
. (Tr. Vol. 9, pgs. 1733-35).
. Under OUJI-Cr (2d) 4-98, adequate provocation is defined in part as "any improper conduct of the deceased toward the defendant(s) which naturally or reasonably would have the effect of arousing a sudden heat of passion within a reasonable person in the position of the defendant(s)". ... Personal violence or aggression by the deceased of a nature sufficiently violent to cause or threaten to cause pain, bloodshed, or bodily harm to the defendant may be adequate provocation. See OUJI-CR (2d) 4-98. (emphasis added).
. Dr. Danny Smith, the Cantrells' personal physician, testified that Mr. Cantrell suffered from "end-stage chronic obstructive pulmonary disease", a lung disease which affected Mr. Cantrell's breathing. Dr. Smith said that as a result of the disease, Mr. Cantrell "could not walk across this courtroom without getting in real distress". (Tr. Vol. 5, pg. 1099). Dr. Smith also testified that Mr. Cantrell suffered from anxiety related problems, which contributed to his respiratory stress. Additionally, Mr. Cantrell suffered from a rotator cuff injury to his shoulder, which prevented him from moving his shoulder upward or outward. Dr. Smith testified that if Mr. Cantrell fell to the floor, he would not be able to use his hands and knees to push himself up and the only way he could hold a shotgun would be at waist level. Dr. Smith said Mr. Cantrell would not be able to raise the shotgun to his shoulder.
. Appellant's reliance on Tarter v. State,
The Court also reversed the conviction in Provo due to the lack of an instruction on first-degree manslaughter. The Court found the defendant's statements that he did not intend to kill the victim (that he only intended to rob him) and that he hoped the victim lived, combined with evidence that the weapon used was a wooden club with a metal cap (used to beat the victim unconscious), and that the victim's prior medical conditions (heart and lung disease as well as coronary arteriosclerosis), resulted in complications contributing to his death four days after attacked by the defendant, warranted a manslaughter instruction.
. 21 O.S.2001, § 701.12(2).
. The prosecutor stated in part, "I am going to assume, and don't let me put words in your mouth, but by the verdict of second degree murder for Patsy Cantrell that you have found as truth that her death was caused by a struggle over the gun by Cantrell shooting her during a struggle with the defendant or for whatever purpose. If that is the case, the reasonable inference for that is that she died first. That would be a predicate crime." (Tr. Vol. 11, pg. 2187).
In support of the "especially heinous, atrocious or cruel aggravator," the prosecutor stated in part; ""I want you to recall the testimony and the statements of the defendant, that if we are to believe the defendant, and we hear your verdict of murder in the second degree, that A.J. must have witnessed the death of his wife in the last moments of his own, his wife of 53 years." (Tr. Vol., 10, pg. 1754). We can say with reasonable certainty, this statement did not affect the jury's finding of the aggravator as it was supported by sufficient evidence. See Proposition XL
. (Tr. Vol. 10, pgs. 1755-1756).
. (Tr. Vol. 12, pg. 2188).
. (O.R. 1042, OUJI-Cr (2d) 4-72).
. 21 O.S.2001,§ 701.12(4).
. Ullery v. State,
. Based upon the evidence in this case, Appellant could have received his injuries through his struggle with Dr. Peebles. Additionally, the medical examiner testified that Mrs. Cantrell was shot at a relatively close range, approximately five to eight feet and that several of the birdshot pellets remained in her body. It is questionable whether the injuries reflected in the photographs submitted by Appellant could have been caused by birdshot pellets fired at close range.
. As the photographs were found in the trial folder, it is not clear from the record or Appellant's motion whether trial counsel intentionally did not use the photographs as a matter of trial strategy or whether the photographs were merely overlooked.
Concurrence Opinion
Concurring in Part and Dissenting in Part.
11 Eizember claims in Propositions I and II that his trial was tainted when biased Jurors who sat on his jury should have been excused for cause. I agree. The constitution requires an unbiased jury. A juror cannot serve if his "views prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.
T2 Before voir dire, prospective jurors in Eizember's case filled out extensive questionnaires. Use of juror questionnaires is often thought of as a time-saving measure, allowing the trial court to move swiftly past many standard questions and reducing the court time necessary to pick a jury. This is true, but juror questionnaires serve another, more important, substantive function. During a capital case voir dire, jurors are often asked questions on their feelings about crime, the criminal justice system and the. death penalty. Many jurors have not had occasion to think about these issues, and some jurors are reluctant to answer the questions honestly aloud in public. Questionnaires allow jurors to honestly think about and answer these and other questions related to bias and their ability to consider all the evidence and the punishments in each case. A juror's answer on a questionnaire, given in private and after the leisure to think about the question and answer, is a good indicator of the juror's position on the question. For this reason, juror questionnaires are useful to initially cull from the panel jurors with an obvious bias or inability to discharge the duties of a juror.
{3 Here, juror questionnaires showed a clear bias which made the jurors unfit for service. Rather than simply thank and excuse those jurors, the trial court made the effort to rehabilitate them. I might understand this if the juror pool were severely limited. However, the trial court had other potential jurors available. In a capital case the ability to consider punishment fairly is of the utmost importance. A juror's bias need not be proved with "unmistakable clarity" before he may be excused for cause.
14 Juror D.B. wrote, "I firmly believe if you take a life you should lose yours." She had no reservations about seeing a guilty person who had taken the life of another put to death. She believed the death penalty kept taxpayers from supporting a criminal for the rest of his life. She was strongly in favor of capital punishment and said it was definitely not used too often in Oklahoma. She said that, were she a defendant, she would not want her on her jury because she would not hesitate to impose the death penalty where guilt was proven. I am at a loss, given these written statements, to understand the majority's conclusion that these questionnaire responses "do not demonstrate an impossible bias towards the death penal-try.”
5 I also cannot agree with the majority's conclusion that Juror D.B. was somehow rehabilitated by her answers in voir dire. She stated she could only give meaningful consideration to the punishment of life without parole if the death penalty was not an option. She explained this by asking, if a defendant was imprisoned for life anyway, why not impose the death penalty. She stated she would have to consider all three alternatives, but agreed that she would probably automatically prefer death. She stated that, as a defendant, she would want a juror like herself because she would not want to spend her life in prison without the possibility of parole. This does not appear to be consideration of all three punishments, much less fair or meaningful consideration.
T6 Juror A.S. twice wrote that the death penalty should be carried out on a person convicted of a capital crime. He felt that the death penalty rids society of the expense of housing, feeding and providing lifetime medical care for a prisoner. He noted that he was broadly in favor of capital punishment, that harsher punishment generally was required for the crime problem, that there should be no plea bargains, and that prisoners should serve all the time on an imposed sentence. He stated that, based on what he had heard, he could not be a fair and impartial juror. During voir dire, A.S. stated he could consider all three punishments but would lean more toward death or life without parole. He stated he could not consider life imprisonment for an intentional murder, because with good time credits that would not be a just punishment for such a severe crime. After hearing the suggestion that he might not be an appropriate juror for this case, A.S. said he felt he was an eligible juror. He stated that life imprisonment would obviously be the lesser of the three choices, down on his list, but that he could consider it. He stated that life without parole would be a better option if Rizember were convicted of intentional murder. AS. was excused by a peremptory challenge and did not sit on Eiz-embers jury. However, he should have been excused for cause. Had the trial court properly excused A.S., Eizember would have had a peremptory challenge available to use on either juror J.S. or D.B.
18 The majority suggests that, read in context, all three jurors' questionnaires and voir dire answers showed they could consider all three punishment options. The majority resists this Court's previous holdings that a juror must fairly consider each punishment.
. Rojem v. State,
. Jones v. State,
. Rojem,
. Hanson,
. Rojem,
. Majority Opinion at 225.
. Jones,
. Majority opinion at 226.
. Jones,
Concurrence Opinion
concurs in results:
T1 I concur in the result in this case affirming the convictions, judgment and sentences, however, I write to address the issue of the jury questionnaire. Based on the responses of the challenged jurors in this case, I agree with the legal analysis as presented by the majority opinion; however, I reserve judgment in other cases instead of agreeing with the statement that the pretrial questionnaire cannot trump the actual voir dire. I am of the opinion that there are some cases in which the jury questionnaire answers could indeed trump voir dire. I am not convinced that the jurors responses in this case standing alone provided cause for their disqualification. I therefore concur in the result reached in this case.
Concurrence Opinion
Concurring in Part and Dissenting in Part.
T1 I join Judge Chapel's opinion concurring in part and dissenting in part. I concur in affirming Eizember's convictions. I also concur in affirming his sentences on Counts I and Counts III through VI. Because jurors admittedly biased toward the imposition of death sat on his jury, however, I eannot affirm his sentence to death. I would remand this case for resentencing on Count II-First Degree Malice Murder.