Foster v. State

1Q31 1045, and authorities cited under note Only 7.” law. if the evidence raises no issue added) 1079,1081, (emphasis 140 P. 1082. point on the should fairness be withdrawn jury. from a Cobb, applied privilege In the court as a matter of law to the verbatim extract of judicial proceeding, holding privi- DOOLIN, V.C.J., LAVENDER, J., leged, portion but ruled that of the article concur in expressed the views in this dis- which was termed comment created a sent. question as to its fairness. bar,

In the case at whole report

televised was comment. None of it report transcript

was a verbatim was, report default. The in its entire-

ty, winning comment party and a reporter summarizing proceed-

news

ings in summary court. Whether this is, Cobb,

fair and true under supra,

question. FOSTER, Appellant,

There remains another factor has which Charles A. highly through become material the advent journalism. of television broadcast Crit- Oklahoma, Appellee. STATE of dealing visually is a case tendon with a summary judgment broadcast of a default No. F-84-76. reported by journalist and the successful litigant. lengthy It included comment Appeals Court of Criminal of Oklahoma. party allegations report that the Feb. 1986. attempt contains an unsuccessful to ac- quire an interview with the doctor. Those Rehearing Denied March 1986. attempts were broadcast and alle- there are gations designed that these scenes were appear

make it purposely doctor was

avoiding the “guilty interview with mo-

tives”. correctly publi- type

To deal with this

cation the court must consider informa- conveyed portion video

broadcast, or, will, you if the visual innuen- spoken

asdo well as the word. Failure to ignore important

do otherwise

distinction between television and other

types journalism. aspect is an visual of this broadcast fair compelling reason that the

additional aspect presents a

and true of this ease

question jury. of fact

Finally, from a common sense stand- reasonableness, fairness,

point, just is a

question province of uniquely within the good men jury. Only jury of twelve is- can decide either of these women Resolu- any question

sues if there is at all. with nothing

tion of to do these issues has

OPINION BUSSEY, Judge: Charles A. Foster was convicted Mus- kogee County District Burglary Court of Degree, the Second Larceny of an Automo- bile, Larceny, Grand each After Former Felonies, Conviction of Two and Murder in Degree. First sentences, He received jury, recommended of ninety years’ imprisonment on the first three con- victions and penalty the death for the mur- der conviction. victim, seventy-four-year-old Claude

Wiley, grocery owned a Muskogee store in night and made local deliveries. The killed, delivery he had made a appel- lant’s waiting home. While wife, Foster, Eula Mae to return with the groceries, payment for the according to Mrs. testimony, appellant Foster’s sudden- ly accusing having started victim wife, “something pushing to do” with his striking him then him awith baseball Appellant bat. had stood behind the front Wiley door with the baseball bat when first entered their home. The examiner medical testified that the victim received three stab He wounds the chest. had blunt force ear, right lacerations to the orbit of the eye, top and on the head. The skull was extensively fractured and there was mas- hemorrhaging. sive Mrs. Foster also testified that victim, wrapped the who breath- was still ing, Wiley’s in a blanket and left in El Mr. shortly He returned and then left Camino. period one for a and one-half hours. couple fled El The then Oklahoma Appellant possession had in his Camino. number of victim’s items. household they got Mrs. Foster victim’s said rid bought a in Texas vehicle and then Cadillac with cash taken the deceased. away was testified that he Palmer, Deputy Patti Appellate Public during the time of crimes. from home Defender, Norman, appellant. for nothing incident He said he knew Gen., picked up his wife him in victim’s Turpén, Atty. Michael until C. Susan Dickerson, Gen., grocery Stewart El Camino at the store where he Atty. Asst. Okla- City, appellee. shopping. homa for ing of the bat. Noah from admission allowed to introduce at The State was (Okl.Cr.1977). State, 562 P.2d 950 trial, objection, baseball over according Mrs. Foster’s testi- bat which the trial court Appellant next contends by appel- mony to the one used was similar though failing jury, erred in to instruct Appellant con- lant to the victim. strike so, requested that Eula Mae to do the bat had no connection to tends that testimony Foster’s must be corroborated and, therefore, his, right to a fair crimes appellant. accomplice was an since she The prejudiced its admission. trial was assignment mer- find this to be without We displayed one Mrs. Foster selected bat reasons. The first is that failure it for two goods store and was new. sporting at a give an instruction does not consti- such allegedly by appellant used to beat The one request. error if there is no Garcia v. tute older, handle, had a broken the victim was (Okl.Cr.1981); Samples have been stained the vic- and would Ap- The new bat was marked to tim’s blood. instruc- pellant request did not the desired original one was broken. show where proposed one to nor did he submit a the actual Appellant had discarded Texas the trial court. judge jury used. The admonished bat find The second reason we do not only its to consider the bat demonstra- regard court in this error the trial tive value. appellant’s theory defense was alibi. To instruct the that Mrs. Foster bat was relevant to baseball accomplice is inconsistent with this evi an allowing to visualize the case dence, as well as State’s. weapons in the attack. one of the used excluded, how Relevant evidence should be is that Mrs. The State’s evidence ever, outweighed probative if value is its of the attack until it Foster did not know danger having prejudicial, of it by the participate did not in it or occurred. She confusing misleading jury. effect on the or Furthermore, there was the other crimes. O.S.1981, held in 2403. This Court presented evidence which was corrobora State, P.2d v. 640 571 Pannell State, theory. v. of the State’s Gautt tive 1982), weapon if there that a is admissible (Okl.Cr.1976). When the connect it to the is sufficient evidence to Dennison, Texas, motel in couple reached a There, here, the connection offense. offenses, evening appellant on the of the only similarity in the actual was between name. On registered under an assumed Yet, in the ab and the offered bat. bat later, evening again of the crimes and the prejudice to sence of the demonstration of engaged flight. in The Fort appellant defendant, fair trial. there is no denial of a in which the police came to the car Worth park days in a few sleeping were a Fosters prejudice suf fail to discern We appellant out. the crimes and ordered after by appellant prosecution herein. The fered captured was not for He fled the scene and careful to inform the and the court were And, coming though in several months. weap not the actual jury that the bat was trial, stage a former cell penalty the of used, only find this on but a likeness. We of his admis of testified mate State, distinguishable from Sitsler v. case wrapping killing the victim and sions of (Okl.Cr.1979), upon which P.2d 1142 603 of the in in a blanket. The absence him authority urging er appellant relies for in appellant fair deny did not a trial. struction pros disapproved in of the ror. We Sitsler complains for the first display weapon of a the ecutor’s before instruction appeal on of the court’s supposedly being like that used in the time jury, urges He crime, concerning the defense of alibi. informing jury the until without on the clearly place to the burden weap it failed closing argument that it was not the As disprove his alibi defense. offering to on in the offense and without State used earlier, object to the his failure to noted it into evidence. We find no harm result-

1037 given proposed or to a potential jurors, instruction submit the two were Of opinions instruction constitutes waiver error. excused who could not set aside State, (Okl.Cr.1981). pretrial 632 formed from A publicity. P.2d 432 Jetton substan Moreover, tial voir dire many was conducted the instructions which the ve trial niremen newspaper had read give accounts properly apprised court did the crimes, mostly the published those articles concerning law State’s burden of April, 1983, in immediately following whole, proof. as a When taken instruc- newspaper incident. The poten articles of State, adequate. tions were 684 Hines v. prejudicial published tial value were those (Okl.Cr.1984). P.2d stages investigation. in later Of Again, jurors accounts, claims for the first had any who read all appeal except on error time occurred because of the two mentioned they above said ignore a could the absence of third instruction. The that information and fairly judge impartially on instruction which asserts should have case the evi presented dence at given specific cautionary a trial. This is the been in stan applied by dard concerning weight given Court because a de struction be expect ignorant fendant cannot testimony. Mrs. Foster’s He asserts that State, the facts. Nauni such an instruction warranted because (Okl.Cr.1983). gained personal advantage by testify she ing. Originally, charged Mrs. Foster was defendant, A carries burden principal as a same offenses as her persuasion overcoming presump in They subsequently husband. were reduced get tion that he or she can a fair and Fact, Accessory After the and she re impartial trial. Hammons v. sentences, year ceived five concurrent with Prejudice P.2d years suspended. two one-half exposure pretrial publicity to adverse must charges against Mrs. Foster were shown. P.2d Robison changed pleas ap (Okl.Cr.1984). However, and her entered before we are unable to pellant’s thoroughly trial. She was cross- any thorough discern review of after regarding examined her sentences before record. jury. appear It she does that re Appellant further stresses re anything exchange ceived her testi gard voir dire the trial court erred mony. Additionally, proper instruction re potential juror allowing in not each to be garding judging credibility of witnesses individually. note questioned We like, given jury. disposi to the For a necessary ju such for one appeared when issue, opinion of this see our Gee v. ror, permitted by it was the trial court. State, State, practice may Although such a be v. P.2d 1327

Oliver 1977). judge, supra, allowed a trial see Nauni (Okl. and Morrison v.

Appellant pretrial made a motion Cr.1980), extraordinary it is an measure. change pub for based on adverse venue Practically murder case is well cover every licity. judge ruling The on trial reserved Usually po bias of ed the media. the after motion until voir dire. At that jurors can be ascertained without tential time, judge the trial denied the motion. unduly burdening process. the examination Upon of the offered in our review evidence danger prejudicing jurors Unless the motion, is, support of that affida by exposure damaging three information is a community and problem special purpose of citizens from or grave vits some published newspaper peri served, unlikely in local articles be that individu would suspects, concerning justified. crimes and voir We find no al dire would odical allowing denying pro occurred in in not find no error abuse discretion we cedure. motion. sel of the Sixth Amendment to the United jurors ex prospective

Four were initially He asserts upon acknowledging that States Constitution. cause cused for surrounding the homicide had give a of death that evidence they could not sentence illegal gained the evi of an search of though it authorized under been because residence, Appellant attorney claims that these and had his so law. his dence and questioned by moved, suppressed. have have been jurors should not been it would they way had judge investigating the trial such officers searched the The they or definitely occupied whether could to state and his wife had home imposing pen the death not consider morning they could after left it. Police on the initially ex jurors these alty. Each of gone to this address after the victim had they impos pressed reservations had about they reported missing because were pressed for a ing penalty. death When advised that this was one of three locations could, they answer as to whether definite groceries. he had intended to deliver where however, they could not. We each stated Wiley Neighbors also verified the fact that nothing improper examining find previous been at that location on the had views, of the veniremen’s clear statements arrived, evening. they they found a When especially since this is the essence porch and on the front and then tooth blood upon jurors for cause based to excuse test They response no from within. received penalty. view of the death Wither their upon prying a lock and found more entered Illinois, 510, 88 S.Ct. spoon v. U.S. great quantities teeth and of blood. broken 1770, (1968); v. 20 L.Ed.2d 776 Banks justified by entry The initial (Okl.Cr.1985). Indeed, P.2d 418 could be inside and need belief the victim meet the standard es these answers well exigent apparent of immediate aid. Supreme the United States tablished entry, fully circumstances warranted jurors. Wainwright for excusal Court police from their the consent did obtain and -, Witt, 469 U.S. 105 S.Ct. unnecessary. apparent An landlady was (1985). confirms the L.Ed.2d 841 Witt emergency justify will a warrantless being whether one’s views of proper test search, point police only at this prevent capital punishment would or sub missing, not that he the victim was knew performance of his stantially impair the Arizona, Mincey 437 U.S. was dead. juror in accordance with his duties as a (1978). 57 L.Ed.2d 290 oath. instructions his inside, police are allowed Once urges further in this plain is in view. to seize evidence which regard “death-qualifying” de 499, 98 S.Ct. Michigan Tyler, consisting of a fair and nied him a They were 56 L.Ed.2d 486 community impartial cross-section of a search required to leave and obtain deny the empaneled predisposed one having properly viewed evidence warrant previ presumption of innocence. We have Thus, per activity. counsel’s of criminal deny ously practice does not held that concerning the formance was not deficient State, 702 a defendant a fair trial. Liles v. search. (Okl.Cr.1985). A defendant is P.2d 1025 jury composed of those not entitled to a in Appellant complains his counsel law whose views will not follow the or who of a written introduction into evidence vited penalty would taint concerning the death police Mrs. Foster made to the statement Witherspoon, impartiality. their Witt preju that it contained upon arrest and assignment of error is without supra. This of hearsay. compares He the case dicial merit. (Okl.Cr.1984), State, 685 P.2d 975 Collis failed to present one. Counsel there alleges attorney to the Appellant his hearsay of evidence object to the admission there of critical errors and made a number only evidence of the provided the of coun which ineffective assistance by rendered testimony found the of intent. We guarantee to coun- element derogation of the in sel extremely damaging. This demonstrating failure inwas burden in his conviction or conjunction with a near concession de- of resulted from sentence a breakdown in the guilt during closing argument. fendant’s process. adversary Id. The evidence admitted herein be cannot registration The motel receipt from harmful, as so nor as outcome de-

viewed Texas, Denison, pawn shop receipt a terminative as that in Collis. It con- did stand, lamps, for a television two a radio concerning ap- tain statements bad acts of and a watch was into introduced evidence pellant, but none which would establish objection without from defense counsel. charged elements of the offenses or which Appellant claims that items these constitut compare could to counsel’s admission of his hearsay ed inadmissible in absence of a guilt. Appellant client’s has not shown sponsoring witness from the motel and the great pre- so to prejudice as overcome the pawn shop. Although these items are busi sumption of effective assistance. Strick- such, ness as appellant records himself ac Washington, land knowledged registering the motel at in De- 80 L.Ed.2d 674 S.Ct. Claims Texas, nison, pawning and of some of the judged of ineffectiveness not should be goods. victim’s Mrs. Foster’s testimony hindsight. vantage of from Id. light also confirmed these In matters. of Next, appellant now claims on which this evidence verified the informa single attorney of of basis a statement his tickets, in any error of counsel in neglected counsel to from record that objecting not to their introduction was at him whether should take advise best harmless. in stand his own defense. We find this to Appellant’s assignments of counsel’s in- unwarranted When read be an conclusion. persuade effectiveness do not this Court statements, ap in with other context it errors, that but for his different a result parent counsel and the court discussed with would obtained in conviction or have in testifying ramifications of Strickland, supra. the sentence. right testify. his not to not We are prepared say to counsel have that should Appellant contends prevent testifying his in tried client have of jury should been instructed Murder assignment defense. find this his own We Degree upon in both the Second based without to be merit. theory depraved felony-murder and a mind theory. disagree. We Lesser in murder Appellant assigns also inef given jury, cluded offenses should be lawyer’s fectiveness his trial failure re by the only when warranted evidence. but quest previously the instructions discussed Carlile v. opinion, being those of: this accom 1972). corroboration; plice cautionary instruction and, concerning testimony; an informer’s Robbery, predicate felony noted, previously an instruction. As alibi murder, degree felony cannot second be question not find we do the instructions accomplished dangerous weapon. with a If necessarily or warranted critical in is, Robbery are with a the offenses Dan prong a two case. Strickland offers degree gerous Weapon felony and first alleged analysis when conduct is counsel’s O.S.1981, 701.7(B). The vic murder. -, U.S. at to be ineffective. 466 severely by being tim beaten was killed Initially, at 80 L.Ed.2d at 693. S.Ct. bat and then with a baseball stabbed performance must counsel’s be shown to sharp A with a instrument. firearm need Assuming such can be estab- deficient. prove that the instrument is be used lished, showing prejudice as the result weapon. Hay dangerous performance his or her must be made. P.2d 447 light previous disposition of our In instructions, there contends is no di the absence these issue to kill met his rect evidence that he intended hold that has not we thus, aggravating ap- if it is victim, depraved mind murder circumstance and a Direct evi- plied interpreted limiting instruction warranted. in a and con- was and offense, Florida, commit an how- manner, dence of intent to citing sistent Proffitt ever, lacking. is oftentimes Circumstantial 2960, 49 L.Ed.2d 913 S.Ct. upon in be relied determin- evidence must (1976). recently applica- addressed the We purpose person ing what acted. with of this law in Oklahoma. Liles v. State, (Okl.Cr.1985). We 702 P.2d 1025 presented evidence at trial was The circumstance, held in that this which Liles appellant had his wife call the victim that given jury statutory in the was to the lan- request that he come to their home to and instance, guage specific in each is arrived, groceries. he deliver some When readily special understandable. No in- the front door with a appellant hid behind cause, meaning required explain is its he started a struction baseball bat. Without aged Appellant being fight jury. with the man. to the 702 P.2d at 1031. young thirty-five years age, beat man also noted in the method We Liles that collapsed. He until the victim the victim jury may imposing consider which wrapped left the house with the victim then any penalty, weighing death that is miti- The victim was found dead a blanket. gating against aggravat- circumstances days later and with stab wounds eleven circumstance, guidance ing adequate is and under some car mats. under brush citing avoid constitutional violations. Id. car, money, jewelry, and some The victim’s Texas, Jurek v. U.S. by appellant items were stolen household 49 L.Ed.2d 929 See also O.S. fled from the State. who jury instructed 701.11. The § sup- agree do not that this evidence We accordingly in the instant case. ports appellant’s an instruction that acts dangerous” “imminently but “without were jury The in this case also found to O.S.1981, any premeditated design.” 21 aggravating exist circumstance does not call 701.8. State’s evidence § heinous, killing “especially atro instruction, for the testimo- cious, Appellant contends that or cruel.” ny nothing he knew of the inci- was that prescribe a suffi this Court has failed to not re- dent. Such an instruction was application for it ciently narrow test for its quired. constitutionally applied. We have assignments Appellant’s terms, next two of er- previously each of the three defined aggravating circumstance ror concern the given jury and the herein was these defini imposition allows the of the death which State, in the instructions. tions Nuckols penalty in a murder case if the finds a (Okl.Cr.1984). 690 P.2d 463 We think that com- “probability that the defendant would that ei the evidence is sufficient to show mit criminal acts of violence would killer’s attitude or the victim’s ther the continuing society.” threat to constitute a suffering finding aggra warrant a of this O.S.1981, 701.12(7). He claims that Liles, vating supra; see circumstance. face, vague the circumstance is on its Cartwright v. also defining its ele- trial court erred ments, provided defini- that the is not it, guidance applying and that it is tive complains Appellant of comments arbitrary manner. being in an evaluated prosecutor during .closing ar made Therefore, pen- argues, the death when gument stage. objection No of the second finding of this of a alty imposed because request for ad lodged nor was made circumstance, Eighth aggravating pre jury. Failing monishment of to the United Amendments Fourteenth review, possible serve error for we consider are violated. Constitution States only fundamental error and find (Okl. none. Luker acknowledges that Su- Cr.1976). upheld as constitutional preme has Court

1041 Florida, 255, 2960, Appellant requests this 428 Court U.S. 96 S.Ct. fitt proportionality of his to conduct review 49 973 The L.Ed.2d Court stated: guilty to that others found sentence various con- While the factors to be However, Legislature the recent murder. sentencing sidered do authorities ly previously mandatory this eliminated weights assigned not have numerical to penalty procedure Oklahoma’s death them, requirements are Furman Laws, 265, 1985 Okla.Sess. ch. statute. sentencing authority’s satisfied when the required perform 1. This Court is not § guided is discretion and channeled comparison to such a meet constitutional requiring specific examination of factors Harris, Pulley v. standards. in argue against imposi- favor of or (1984); L.Ed.2d 29 Jurek penalty, death of the thus eliminat- Texas, supra. capital system The ing capriciousness total arbitrariness and sentencing in Oklahoma is to that in similar imposition. in its Pulley. as discussed in Before the Texas assessed, penalty may jury death Id. at S.Ct. at 2969. also aggravating must find at least one circum Jurek, supra. exist, proven stance which must be be jury given herein was three statu- jury reasonable yond a doubt. Then tory aggravating circumstances to consid- aggravating that the cir must determine mentioned, previously er. Besides two outweighed mitigating is cumstance not appellant a third previously was was may before death be con circumstances involving convicted of felonies or use O.S.1981, penalty. as a 701.- sidered § jury threat of violence. The was advised 11. This Court too must determine wheth appellant’s consider age that it could finding supports jury’s evidence er the charges, along denial of the affirmative presence aggravating of the of the circum any mitigating with other circumstance imposed stance whether was under they Mitigating determined. circumstanc- passion, any or prejudice the influence es were defined as those which in fairness arbitrary factor. Okla.Sess. other may mercy be considered as extenuat- Laws, 265, 1. Supreme ch. As the Court § reducing degree ing or as of moral Pulley, in court indicated noted Jurek guidance or culpability blame. The additionally require proportionali

that to precise sufficiently because it focused ty appeal superfluous. on It is review necessary present on the circumstances of under our scheme guard against arbitrarily imposed deciding impose order to case in whether to death sentences. Id. The is not penalty. death protection denied substantial the ab foregoing, In consideration of the we review, a proportionality sence of nor is his jury’s finding presence find that the disadvantage. situation altered to his aggravating of all three circumstances be- Moore, J.M.R. yond supported by a reasonable doubt is Therefore, 1980). apply procedural we do the evidence. We not find reason though change currently the statute im- the sentence of death believe that before date. was convicted its effective preju- posed passion, under influence of Finally, appellant that the contends dice, any arbitrary or other factor. 1985 penalty unconstitutionally im death Laws, ch. 1. Okla.Sess. posed because neither law nor Oklahoma warranting error or Finding no reversal gave particular the instructions modification, judgments and sentences are mitigating guidance considering ized AFFIRMED. However, Supreme circumstances. upheld sim sentencing Court has schemes the sen-

ilar Oklahoma’s direct which P.J., PARKS, specially concurs. weigh mitigating tencer to circumstances J., BRETT, concurs. against aggravating circumstances. Prof PARKS, Presiding Judge, First, specially con- the must show that defendant curring: performance counsel’s was deficient. requires showing This that counsel was I judgment concur that the and sentence functioning guaran- as the “counsel” affirmed, of the District Court should be by teed the defendant the Sixth Amend- on based the record before us on direct Secondly, ment. must defendant appeal. I exception take to the statement show that performance deficient proportionality that we need not conduct a prejudiced requires This defense. pursuant review this case to 1985 Okl. showing that counsel’s errors were so Laws, 265, Sess. ch. previ- 1. We have § deprive serious as to the defendant of a ously application held that of this law to trial, fair a trial whose result is reliable. cases, pending appeal those on at the time Unless defendant makes both show- enactment, of the statute’s would render ings, it cannot be said that the conviction post the statute ex law. Green v. facto or death sentence resulted from a break- State, 1032, 713 P.2d 1041 adversary down in the process that ren- Therefore, proportionality review man- ders the result unreliable. O.S.1981, 701.13(C), dated 21 still 668, Strickland v. Washington, 466 U.S. should be conducted. I do not believe that 2052, (1984). 80 L.Ed.2d 693 apply proportionality our failure to re- error, this view in case constitutes how- It is clear to reasonably compe- me that a ever, compared because I have this sen- attorney tent would have filed a motion to tence to those eases affirmed1 or mod- suppress physical all evidence derived from Court, ified2 find we the sen- appellant’s home. permissible. tence to be relating The facts to the Fourth Amend- express I my also wish to concern over ment issue are as follows: Officer Gibson allegation of ineffective assistance of investigating missing person re- trial My counsel. chief concern with this port concerning investiga- the victim. His allegation arises from failure of the residence, appellant’s led to the for the attorney to supress file a motion to evi- explained reasons fully majori- more in the appellant’s dence seized from the home. ty opinion. supra at See 1038-1039. counsel, The test for ineffectiveness of un- Upon home, ariving at the he on observed Amendment, der the Sixth is set out porch thought the front what he was a Court, Supreme United States as follows: blood smear. He also discovered a tooth.

A convicted talking defendant’s claim that neighbors contacting After counsel’s assistance person was so defective as landlady, who worked as require reversal of a conviction or searched the back of the house. He then death sentence components. permission has two obtained landlady State, nom., Brown, Chaney 1. Liles v. (Okl.Cr.1985); 702 P.2d 1025 v. (10th 730 F.2d 1334 State, (Okl.Cr.1985); Cooks v. Cir.1984). 699 P.2d 653 State, (Okl.Cr.1985); Banks v. Cart 701 P.2d 418 State, wright v. (Okl.Cr.1985); Bro 695 P.2d 548 State, Kelly v. (Okl.Cr.1984); 2. 692 P.2d 563, State, gie (Okl.Cr.1985); v. P.2d Bowen 695 538 State, Eddings (Okl.Cr.1980); v. 616 P.2d 1159 State, (Okl.Cr. 1985); Stout v. O.B.J. 2520 55 modified, (Okl.Cr.1984); Mor 688 P.2d 342 State, (Okl.Cr.1984); and Nuckols v. 693 P.2d 617 State, gan (Okl.Cr.Nov. v. No. F-79-487 State, 1984); (Okl.Cr. Robison v. v. 690 P.2d 463 State, 1983); (Unpublished); Johnson v. 665 State, 1984); (Okl.Cr. Dutton v. 677 P.2d 1080 State, (Okl.Cr.1982); P.2d 815 Glidewell v. 663 State, (Okl.Cr.1984); v. 674 P.2d 1134 Stafford State, (Okl.Cr.1983); Jones v. P.2d 738 660 P.2d State, (Okl.Cr.1983); Coleman v. 669 P.2d 285 State, (Okl.Cr. 1983); Driskell v. 634 659 P.2d 343 State, 1983); (Okl.Cr. v. 668 P.2d 1126 Stafford State, (Okl.Cr.1983); Boutwell v. 659 P.2d 322 State, (Okl.Cr.1983); Davis v. 665 P.2d 1205 State, (Okl.Cr. 1983); (Okl. Munn v. 658 P.2d 482 State, State, (Okl.Cr. 1983); Ake v. 665 P.2d 1186 State, Cr.1983); (Okl.Cr. Odum v. 651 P.2d 703 State, (Okl.Cr.1983); Parks 651 P.2d 663 P.2d 1 State, 1982); (Okl.Cr. Burrows v. 640 P.2d 533 State, (Okl.Cr. 1982); Jones v. 648 P.2d 1251 686 State, 1982); Franks v. 636 P.2d 361 State, (Okl.Cr. 1982); Hays v. 1981); Irvin v. (Okl.Cr. 1980). Chaney (Okl.Cr.1980); P.2d 269 and, sub. (Okl.Cr.1980), grounds, other on modified residence, pried lock, open search the For the above and foregoing reasons and went inside. only, I concur in the majority’s decision to judgment affirm the and sentence herein. concedes, so,

The State and properly landlady the consent from the was insuffi- support

cient to the warrantless search of Chapman home. States,

United U.S. S.Ct.

L.Ed.2d 828 The State seeks to

justify exigent the search under the cir- exception

cumstances to the Fourth exigent

Amendment. The claims State cir- cumstances were shown in Officer Gibson’s Larry SISSON, Appellant, L. testimony thought Wiley might Mr. v. have been inside Certainly, the residence. CITY, The CITY OF OKLAHOMA emergency premises an search of to dis- Oklahoma, Appellee. injured cover an permissible victim is under Chaney the Fourth Amendment. See No. M-84-444. (Okl.Cr.1980), 612 P.2d Appeals Court of Criminal of Oklahoma. rev’d on grounds other Chaney sub. nom. Brown, (10th Cir.1984). 730 F.2d 1334 Feb. 1986. otherhand, On the there is no “murder exception scene” require- to the warrant Arizona, Mincey

ment. 57 L.Ed.2d 290 appear

It would that Officer Gibson’s negate finding exigent

actions circum-

stances. The officer interviewed several

witnesses, house, searched the back of the permission

and obtained to search from the

landlady house, pre- he entered the before sumably to search for the victim. How-

ever, squarely present- the issue was never court,

ed to the trial proper ques- and the regarding

tions exigent existence of I,

circumstances were never raised. there-

fore, hesitate to declare the search uncon-

stitutional inquiry being without further And, finding

made. without a unconstitutional,

search was say I cannot appellant prejudice has satisfied the

prong Therefore, of the Strickland test. record,

based on this I do not believe the

conviction can be reversed.

However, appear it would that the reso- should, can,

lution of this issue appellant’s appli-

made the trial court on post-conviction

cation for relief. In that

forum, raised, proper questions can be made, adequate

and an record to determine prejudiced by

whether coun-

sel’s ineffectiveness.

Case Details

Case Name: Foster v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Feb 4, 1986

Citation: 714 P.2d 1031

Docket Number: F-84-76

Court Abbreviation: Okla. Crim. App.