*1
208
I
to do that?
the stand
wouldn't." EIZEMBER, Appellant James Scott argument defense response 3. In visit her would v. that Andrew's relatives like parents would prison, "Rob Andrew's Oklahoma, Appellee. STATE only place ... prison him in to visit grave." is his they get to visit No. D-2005-319. impact state response to victim 4. they "Did asking for death: not ments Appeals of Oklahoma. Court of Criminal conveyed? say it? it Wasn't have 26, July 2007. you message conveyed to their
Wasn't and, want," punishment what 10, Aug. 2007. As Corrected family]prohibited "They're victim's [the specific punishment." asking for a from law
6 Andrew's stage of Brenda
11 The second I it fundamentally unfair find
trial was say
impossible to with confidence imposed a penalty here was
death argu- improper
consequence imposed under A death sentence
ment. ar- prejudice, and other passion,
influence upheld. See bitrary cannot be factors
©.8.2001,§ 701.18.
{12 and remand for re- I reverse would
sentencing.
CHAPEL, Judge, dissenting. affirming the convie- agree 1 I cannot as I find merit
tion this case I, II, I re- III and IV. would
Propositions trial. this case for new
verse and remand
5,
repeatedly
only
condemned
beyond
scope
has this Court
"Arguments
Not
at 758.
633 P.2d
many
argument,
cases
we have done so
this
only
intended to arouse
the evidence can
attorney's
See
prosecuted
this district
office.
jurors
prejudices
and are
passions
20,
State,
17, ¶ 99,
Young
P.3d
2000 OK CR
v.
prose-
impermissible
improper."
It is
Id.
¶
45-46;
State,
2000 OK CR
Powell v.
go
purposes of
the record for
culor to
outside
v.State,
55, ¶ 53,
510, 539;
1997 OK CR
Le
prejudices.
appealing
jury's passions and
to the
CR
State,
v.
1995 OK
535, 554;
947 P.2d
Duckett
¶ 24,
110,
Bryant,
211 *6 (20) twenty years V, jury recommended Laughlin, T. Corgan, Charles D. Craig ($10,-000.00) dollar thousand and ten imprisonment Indigent Defense Chesley, Oklahoma Janet ac sentenced trial court .2 Norman, OK, appellant for counsel System, fine and sen judgment this cordingly. From at trial. appeal.3 perfected Appellant has tence Loef- Cook, Attorney, Mike District Max that on a showed € 2 The State's Hammers, At- District Assistant flier, Pamela 2002, Appellant September afternoon late OK, the State for counsel torneys, Sapulpa, Literally. Rid- Depew, into Oklahoma. rode at trial. edge at the stopped bicycle, Appellant ing a Peters, Pybas, D. Jamie Ann Jones Lee Methodist in front of the bed a flower System, Nor- Defense Indigent Oklahoma who Wright met John There he Church. appeal. on OK, appellant man, for counsel told lawn. mowing the church Edmondson, Attorney General Drew W.A. bicycle cross riding his Wright he was Mr. Branham, Oklahoma, Assistant S. Seth Detroit, Michigan, to San Die- country from OK, General, City, coun- Oklahoma Attorney California, money victims to raise go, appeal. on for the State sel Ap- attacks. l1ith terrorist September pitch Wright if he could Mr. asked pellant OPINION church lawn. overnight on the sleep tent spend LUMPKIN, P.J. to let Wright offered Mr. fellowship in the air-conditioned night Eizember was Scott T1 James Mr. took the church. hall inside De of Second convicted by jury and tried offer, attended and even up his Wright on 0.8.2001, (Count I) (21 Felony Murder gree morning. Thus following church services Murder TOL8(2)); Degree Malice § First men. the two friendship between began a 701.7(A)); 0.8.2001, II) (21 § As (Count church Wright introduced Mr. Weap Dangerous Battery with a sault and Patsy members, Can- neighbors, A.J. his 645); III) (21 0.98.2001, $ (Count Shoot wife, Carla, and his trell, family, and his @1 IV) (Count 0.8. to Kill Intent ing with son-in-law, Kathy and Mark daughter and (Count Burglary 652); Degree 2001, § First Biggs. 1481); De (21 0.8.2001, V) § and Second VI) (21 0.9$.2001, (Count he used a machine Biggs had Mark Burglary T3 gree which was wear store western CF-2000-35, his boot and in the Dis 1485), No. § Case he had Appellant said County.1 In Count properly. working of Canadian trict Court Compa- the Ford Motor engineer at been prison sentence I, jury recommended Wright machine. Mr. fix the (150) ny he could years. In Count fifty *7 of one hundred Ap- and Biggs' home to the ag Appellant took of two II, the existence jury found Appellant the machine. worked on pellant and recommended cireumstances gravating A home. Biggs' night at III, spent In Count death. punishment later, told the (10) Appellant days couple of of ten a sentence jury recommended go Biggs he needed Wrights and dol thousand and a ten years imprisonment Appel- IV, jury They Edmond, advised ($10,000.00)fine. In Count Oklahoma. lar bicycle, his to ride not be safe lant it would a ten and imprisonment life recommended him there. agreed to drive and ($10,000.00) In Count fine. thousand dollar However, sentencing, ($10,000.00) fine. charged lar originally Count I Appellant was 1. finding it VI Aforethought Count Murder. court dismissed Degree the trial Malice First with originally against Appellant were Count I. charges merged of law with as a matter The County, Bris- Court of Creek the District filed in Division, case The BCF-03-260. Case No. tow filed in this was Appellant's in Error Petition 3. Appellant's upon motion transferred was later 2, Appellant's brief September 2005. Court on the District Court change of venue to brief was April The State's 2006. filed was away miles County, approximately 100 Canadian was submitted August The case 21, 2006. filed from Bristow. reply August 2006. Court to the argu- 2006. Oral September filed brief was VI, seven recommended Count In April was held dol- ment (7) a ten thousand imprisonment and years Wrights Biggs T4 The and did not hear elderly couple lived across the street Appellant again from until close to Thanks- Wrights. inside, from the Once Appellant giving when arriving learned he was shotgun found a .410 that he loaded with the Tulsa bus station. At Wright's Mrs. shells from the Patsy residence. Cantrell request, Biggs picked up Mark Appellant at was soon gunshot dead from a to the back the bus station and drove him back to De- and AJ. Cantrell was dead from multiple pew. Appellant Biggs told his wife and two blunt foree traumas to the head. Their bod- young crash, children had died in a car ies were floor, later found on the bathroom any place live, he did not have and did not with Patsy's body lying top of her hus- need to be back in anytime Detroit soon. band. Their Chihuahua dog was found cow- Appellant Thanksgiving shared dinner with ering in the bathroom near the bodies. Wrights Biggs stayed and and at the 18 After killing Cantrells, Appellant Biggs' home. walked across the street to Wright resi- time, 115 During Appellant Kathy and jerked dence. He open the front door and Biggs developed a romantic relationship. On year found 16 Tyler old Montgomery, Kathy 13, Appellant December Biggs told Mark son, Biggs' seated in a watching recliner Kathy Appellant love. said he television. Montgomery saw come getting was a court settlement from a truck- through carrying the door shotgun with an ing company for over one million dollars and "angry look on his face." Montgomery knew he wanted Mark Biggs to Biggs move out. Appellant was not Wrights welcomed in the day. moved out that immediately home. He jumped up ran Kathy T6 Mark and subsequently di- towards the kitchen grandmother, where his voreed. Kathy together lived Carla Wright, baking cakes for her Sun- until the summer of 2008 when their relation- day school class. Montgomery Before could ship time, soured. At get to the kitchen though he was struck in Kathy apartment shared an in Tulsa. In the lower back with shot shotgun. from the July, Kathy registered worked as a nurse in The force shotgun pushed blast Mont- Lawton, working days six days on and six off. gomery ground. to the Appellant stepped When she was not working, she returned to Montgomery's over body and entered the apartment. However, Tulsa by August kitchen. proceeded There he to beat Carla she told apart- to leave the Wright with the end of shotgun, inflicting ment, off, had the utilities turned obtained at least four severe blowsto her head. protective against order Appellant, and moved back to parents' her Depew. home in 1 9 While beating grand- his September, she forgotten realized she had mother, Montgomery get was able to up, to contact the company. cable When she although great difficulty, and run to the did, finally she learned that someone had back of the house looking weapon. for a apartment been watching the cable Unbeknownst to Montgomery, guns had past channels the 24 to 36 hours. Sure that been part moved to another of the house. Appellant had apartment, broken into the Unable weapon, to find a Montgomery ran Kathy immediately phoned the Tulsa Police out the back door jumped into pick- *8 Department. Appellant was inside the - up. Appellant The armed saw this and fol- apartment police when the arrived. He was Upon lowed him seeing outside. Appellant, burglarizing arrested for apartment the and Montgomery locked the pickup doors to the county jail. incarcerated in the While await- and backed out of the driveway. Appellant ing disposition charges, of the he told a cell- jumped into the bed of pickup the and re- girlfriend mate that "pharmaceuti- his was a shotgun. loaded the Montgomery drove er- cal rep", she was dealing drugs and that he ratically trying to Appellant throw out of the going "get was even" with her. Appellant pickup. Appellant only not remained the custody was released from in October 2008. pickup, Montgomery but fired at through the T7 On Appellant October broke back windshield of the pickup. The hit shot into the home of Patsy A.J. and Cantrell. Montgomery in the shoulder. to the Cantrells' street across the walked shot, drove Montgomery being After ear- Pasty Cantrell talking to Despite pur- home. before ditches through several the truck no re- Wright received day, Mrs. metal lier large into the truck crashing posely the front knocks at repeated to her sponse Sports Depew to the at the entrance pole and went the door opened So she help there door. get could he He knew Complex. rooms through several walked inside. She announcing the local was grandfather as his past walked She the Cantrells. calling for crash, Montgomery the After game. football be out to help. As what turned ran for and saw bathroom the truck the out of jumped time, However, the at legs. Pasty Cantrells' Mont- the bloodied around gathered a crowd vision, and bloodied her blurred through of of the back jumped out Appellant gomery, scarecrow, saw a thought she Wright opposite Mrs. the walking in began pickup and stuffing had been grandchildren her shotgun. because carrying the still -Hewas direction. Believing day. she the earlier scarecrows driving down the was Inman T11 John home, Mrs. Cantrells found the had not Appellant. the bloodied he saw street when help from a found Wright left the house before, but Appellant met had never He passerby. went pickup crash of heard days, Appellant next eleven T 14 For the get girlfriend to his told investigate. Inman police a massive despite capture to offer evaded going he was car that of the out rural wooded search, hiding in the largely by In- accepted Appellant Appellant a ride. During Depew and Bristow. areas between Appellant when Inman noticed man's offer. Lewis, Rodney located time, home of hammer on car that got into the Road, burglarized. was Airport near Inman Appellant told shotgun cocked. - - shirt, Clothes, jeans and including pair In- Wrights' residence. to the going he was handgun were taken. and a .380 hospi- food go to the should Appellant he man told Mr. Lewis operational, as forchead, handgun was large gash on to the tal due awas pin. Left behind firing had lost the Appellant bleeding profusely. which was bloody jeans. per- get some pair and a bloody shirt needed to he agreed, but said first. from home items 23, 2008, seventy-five sonal 115 On November Pitre, direction, Doyce Inman drove a volunteer year old T12 At acci- pantry, food Methodist Church Depew miles east to seven approximately Appellant hiding inside Appellant dentally discovered himself Finding near Bristow. Airport Road gun-wielding seeing the building. Upon nearly road, the next road country on a screaming from the Pitre ran Appellant, Ms. suspicious away, Inman became three miles in the keys hanging her building. left She Inman told his intentions. Appellant and Appellant building. door Ap- front shotgun. When to unload Appellant - to steal Ms. keys used them grabbed demand. refused, repeated his Inman pellant car. Pitre's shotgun, opened at the looked As out. began to slide door and passenger [16 Peebles day, Dr. Sam That same shotgun. did, he raised the barrel he Arkansas, Suzanne, left Ft. Smith his wife shot, Inman about Believing he was Nashville, Arkansas. their home shotgun and of the the barrel grabbed Waldron, Arkansas, Nearing the town head. away from his it pushed Toyota the side they noticed a red Inman's barely missed and the shot fired standing beside man, Appellant, was A road. car into threw his Inman hand and head. stopped and The Peebles shivering. car off, mirror, view In the rear sped drive and Appel- help. if he needed asked him, reload- running after he saw something thought there lant said straight to the Inman drove ing gun. just filled he had car because wrong with his department. police Pee- accepted the gas. up with *9 nearby conven- him to a to take offer meantime, Wright had bles' Carla In the T13 told the Appellant help. get to store her ience just enough from managed recover to wedding in a had been girlfriend his Peebles Barely able to see help. beating to look for pick way to to Texarkana face, on his and he was she her dripping down to the blood due up. Appellant her took a seat in the Peebles being After medically, stabilized Ap- van, Peebles, directly pellant behind Dr. who was dictated a detailed statement to the only minutes, driving. After Appellant few authorities. His statement was consistent pulled gun, Peebles, pointed out a it at Dr. with the State's evidence in parts, certain they going and said were to drive for a and inconsistent in others. part He stated in while.. approximately hours, For the next six the in June he and his wife divorced drove, through Texas, Peebles Arkansas and in September Detroit, he left his home in following Appellant's directions. He asked Michigan, bicycle on intending to ride to San couple them a they if Diego, times had been to California. He Kathy Biggs met in they Mexico and if knew get how to there. Depew, Oklahoma, on October 2002. He occasions, Appellant On several told the stayed day Pee- Depew, one in then left to contin- ue his bike ride taking bles that he Diego. safety gun to San was off the Appellant said, they and if did they what he would have said got when he Diego, to San he called something to grandkids, they tell their but if Kathy and she asked him to come back to didn't, Depew already for Thanksgiving. Appellant re- "I'm facing death row in Okla- homa." Depew turned to and remained there through December. On Kathy December « gun Appellant's 17 The in possession was "threw her husband out of the house" and he pistol the .880 semi-automatic he had taken Kathy began a relationship, living to- burglary in the of the Lewis home. Unbe- gether approximately for one month. him, knownst to it didn't work. Appel- When Appellant gun Peebles, T20 lant first drew the further said that in March on the Mrs. Kathy called him in Detroit and asked grab Peebles to away tried it Appellant. from During ensuing struggle, Appellant him to come By and live with her. yelled going he was to kill Dr. if Peebles April middle of living in an said, she did go. not let He "that old man apartment Kathy Tulsa. had a nursing in thing did the same and I job killed his wife." in Lawton and told him he did not need Believing gun had been previous- used to to work. relationship Their was fine until ly someone, kill go. Mrs. Peebles let July when problems with her children and money get job. necessitated that he Appel- {18 while, 'After a the Peebles became lant said he hitchhiked from Lawton to Tulsa Appellant convinced going was kill to them. get things out of apartment when During break, a roadside restroom Dr. Pee- he found the locks had changed. been He bles drew his handgun, own a nine shot pried the open door things found his had revolver, Appellant multiple shot times. been thrown out. admitted to shot, Despite being Appellant wrestled with spending days two apartment until the Dr. Peebles and took the away. Ap- revolver police arrested him burglary and violation pellant struck Dr. Peebles' the head re- protection order. He admitted to peatedly pistol. with the .380 Dr. While throwing Kathy's out all of things in the ground, Peebles was on kicked apartment. him in the head. When Mrs. Peebles at- tempted help husband, her said he jail bonded out of gun turned the on her. He said he wasn't day one preliminary before his hearing and going husband, kill her going he was kill Depew. spent hitchhiked to night He put her and he pistol the .380 to her head. an abandoned car next door to the Cantrells' pulled He cocked it and trigger, but the home. He said that while lying he was gun didn't fire. car, then hit her in the he heard the Cantrells leave their gun head with the and ran off. He drove off home. He then snuck around the back of van, in the Peebles' leaving injured them the house in through open and went win- the side of the road. He went to a conven- dow. He single found a- shot shotgun ience store phoned where store clerk and shells gun. inside and loaded the While police. Appellant subsequently house, taken to inwas the Cantrells returned. Lufkin, hospital Texas and later ar- He confronted Mrs. Cantrell first and told rested Texas authorities. going her no one get hurt. Mrs. *10 Kathy him where Tyler to tell to force table, going a few and at a sat down Cantrell was. Appel- came in. Mr. Cantrell later moments his about was worried Mr. Cantrell lant said the into he walked Appellant said €23 and Mrs. Mr. Both condition. Tyler heart wife's told Wright home and the front door want- what he him asked a repeatedly up out of Tyler got Cantrell when But not to move. Appellant said car. Ap- him their at him. ran, and offered fired Appellant ed and chair Tyler's back in approximately mark for the shot saw Cantrell pellant to Mrs. he talked time she during which said he Appellant minutes the floor. Tyler to 25 fell to and said, Appel- legs. "Mrs. Cantrell Tyler He in the couch. hit only to the meant to moved mother, Carla, Kathy to waiting for Kathy's 60-year-old out of me talked lant saw had He come scream. Kathy to heard her kitchen and I waited in the home. come the kitch- body to turn to enter going Tyler's I was over stepped her that to tell home the the butt of finding Wright reasons with quit Mrs. could and hit and that she en her in hit her arrested, just eye. to He then I wanted left shotgun above her have me to face with his Cantrell in the By this time Mr. more times or three of there." two get out had floor, Tyler Cantrell chair Mrs. sitting in the he saw to the was she fell fist. As he Appellant to the said over Appellant walked the house. run out of just vacated. jumped the against the side and up Tyler pickup to his table, gun the leaned chased away. He glass of water. to drive table, Tyler a started grabbed and the back and de- Cantrell to Mrs. back then walked the reloading admitted Appellant €24 Mr. said keys. Appellant car her manded through the back firing a shot shotgun and fired, shotgun and the grabbed then Cantrell hit attempt to in an the truck windshield Appel- in the back striking Mrs. Cantrell Appel- Tyler ducked. said Tyler. Appellant the shot said Appellant in the hand. lant Tyler get to only trying to he was lant said 10 feet. about 8 to fired from was truck Tyler drove truck. When stop the Cantrell, gun grabbed Iunged at Mr. then cab of the hit the pole, into him, why he had asking and screamed off, got Tyler ran truck. After hit Mr. Cantrell gun. Appellant fired key but and tried the truck inside the gun. Appel- the butt of with his left side started not start. would truck Mr. Cantrell struggle with a described lant up him and asked guy picked walking when hitting him to admitted gun and for the Appel- hospital. him to the if could take he times, shotgun numerous head with the driver car and told got lant he said up." get attempting to stopped "until he home things from get some to he needed Bristow, towards drove But as first. Can- Mr. he believed Appellant said Appellant did a house stopped the driver He unconscious. breathing but trell was got out of he Appellant said not know. He was dead. thought Mrs. Cantrell get himself he would the driver car and told body the bathroom to dragged Mr. Cantrell's hospital. to the sat He then the floor. left him on first and police knew the said he and had snack. an hour about down for in the stayed out him and he looking for differ- time, rang two phone During that pattern- "After fields, bales. door, hiding straw came to and someone ent times area and routes", Appellant left ing their Fearing that then left. a few times knocked for three Bristow woods near in the hid out get in touch really trying to was someone into a he went Appellant said days. or four victims, dragged Mrs. Cantrell's he clothes, ate, left Bristow, stole some house in He could see body the bathroom. clothes, gun. He a .380 and stole bloody breathing, placed so still Mr. Cantrell the river Mr. west top, prevent headed body on he then said Cantrell's Mrs. days until he was back it for eleven followed Appellant returned rising up. from Cantrell the Meth- into he snuck He said Depew. way get thought about to his snack stayed building storage odist Church leave when He had decided there. out of Appellant said weeks. to three for two there up in Montgomery pull Tyler he saw three building two or into the came a woman He said the street. driveway across *11 he morning times while was there. On the exists a probability that the defendant will 28"5, him, November the woman saw commit criminal acts of violence that would just sereamed and ran out. He said he constitute a continuing threat society. See O.S.2001, 701.12(2)(4)(B) (7). walked out of the back § keys door where her & hanging, got Toyota were still in her 129 In addition to all of stage the first "zigzagged south and east until I ran out of evidence, which had been incorporated into gas in Arkansas." stage, second presented the State Appellant said he stood the car testimony of ten witnesses to support wife, until a doctor and his identified as alleged aggravators. These witnesses in- Sammy Suzanne, picked ard him up. He Willingham, cluded Ed investigator admitted that quarter about a of mile down County the Creek Attorney's Office, District road, pulled gun out the .380 and told picked who up Appellant from the Texas them he needed to take their van. Paris, Texas, authorities and transported they they said told him give did not want to him to Sapulpa, Willingham Oklahoma. tes- car, him Sammy their Ap- would drive part, tified in during his interview with pellant wherever he needed. told Appellant, expressed he never any remorse them he anyone didn't want to hurt that he crimes, for his although he said he was not just get needed to out of they there. He said proud done, of what he had and he angry through drove Arkansas and into Texas. that none of his victims did what he told they stopped Diboll, When for a break at them Willingham to do. said that they onee Texas, Sammy gun Appellant. fired a Ap- Oklahoma, were back in Appellant directed pellant said that although shot, he had been law enforcement to the location of the 410 Sammy he wrestled with gun. for the Appel- shotgun and even went with officers to Sammy lant said he hit in the head twice day's search. The proved first search fruit- gun with the .380 because had lost the less, day but on the second of searching, gun Sammy used. When Suzanne came to gun was located near a creek. It contained a help husband, and asked him not to kill her casing shell which had not been Ex- fired. Appellant hit her in gun. the head with the perts gun determined the had been at that Appellant said he then drove off in their van. location approximately for four to five weeks. He drove to a convenience store where he 830 Another of the State's witnesses was injuries. was asked about his When he said Appellant's ex-wife,Roberta Eizember. She shot, he had been police and an ambu- testified Appellant, she and married from lance were called. 1992until lived Detroit and had two aAs result of spree, Appel- his crime children. She testified that was an lant was convicted of degree felony second alcoholic, had keeping job, trouble and had death, murder in Mrs. degree Cantrell's first physically abused her on more than one occa- Cantrell, malice murder of Mr. Assault and sion. beginning She said that in May Battery Dangerous with a Weapon of Mrs. increasingly became withdrawn Wright, Shooting with Tyler Intent to Kill family. from his She testified that she knew Montgomery, and Degree Burglary First nothing about bicycle trip or time in Wright's home. Oklahoma. trial, 11 In stage the second the State mitigation, 131 In presented the defense sought the death penalty punishment eleven witnesses. Appel- These included Mr. presented Cantrell's murder evi Detroit, lant's co-workers from personnel dence supporting four aggravating cireum- Jail, from Okmulgee County 1) during stances: the commission of the aunt, sister and psychologists. and two murder, knowingly defendant created a great risk of death person; to more than one T32 hearing After all of the evidence in 2) heinous, the murder especially aggravation atro mitigation, found 3) eruel; cious or the murder was committed the existence of aggravators, two of the "great risk of death to more than for the purpose avoiding per- one lawful arrest or 4) prosecution; and present at the time there son" and that especially murder was had if the defense the court informed atrocious, and sentenced or cruel heinous, chal- peremptory granted additional been to death. struck would be D.B. and J.S. lenges, Jurors SELECTION *12 JURY jury. from error, Ap- proposition first In his 133 preserve for properly order to 136 In fail- court erred the trial contends pellant of a objection to a denial an appellate review D.B. and J.S. Jurors for cause ing to excuse cause, must dem a defendant challenge for biased jurors were argues both objection to over foreed that he was onstrate an to such extent penalty the death favor of Browning v. juror. unacceptable keep jury. impartial a fair was denied that he CR 2006 OK begun in this case Jury selection the chal to excuse a defendant requires This three jurors into dividing prospective by challenge peremptory a lenged juror a twelve individual giving each groups and jurors remaining which a record of and make The fill out. juror questionnaire page if he had exeused have would the defendant completed prior were questionnaires written challenge to cure peremptory not used voir dire.4 of oral the commencement denial alleged erroneous court's the trial then selected groups was three of the Each challenge. Id. the for cause devoted afternoon session morning or for a any Here, error Appellant preserved poten all After qualification. and death life jury. service on J.S.'s relating to Juror general voir qualified, so jurors had been tial challenges, peremptory further no Left with had thirty persons until conducted dire was his chal- renewed appropriately Then, recalling pro cause. passed for been per- cause, requested additional lenge for order, the first original jurors in the spective the record and noted for challenges, emptory Peremp in the box. were seated twelve additional excuse with jurors he would which jurors those limited to challenges were tory peremptories. challenges were peremptory As in the box. from the made, drawn replacements were par J.S.'s of Juror 188 As evidence jurors. pre-qualified pool of number 73 question tiality, cites to portion of the After life/ question This questionnaire. juror on raised counsel qualification, defense death juror the defen potential if the asked prospective cause to several challenges for Oklahoma, you "would or the State dant The D.B. and J.S. including Jurors jurors Juror juror in this case?" as a yourself want it challenges. When trial court overruled "no", guilty, "if responded, because J.S. challenges, peremptory time to exercise came eventually execut row and on death will be a jury box as in the D.B. took a seat Juror J.S.'s directs us to Juror Appellant also ed." of his exercise counsel's of defense result ques That number 66. question response to peremptory his ninth challenge. With eighth juror a on asked, you "Do want tion ju- prospective removed challenge, Appellant "yes" "so responded, J.S. this case?" Juror panel replaced on ror J.L. who justice can be served." D.B. and Juror J.S. This left both Juror J.S. responses suggests per- final T39 exercising his jury. After
.on
are sufficient
questionnaire
juror
again
counsel
challenge, defense
emptory
juror for
prospective
to excuse
themselves
for cause
be excused
that Juror J.S.
asked
her views
upon his or
based
three
cause
all
inability to consider
upon his
based
yielded no
has
research
penalty. Our
upon the
death
and based
punishments,
possible
pre-trial
responses
cases where
capital
surgery, counsel
rescheduling fact that
dire, have
voir
without
juror questionnaires,
just
too interested
almost
"he's
surmised
jurors
to excuse
sufficient
been found
overruled
trial court
being juror." The
pun-
capital
cause,
views of
upon their
based
then
counsel
cause. Defense
challenge for
appellate review.
for use in our
in the
questionnaires
included
are
written
4. The
record,
making
available
thereby
them
original
Indeed,
Supreme
pre-trial
ishment.
Court has
questionnaire
trump
cannot
the ac
against oversimplifying
inquiry
warned
tual voir dire.
responses
to the written
jurors
perform
duty
questionnaire
as to whether
can
their
regarding views on the death
notwithstanding
penalty
their views on the death
isolation,
are not to be considered in
juror
penalty.
"[DJeterminations
bias can-
but in
responses
context of the other
to the
question-and-answer
not be reduced to
questionnaire
ses-
responses given
and oral
dur
ing
Witt,
sions which obtain results
the manner of a
open
voir dire in
court.5 See
Witt,
Wainwright
(the
catechism".
469 U.S.
U.S.
rors").
not indicate
naire,
responses do
we find his
princi
to the
adhered
has
1 42 This Court
disregard or cireumvent
an intention
Glossip v.
See
forth Witt
ples set
most, his
As
court's instructions.
or the
law
¶¶ 31-33,
150-
157 P.3d
will be
guilty, [Appellant]
that "if
response
9, ¶ 10,
State, 2001 OK CR
151;
Williams
indi-
eventually executed"
row and
on death
therein).
(and
cases cited
22 P.3d
misunderstanding of the law. Such
cates
only requires
the Witt standard
have said
We
juror for
prospective
to strike
not sufficient
each of
willing to consider
juror be
that each
jurors who did
prospective
"If all
cause.
the death
-
statutory punishments:
the three
the trial be-
the law before
fully understand
possi
without
imprisonment
penalty, life
struck,
al-
only lawyers would be
gan were
(with
imprisonment
life
bility
parole, and
(and only a handful
jurys
lowed to serve
2007 OK
Glossip,
parole).
possibility Lambert,
that").
Brown v.
lawyers at
also
¶ 31,
at 150. See
157 P.3d
CR 12
Cir.2006).
(9th
946,952
at F.3d
¶ 10,
Williams,
9 at
OK CR
juror
Further,
regarding
all doubts
709-710.
question-
Questions on the written
T44
in favor
impartiality must be resolved
penalty, without
the death
regarding
naire
Williams,
CR 9
2001 OK
accused.
provided
any prospective
explanation of or
*14
to
will look
This Court
22
at 709-710.
determining the
in
to be used
process
the
to
dire examina
juror's
the
voir
entirety of
the
credibility
taint the
punishment,
appropriate
properly
trial court
if the
to determine
tion
deficiency was a
given. That
any response
of
the trial
Id. As
juror for cause.
the
excused
questionnaire used
in the written
major flaw
jurors
observes
personally
court
jurors in this case
The
present case.
in the
not disturb
will
responses,
this Court
their
dire to
of an oral voir
the benefit
needed
discretion.
abuse of
its decision absent
trial court
process. The
fully understand
Id.7
dire
the oral voir
also needed
and counsel
principles to
above
Applying the
43
prospective
determine
properly
order
of
case,
advised
having been
after
present
juror's bias.
a convie
punishments
possible
three
argues that J.S.'s
also
murder,
J.S. stated
first-degree
Juror
of
tion
surgery,
instead
rescheduling
rotator cuff
of
all three
consider
that he could
unequivocally
hardship,
for a
to be excused
requesting
follow the law
options, and
punishment
overly eager to serve
juror
indicates
by the court.8
to him
given
instructions
J.S.: Yes.
clearly
JUROR
PROSPECTIVE
as a
is defined
of discretion"
7. An "abuse
-
the oth-
You could consider
LOEFFLER:
MR.
judgment,
one
conclusion
erroneous
though,
logic
punishment
the facts
clearly against
possibilities
and effect of
too
er two
State, 2006 OK CR
presented.
you?
couldn't
Stouffer
Yes,
¶
J.S.:
sir.
245, 263.
JUROR
PROSPECTIVE
equal
And those would
LOEFFLER:
MR.
following
of J.S. the
During
voir dire
the State's
eyes, they
off at the same
your
would start
occurred:
so- to-
starting, starting
like it was
race
line
S[], we're
(prosecutor): Mr.
MR. LOEFFLER
speak?
you
me
penalties,
heard
up
you. The three
J.S.: Yes.
JUROR
PROSPECTIVE
talk about them?
your an-
And that would be
MR. LOEFFLER:
J.S.: Yes.
JUROR
PROSPECTIVE
personal
your
beliefs
regardless
what
swer
moral, religious, ethical
No
MR. LOEFFLER:
penalty?
against
death
are for
returning
you
a sen-
obligations
keep
from
Right.
J.S.:
JUROR
PROSPECTIVE
you,
you
that the
so find
death if
if
tence of
you.
Thank
MR. LOEFFLER:
warrants?
dire,
voir
J.S.
in the State's
another
At
point
None.
JUROR J.S.:
PROSPECTIVE
the court's instructions
could follow
he
indicated
Judge
you find the
And if
MR. LOEFFLER:
homicide,
possible
specific
for each
each
"'for
that, you
you
you
can do
has instructed
weighing
aggravating
circumstance"
can consider that?
everything
mitigators
against
'those
Yes, sir.
JUROR J.S.:
PROSPECTIVE
Defense coun-
going
[] on".
to instruct
Court's
very
while it's a
serious
And
MR. LOEFFLER:
regarding
any questions
his
not ask J.S.
sel did
death
fact,
could,
impose
matter
you
capital punishment.
views on
necessary?
penalty if
jury. Appellant
on the
juror
also references Juror
prospective
exeuse
J.L. or Juror D.B.
response
J.S.'s
that he had heard about the
peremptory
with his last
challenge, he did
case
the media.
have a
"A
choice.
hard choice is not the
Martinez,
Id.,
same as no choice."
quoting
Contrary
Appellant's argument,
Salazar,
U.S.
ishment of D.B. continued voir dire Defense counsel's Ques- alternative. the last checked D.B. follows: following: 65 asked tion No. counsel): (defense to determine MR. CORGAN you are on Assume already life without who has the sentence How about of a defendant sentence If that as well? very you crime. consider parole, serious could of a convicted been or life of death you a choice gives law D.B.: If the JUROR PROSPECTIVE penalty; other or some imprisonment, option. not an penalty was death one) (check you Okay, tell me what MR. CORGAN: penalty death for the I could not vote 1. mean that. and cireumstances the facts regardless of they're If D.B.: JUROR PROSPECTIVE of the case. of their life remainder prison for the cases which kinds of are some 2. There why not parole possibility of without death for the not vote I know I could penalty? the death to,me but law allowed if the penalty even willing to con- I would others which you, are are right, All so MR. CORGAN: voting it. sider you had a if telling me then you table, penalties all of the it laid out on consider where was I would situation and cireum- the facts by law and death, you provided then life, parole life without automatically case. consider one of particular would stances those? pen- the death usually vote for I 4. would me to. the law allows alty in a case where Automati- D.B.: JUROR PROSPECTIVE pen- death always vote for the I would one of- cally consider to. allows me where the law alty in cases punishments those One of MR. CORGAN: third alternative checked the T52 D.B. the others? over penalties all of the consider
that she "would
D.B.; Probably.
JUROR
PROSPECTIVE
circum-
facts and
by law and the
provided
*16
And-
MR. CORGAN:
No other
case."
particular
of
stances
per-
questionnaire
the written
questions on
D.B: Yes.
JUROR
PROSPECTIVE
punishment.
capital
tained to
would be death?
And that
MR. CORGAN:
prosecutor
questioning
T53 Under
D.B: Yes.
JUROR
PROSPECTIVE
dire,
she could
D.B. said
during
Juror
voir
So-
MR. CORGAN:
options-the
punishment
all three
consider
D.B:;
parole, and life
without
penalty,
life
death
getme
Let
JUROR
PROSPECTIVE
would do so based
said she
prison. She
already
had
the evidence
you,
said that
you
in the courtroom
brought forth
the evidence
penal-
and it's the
it's over
there and
been
She
given by the court.
and the instructions
ty
right?
phase,
any
beliefs
personal
put
could
aside
said she
pun-
talk about
we
When
MR. CORGAN:
case on the
decide the
predispositions
or
already made the determi-
you've
ishment
moral,
any
evidence,
have
did not
and she
beyond a rea-
murder
of intentional
nation
that would
obligations
religious
ethical or
doubt, okay?
sonable
doing
from
so.
keep her
D.B: Ub-huh.
JUROR
PROSPECTIVE
counsel,
by defense
questioning
1 54 Under
we are.
That's where
MR. CORGAN:
consider
that she could
reiterated
D.B.
Juror
you telling me that
are
that context
Within
spe-
When
possible punishments.
all three
automatically say it
be
should
you would
a life
could consider
cifically
if she
asked
penalty?
the death
guilty of
was found
defendant
if the
sentence
PROSPECTIVE JUROR D.B: I would
suggest
such a
bias as
claims.
just
have to look at all
three but
off the
However,
responses
other
indicate
Juror
D.B.
impartial
could be a fair and
juror.
cuff,
probably
it
would
be death.
points
This situation
importance
out the
you
you
MR. CORGAN: And do
feel that
the oral voir
Although
juror
dirs
give meaningful
could
consideration to life?
questionnaire mentioned there were three
PROSPECTIVE JUROR D.B: Yes.
possible punishments for a conviction for in-
you
MR.
Do
you
CORGAN:
feel that
could
murder,
tentional
options
no
other than the
give meaningful consideration to life with-
penalty
death
were addressed.
ques-
parole?
out
explain
tionnaire did not
regarding
the law
PROSPECTIVE JUROR D.B: I would proof
aggravators
weighing
of the mit-
try
have to
hard.
igating
against
aggravators.
Okay
MR. CORGAN:
I appreciate
Despite
omissions,
these
D.B. indicated she
that
In trying
you
my
answer.
hard if
punishment
could consider all
options.
It
client
places today
you
were
switch
dire,
was not until voir
specifically
you
juror
were on trial would
want a
questioning by
counsel,
ju-
defense
type
of mindset?
ror's
punishment
views on the other
options
explored.
D.B.
say
did not
she would
Personally,
PROSPECTIVE JUROR D.B:
automatically consider
yes.
the death sentence.
Her response that "off the cuff" she would
Okay.
MR. CORGAN:
punishment
consider death as
for intention-
Okay.
PROSPECTIVE
D.B:
JUROR
al murder does not indicate a predisposition
you
MR. CORGAN: Do
feel like-
penalty,
toward the death
but rather
illus-
PROSPECTIVE JUROR
I
D.B: would
"gut
trates a
reaction." We are confident
spend
my
prison
want to
life in
without
any
during
determination made
jury
possibility
parole.
deliberations would
informed decision
merely
and not
"off the cuff."
dire,
during
55 Later
voir
defense coun-
panel
they
sel asked the
if
that if
understood
157 As further
par
evidence of her
the State
prove
does not
an aggravating cir-
tiality, Appellant cites to Juror D.B.'s failure
jury's
beyond
cumstance to the
satisfaction
"fairly"
state that she could
consider all
reasonable doubt then the
would not be
punishment
three
options. See Hanson v.
option
allowed to consider
of death.
12, ¶ 10,
specifically
understood,
When
asked if she
("that single
[fairly]
word
ineseap
carries an
replied,
Juror D.B.
option
"if it's not an
I
able
weight")9
Here,
constitutional
wouldn't
problem
have a
with it" and that she
court asked
panel
the entire
whether
could consider the
punishments
other two
give
could
"fair consideration"
pun
to each
life and life
parole.
without
This was the
option.
ishment
That
prosecutor
neither the
extent of Juror D.B.'s voir dire on her views
nor defense counsel used
"fairly
the term
capital punishment.
consider" in
juror
their examination of the
*17
Reviewing
total,
responses
D.B.'s
grounds
not
finding
partiality.
for a
of
Juror
responses
her
do not demonstrate
an im-
responses
suggest
D.B.'s
might
she
have
possible bias
penalty.
towards
the death
considering
options
trouble
all
equally.
three
may However,
responses
that is not the
Individual
required
standard
read in isolation
Hanson,
significant
In
part
Court found
it
that
he could follow the law and consider all
-
prospective juror Fulfaro was not
murder,
asked if he
punishments
three
for
he believed that
"fairly"
punishment
could
op-
consider all three
day
defendants
their
in court but victims'
had
tions. 2003 OK CR
227
No,
PROSPECTIVE JUROR
I
AS.:
feel
not reflect an
against
inherent
bias
eligible
I can
be
sit on this case as a
inor
favor of
penalty.
the death
A.S. stated
juror
judge all
the evidence.
at least four times he could follow the court's
though
you
MR. CORGAN: Even
that
instructions and
punishment
consider all
op
option
could not consider the
of
life?
jurors
Capital
tions.
are not to be struck for
they
cause unless
PROSPECTIVE JUROR AS.: That
are unable to follow the
my
obviously,
Gray,
would be
third choice
court's
that
instructions.
U.S. at
the
trial
of the
the discretion
dire is within
voir
misinforma
with
jurors tainted
the
remove
on
disturbed
rulings will not be
whose
court
to the
us
directs
life/death
tion.
of discretion.
a clear abuse
absent
appeal
prospec
group of
the second
of
qualification
13, 139
State, 2006 OK CR
Hogan
¶
v.
P.M.,
juror
a
prospective
jurors wherein
tive
State,
CR
907, 917;
1998 OK
Patton v.
P.3d
officer, asked the
correctional
former federal
of
66, ¶ 9,
No abuse
P.2d
280.
a life sen
meaning of
the
about
prosecutor
long as the voir
found so
will be
discretion
although he
that
commented
P.M.
tence.
affords
in manner which
is conducted
dire
he had
system
in the federal
had worked
influ
jury
of outside
free
defendant
the
meant
system life
in the state
heard that
Id.
ence,
personal interest.
or
bias
he had
cases
that
some
twenty years,
years
out
seven
getting
people
heard
[
the trial
suggests
Initially, the record
stuff",
that
and all that
"good time
with
measures
the remedial
not
take
court did
then
"twenty years and
thought
life was
defense coun-
by Appellant as
suggested
now
...
get
two-
they'd
out
good time
with
court's han-
agree with the
appeared to
sel
something".
time or
their
thirds of
During
prosecu-
the
dling
situation.
prison
is life
replied that "life
prosecutor
P.M.,
juror
exchange
prospective
tor's
parole", he didn't
possibility
the
without
objections. While
raised no
counsel
defense
out
in seven
get
could
know if someone
challenge for
raise a
did
defense counsel
the de
once
jury had no control
years,
panel due to
second
as to the entire
cause
Department
to the
sentenced
fendant was
at no time
counsel
responses, defense
P.M.'s
get out of
Corrections,
could
and a defendant
cautionary instruction
any type of
requested
dep
just
"it
prison,
they could die
prison or
sponte,
Acting sua
instruction.
or 85%
ends".11
of the second
members
advised the
court
exchange be
argues this
T66
panel as follows:
tainted the
P.M.
prosecutor and
tween
seven or
got
have
this
I think we
Now
jurors so
prospective
panel of
entire second
there is
floating around but
eight years
seriously consider
could not
not,
I am
no
missing and
just
figure
one
Appel
prison.
life
option of
punishment
means,
We,
okay?
all
life
one knows what
taken
have
court should
the trial
lant asserts
That
is all
you
life means life.
tell
we
continuing the
measures
such
curative
right
I
say, all
but
allowed to
that we are
hearing
of P.M. outside
examination
represent
certainly don't want
second
excusing the entire
jurors,
the other
figure
magic
figure,
is some other
there
jurors
instructing
prospective
group, or
eight
know where seven
and I don't
convicted
requires a defendant
law
...
from
years came
85% of a
must serve
degree murder
of first
individual
failure to
1 69 The court's
par
being considered
before
life sentence
began talking about
once he
ly voir dire P.M.
trial
also contends
ole.12
not war
prison
life in
does
meaning of
opportu
advantage of
to take
court failed
individual
to conduct
rant
relief. Whether
Rule"
jury
the "85%
nity to instruct
court's discretion.
the trial
voir dire is within
requested instruc
it
when
denied
§ 40-41,
it Childress
and when
of evidence
the close
tion
only
P.M. was
1015.
response to
rule in its
failed to reference
concept which the
readily
Vol.1,
understood
(Tr.
pgs.200-201).
11.
sentencing defen
when
informed"
should be
13.1,
O.S.Supp.2003, §
so-called
"85%
qualifying offenses.
dants for
Rule," limiting parole eligibility for certain of
including
In Anderson v.
murder.
fenses,
Vol.2,
(Tr.
pg.260).
6, ¶ 25,
OK CR
"specific
Rule is a
that the
Court concluded
85%
*20
person
meaning
to comment on the
of a life
purpose
"The
of voir dire examination
subject
sentence. The
was addressed
to ascertain
grounds
whether there are
court, counsel,
prospective jurors.
challenge prospective jurors
and other
for cause and to
However,
permit
intelligent
the common theme of all
use of peremptory
these
State,
challenges."
5,
Black v.
precisely
comments was that no one could
2001 OK CR
¶ 15,
1047, 1057; Patton,
21 P.3d
meaning
define the
of a life
1998 OK
Any
sentence.
9, 973
66,
CR
at
P.2d at 280. The
¶
individual voir dire of P.M.
record
would not have
clearly shows defense counsel was allowed
precluded him from these comments and
sufficient voir dire of
panel
the second
questions. Therefore,
the trial court did not
grounds
determine if there were
to challenge
failing
abuse its discretion in
to conduct indi
particular
juror for cause
intelligent
and to
vidual voir dire.14
ly
peremptory
exercise
challenges. The re-
Further,
the trial court did not abuse
sponse of each of the five individuals from
denying
its discretion in
Appellant's
chal
the second panel who
jury
served on the
lenge for cause
excusing
and
the entire see-
they
showed
could consider all
punish-
three
group
ond
upon
based
concerns that "a vast
options
ment
and that each understood that a
majority
people
of those
realistically
will not
life sentence was something different from a
"
options."
consider all three
"Any claim of
sentence of life without
possibility
jury partiality
jurors
must focus on the
who
parole and a sentence
Any
of death.
isolated
State,
ultimately
Rojem
sat.15
v.
2006OK CR
regarding parole
comments
parole
or
eligibil-
36, 130
7,
287,
P.3d
people
¶
295. Five
from ity were not
deny
sufficient
Appellant a
J.S., D.B., GP., R.B.,
group,
second
State,
fair trial.
2,
See Wade v.
1992 OK CR
ultimately
A.B.
sat on
jury.
It is
¶ 15,
1857,
825 P.2d
1361-62 (prospective ju
clear
responses,
from their
both written and
ror's comment that
fairly
she could not
con
oral,
jurors
that each of these
could be a fair
imprisonment
sider life
possible
punish
impartial
juror,
penal
consider all three
ment,
"because
Oklahoma a life sentence
ty options, and follow the law and instruc
usually doesn't
turn
way"
out that
found to
given by
tions
the court.
be an
comment,
"unfortunate"
but not
grounds for
juror
reversal as each
empan-
171 The
suggests
record
the trial
elled
try
and sworn to
appellant's case stated
court did
sponte
not sua
issue an instruction
impartial
could be
give appel
during voir dire on the 85% Rule because at
trial).
lant a fair
case,
the time of the trial
long
standing rule was that the trial court should
173 The failure of the court to advise the
jury
comment or
parole
instruct
jury,
dire,
during voir
if convicted of
Anderson,
eligibility.
¶ 11,
murder,
OK CR 6 at
a defendant must serve 85% of his
case,
with State, 2) de- children; second v. Appellant's Lott limiting instructions." and wife final 318, 27, ¶ 40, 334-335. 98 P.3d OK CR apart- Biggs' Tulsa Kathy of burglary gree her; prejudicial is so even" with crimes evidence "get to other threat "When and his ment be tried weapon right dur- to the his 3) discharge of a defendant it denies Appellant's shortly after Inman its struggle charged, with John or where ing a the offense only for beating possibility the Montgomery relevancy suggests Tyler shooting minimal 4) a de burglaries committed to show being offered Wright; is Carla the evidence of the woods true conformity run in his acting on the in with while Appellant fendant 5) kidnapping sup the County; character, should be evidence Creek the Peebles. and Suzanne beating of Sam Id. pressed." 2404(B) O.S.2001, ¶ 75 § Title 12 or other of bad acts 177 Evidence of "other of evidence admission
prohibits the where admissible may also be crimes the charac prove to crimes, wrongs, or acts" or transaction" an "entire part of form a in show action in order to person ter of a with "logical connection" there is a where spe of the one conformity therewith absent State, v. 1994 OK charged. Neill offenses that is not An act exceptions. cifically listed 537, ¶ 36, "This 69, 550-551. 896 P.2d CR nonetheless law is the criminal a of violation other exception differs from gestae res 2404(B) a it carries § where governed rule; in that to the evidence exceptions listed ac an unduly prejudice could stigma that offense is the other exceptions, in the listed v. jury. Freeman eyes of the in the cused gestae in the res intentionally while proven, 1354, 192, ¶ 3, State, 767 P.2d OK CR incidentally offense other exception, introduce seeks to the State When 1355. res "Evidence is considered Id. emerges." one than the crime other of a evidence a) to closely connected it is so when: gestae, procedures comply with charged, it must part of the to form charged offense as 10, ¶ 2, State, v. in Burks b) transaction; necessary give to it is entire other part overruled understanding complete a 7, CR 1989 OK grounds, Jones v. c) chain of crime; to the it is central or when 21, CR 1989 OK Holt v. P.2d 922. See ¶ 68, 40, Warner, CR 2006 OK events." 476, requires, Burks 477. 144P.3d at 868. of notice give pre-trial part, the State it evidence bad acts crimes or the other to the Wright testified 178 John purpose of "The to introduce. intends arriv surrounding Appellant's cireamstances surprise on prevent is to requirement notice Appellant introduction Depew and his al in for time and to allow the defense part Wright Mr. and son-in-law. daughter to his prior to the evidence heard to be the defense 2002, Appel by December that also testified jury." Warner being placed before a ro developed had Kathy Biggs lant 40, ¶ 65, 144 P.3d State, 2006 OK CR stayed at Appellant relationship while mantic noted, the specifically Except where 868. Biggs Mark Depew. Biggs' residence inof complained now crimes evidence other surround cireumstances to the also testified in the State's included case was present Septem ing his introduction evidence. crimes notice of other pre-trial in November He stated that ber Appel picked request, he Wright's admissible, at Carla evidence 176 "To be Biggs Mark station. up at the bus lant must be bad acts uncharged or offenses wife him that his told the crime testified issue of disputed probative of traffic in a killed had been and children a visible connection must be charged, there on December Biggs stated accident. crimes, the other between Kathy him that he told crime(s) necessary support must be going in love and that he get legitimate had no need to introduce evidence trucking company court settlement from a burglary unrelated occurring well be- eight million dollars and that fore the erimes on trial. basically buy Biggs wanted to out so he committing motive Biggs would leave. said he filed for divorce crimes punish on trial was to "get even" on December Kathy Biggs. say To the reason objection by Appellant T79 No was raised behind this estranged motive was their rela Wright's testimony, trial or now on tionship put is to it too simply. The es brief, appeal. In appellate ad- *22 tranged relationship plus Appellant's anger Wright's testimony mits necessary was to burglary at the charges inability and his to However, establish the motive in this case. Kathy retain control over fueled his motive. argues Biggs' testimony was not Evidence burglary Kathy of the Biggs of establishing relevant to a motive this case apartment Tulsa was relevant in proving his nothing and "is but bad character evidence". intent to harm her. That jury may have trial, At defense counsel raised this same heard from more than one Ap witness that objection. expressing skepti- While a bit of pellant Kathy and estranged were was not so cism about the relevance of testimony, prejudicial unfairly impact as to the outcome the court objec- nevertheless overruled the Further, of the trial. evidence of the Tulsa testimony. tion and admitted the burglary also showed that Appellant's pres 1 80 Biggs' testimony Portions of concern- 18, in Depew ence on October was not ing the relationship Appellant between and accident, planned that he to in Kathy's be Kathy Biggs Wright's were cumulative to hometown, just and that he up "didn't show testimony. However, Biggs' testimony went . .. out sky." of the clear blue into details not Wright, testified to name- ly that it Appellant was Biggs Additionally, who asked to the trial court limited out, paving way move thus Appellant evidence burglary only of the to that neces- Kathy. to be with Biggs' testimony sary concern- to Appellant's establish motive in- and ing Appellant's statement about his Kathy wife and tent. Biggs When testified she dis- children Appellant illustrated how talked his covered that adult movies had been ordered way Wright into the Biggs and families and continuously "almost for the last 24 to 36 how stay he came to apartment, presumably Biggs family hours" at the with the by Ap- over Thanksgiving holiday pellant, the trial court sustained defense early and into December-the time when the affair between hearsay objection counsel's and admonished Kathy began. jury disregard testimony. to Fur- ther, agreed the trial court that evidence of 1[ pre-trial 81 No notice of the evidence was damage Appellant extensive did to the given. However, required none was as the apartment presented by could stipulation be part gestae evidence was of the res testimony. instead of witness incidentally offenses on trial as it emerged as Biggs Mark described how came to T Appellant challenges also the testimo- in Depew, Oklahoma. The evidence was ny "jailhouse of snitch" Joel Weinstock. Mr. necessary give to complete a under- Weinstock Driving was arrested for Under standing of the events were to hear (DUI) the Influence and held in the Tulsa during about the trial. The cumulative na- County overnight. placed Jail He was into ture of the great evidence was not so as to be occupied by Appellant, the cell who was unfairly prejudicial. jailed charges on the stemming from the Kathy Biggs burglary Kathy testified to the cir Biggs' apartment. Tulsa cumstances surrounding burglary of her Weinstock testified that him told apartment. Tulsa Appellant argues the es girlfriend "pharmaceutical rep.", was tranged nature relationship of their pre dealing drugs, was that she was and that he was through sented other witnesses and going "get the State even" with her. 1/26/05, 11). (Tr.Mtn.Hrg. pg. 16. - evi- introduced prosecution The neighbor. not a T86 Mr. Weinstock "Jailhouse by the defen- abuse prior domestic dence within "jailhouse informant" or
snitch" to estab- and children against his wife dant OK CR context of Dodd The accident. of mistake 2001 OK CR lish absence Wright v. 778. See Weinstock, neigh- murder of the 19, ¶ 21, 30 P.3d Cireuit found Tenth the do- jail unrelated to separate never been hairstylist, had bor professional abuse; crimes the other the time therefore mestic arrest his DUI before present no In the jail. There is admissible. was not trial, back evidence had not been burglary and case, the State of the Tulsa any between evidence deal evidence Kathy testi to harm exchange for Weinstock's threats various Weinstock Weinstock any mony, Depew on is there nor why he was Biggs explained any manner. Even why he went "preyed" October eaution, trial so, Wright's home. an abundance and the out of home Cantrells' to the cautionary instruction directly related burglary court issued and threats Jury Uniform Depew. to the Oklahoma jury pursuant crimes committed (2d) (OUJI-CR 9- Instructions-Criminal testimony challenges also T89 *23 committing the in Appellant's intent As 48A. "wouldn't Biggs Appellant that by Kathy the issue in the main trial was crimes on testimony her. This stop" when he choked in testimony was relevant case, Weinstock's to during re-direct examination elicited was that he did contention rebutting Appellant's testimony on cross-examination clarify Biggs' the Cantrells kill or harm to not intend Appellant burglary, the that after Tulsa Tyler Montgomery. stop until "he wouldn't and told her phoned argues that also Appellant T87 crimes was not other finished". This he was in this case not a victim Kathy Biggs was no- pre-trial included the State's evidence as it past tice, Depew altercations be crimes gestae of of the therefore evidence but res picture to jury complete not admissible more give of them was helped tween the two homicides and crimes comprising for the or intent circumstances prove motive of the previous of Evidence in this case. trial. assaults on to is relevant spouses between altercations next to tes directs us 190 State, v. 2004 OK Harris of intent. the issue asserts Inman. timony by John State, 747; ¶ 731, 35, Hooker v. 1, P.3d 84 CR the cireum- testimony by Inman to 1351, 75, ¶ 225, 1359. P.2d 887 1994 OK CR up surrounding picking his stances in a to individuals extended has been This field, Depew at the football the crash after State, v. relationship. Short dating close or the res part of arguably constitute "might P.2d 1096.17 980 1999 OK CR crime, Appel allegation gestae of the physically Kathy Biggs was
Although
Inman was
shotgun at Mr.
lant fired the
spree, she was
injured
Appellant's
crime
unnecessary
highly prejudicial."
totally
Therefore,
evidence
target.
ultimate
his
toward
conduct
prior
violent
his threats
the fire
pointing of
Appellant's
T91
motive, in
showing
his
relevant
her was
pre-trial
in the State's
included
arm was
her
hurt her and
tent,
threats to
that his
in show
was relevant
The evidence
notice.
merely
talk.
idle
family were not
and use of
possession
ing Appellant's
Further,
accidental.
weapon was not
murder
of his case to
comparison
(10th
testimony regarding his en
entire
Inman's
Hogue,
F.2d 660
States
United
v.
as res
admissible
Appellant was
counter with
Cir.1987)
Hogue,
defen-
unavailing.
In
is
closely
to the
connected
gestae as it was so
stabbing death of
for the
dant was tried
girlfriend
her fami
Although
Short,
the defendant's
repeatedly threat
had
the defendant
In
victims,
this Court held
Early
ly
murder
family.
were not
girlfriend and her
kill his
ened to
to kill and
defendant's threats
explosive
of the
morning
threw an
the defendant
one
family was
up
girlfriend and her
rele
his
burn
girlfriend's apartment.
device
device at his
fire
and intent
proving
motive
apartment and
vant
burning
girlfriend's
ignited,
15, apartment.
OK CR
bombing
escaped
girlfriend
but
it. The
the one above
37-40,
¶¶
witnesses that occurred
in Depew,
crimes
the State still bore the
the crime and
it
part
incidental
of the
burden
proving guilt beyond
a reasonable
gestae
res
McElmurry
the crime".
doubt.
burglary
Evidence of the
Rodney
¶
40, 63,
194 inexplicable The mere fact that an gaps accused in time would have left the more commits than one crime in picture a defined without a clear of the events period of by time is not surrounding Appellant's sufficient to crimes. itself admit other Knighton crimes evidence. ¶ 2, 36, 1996OK CR 912 P.2d 889. Finally, 197 complains The evidence must be admissible under about evidence kidnapping of the and assault 2404(B) § gestae. or as res Id. Evidence of of Samuel and Suzanne Peebles. Defense Appellant's leaving actions after objection In- John counsel's to the admission of this man's car in an attempt capture to evade evidence was overruled. appeal, Ap Now on police probative was of his intent pellant and motive admits that Mrs. testimony Peebles' Depew told "that old man to commit the her did the crimes and evade responsibility their commission. thing See same I might killed his wife" have ¶ Walker, 13, 10-12, 1980OK CR 608 P.2d at some relevance to his intent as to Mrs. Can ("testimony 1158 of concerning homicide, the officers argues trell's but there no was transpired the events which subsequent legitimate bring need to out the entire inci robbery up the actual through single dent for that statement. intent, showing evidence). Appellant's
18. As relevant to
mo
er crimes
part
If admitted as
of the
-
tive,
mistake,
testimony
and absence of
trial,
Inman's
gestae
res
of the offenses on
the evidence
was sufficient to establish
clear and convinc
subject
convincing
was not
to the clear and
re
ing
Appellant discharged
weap
evidence that
Id. See also
Fontenot v.
quirement.
¶
on. See Loft,
2004 OK CR
at
40,
lant's
Murder,
Degree Mur
Degree
Second
First
¶ 37,
at 551.
OK CR
Shooting
Burglary, and
der,
Degree
First
Appellant's
fully reviewed
Having
O.S.2001,§ 12.1
to Kill. See
with Intent
evidence, we
other crimes
(5)
challenges to the
18.1(1),(2), &
§§
Supp.2005,
21 O.S.
this evidence
value of
probative
find
give
(12).
failure to
has held the
This Court
prej
danger of unfair
by the
outweighed
not
applica
Rule when
on the 85%
an instruction
Further,
O.S.2001, §
See
udice.
error review. Car
subject
harmless
ble is
evidence,
court issued
the trial
the close
ter,
when
convicting the
manslaugh
option
necessary
support
of
a
given the
"passion"
must be
offense.
See
non-capital
great as to "render
a
must be so
of
defendant
ter instruction
¶ 31,
9,
22 P.3d at
Williams,
design to
forming
incapable
mind
the misin-
Accordingly,
find
we
of heat
The elements
713-714.
Id.
effect death...."
2)
beyond a rea-
jury
1)
harmless
adequate provocation;
of the
struction
are
passion
of error
doubt,
assignment
terror,
fear,
and this
an-
sonable
as
or emotion such
passion
3)
resentment;
denied.
homicide oc-
is
rage ger,
existed
passion
still
while
curred
error,
assignment of
T110 In his sixth
pas-
for the
opportunity
a reasonable
before
court's fail-
in the trial
error
Appellant finds
4)
cool;
connection be-
a causal
sion
first-degree heat
jury on
to instruct
ure
homicide.
passion and
provocation,
tween the
only for
review
manslaughter. We
passion
whether,
in addition to
question
Id.
requested
neither
plain error
intent,
was evidence
there
ab
objected to its
nor
an instruction
such
adequate
deceased with
¶
killed the
State, 2001 OK CR
Pickens
sence.
passion,
in a
without
heat
866,878.
provocation,
Cipriano, 2001 OK
design to effect death.
of which
determination
T111 The
14,T
Appellant
best,
warning
"don't
issuing
a lone
of
sponte instruct
at
failing
sum
to
support
of
an inference
included offense
move" does not
the lesser
IV on
Count
intent to kill
not shoot with the
Appellant
did
Weap
Dangerous
Battery
Assault
certainly
request
to
do
Appellant's
failure
actions
light Appellant's
of
the victim.
on. -
trial,
plain
is for
our review
Appellant
the instruction
inference that
support
an
¶
Pickens,
Montgomery
from
only.
prevent
2001 OK CR
merely trying to
error
ments to kitchen. go him into the stepped over to Montgomery supported Tyler to kill intend got up difficulty, Montgomery Specifi great offense. on the lesser With the instruction and into eventually got out of the house statements that when cally he directs us to Ap- Montgomery testified that residence, pickup. his he told Wright he entered of the house and chased him out pellant and that he didn't Montgomery not to move pickup. Mont- jumped into the bed of at him to him so he shot to chase want away he drove from the away. Appellant gomery said that as running prevent him from scene, re-loading his Appellant Montgomery hit he could see he intended to police told shot surprised shotgun. Appellant when fired second legs" and was the "ass or windshield, actually which had rear by investigators through that he the truck's told Although Appellant Montgomery Montgomery the back. hit the back. struck riding attempt driving, actions while to Montgomery's that his erratic also claimed merely truck, Montgomery's truck were could have out of the back throw get him to grab Montgomery aim, firing in the Appellant's efforts affected away truck. him stop the from victim's direction instead than intended to do more suggests Appellant and bat The crime of assault so he merely get Montgomery's attention dangerous weapon is committed tery awith stop truck. would kill, injure, not intent to harm or with the police Appellant's statement 1988 OK CR person. another Favro ... got reload the third because he "never 127, 130; 18, ¶ 5, Meggett v. 749 P.2d suggests me ..." crap out of he bounced weapon to re-loaded the intended O.S.2001, § See also pre- but was for a third shot at the vietim description of the attack Appellant's driving. doing do the victim's vented from viewed in Tyler Montgomery must be upon crash, that after the he Montgomery testified offered at trial. light the other evidence pocket into his coat reach saw that when he first saw Montgomery testified if shotgun shells as kept where he door, he through glass front shotgun. As a trying to re-load the were Appellant had an jumped up and ran because wounds received gunshot of the two result carrying angry look on his face he was Montgomery endured six to Appellant, from Montgomery testified shotgun. - damage, and repair surgeries seven the front immediately upon opening fired having had a a ventilator after kept say any and did not door of the residence pursuit armed lung Appellant's re-inflated. shotgun. firing the thing or after before clearly he intended to Montgomery infers Appellant said Mont Montgomery and Both merely injure the victim. more than do in the back from a distance gomery was shot (8) (10) Despite Appel eight to ten feet. that he shot Appellant's statements injure only intent Montgomery with intending to he shot without lant's claim that (second burglary of a commission doubt that the kill a reasonable ments created Provo, murder). degree felony the evi Unlike they ings premeditated were degree manslaugh (see- support a dangerous did not first imminently dence conduct result of his murder) during ter instruction. degree or that occurred ond *29 it was who killed Mrs. Cantrell and contradictory to him are inconsistent Therefore, presented other evidence at trial. that her in proximity death was close to Mr. are not sufficient to warrant his statements Appel- Cantrell's death terms of intent as battery an instruction on assault and with a lant did not kill intend to or even harm Mrs. dangerous weapon. Appellant's When state- support argument, Appel- Cantrell. To this ments are viewed context of the other jury's lant relies verdict of the lesser trial, simply at the record does not degree felony offense of second murder as to support an instruction on the lesser offense. Mrs. Cantrell's death and that contends given, if an Even such instruction had been only inference to be drawn from the verdict case, under the evidence in a rational jury is concluded that Mrs. Cantrell jury acquitted Appellant would not have accidentally by shot her husband and Shooting with Intent Kill to and returned a necessarily pre-deceased him. Battery verdict for Assault and a Dan- 1125 It is not the death of
gerous Weapon. Appellant's
more
conduct was
person
aggrava
than one
that satisfies this
jury
much more
serious
violent for the
to
tor, but the acts of a
return a verdict on the
defendant
that create a
lesser offense. Ac-
great risk of death
to at least one other
cordingly,
the trial court did not
abuse its
failing
person
who
near
give
jury
discretion
a
instruction
is
to the homicide.
Jack
son,
¶ 43,
battery
dangerous
on assault and
with a
have seen authority choosing in great their of death ed well within the risk necessary to establish while statements Appellant's parts of believe prosecu the Appellant asserts aggravator. disbelieving others. stage jury by that their first the tor told aggravator the jury had decided during verdicts the that clos points out
1 128 people admitted the and that when two prosecutor proven had been ing argument, the However, reading automatically dead, first. aggravator Mrs. Cantrell died the is are context, an admission in such his comments now of the two comments proven. Neither only and argument purposes of made for was contemporaneous challenged were met erime predicate a finding the support only plain review for objections, therefore we found, but not necessary alleged, the for 89, Bland, 11 at T 2000 OK CR error. committed that the murder was aggravator at 726. prosecution.24 What arrest or to avoidlawful challenged com- prosecutor's Reading the first is that this record shows context, during by prosecutor stated regarded in properly ment comments were evidence, cannot argument: jury argument, closing part the first of his degree that the second upon relied to find ag- testimony about the next You'll hear meant Mrs. Cantrell felony murder verdict cireumstance, knowingly that of gravating at risk therefore could not be died first and to more than creating great a risk of death husband was killed. when her hear no extra testimo- person. You'll one was sufficient to Here the evidence already ny stage on that. You've second knowingly created that show your Patsy through verdicts found that Mrs. to both Mr. and great risk of death twice, killed, was Tyler was shot Carla gun holding hostage them by Cantrell part It all of the same attacked. 1986OK CR point. See Smith time, occurrence, the same transaction and sup (aggravator practically. place, the same during the con a defendant ported "where a murder of conduct which tinuing course person, to more than one great Of risk committed, another threatens the life of is person. You've heard more than one ability apparent and means and has the testimony the two dead bodies about life"). person's taking that street. injuries to folks across the that argued at trial 1130 The State also all of the defendant of You've convicted Tyler Montgomery on attacks to more than Risk of death those crimes. occurring the Can- Wright, after and Carla person.25 one street, satisfied trell murders and across [ comments on permissible 133 These However, we find aggravator. while to be drawn and the inferences the evidence finding, we legal support factual for that Id., 11 at therefrom. time that issue at this do not need to address clearly did not prosecutor P.3d at 728. sufficiently aggravator estab- find the as we stage had jury the first verdicts tell toward by Appellant's eriminal conduct lished aggravator. proven the Mrs. Cantrell. testimony you and the going part; to recall the part, ""Iwant prosecutor "I am
24. The stated defendant, assume, your if we are to put of the me words in statements and don't let defendant, mouth, your degree verdict by second mur- and we hear but the verdict of believe the you Patsy degree, found as Cantrell have that A.J. must der for the second of murder in struggle was caused truth that her death the last death of his wife in have witnessed the during shooting (Tr. gun by own, her over Cantrell years." his wife of moments of pur- struggle whatever with the defendant or for 1754). with reasonable pg. We can Vol., 10, say jury's case, the reasonable infer- If that is certainty, did not affect this statement pose. died That would that is that she first. ence for aggravator supported finding as it was of the 2187). (Tr. pg. predicate crime." Vol. be a Proposition XL evidence. See sufficient heinous, "especially support atrocious 1755-1756). (Tr. pgs. prosecutor Vol. aggravator," stated or cruel {134 except great In the second comment now chal- risk of death.
lenged prosecutor objected given stated: neither to the instruction nor requested additional or modified instructions. Let me move on to to more than one risk argues appeal now specif- that a Another,
person. quote, unquote, easy one ic addressing only uniform instruction to look at. You know what the evidence is great aggravator risk of death necessary people in this case. You know the two such, and that without his case already have dead. You've been convicted *31 appropriately was unable to apply the evi- him two murders. That's almost what dence to the law. call ipso we the law factos. Just auto
matically proves danger to more than one
1
Appellant's argument
188 Much of
focus-
person.26
on
sufficiency
es
the
support-
the evidence
ing
aggravator.
above,
face,
the
As addressed
may
1135 On its
the comment
seem
However,
unfairly prejudicial.
prosecu-
evidence was sufficient to
allow reasonable
tor
aggravator
did not state that
was
trier of
beyond
fact
to find
a reasonable
automatically proven,
danger
but
that Appellant knowingly
doubt
created a
Further,
person
more than one
proven.
great
was
risk of death to
than
person.
more
one
comment,
after this
prosecutor
reviewed
1
previously rejected
139 We have
requests
Appellant's
the evidence of
spree
crime
specifically
to more
aggravator,
define the
Depew
argued
totality
of his criminal
finding
statutory language
"readily un
people
actions and the
endangered sup-
he
derstandable", Smith, 1986 OK CR
at
158
ported
aggravator. Any
misstatements
¶ 29,
first determine whether
one or more
853 P.2d
220.
chal
following
of the
aggravating cireumstances
lenges
persuasive
to the instruction are not
beyond
exists
a reasonable doubt:
given
and we find the instruction
sufficient to
fully
aggravator.
inform the
on the
Ac
murder,
During
1.
the commission of the
cordingly,
assignment
this
of error is denied.
knowingly
the defendant
great
created a
person;
risk of death to more than one
assignment
his tenth
heinous,
2. The murder
especially
error, Appellant challenges
"especially
atrocious,
cruel;
or
heinous,
aggravator.28
atrocious or cruel"
To
3. The murder was committed for the
prove
aggravator,
the State must show
purpose
avoiding
preventing
a lawful
preceded
murder of the victim was
prosecution
arrest or
abuse,
physical
torture or serious
which
4. At
present
time there exists a may
great
include the infliction of either
probability that the defendant will commit physical anguish
cruelty.
or extreme mental
criminal acts of violence that would consti Warner,
129,
tion of either
Dr.
testi-
Wright and
Peebles
making the
Mrs.
cruelty.
After
because
Id.
mental
treme
inju-
of their
pain
killer
no
as result
determination,
of the
fied
felt
the attitude
above
ries,
didn't feel
can also
mean Mr. Cantrell
the crime
does not
nature of
pitiless
and the
chronically ill
CR
was a
any pain.
2000 OK
Mr. Cantrell
Gilson
be considered.
argues
mobility
limited
en-
man with
Ti-year-old
prove
Appellant.
Mr.
fight
for his life with
gaged
insufficient
in a
the evidence was
prior
Smith,
personal physician,
to his
consciously suffered
Dr.
the Cantrells'
Cantrell
strug-
Appellant's account
death.
contradicted
testified Mr.
Cantrell as he
gle with Mr.
told the authorities
get to his
physically unable to
Cantrell
his left side with
hit Mr. Cantrell
falling to the floor.
after
hands and knees
shotgun, causing Mr. Cantrell
butt of
shotgun en-
beatings with a
repeated
glass
containing
a table
onto
fall backwards
and his determined
by Mr. Cantrell
dured
got to his knees
knickknacks. Mr. Cantrell
*32
his
to establish
were sufficient
resistance
hit him
get up when
and started
hands of
suffering at the
physical
conscious
After
shotgun.
again with the butt
in the
Reviewing the evidence
Appellant.
down,
again tried
Mr. Cantrell
being knocked
State, we find a
to the
light most favorable
in the back
Appellant hit him
get up when
could have found
trier of fact
rational
shotgun.
the butt of
head with
of the
aggravating
necessary
support
facts
to hit Mr. Can
said he continued
heinous,
or eruel
atrocious
cireumstance of
stopped
until he
of the head
trell in the back
Accordingly,
beyond a reasonable doubt.
Appellant said Mr.
get up.
attempting to
is denied.
assignment of error
this
dragged his
breathing when he
was
Cantrell
him
and he heard
body into the bathroom
proposition of
In
eleventh
his
to sit
Appellant tried
gagging" when
"kind of
error,
challenges to the
Appellant repeats his
in the bathroom.
up
him
sufficiency
supporting the
of the evidence
Distefano,
medical
1142 Dr. Ronald
argues
He
aggravating cireumstances.
two
injuries
multiple
testified he found
examiner
properly
he was
if this Court concludes
that
head, consisting of five dis-
to Mr. Cantrell's
and
aggravated murder
of an
convicted
The
lacerations and abrasions.
tinet areas of
sentence, this
eligible for the death
therefore
injury
Can-
actual
to Mr.
injuries included
sentence be
the death
Court should vacate
He
and a skull fracture.
brain surface
trell's
factors did not out
aggravating
cause
areas were caused
five distinct
testified the
mitigating cireumstances.
weigh the
and
forcefully striking the head
object
an
argument
con
€ 145 We consider
required
great
deal
would have
that
it
mandatory
re
sentence
junction with our
injuries. Dr. Distefano
to inflict
force
701.18(C),
O.S.2001, §
to 21
view. Pursuant
injuries
potential
had the
any
the five
said
(1)
the sentence
whether
we must determine
not
and he could
in unconsciousness
to result
influence of
imposed under the
death was
inju-
of the five
which
specifically determine
arbitrary
any
fac
prejudice or
other
passion,
that a
He also stated
first.
ries occurred
(2)
supports
tor,
the evidence
whether
necessarily cause un-
might
single blow
not
cireum-
jury's finding
aggravating
of the
continued to
and if the victim
consciousness
00.98.2001,
as enumerated
stances
struck,
being
that would be
respond after
Propositions
§
We determined
T7OL.12%.
of consciousness.
indication
sup
that sufficient evidence
and Ten
Nine
{143
argues
two other
especially
great risk of death and
ported the
in the head
citizens" were beaten
"senior
atrocious,
cir
heinous,
aggravating
and cruel
that because
gun
and testified
with
cumstances.
rush,
pain. There-
they felt no
adrenaline
{146
Appellant presented
mitigation,
any
fore,
not feel
probably did
Mr. Cantrell
that he
Wright nor Dr. Peebles
Mrs.
who testified
pain. Neither
eleven witnesses
or emo-
influence of mental
upon
under the
injuries inflicted
extent of
suffered the
judg-
his
that affected
tional disturbances
from chronic
nor did
suffer
Mr. Cantrell
crime;
leading up
8, ¶ 111,
ment
to the
he acted Romano v.
1993 OK CR
citing
Stephens,
Zant v.
impulsively
planning;
accepted
without
he
for his acts and confessed to U.S.
103 S.Ct.
and if should consider those cireum- ASSISTANCE OF stances as well. COUNSEL "Specific
1149
standards for balance-
ing aggravating
and mitigating
assignment
cireum-
1151 In his twelfth
error,
constitutionally required."
stances are not
Appellant challenges trial counsels' ef-
36, ¶ 46,
review,
Ullery
aggravators.
appellate
v.
1999 OK CR
tence of two
On
only
aggravator
this Court found
one of those
332,
P.2d
352-353
v. State,
Malone
43, ¶ 40,
upon
supported by
OK CR
relied
sufficient evidence. Pursuant
to
by Appellant,
distinguishable
pres
authority
reweigh
are
from
our
to
the evidence when an
falls,
Ulery,
jury
aggravator
mitigating
ent case.
In
found the existence
this Court found the
only
aggravating
ap
outweighed
remaining
one
aggravating
circumstance. On
evidence
review,
case,
pellate
mitigating
present
aggra-
this Court found the
circumstance.
In the
both
outweighed
single
by
jury
supported by
the evidence of the
vators found
suffi
Malone,
aggravator.
jury
found the exis
cient evidence.
that,
probability
a reasonable
there is
and second
show
the first
fectiveness
both
omission,
the result of
counsel's
but for
an ineffective
analysis of
trial. An
stages of
different. See
would have been
proceeding
begins with
claim
of counsel
assistance
696,
Strickland,
at 2070
466 U.S. at
S.Ct.
competent
counsel was
that trial
presumption
(when
of counsel
of ineffectiveness
a claim
hand that the accused
guiding
provide
lack of
ground
of on the
disposed
can be
is on the
needed,
the burden
therefore
followed).
that course should
prejudice,
per-
both a deficient
demonstrate
accused to
Bland,
resulting prejudice.
formance
argues counsel was
Appellant next
€154
¶ 112, 4
at 730-731
object
wording
failing
to the
for
ineffective
Washington, 466 U.S.
v.
citing Strickland
second-degree
jury
for
instruction
668,687,
80 L.Ed.2d
104S.Ct.
imminently dangerous conduct.
murder
(1984)
Taylor,
529 U.S.
and Williams
V, counsel re-
Proposition
As discussed
(2000).
1495,
S.Ct. at us to Appellant next directs
$152 Appellant must demon where he asserts counsel Proposition VI jury in request a representation failing was un ineffective strate that counsel's *34 passion manslaughter, professional on heat of prevailing struction under reasonable VII, failed to Proposition where counsel challenged action could that the norms and request jury a instruction on Assault strategy. Id. trial considered sound Weapon a less Battery Dangerous as with a Appellant to show that rests with The burden Shooting Intent to Kill. that, for er offense probability but there is a reasonable opinion, the counsel, previously by the As discussed errors any unprofessional jury on not warrant instructions have evidence did proceeding would been result of the manslaughter or assault and passion probability is a heat of A reasonable different. Id. Any re dangerous weapon. battery with a confi probability sufficient to undermine Strickland, give in Id., by counsel to such quests defense citing dence in the outcome. Trial have been overruled. structions would at 2070. The issue 104 S.Ct. U.S. for fail found ineffective counsel will not be skill, judg the counsel exercised is whether have objections which would been reasonably compe ing to raise diligence a ment and Phillips CR OK light overall overruled. attorney in of his tent defense ¶ 104,989P.2d Id. performance. trial complains that Appellant next alleges that trial first T153 object failing to for to properly counsel was ineffective failing for to was ineffective counsel failing and in prosecutor's misstatement a claim of error the appellate for review preserve regarding request clarifying a instruction to the trial court's failure excuse relating to Prop- I, aggravator. In great risk of death Proposition D.B. In for cause Juror IX, jury properly we found above, plain and found osition reviewed for error we statutory language of under instructed discretion the trial court did not abuse its challenge prosecutor did denying Appellant's for-cause and that aggravator, require- legal jury as to Thus, not mislead the Appellant has failed to D.B. Juror Therefore, (2001), any App. aggravator. appellant ments for the Ch. an allows objections by defense counsel would have request evidentiary an hearing when it is been overruled. alleged appeal that trial counsel was inef failing for fective to "utilize available evi
€{157 Finally, Appellant refers us to his dence which could have been made available Application Evidentiary Hearing for on Sixth during the course of trial...." Once contemporaneous- filed Amendment Grounds application properly has been submitted ly appeal. with his direct We review affidavits, along with supporting this Court separately Reviewing allegations below. application reviews the brief, to see if it appeal raised in the direct contains we have "sufficient challenged by considered evidence to show this counsel's conduct on Court the facts of clear and convincing the case as viewed at the time evidence there is a and find has strong failed to meet his possibility trial counsel was ineffective failing showing for identify probability utilize or burden reasonable the com that, any unprofessional but by errors 3.11(B)B)(b)G). plained-of evidence." Rule counsel, the result of the trial would have any been different as or errors omissions applica asserts his jury's counsel did not influence the determi- Proposition tion is related to VI from his guilt impose nation of or decision to appellate argued brief where he trial court Accordingly, death sentence. we find failing error in to instruct on heat of
Appellant was not denied effective assistance passion manslaughter. Appellant argues tri assignment counsel and this of error al failing counsel was ineffective for to utilize denied. available evidence which would have corrobo rated his provoked statements that he was ACCUMULATIONOF ERROR CLAIM by Mr. grabbing Cantrell's actions in eighteenth assign shotgun, accidentally shooting Mrs. Cantrell error, that, ment of contends even hand, right the back and in the reversal, if no individual error merits cool, and that anger before his had time to cumulative effect of such errors warrants shot, Appellant beat Mr. Cantrell with the either reversal of his conviction or a modifi gun. Appellant part relies on OUJI-Cr cation of his sentence. A error cumulative (2d) argue 4-98 that Mr. Cantrell's actions argument has no merit when this Court fails shooting Appellant qualified in the hand any to sustain of the other errors raised adequate provocation "personal as it showed ¶ Warner, Appellant. 2006 OK 40 at CR aggression by or violence deceased of However, when there have sufficiently nature violent to cause or threat irregularities been during numerous bloodshed, pain, bodily en to cause harm prejudice course of trial tend to *35 to the defendant". defendant, rights of the reversal will be re Appellant's 1161 Attached to motion as quired if the cumulative effect of all deny errors is to defendant a fair trial. Exhibit A signed Barry is a affidavit from J. Rouw, investigator for the Oklahoma Indi- Id. While certain errors did occur in this (OIDS). case, gent System Defense even together, they Mr. Rouw considered were egregious not so or numerous as to have part 2005, in states that in October while Therefore, denied a fair trial. no retrieving transporting Appellant's files new trial or modification of sentence is war Capital from the office of the Norman Trial ranted and assignment this of error is de Division of Capital Ap- OIDS to the Direct nied. Division, peals documents, he found two re- "Bates-stamped ferred to as CDC 1120 and APPLICATION FOR EVIDENTIARY CDC 1121-222". These documents were HEARING ON SIXTH AMEND- copies prepared by of memos to the file Dale MENT CLAIMS Anderson, Capital Norman Trial In- Division 3.11(B)(8)(6),
159 Rule Rules the Okla vestigator. The documents referred to here- of 22, homa Court Appeals, Criminal in Appellant's Title were to addressed team of of finger, joints the index middle and lower are attached The documents trial counsel. the same two between wound and a similar affidavit. Mr. Rouw's finger. right joints middle 1120, CDC marked In the document ' 162 2004, 29, Investigator January questions and dated we Setting aside that he part pertinent states Anderson actual cause may concerning the have Galloway of the case, Captain James spoke to injuries, in this the evidence Appellant's Office, Lufkin, County statements, Sheriffs Angelina shows own including Appellant's photo- Texas, he had taken him that who told in the invader burglar and home he was a O.S.2001, states hand. Anderson Appellant's Under graphs of residence.30 Cantrell him "that told Gallowaysaid that 1289.25(B), justified Mr. was § Cantrell man shot the old force, him when including man shot the old any degree physical using Cap- hand". it hit his force, and that Ap the woman deadly against limited to but not thought he had the Galloway said entry tain into an unlawful had made pellant who subpoe- Anderson, could and that photographs v. also State his home. See 32, Attor- 110, (interpreting District through the 972P.2d obtained OK CR naed or if the not tell Galloway 1289.25). he could ney. said Mr. Can Any § force language of to be fresh, did look but there wounds against may have used trell hand. Appellant's something wrong with to consider ludicrous justified. "It would be "if BB's were not tell Galloway said he could provocation justified actions the victim's wound injury how the or Westley the cause of illegal act". appellant's for the (Tx.Cr.App.1988). 754 S.W.2d occurred". {163 Therefore, marked CDC failure to In the document trial counsel's T166 (whether 1, 2004, Investigator Anderson or intentional photographs dated October use the Captain not) and con to an interview convince us clear again referred does not Galloway possibility told strong Galloway. vincing Anderson said there is Appel- photographs of for fail taken was ineffective him that he had defense counsel at trial.31 Accord the evidence ing to utilize him he told band because lant's Galloway applica grant Appellant's injured it while Oklahoma. ingly, had we decline the Creek get photos evidentiary hearing. he would said tion for an Attorney's Office. County District REVIEW SENTENCE MANDATORY signed another T164 Exhibit B contains 0.8.2001, 701.13(C), § to 21 167 Pursuant Rouw and states Mr. affidavit (1) whether the sentence Appel- we must determine photos were contained attached OIDS$S influence of imposed under the labeled "Eizember file in a folder
lant's of death County". Mr. arbitrary fac- Angelina any other pictures from San passion, prejudice (2) tor, supports the evidence whether "Bates- photographs were Rouw states the Ap- Capital Direct aggravating cireum- stamped" at the OIDS jury's finding of the O0.8.2001, in 21 as enumerated Division, CDC stances CDC peals "CDC portion of the second Turning § photo- 701.12. photos are color attached 8505". The mandate, jury found the existence healing wound showing round graphs a small 1) (2) Appel- aggravating cireumstances: thumb, healing two a small round great risk of death wrist, knowingly created a lant of the back in the middle wound *36 2) and the murder person; one to more than between the serape healing or wound slight a case, in the trial photographs were found Appel- the 31. As upon in this the evidence 30. Based folder, Appel- through injuries record or his clear from the his it is not lant could have received Additionally, intentionally the med- struggle with Dr. Peebles. trial counsel lant's motion whether Cantrell was that Mrs. ical examiner testified photographs a matter of trial did not use the approximately relatively range, at a close merely shot photographs were strategy or whether the eight of the birdshot feet and that several five to overlooked. questionable body. It is pellets remained in her photographs injuries the reflected in whether caused by Appellant have been could submitted range. pellets fired at close birdshot
247
heinous,
juror
especially
atrocious or eruel.
in accordance with
his instructions and
701.12(2)(4).
0.8.2001,
capital juror
oath.1 A
§
As
in
must be able
discussed
to
fairly
all
10,
punishment options.2
consider
three
Propositions
we
9 and
found each of these
jurors
Biased
were allowed to
Eiz-
serve on
aggravators
supported by
evi-
sufficient
trial,
though
requested
embers
even
dence.
cause,
despite
be removed for
pre
clear
proposition
eleven we set out the
indicating
trial statements
their biases.
mitigation
presented by Appellant.
dire, prospective jurors
T2 Before voir
in
Upon our
review the record and careful
Eizember's case
question-
filled out extensive
weighing
aggravating
cireumstances
juror questionnaires
naires.
Use
is often
evidence,
mitigating
and the
we found the
thought
measure,
time-saving
of as a
allow-
aggravating
outweighed
circumstances
ing
swiftly past many
the trial court to move
Therefore,
mitigating evidence.
the sentence
questions
reducing
standard
the court
factually
of death is
appro-
substantiated and
necessary
pick
jury.
true,
time
to
This is
priate.
juror questionnaires
another,
but
serve
more
Court,
1169 Under the record before this
important,
During
substantive function.
say
jury
we cannot
was influenced
dire,
capital
jurors
case voir
are often asked
passion, prejudice,
any
arbitrary
or
other
questions
crime,
feelings
on their
about
0.98.2001,
701.18(C),
contrary
§
factor
to
justice system
criminal
penal-
the. death
finding
aggravating
in
that the
cirenmstances
ty.
jurors
Many
have not had
occasion
outweighed
mitigating
evidence. Accord-
issues,
jurors
think about these
and some
are
ingly, finding
warranting
no error
reversal
questions
reluctant
honestly
answer the
modification,
the JUDGMENTS and SEN-
public. Questionnaires
jurors
aloud
allow
TENCES are AFFIRMED and the APPLI-
honestly
think about and answer these and
CATION FOR EVIDENTIARY HEARING
questions
other
related to bias and their
ON SIXTH AMENDMENT CLAIMS IS ability to consider all the evidence and the
3.15,
DENIED. Pursuant to Rule
Rules
punishments
juror's
in each case. A
answer
Appeals,
Oklahoma Court
Criminal
questionnaire,
given
private
and after
22, Ch.18,
(2006),
App.
Title
MANDATE
to think
question
leisure
about the
upon
delivery
ORDERED issued
answer,
good
juror's
is a
indicator of the
filing of this decision.
reason,
position
question.
on the
For this
juror questionnaires
initially
are useful
panel jurors
JOHNSON, V.P.J.,;
cull from the
with an obvious
C.
concur.
inability
discharge
bias or
of a
duties
LEWIS, J.:
concur
result.
juror.
J.;
CHAPEL,
JOHNSON,
J. and A.
{3 Here,
juror questionnaires
showed a
part/dissent
part.
concur
clear bias which made the
unfit for
jurors
simply
service. Rather
than
thank and ex
Concurring
J.,
CHAPEL,
inPartand
jurors,
cuse those
the trial court made the
Dissenting in Part.
might
effort to rehabilitate
I
them.
under
Propositions
Eizember claims in
I and
juror pool
if
severely
stand this
II that his trial was tainted when
biased limited.
However,
the trial court had other
who sat on his
should
been
jurors
potential
capital
In a
available.
case
Jurors
have
agree.
excused for cause.
I
The constitu
ability
punishment fairly
to consider
is of
requires
jury.
juror
tion
an unbiased
A
importance.
juror's
A
utmost
bias need
can
prevent
not serve if his
proved
clarity"
"views
or substantial
not be
with "unmistakable
ly impair
performance
may
of his duties as a
before he
be excused for cause.3 When
Rojem
v. State,
State,
2006 OK CR
130 P.3d
Jones v.
CR 17,
2006 OK
134 P.3d
155;
Hanson
v.
295;
Warner v.
faced with stated she penalty. She impose the death through ques swers, are reinforced which an alternatives, these answers as why take tioning, not all three to consider would have jurors' opinions, ex reflection of honest automat- probably agreed that she would but majority's them, The on? and move cuse that, as a ically prefer She stated death. during jurors' answers on the opinion focuses juror defendant, a like her- she would want jurors dire, that the concludes voir spend want to her she would not self because explain I be As sufficiently rehabilitated. parole. possibility of prison without the life analysis. Looking low, disagree I with this consideration appear not to be This does dire, taking the of voir the whole much less fair or punishments, all three dire with the voir answers questionnaire meaningful consideration. consistently jurors exhibited these transcript, them unfit to serve.4 rendered bias which death wrote that the T6 A.S. twice Juror have However, that we I am more concerned person carried out on a should be penalty analysis. The reversible engage in that that the capital crime. He felt of a convicted could have been in this case juror error expense of society of the penalty death rids ju believing potential by simply avoided feeding providing lifetime medi- housing, excusing "[All from service. them rors prisoner. He noted that he for a cal care must be juror impartiality regarding doubts capital punishment, broadly in favor of was favor."5 in the defendant's resolved generally was re- punishment that harsher maxim, simple failed to follow this trial court problem, that there quired for the crime compounds this majority's conclusion and the prison- that plea bargains, and should be no error. imposed time on an all the ers should serve wrote, firmly if D.B. "I believe 14 Juror that, on what he He stated based sentence. yours." you lose She you take a life should heard, impar- a fair and he could not be had seeing guilty a about had no reservations dire, he juror. During voir A.S. stated tial put the life of another person who had taken punishments but consider all three could penalty death believed the to death. She or life without more toward death would lean criminal supporting from a kept taxpayers consider life stated he could not parole. He strongly in his life. She was for the rest of murder, be- for an intentional imprisonment it punishment and said was capital favor of not good time credits that would cause with definitely used too often Oklahoma. crime. just punishment for such severe be a defendant, that, she were she She said might hearing suggestion that After she on her because would not want her case, juror for this A.S. appropriate an not be penal impose the death would not hesitate to eligible juror. He he was an said he felt loss, I at a guilt proven. am ty where obviously imprisonment would that life stated statements, under given these written choices, on of the three down be the lesser majority's these conclusion stand the list, consider it. He but that he could responses "do not demonstrate questionnaire parole would be a penal- life without the death stated impossible bias towards try.” habilitated parole conclusion stated she could eration to the 5 I also cannot if the death by her answers Juror punishment of life only give penalty agree with the D.B. was somehow meaningful consid- in voir dire. She not an majority's without option. re- better intentional peremptory erly excused embers peremptory excused option if Rizember jury. for cause. Had murder. AS. was excused challenge A.S., However, he should have been challenge available to use Eizember would the trial court did not sit on were convicted of have had prop- by a Eiz- juror D.B. J.S. or by asking, if a either explained this defendant She Majority Opinion at 225. 6. 48; 72 P.3d at Hanson, 4. Humphreys OK CR 295; Jones, Rojem, 134 P.3d at P.3d at at 572. 155; Warner, 29 P.3d *38 questionnaire, affirming but I dissent T7 On his Juror J.S. stated Eizember's sen guilty, if the defendant would be on tence of that I am death. authorized to state that eventually joins death row and executed. J.S. Judge opinion. Arlene Johnson in this reason, that for that were he the stated defendant, he would not want J.S. his JOHNSON, J., Concurring A. in Part and
jury. said wanted to be on the J.S. also Dissenting in Part. justice jury so could be served. J.S. indicat- willing to rotator cuff ed he was reschedule join Judge Chapel's opinion T1 I concur- surgery-not procedure-to a minor ensure ring part dissenting part. in in I concur During that he served. voir dire J.S. said affirming in I Eizember's convictions. also punishments that he could consider all three affirming concur in his I sentences on Counts questionnaire responses equally. His through jurors III Counts VI. Because not discussed. admittedly imposition biased toward the that, majority however, in suggests 18 The read jury, death sat on his I eannot context, jurors' questionnaires all three affirm his sentence to death. I would re- they voir dire answers showed could consid resentencing mand this case for on Count majori punishment options. er all three The Degree II-First Malice Murder.
ty previous holdings resists this Court's that juror fairly punishm each must consider LEWIS, Judge, concurs in results: cireumstances, Frankly, ent.7 under these jurors fairly whether could consider T1 I in concur the result in this case merely punishments consider all three does convictions, affirming judgment and sen- not matter. The evidence shows the re tences, however, I write to address the issue sponses met neither standard. Jurors A.S. jury questionnaire. Based on the flatly they and D.B. stated could not consider responses challenged jurors in this punishments. explicitly all three D.B. stated case, agree legal analysis pre- I with the penalty she favored the death and felt life however, opinion; sented I majority parole taxpayer without awas waste of mon judgment reserve in other cases instead of ey. imprisonment that AS. stated life agreeing pre- with the statement just punishment not a for intentional murder. questionnaire trump trial cannot the actual admits, case, majority The in her D.B.'s opinion voir dire. I am of the that there are "responses suggest might she have trouble jury questionnaire some cases in which the considering options equally", all three but trump answers could indeed voir dire. I am any suggests consideration will do as jurors responses not convinced that in juror long "irrevocably as the is not commit standing provided this case alone cause for any punishment." applied ted to one As disqualification. I their therefore concur jurors, these conclusion is absurd. the result reached this case. biases, ju maintaining While obvious these punish rors stated could "consider" the options. majority's holding gives
ment
lip requirement service to the constitutional jury, eviscerating unbiased while its
content. This Court found has reversible
error, resentencing, and remanded for jurors
capital where exhibit similar cases bi punishm
ases and cannot all consider three
ents.9 I do I would the same here. coneur affirming Eizember's convictions. I also sentences, affirming non-capital
concur
Jones,
Hanson,
48;
Jones,
155; Hanson,
49;