*1 V.P.J., JOHNSON, recused. C. J., in results.
LEWIS, concurs OK CR 12 GLOSSIP, Appellant Eugene
Richard Oklahoma, Appellee.
STATE D 2005-310.
No. of Oklahoma. Appeals of Criminal
Court 13, 2007.
April *4 General, OK,
Attоrney City, Oklahoma attor- neys appeal. appellee for on OPINION LEWIS, Judge.
¶ 1 Appellant, Eugene Richard ossip, (malice) charged Degree with the First O.S.Supp.1996, Murder violation of 21 701.7(A), January § Oklahoma County District Court Case No. CF-97-244. appeal The instant arises from a trial occur ring May and June before the Hon Twyla Gray, Judge.1 orable Mason District a Bill The State filed of Particulars and alleged, during sentencing, the existence of (1) aggravating two circumstances: person committed the murder remunera promise tion or the of remuneration or em *5 ployed another to commit the murder for promise remuneration or the of remunera (2) tion; probability and the existence of the that the defendant will commit eriminal acts continuing of violence that would constitute a 0.9.2001, society. threat to See 701.128) (7). § ¶ 2 jury guilty Glossip found of first (malice) murder, degree found the existence aggravating of the murder for remuneration circumstance, punishment at set death. Judge Gray formally Glossip sentenced in jury August accordance with the verdict on 27, 2004. II, Lyman, Wayne Woodyard, R. Silas Division, Indigent Sys-
Capital Trial Defense I. FACTS tem, Norman, OK, attorneys for defendant at trial. ¶ 3 January Glossip Richard Smothermon, Gary Ackley, Connie Assis- manager Budget Best worked as of the Attorneys, County, tant District Oklahoma City, Inn in and he lived on the Oklahoma OK, City, attorneys for Oklahoma the State premises girlfriend with his D-Anna Wood. at trial. Sneed, killing Barry Justin who admitted Treese, by Gossip Van was hired to do main Smith, Chesley, Capital
Janet
Kathleen M.
at the
tenance work
motel.
Division,
Appeals
Indigent
Direct
Defense
Norman, OK,
System,
attorneys
appellant
¶ 4
Treese,
victim,
Barry
the murder
Van
appeal.
Budget
in Tul
owned this Best
Inn and one
Edmondson, Attorney
periodically
from his home in
W.A. Drew
General
sa. He
drove
Oklahoma,
Branham,
Lawton,
B.
to both motels. The Van
Seth
Assistant
Oklahoma
trial,
penalty
Glossip
society
1.
In his first
was convicted and the
threat" to
and recommended
jury
aggravating
two
appeal,
found
existence of
cir-
On direct
the convictions and
death.
(1)
killing
cumstances. The
found
that the
sentences were
reversed.
See Glossip
cruel;
heinous, atrocious,
(2)
especially
heard noises surprised rived at work and was to see that glass breaking. Beavers He then heard the noticed that Glossip was awake. She also fight going in room there was a believed gone. car asked Mr. Van Treese's She car, CHossip Gossip told her about get supplies Treese had left to that Mr. Van ¶15 Treese he After Sneed killed Van housekeeper A remodeling rooms. testi Gossip told he had went to the office and CHlossip up told her to clean the fied that him Treese. He also told about killed Van rooms, and he and Sneed would take stairs said that he and the broken window. Sneed downstairs, where room 102 was care of the room 102 to make sure Van went to located. Glossip took a bill Treese was dead. $100 *7 ¶ from Van Treese's wallet. afternoon, employees 21 Later that found park car in a credit union Mr. Van Treese's {16 Glossip told Sneed to drive Van motel, and a search for Van ing lot near the lot, nearby parking car to a and Treese's Glossip D-Anna began. and Wood Treese money looking for would be in an he was shopping. They returned were at Wal-Mart envelope Gossip seat. also told under the motel, Hooper paged them to the because pick up glass him that had fallen on police come back. The and told them to the sidewalk. after Mr. Van were contacted sometime {17 keys the car from retrieved Sneed Treese's car was found. Treese's pants and drove Van Van Treese's ¶ 22 Everhart, security who worked Cliff parking lot. He found car to the credit union exchange in for a 1% for Mr. Treese cash under envelope an with about $4000.00 already ownership, at the motel. He swept up the He came back and the seat. to check all of rooms. Sneed told Sneed 102, glass in room glass. put He the broken Everhart, Glossip that he did so. indicated Gossip that just the door. He said inside looking for Van drove around and Wood him and divided the envelope took the from nearby dumpsters in fields. Treese and money him. He also testified Glos- ¶23 City Police and Oklahoma curtain over the Everhart sip helped put him a shower @lossip's began discussing window, Tim Brown helped him cover Van and he Set. statements, they Sneed, decided to Clossip conflicting so body. According to Treese's 150 on their own. At about 10:00 juror,
check room 102 trial asked 128 The court this "So your penalty about the death reservations body Treese's in pm. discovered Van already regardless left the motel of the law or the his room. Sneed bad are such afternoon, evidence, apprehended you he was not facts or the not consider would juror, Gossip imposing penalty later. was taken into until week of death." The custody night, questioned answered, and released. unequivocally "That's correct." began selling pos- day, Gossip The next his without She was then removed for cause people leaving objection. he was sessions. He told However, town, before he could leave
town. juror Gossip 29 The next mentions stat- custody again he was taken into for further duty," ed that she wanted to do her "civic but questioning. having problem penal- "a with the death juror, ty." ¶ 24 The trial court also asked this Subsequent revealed that searches $1,700.00 you your possessed approximately in "do believe that concerns about the Sneed penalty regardless death are such that of the cash, Gossip possessed approxi evidence, you law and the would not able be $1,200.00. mately claimed mon @lossip give equal consideration to all three sen- ey paycheck proceeds came from his stated, options." juror, "I tencing This do." vending sale of machines and his juror This was removed for cause without furniture. objection from trial counsel. II; DIRE VOIR ISSUES Glossip complains ' 30 about the use of the language "equal by consideration" used ¶25 claims, nine, proposition court, juror parroted the first that the trial court committed errors repeated by the trial court to the second Gossip claiming voir dire. is not that he was juror. (Glossip claims that this Court has juror, keep unacceptable forced to but required "equal giv nevеr consideration" be trial court its discretion in abused sentencing options. en to all three See Fred removing jurors some for cause. The first ¶¶ State, 52-53, erick v. CR 37 OK regards claim the method the trial court used P.3d 926-27. determining jurors ability whether had the ¶ However, despite holding in Fred impose penalty. the death erick, held, in this Court has Jones v. " 26 attacks the trial court's use of ¶17, 14, OK CR question jurors give whether could "he- major "A purpose capital of voir dire in a sentencing all artfelt consideration to three jurors case is to reveal whether will consider options." (@lossipargues question that this . punishment options equally. ju all three A you question odds with the uniform "can ror who cannot should be exeused for cause." legal punishment options- all consider three See also Hanson v. death, imprisonment parole for life without (cited ). Jones, supra P.3d imprisonment impose for life-and the one proper 182 The standard for deter warranted the law and evidence?" See jurors mining prospective may when be ex (1996). Regardless 2d 1-5 OUJI-CR *8 cluded for cause because of their views on used, language Glossip must show that capital punishment is whether their views alleged improper language affected his trial prevent, substantially impair, would or negative way. in a performance jurors of their duties in ac Glossip 127 claims his trial was unfair cordance with the instructions and their oath. language because this incorrect caused two State, 5, ¶4, See Ledbetter v. 1997 CR OK jurors, who had reservations about the death 880, 885; Wainwright 933 P.2d also see v. penalty, erroneously to be excused because Witt, 412,424, 844,852, 469 U.S. 105S.Ct. 83 they expressed inability an to consider all (1985). L.Ed.2d 841 punishment options equally. three One of stated, jurors these "I would not be able to require 138 This standard does not give juror's penalty equal prospective incompetence the death consideration as that a to sentencing option." serve be established on the record with "un- juror biased because she was Wainwright, 469 U.S. at this would be clarity." mistakable 424-25, give at 852. We must 105 S.Ct. currently serving a deferred sentence. The court, judges trial in matters to did not abuse its discretion in great deference trial Patton juror selection. See regarding finding this could not be fair and 16, 973 270, State, P.2d 1998 OK CR ¶ removing impartial and her for cause. Ledbetter,
281-82;
statement juror expressed sufficiently The second corroborated. also claims penalty. death regarding motive that the State's evidence ability impose the her concerns about very early stage in the penalty at a death was flawed. process stating that she couldn't
voir dire juror for more impose death. This asked sufficiency of evidence 138 When consider to consider whether she would time challenged appeal, this will deter is Court penalty if the law and facts war the death mine, whether, reviewing the evidence after vacillated back penalty. ranted such a She light prosecution, most favorable to the finally could forth and stated that she any rational trier of fact could have found the penalty equally. We not consider the death charged crime be essential elements of the dire, the on the entire voir find based yond a reasonable doubt. See Easlick v. its discretion in trial court did not abuse State, 21, ¶ 5, 559. 2004 OK CR jurors. removing two these appropriate there This test here where both direct evidence and cireumstantial proposition, Glossip also this supporting the conviction. See serving person that a a deferred sen claims 132, ¶ 7, Spuchler v. improperly removed cause. tence was P.2d 203. ap later juror raised her hand and This trial court in proached the bench when the Gossip convicted as a 139 For to be anyone had "ever been quired whether murder, principal Treese's State charged with or accused of a crime." She that he either committed completely honest with the trial had establish was not court, degree malice murder until court indicated each element of first trial juror's history differ in its of two and abetted another knew about or that he aided sentences, 0.8.2001, she Aiding § deferred one of which ent commission. to show "the abetting requires the State expressed
currently serving. The trial court ability juror's to be fair done, concern about procured the crime to be accused she, impartial in а criminal case when aided, abetted, encouraged the advised or herself, prosecuted by the State. had been Spears v. of the crime." commission her, juror 36, ¶ 16, agreed that it bothered P.2d This CR 1995 OK I about it?" asked "what can do Glossip's commis supporting Direct evidence accom of the crime came from admitted sion juror agreed that would be 36 This she plice Justin Sneed. for a non-criminal case. Before better suited cause, trial court al- excusing her for question no that Justin 140 There is object. counsel to
lowed defense
accomplice
the murder of
Sneed was
problem
that it had "a real
court stated
*9
Treese,
Glosssip's convie
Barry
and for
Van
sitting
people who are on a deferred sentence
cor
must be
tion to stand Sneed's
jurors. They've got
at
as
a lot
stake...."
tending to
other evidence
roborated
some
Although
trial court made a blanket
of the
serving
Glossip with the commission
persons currently
connect
statement about all
36, ¶ 27, 900
sentence,
Spears
crime.
1995 OK CR
the trial court believed
a deferred
440; O.S.2001,
§
P.2d at
742.3 Even en
$10,000
if
kill
offered him
dollars
he would
may
tirely circumstantial
be suffi
Treese when he returned from Tulsa.
evidence
Van
murder,
accomplice's
Gossip
cient to
testimo
corroborate
After the
told Sneed
State,
149, ¶ 6,
ny. Pierce v.
1982 OK CR
money
looking
he was
for was under the seat
State,
709;
707,
Wackerly
651 P.2d
also
v.
envelope
see
Treese's car. Sneed took an
Van
¶15, 28,
1,
2000OK CR
153 regarding knew he would be other of the motel. He statements the time he last tions for the motel's condition. blamed saw Van Treese.
147 The State concedes motive (lossip intentionally 49 also steered ev- an ac alone is not sufficient to corroborate eryone away Billye from room 102. He told State, testimony. Reed v. 744 complice's See Hooper get Treese had Van left to mate- (Tex.Cr.App.1988).6 112,127 S.W.2d rials, stayed and that Van Treese in room However, may evidence of motive be considered night 108 the before. He told Jackie other evidence to connect the accused with Williams, motel, a housekeeper not to motive, CHossip's along with the crime. Id. (which any clean downstairs rooms included actively that he with evidence concealed Van 102). room He said he and Sneed would body discovery, Treese's from as well as his clean the downstairs rooms. He told a num- on," plans him to "move connect with the people ber of cowboys two drunken commission of this crime. Evidence that a window, broke implicate and he tried to a attempted a defendant to conceal crime and person nearby who was observed at the Sin- attempted flight supports an in clair cowboys. station as one of the guilt, ference of consciousness of either of 150 He told Everhart that he would accomplice's an which can corroborate testi Treese, search the rooms for Van and then Avila, 491, mony. People v. 38 Cal.4th See he told Sneed to search the rooms for Van 1076, 1, (2006); Cal.Rptr.3d 43 133 P.3d 1127 person Treese. No other searched the State, 168, also see Smith v. 245 Ga. 263 rooms until seventeen hours after the mur- (1980) (evidence 910, 911-12 that a S.E.2d der, body when Van Treese's was discovered. party attempted participation to conceal his in a crime is sufficient to corroborate the ] day, Gossip 51 The began selling next all accomplice). of an belongings, of his before he admitted that he actively body. concealed Van Treese's He presented
148 The an State enormous going told Everhart that "he was to be mov- Gossip amount of evidence that concealed ing up ap- on." He failed to body investigators day show Van Treese's all pointment long investigators, police and he lied about the broken window. so the custody had to take him into knowing He admitted that Sneed killed for a second Van actively Treese in room 102. He knew interview where he admitted that he about However, glass. any- body. broken he never told concealed Van Treese's He said he thought telling one he Sneed was involved in lied about him killing Sneed about Treese, Sneed, protect murder, not to Van but be- until after he was taken into custody night, body after Van Treese's cause he felt like he "was involved it." Glossipintentionally was found. lied tell- 1 Glossip argues 52 that all of this evidence ing people that early Van Treese had left best, merely proves, at that he an acces fact, morning get supplies. claim, sory Despite after the fact. Treese was killed hours before prove defendant's actions after a crime can claimed to have seen Van Treese that morn- guilty showing him of the offense. Evidence ing. Glossip's stories about when he last saw guilt many a consciousness of has been used Van Treese were inconsistent. He first said times.7 a.m.; that he last him at 7:00 saw later he - Here, Finally, togeth- him 58 all of the said he saw at 4:80 a.m. he said evidence taken to, first, him p.m. night he last saw at 8:00 er amounts to sufficient evidence before death, making story CHossip's Van Treese's and he denied in- corroborate Sneed's about authorities); flight concealing oneself from State, Also see Leal v. 782 SW.2d 844, (Tex.Cr.App.1989); ¶ Woodall, Ex Parte 730 So.2d State, Anderson v. 1999 OK CR 992 P.2d 44, 11, (Ala.1998); 409, fn. Goodin v. Common (attempting to influence witness's (1934). wealth, 75 S.W.2d testimony, mentioning altering, concealing or re Ky. moving citing evidence from a crime scene Cam 7. See Dodd v. 31, ¶¶ 33-34, 2004 OK CR 17, ¶ 22, ron v. 829 P.2d 1031 and cases cited therein 53). (post attempt, mentioning crime suicide also at tempting to bribe or intimidate witness and *11 154 his murder, and, second, disrepair financial without physical and in the
volvement knowledge. com- sufficiently GHlossipto ties offense, so that the conviction of the mission stage, During the first several supported. as a Mr. Van Treese witnesses described kind, generous person who on loving, and two, Glossip proposition 154 In stay at the many people allowed to oсcasions presented irrelevant claims that the State they on their luck. motel when were down during the highly prejudicial evidence and testimony coupled with evidence This was trial. He claims that the State stage first temper a Treese had would that Mr. Van the victim sympathy for attempted to elicit Al employees. explode anger with towards However, trial failed counsel and for Sneed. testimony may have been irrele though this Gossip any testimony now object to to of the to the stage, first it did not rise vant to the Therefore, he has improper. claims was This evidence did not plain level of error. plain error. Cod all but a review for waived Gossip of a fair trial. deprive ¶ 52, CR dington v. OK Plain error is error that Mr. Van Treese P.3d 451-52. 160 Evidence of the case or goes to the foundation which operator was relevant was a ham radio a away right is essential takes a which vehicle, of his as the vehicle identification Mitchell v. 2005 OK defendant's case. parking union lot found at the credit ¶ 120P.3d CR operators personalized an amateur radio with his diabe plate. license The evidence about testimony Gossip argues that the 1 55 first why to show Mrs. Van tes was relevant Treese, spouse the victim's of Donna Van a people called to initiate search Treese stage of trial. He irrelevant to the first being missing, heard him soon as she about testimony introduction of this with the ties discovery car explain why the of his and to photograph, "in-life" which was met was troublesome. objection. Gossip proposition, % In this also Treese, during stage, first 156 Donna Van irrelevant claims that the State introduced fifty-four year as a old described the victim intended to evoke evidence he claims was man, years prior, quit smoking had six who sympathy The defense for Justin Sneed. balding, and had gained weight, had Treese theory was that Sneed killed Mr. Van gray grew a full white beard and hair. He (Glossip. They any influence from without off; daughter cried he shaved his when theory opening presented this statement "in- begged grow him to it back. The remorseless, describing as a first Sneed Treese with- photograph life" shows Mr. Van killer, then, throughout confessed out the beard. presented story showing how opening, Treese was allowed to testi- 57 Mrs. Van alone. Sneed acted death, a fy prior that the months to his series per- portrayed T 62 The Sneed as State tragedies occurred which included the had ability, and a child son with low intellectual of her mother. After this death the death They presented like demeanor. trip in a home to family long took a motor growing up in background, and his about his During trip this Mr. several States. Van home, having early in single parent a child urgent get need to home. Treese felt an life, eighth dropping out of school after the home, they arrived learned When City roof- grade, coming to with a Oklahoma for Mr. Van Treese's mother was scheduled crew, at the ing quitting to work very morning. by-pass surgery heart all exchange rent. This was motel for surgery. did not survive the She placed himself in a meant to show how he Al- position dependent Gossip. purpose of this was to be 58 The lay opinion evidence though there was some why Mr. Treese was not involved show personality regarding had the day day operations of the motel whether Sneed him to kill Mr. Van Treese preceding his death. It was would allow the months own, testimony comprised only a slip the motel could into on his meant to show how portion preserved by case. This testi- be the trial court appellate small State's review, plain but court mony did not rise to the level of error. the trial refused the re quest. Then requested defense counsel Next, *12 proposition, 163 in this Glos- they photograph be allowed to the exhibits sip claims that the State introduced irrele records, again for their own but the trial regarding vant evidence the remedial meas court refused. The trial court insisted that taken after Mr. Van Treese's death to ures everything prosecutor that the wrote on the Gossip show the condition of the motel. record; pads however, analy the the argues that this evidence was an indictment pages transeript sis of the where nota motel, way on the Mr. Van Treese ran the story. tions were made tells a different We CHossip than relevant to rather show had extremely are troubled the trial court's to kill Mr. reason Van Treese. attitude attempt toward defense counsel's testimony 1 64 The evidence included preserve appellate the demonstrative aides for Mr. Treese's brother Kenneth rev iew.8 Van bought Treese new towels and linens for the it moving While is incumbent on the motel, mattresses, forty replaced and dis- party to amake sufficient record so that this posed brought of broken furniture. It was Court can determine the content and extent testimony during Glossip out this never documents, of these the trial court al must authority buy had the new linens and low proffer counsel to make sufficient so that plenty There was of evidence that towels. the preserved. issues can be See Ross v. good repair the motel was not in when Mr. State, 117, 717 P.2d @lossip
Van Treese died.
could have be-
122. This Court will not assume error from
lieved that he would be fired because of the
However,
a silent record.9
this was not a
motel,
condition of the
whether he was re-
testimony
case where
or
was not
sponsible for the condition or not. The evi-
allowed to be introduced at trial.
jury
give
dence was admissible and the
could
weight they thought appropriate.
it whatever
T68 This is a case where demonstrative
There is no error here.
prosecution, placed
aids were made
three,
proposition
(Clossip
extensively
before
and utilized
dur-
claims
that the State used demonstrative aids to
ing trial
closing argument.
though
Even
overly emphasize
extensively during
these aids were utilized
portions
certain
of wit-
trial,
rejected
testimony.
any attempt by
the trial court
post-
nesses'
He claims that
(1) placed
preserve
defense counsel to
ers
undue influence on
"demonstra-
selected
(2)
testimony,
equivalent
appellate
tive exhibits" for future
review.
were the
of continu-
(8)
closing argument,
ous
violated
going
T 69 If a trial court is
to allow these
sequestration.
rule of
also claims
types
trial,
during
of demonstrative aids
in refusing
court erred
to in-
responsibility
trial court shall assume the
posters
part
clude the
as
of the trial record.
insuring
part
these
are
aids
made a
will, first,
record,
exhibits,
166 We
address the trial
as court's
when asked.
court's exclusion of these demonstrative aids The total recalceitrance of the trial court to
part
of the record. Defense counsel
re
allow record to be made creates error in
quested
poster
these
sized note sheets
itself.
evidentiary hearing
testimony
has asked for an
so
If the trial court denies
of a witness
exhibit,
may
supplemented
responsibil-
that the record
be
with these
it
admission of
is the
ity
party offering
or evi-
exhibits,
demonstrative
if
remain
in exis-
they
however,
tence;
dence to ensure a sufficient record is made tо
we find that the inclusion of the
demonstrative exhibits would not affect our deci-
appeal.
allow
to review
this Court
the issue on
sion in this case.
accomplished by requesting
This can be
conducting
hearing
present
an in camera
through
evidence for the record or
an offer of
9. Welch v.
T 70 impression toto, proof or create the proponent's is to search the posters, was on the conclusively disputed facts have been appears that note where record have been di- pad. Ac- or that inferences writing on the note established prosecutor was Id., citing cited, rectly proved.?" United States prosecutor cording record to the (Ist Cir.1984). Drougas, 748 F.2d significant notes of made pad pad. easel This large flip chart sized record, viewingthe entire we 175 In during trial jury to view up left for the posters affected the out say cannot that the objection which was made counsel's over trial utilized the of this trial. Both sides come testimony. day of after the second trial, although, the State poster tactic *13 whether these record is not clear 171 The posters than the de to utilize more seemed trial. stayed during the entire Glos- pads up post the argument There is no fense. they stayed display on sip asserts information, and not contain factual ers did day from the first of testi- to witness witness jury in the under they were utilized assist to the mony last with no citation to the considering the trial standing testimony, the say what was written cannot record. note-taking. Any against court's instructions (Trial pad sheets. coun- poster the sized on posters of these was error in the utilization appellate counsel apparently informed sel harmless. poster of these sized that there were twelve ten, Gossip proposition 176 In the courtroom plastered around note sheets allowing an "in-life" that the statute claims trial). of the at the conclusion is uncon photograph of the homicide victim posters CGlossipclaims that the were T72 photograph was on its face and the stitutional places in the courtroom "taped up to various any relevance was sub inadmissible because and all remained in full view of danger harm. stantially outweighed by the trial." throughout subsequent witnesses challenges the consti Glossip's 177 claim sup- CHlossip'scitations to the record do tutionality 0.8.8upp.2008, 12 of the amended port specific factual claim. 2403, arguing § the admission of an "in-life" found no CGlossipadmits that he has T73 regard to relevance photograph without Oklahoma, only in cites to point cases evidentiary balancing violates due test saying, Kentucky case that he cites as a process. Glossip maintains that the blanket party a thing to allow a to make It is one admissibility photographs unneces of such summary or other demonstrative chart or sarily exposing jurors prejudicial risks testifying. It aid for use while a witness is thoroughly This dis information. issue seg- particular allow a quite is another 'to State, Coddington in v. 2006 OK CR cussed advertised, ¶¶ 53-57, 34, testimony to bill- 142 P.3d 452-58. Cod- ment of be fashion,' com- after that witness has board upheld first-stage ad dington this Court testimony. pleted his or her photograph single, pre-mortem mission of of the victim. Brown, 590, (Ky. Lanning 377 S.W.2d 594 v. 1964). displayed Lanning in The chart fit make legislature The has seen T78 special noting the list of poster sized chart of the victim photograph the admission of a personal in a damages party claimed "to in a homicide case while alive relevant display that the
injury case. The Court held condition of general appearance show harmless, chart because the dam 0.8.8upp.2008, 21 the victim while alive." dispute. ages were not substantial § 2403. Kentucky precedent noted a dearth of court consti- presume legislative that a act is We point. on this tutional; attacking the party statute Mullin, 1288, proving 354 F.3d has the burden
T 74 In Miller v. (10th Cir.2004), statutes, noted a risk 1295 Court construe whenever not.... We reasonably possible, uphold their consti- during closing argu- using transparencies only tutionality. ... A is void when inherent statute "[aln The court noted that ment. ordinary intelli- vague that men of devices is that it is so pedagogical in the use of risk allegations preserved here were not at trial necessarily guess at its mean- must gence contemporaneous objections, thus we ing.... plain plain review for error. We will not find ¶ 2006 OK CR Hogan v. plain error unless the error is on the record (discussing omitted] 930 [citations P.3d goes and the error to the foundation of the "in regarding of an issue admission this same case, right or takes from a defendant a es stage). photograph during second life" Simpson sential to his defense. claim, $ Contrary to T79 40, ¶ 23, "appropri one only the admission of allows § O.S.Supp.2003, photograph. ate" @ossip's first series claims held, photographs which Hogan, prosecution's argument We attack the as mis § balancing test of 2408 would be violate the representation misleading of facts and ¶19, 64, Hogan, 2006 OK CR inadmissible. jury. prosecutor He first claims 931; Coddington, 2006 OK 139 P.3d at see arguing misconduct when committed Here, 34, ¶ 56, 142 at 452-53. CR P.3d Gossip's fingerprints in absence of room 102 offered, stage, State the first innocuous guilt. amounted to evidence There was no Treese, taken portrait comments, of Van objection to these thus we review preceding photo death. The September his plain only. error *14 general ap graph was "to show the offered prosecutor merely argu- was 83 Here the victim pearance and condition of the while that, ing manager of the motel and as alive" in accordance with the statute. Other person responsible repairs who was Barry than fact that Van Treese had the room, every very suspicious that was none death, photo at the time of his beard fingerprints were found in of his the room. just graph depicted appearance his before his a fair inference from the evidence. This was guidelines of photograph death. The met the prosecutor arguing Glossip not The was statute, value not probative and its was selectively fingerprints removed after outweighed by danger of substantially crime, arguing was the absence of but prejudice. unfair room, fingerprints in the even ones that his might have left there under innocent been 180 The admission of this evi cireumstances was unusual. There is no dence, evidence, under as with all is reviewed plain error here. standard. The intro abuse of discretion to the sound dis duction of evidence is left argues (Hlossip prosecu- T 84 next that the court; cretion of the trial the decision will argument only Glossip, and not tion's an abuse of that Sneed, not be disturbed absent kill had a motive to Mr. Van Treese State, v. discretion. Pickens Again, amounted to misconduct. defense ¶ 21, An 19 P.3d 876. abuse of discre object. The State was mere- counsel did not ly had no to kill arguing clearly Sneed reason "a erroneous conclusion and tion is logic judgment, clearly against one is than the offer of Mr. Treese other mon- presented." C.L.F. v. and effect of the facts Again a fair infer- ey Glossip. this is ¶12, 5, 1999OK CR plain no ence from the evidence. There is trial court did not abuse its discretion The error here.
admitting photograph. Next, Glossip argues that jury arguing when prosecutor mislead
IV: PROSECUTORIAL MISCONDUCT
"accessory after the fact"
that the defense of
four,
baseless,
the State did not
proposition
Clossip
In
was
because
accessory
charge him with
after the fact to
alleges
instances of what he calls
several
fact,
did,
initially
the State
prosecutorial misconduct. We first note that murder.
accessory
allegations
charge CGlossip
of
to murder and
no trial will be reversed on the
separate
Informations.
the cumula
Sneed with murder
prosecutorial misconduct unless
accessory In
then dismissed the
deprive
tive effect
such to
the defendant
The State
was
Glossip
added
as a co-defen
a fair trial.
2004 OK formation and
Garrison
35, ¶128,
Much of the
CR
103P.3d
dant with Sneed on the murder Information.
@Glossipclaims
City motel.
not
the Oklahoma
argued that
it did
186 The State
true,
murder,
scenarios cannot be
accessory to
that both of these
Gossip with
charge
boy
presented false evidence.
"big
prosecution
offense
guilty
so the
because he
Actually,
Degree."
First
Murder
dis-
fact
the Van Treeses
190 The
(Hos-
prosecution of
pursue
the State did
in con-
firing
was not
both managers
cussed
they alleged he
accessory,
sip for
because
they
going
were
to fire
the fact that
flict with
degree murder.
guilty of first
first, move Bender to the Oklahoma
filing
prosecution and
method of
man-
Glossip's place
take
while
City motel to
prosecution.
discretionary with the
charges is
sought
motels. This
agers were
for both
merely arguing that
prosecutor
is
Here the
claim has no merit.
murder,
his
regardless of
guilty of
is
fact in
only acted after the
that he
defense
Next, Glossip claims that the
argu-
up the crime. The
attempting to cover
prosecutor implied
additional
ment,
on the evi-
again,
properly
based
During the re-direct examination
existed.
trial.
adduced at
dence
Pursley, Clossip claims that
Kayla
witness
argued that the
prosecutor
187 The
jury
that this
would
prosecutor inferred
relating to
offense instruction
lesser related
police
everything she said to the
not hear
only given because
accessory to murder was
what she
she could not remember
because
object
(@Glossip
it.
requested
defense counsel
prosecutor did not allow
police. The
told
the trial court ad
argument and
ed to this
memory
po
her
with the
Pursley to refresh
are to con
prosecutor.
Juries
monished
told
report and tell the
what she
lice
offenses, only
if
related
sider
lesser
objection
ques
made to this
police. No
has
that a defendant
have a reasonable doubt
tioning at trial.
greater offense. OUJI-CR
committed
*15
(1996);
2001 OK
Graham v.
2d 10-27
ques-
this
192 As indicated
¶
jury
The
was
CR
the defense's eross-
tioning was to rebut
on the method of review
properly instructed
brought up the
where counsel
examination
in
offenses. These
ing greater and lesser
things
testified to
not
fact that she
jury's deci
properly channeled the
structions
report
remembered these
police
because she
any
making process and cured
error.
sion
talking
police.
prose-
to
The
things after
prosecu-
Clossip
argues
next
that the
merely
€ 88
that
attempting to show
cutor was
sympathy for the
attempted to elicit
memory
tion
and
Pursley
testifying from her
was
family during
stage of
first
victim and his
police report. The fact that the
not from the
through
argument.
This
evidence
a
jury
deprived of this evidence due to
proposition
to
two where
argument
relates
memory
was not indicative
more
lack
impact
Glossip argues that victim
evidence
damaging
Glossip. This claim
evidence
to
testimony of first
through the
was introduced
plain
to
level of
error.
does not rise
proposi-
resolution of
stage witnesses. Our
this
tion two also resolves
issue.
Gossip
claims misconduct
also
penalty phase of trial.
occurred
¶ 89 Next, Gossip argues that
prosecutor misstated
He first claims that the
misleading
prosecution introduced false
appropriate punish
regarding
the law
on the
testimony.
argument
This
touches
by arguing
appropriate
that death is
ment
just
was in
as much
fact that the Tulsa motel
family,
society,
Treese
because
the Van
City motel.
financial trouble as the Oklahoma
family,
justice system is
Glossip
and the
prosecutor
that
made an
Glossip argues
Gossip.
of Richard
The
"worse off" because
going to
proof that Van Treese was
offer of
argued
Hlossip
was a "cold
also
State
Glossip,
manager as well as
fire the Tulsa
"cold-blooded mur
blooded murderer"
shortages in
Mrs. Van
of the
Tulsa.
because
punish
we
with
ders in the State of Oklahoma
they
going to take
were
Treese testified
argue
to
prosecutor
The
went on
City
How
death."
motel first.
care of the Oklahoma
Bender,
option of murder
ever,
that "He chose the
manager,
testified
the Tulsa
that makes death
options
him
face of other
wanted to move
to
that Mr. Van Treese
with;
they
would have to live
option." There were no ob-
decision
appropriate
put
away
jections
arguments.
these
the State would
this case
and for-
to
argued
it.
counsel
get about
Defense
also
prosecutor's
Glossip also cites to the
Glossip
sees Richard
a
the State
as
argument inferring that no one would be
person
redeeming value-ig-
with no social
here,
of Richard
except for the actions
Glos-
life,
noring the fact that he had a normal
statement, "you
jury]
including the
sip,
[the
supported
family.
a
worker and
hard
his
making
tough
be here
this
decision."
wouldn't
objection.
Again there was no
noted,
T98 It must be
the State al-
leged
aggravating
two
cireumstances:
con-
prosecutor
that the
un-
' 95
claims
threat;
mitigating
tinuing
and murder
for remunera-
fairly denigrated @lossip's
evi-
sides,
argument,
that while he is await-
tion. Most of the
from both
pointing
dence
out
him
ing
gets
attempt
Clossip
his niece to come visit
was in an
to show whether
trial he
testify.
bring
can
her to trial so she can
so he
society.
continuing
was a
threat
The con-
pointed out the fact that
prosecutor
tinuing
aggravating
The
also
threat
cireumstance re-
mitigation
was from a 23-
quires
jury
other
a
to determine whether
it
prosecutor
year-old detention officer. The
probable that a defendant will commit future
fact
was about
pointed out the
that Sneed
criminal acts of violence that would constitute
young
age
up
and he
to this
kid
buddies
continuing
society.
threat
say
he is not
so he can have witness
prosecutor's
arguments
All
T99
objection
argu-
violent. There was no
to this
proper comments on
were
the evidence
ment.
that,
order
to show
based on the circum-
object during the
1 96 Defense counsel did
crime, Gossip
a continu-
stances of this
alleged
citation of
misconduct.
next
ing
society. Obviously,
threat
did
prosecutor
photographs
used the victim's
accept
prоsecutor's
argument,
be-
table,
and said
props, placed them defense
Hossip
cause
did not find
was a
problem
taking
"I
don't have
continuing threat.
putting
right
over here. Be-
blood
goes."
cause this is where it
Counsel's ob-
INEFFECTIVE ASSISTANCE
V:
jection
prosecutor
"throw-
was aimed
OF COUNSEL
ing things on our table." Defense counsel
prosecutor
give them to the
said the
should
five,
proposition
1100 In
*16
objection
jury. Tue
was overruled. The ob-
claims that he was denied effective assistance
jection
argument
was not based on the
but
stages
In
during
of counsel
both
of trial.10
prosecutor
placing
on where the
was
the
ineffective,
that
was
order to show
counsel
photographs. Because he raises a different
perform
Glossip must show both deficient
here,
argument
plain
can review for
error
we
prejudice.
Washing
v.
ance and
Strickland
only.
ton,
2052, 2064,
104 S.Ct.
466 U.S.
(1984).11 Strickland,
the
LEd.2d 674
80
alleged
All of
misconduct came
T97
say
strong
that
a
went on to
there is
closing, after de- Court
during the State's second
falls
presumption
counsel's
conduct
wants
fense counsel stated
State
(to
a within the wide
"Richard
blood to flow" which
range
profes
of reasonable
sustained).
conduct, i.e.,
appellant
an
must over
objection
sional
State's
was
Defense
that,
cir
presumption
under
told the
this was a
come
counsel also
failing
Glossip
evidentiary
to utilize this evidence.
for
was ineffective for
has filed motion
3.11(B)(3)(b),
might
hearing
be
based on this claim so that he
the Court
See Rule
Rules
of
of
supplement
22,
18,
(2006).
evi-
able to
the record with certain
App.
Appeals, Title
Ch.
Criminal
evidence contained in the motion for
dence. The
taped
of
new trial consists of the video
interview
standard continues to be
11. The Strickland
interview,
Sneed,
transcript
of the
Justin
{inancial
examining
correct
test for
claims
ineffective
(Tulsa
Budget Inns
records of the Best
to uti
of counsel where counsel fails
assistance
City),
accompanying
affida-
and Oklahoma
Cone,
mitigation
535 U.S.
evidence. Bell
lize
sufficient
vits. This evidence does not contain
1843,
(2002).
685,
S.Ct.
152 L.Ed.2d
convincing
information to show
clear and
strong possibility
evidence there is a
trial counsel
trusts
trial. This Court
during the first
tive
cumstances,
constituted
conduct
counsel's
Counsel's use
Strickland,
reason is invalid.
at
that the first
466 U.S.
strategy.
trial
sound
tape to cross-examine
of the contents
at 2065.
104 S.Ct.
witnesses,
introducing
tape, was
without
Glossiр
prejudice,
1101 To establish
Furthermore,
the failure to
strategy.
a valid
proba
that there is a "reasonable
show
must
during
trial was one
tape
the first
utilize the
that,
unprofessional
bility
for counsel's
but
why
found there
many reasons
this Court
errors,
proceeding would
result of the
of trial counsel
ineffective assistance
probabili
A reasonable
have been different.
though
Even
these
during
first trial.12
undermine the
sufficient to
ty
probability
is a
subject, simi
encompass
trials
the same
two
Strickland, 466
in the outcome."
confidence
occurring
both
strategic
lar
decisions
at 2068.
at
104S.Ct.
U.S.
trials,
in the same conclu
might not result
capital
sen
Court.13
In the context of
sion
inquiry
the relevant
tencing proceeding,
{105
videotaped
was not
interview
probability
there is a reasonable
"whether
trial,
during this
introduced into evidence
errors,
...
that,
the sentencer
absent
part
the record.
thus it is not a
the balance of
bave concluded
would
evidentiary hearing
filed a motion for an
has
mitigating
circumstances
aggravating
3.11,
to Rule
Rules
Court
pursuant
Strickland, 466 U.S.
death."
did not warrant
18, App.
Appeals, Title
Ch.
Criminal
at 2069.
104S.Ct.
(2006),
supplement
the record.
order
that counsel
1103 He first claims
counsel
Glossip admits
trial
€106
failing to utilize Justin
ineffective for
re-
and Bemo
cross-examined both Sneed
impeach
videotaped interview
Sneed's
interview,
garding the cireumstances of
Gossip points
and Detective Bemo.
Sneed
during the interview and
made
statements
Court,
reversing
Opinion
in our
out that this
current
discrepancies between
conviction,
stated
Glossip's original
was not
tape.
on the
Counsel
statements
important
failure to utilize
counsel's
"{tlrial
strategy.
utilizing this
ineffective for
against
Sneed
impeachment evidence
Justin
[
trial counsel
CHossip
argues
next
deficiency in
glaring
most
stands out as the
readily
failed to utilize
available
Glossip, 29 P.3d at
performance."
counsel's
above)
tape mentioned
than the video
{other
witnesses.
clams
to cross-examine
that if this Court
I
would believe
104 One
failing to
that counsel was ineffective for
(to
attorney
ineffective
stated
concerning the vice-
utilize financial records
reversal)
failing to
requiring
point of
motel
to show that
the "over
tim's Tulsa
impeach
wit
piece
utilize one
of evidence
$6,000.00
City
shortage" at the Oklahoma
nesses,
attorneys on retrial would
the new
attempt
did
motel was not unusual. Cоunsel
is,
That
unless counsel
utilize the evidence.
evidence, but the trial court
to introduce this
banking on
is either
his
at the second
try
*17
Counsel did not
to
ruled
inadmissible.
another
garnering his client
ineffectiveness
impeach
with the documents.
witnesses
strategic
a
decision not to
trial or he made
theory was that
only question
108 Part of the State's
tape
the
and
wit
introduce
Glossip
killed so he could
tape.
on the
wanted Van Treese
the statements
nesses about
motels:
management
the
of both
possibility
that
the failure to
take over
The third
is
City
The State also
and Tulsa.
piece
this one
is not
Oklahoma
utilize
evidence
going
Glossip
that
to
presented
evidence
to be inceffec-
sole reason counsel was found
came,
wholly
uti
"counsel failed to
first trial was
but when
time
12. Trial counsel
trial,
any
unprepared
formulated
for
had not
at all."
lize the video tape
Glossip,
theory,
object
to
to
reasonable defense
and failed
case,
at 601.
In this
21, ¶¶ 16-17,
29 P.3d
Glossip,
clearly
evidence. See
inadmissible
questioned
Sneed about
both Bemo and
counsel
¶
at 603.
OK CR
prior
between
statements
inconsistencies
testimony.
current
During
trial,
the first
trial counsel
indicated
Sneed,
Justin
he would use the
to
tape
impeach
aggravating circumstance
$6,000.00 shortage.
port
the sole
about
confronted
be
Murder for remu-
murder for remuneration.
that
presented
Furthermore,
evidence
case,
neration,
requires only that Glos-
in this
to discover
Treese
not want Van
(Hossip did
to commit the murder
employed Sneed
sip
the motel.
condition of
payment.
payment
promise
or the
for
motel,
{109
shortages at the Tulsa
The
©.98.2001,§ 701.12.
show
$6000.00
relevant
to
while
unusual, was not relevant
shortage was
€{115 Here,
Glossip claims
Sneed's
have
Glossip intended to
Van
to show
to
self-serving
was insufficient
he feared termination.
killed because
Treese
aggravating
cireumstance.
support
this
the condition
was based on
His fear
only
murder was
(GHlossipclaims that
cards, and
motel,
missing registration
money from
Treese's
to steal the
Van
method
City motel.
money
missing
at the Oklahoma
car.
coun
claims that
Gossip next
{116
argument
flaw in
The
ineffective,
to
counsel failed
sel was
because
to occur for Sneed
that no murder needed
intro
evidence
improper character
object to
money
Glossip
from Van
to retrievе
concerned
This evidence
the State.
duced
there
Gossip knew
Treese's car. Because
of Justin
about
character
seat,
simple
money under
be
would
not have
who would
as a follower
Sneed
re-
would have
burglary of the automobile
up
him
put
unless someone
killed the victim
supposed
of their
desire.
sulted in the fruits
objection
object, an
did
it.
counsel
to When
money,
Glossipwas not after
fact is that
testimo
elicited
State
was overruled
and he was
Van Treese dead
he wanted
probably done
"would have
ny that Sneed
dirty
to do the
work.
willing
pay
to
Sneed
depen
Glossip. He was
anything for
mere
would do it for the
He knew that Sneed
him."
dent on
was no
large payoff.
There
promise of
observed Sneed
witnesses
any independent
T111 Several
had
that Sneed
They
each other.
Glossip interact with
money.
knowledge of this
income
had no outside
that Sneed
testified
{117
evidence that
There is sufficient
(@lossip.
dependent on
appeared to be
and he
killing
Glossip promised
pay
to
Sneed
not character
evidence.
evidence was
This
Treese.
presented so the
proper evidence
This was
able
why Glossip was
jury could understand
seven, Clossip claims
proposition
T 118 In
the murders.
employ
to commit
Sneed
defining
jury's
instructions
that the
flawed.
determining punishment were
role in
Next,
that counsel was
claims
'
jury should have
argues that the
Glossip first
object
to the evi-
failing ineffective for
instructed,
by trial coun
requested
been
proposition
two.
complained about
dence
must
sel,
aggravating cireumstances
that the
did not
this evidence
found above
We
be
mitigating cireumstances
outweigh the
error; we further
plain
rise to the level
claims, relying
He
yond a reasonable doubt.
object
not amount
failure to
did
find that the
Arizona,
584, 122 S.Ct.
536 U.S.
Ring v.
assistance,
did
as this evidence
to ineffective
(2002),
the failure
pathy, merey, may perpetrated, opinion extenuate or reduce and the victim's of a sentence; degree culpability of moral or blame" recommended impermissibly narrows the characterization that, Section 984.1 states mitigation. He claims this definition ex- victim, Each or members of the immediate may cludes evidence about a defendant family person designated of each victim or death, warrant a sentence less than because by family the victim or members may culpa- the evidence not lessen his moral victim, may present a written victim im- bility rejected or blame. The trial court trial pact appear personally or statement at the requested counsel's instructions. sentencing proceeding present Provided, however, orally. statements if a gave 1120 The trial court the uniform any victim or member of the immediate evidence, mitigating instructions on OUJI- family person designated by or the victim (1996), CR 2d 4-78 and 4-79 as well as by family or members of a vietim wishes to others, mitigating which included a list of appear personally, person such shall have evidence and additional instructions which right the absolute to do so. mitigating allowed the to consider other 984.1(A). 0.8.2001, § 22 "Members of the exist, cireumstances if found to This Court family" spouse, immediate means the a child previously analyzed has these instructions adoption, stepchild, parent, birth or a a or appropriate. and determined that are 00.98.2001, sibling § 22 each victim. 57, 130 Rojem 7, v. 2006 OK CR P.3d ¶ 1 1283This Court has stated that both "vie- 287, 299. This Court will not revisit impact tim statements" impact and "victim issue here. evidence" in capital are admissible sentenc ing procedure. This includes a victim's ren proposition 1121 In eight, Glossip surrounding dition of the "cireumstances claims that the State was allowed to intro crime, the manner in which the crime was improper duce impact victim evidence. Okla perpetrated, opinion and the victim's of a homa's desire to allow victims of violent 0.9.2001, recommended sentence." 22 See type crimes some of influence in the sentenc ¶ 984; Dodd, 31, § 2004 OK CR 100 P.3d ing of criminal defendants has led to differ at 1044. 0.9$.2001, 22 §§ ent statutes. 984 and 984.1 However, 1124 impact may allows the use of "victim statements" be intro 701.10(C) 00.98.2001, unduly prejudicial § and 21 duced that "is so allows the use impact fundamentally of "victim renders the unfair" evidence." thus implicating the Due Process Clause of the 701.10(C) 00.98.2001,§ 21 per- Title Lott, Fourteenth Amendment. 2004 OK CR only capital sentencing tains proceedings. 27, ¶ 109, 346, quoting Payne 98 P.3d at v. may present impact State "victim evi- Tennessee, 501 U.S. 111 S.Ct. impact dence" about the victim and the (1991). 2608,115L.Ed.2d 720 family murder on the of the victim. The During stage the second the State 701.10(C) language clear of section limits the presented two witnesses. These two wit type impact of victim evidence allowable in a nesses, daughter the victim's and the victim's capital sentencing procedure. This section is widow, met the definition of "immediate fam 0.8.2001, not encompassing §§ as ily members." These two witnesses read part: and 984.1. Section 984 reads their own statements and statements of other impact "Victim statements" means infor- family immediate Gossip members. now financial, emotional, mation psy- about the procedure claims that this previ violated our chological, physical effects of a violent ous impact case law on victim evidence. crime on each victim and members of their Glossip argues that the State should have family, person designated by immediate only been allowed to introduce by family the victim or members of the family present immediate members or rep victim and includes information statements, about the resentative to read all of the victim, surrounding circumstances both. See Lott ¶¶ 110-11, crime, (family the manner in which the crime was members
163 composition of aid in the family may not receive they may designate testify may or behalf). from outside sources. Led the statement In- testify in their representative ¶ 39, better, 5, 933 P.2d at are comments proposition termingled in this was more statement Treese's that Mrs. Van family repre- by a made a statement akin to Nevertheless, in we held that 1128 Grant sentative, personal statement rather than plain level of did not rise to the the error on her impact of the death addressing the presented in a the evidence was error as either her Glossip argues that personally. of the manner than if each writ- more sterile as a have been admitted should statement had taken the stand of thе statements ers pre- have or the State should representative, and read their own statements. testimony of immediate personal sented State, {129 v. 2001 cites Hooks State members, not both. family Hooks, 294, 1, ¶ 37, In 19 P.3d OK CR an imme- whether issue here is representative,
126 The
that a
who is
this Court held
testify
member,
on their
may
can
family
family
member
both
be the
diate
not an immediate
testimony
they give
other members
if
represent
representative,
own behalf
Lott,
members
on them
family.
impact
In
two
of the murder
about
the immediate
vie-
family testified-the
selves,
immediate
harmless where
testimony
of the
can be
part of the
up
makes
a small
Another witness
daughter.
tim's son
This Court went on
impact evidence.
victim
granddaughter
victim's
also testified-the
family
give
can
victim
say that a
member
She testified
"representative."
who was
of several imme
impact
on behalf
on the entire
impact of the death
about the
members,
long
testi
family
as
diate
(even
not a member
family
though she was
admissible.
mony is otherwise
and her
family"), her father
the "immediate
(Her
of her
{130
father and one
im-
uncles.
objected to victim
aunts and
Trial counsel
pre-
also
witnesses who
the two
aunts were
hear-
pre-trial
in a
motion and
pact evidence
evidence).
impact
victim
sented
During
stage, an
camera
ing.
the second
parties went
hearing was held and the
v.
cites Grant
1127
also
Defense counsel
through the statements.
797,
¶ 59,
783,
judg
2,
58 P.3d
CR
2003 OK
language
objections to some of
made
grounds in Grant
ment vacated on different
and the trial court
of the statements
some
162,
801,
Oklahoma,
157
124 S.Ct.
540 U.S.
However,
counsel
the statements.
redacted
(2003)
this Court held
where
L.Ed.2d
objection to
that he had no
specifically stated
to read the
person
for one
it is error
reading the statements
the two witnesses
Court, in Grant
another. This
statement of
family members."
remaining "immediate
stated,
Therefore, any
regarding the method
claim
¶¶5,
37,
State, 1997 OK CR
In Ledbetter v.
is
presentation
impact evidence
of victim
recognized the fact
we
waived,
plain
er-
except that error which
designated
the victim
person
"a
ror.
may
victim"
by family members of the
[
harmed
Clossip
was not
We find
impact
Howev
present victim
statements.
family
two
mem-
utilization of
by the State's
intended
er,
legislature
we held
others.
of five
read the statements
bers to
present
"person
chosen
guess trial coun-
This
will not second
Court
should usе his
impact statement"
victim
plain
strategy. There is no
sel's sound
express
thoughts or observations
"own
here.
error
of a death on survivors
impact
¶ 38,
Ledbetter,
5,
CR
1997 OK
victim."
VII;
SENTENCE
MANDATORY
Ledbetter,
holding
our
prejudice. Glossip presented mitigating evi- JOHNSON, C. V.P.J.: concurs. dence, which was summarized and listed in P.J.; LUMPKIN, concurs in results. jury: an instruction to the any
1. The defendant signifi- did not have JOHNSON, CHAPEL and A. JJ.: history prior cant of activity; criminal dissents. 2. years age; The defendant is 41 of LUMPKIN, Presiding Judge: Concur in family The defendant's emotional and Result. history; 1 I concur in by the results reached defendant, 4. The since his arrest on Jan- However, Court and analysis. most of the I uary has been incarcerated and disagree analysis do with couple on a of posed has not a threat to other inmates points. staff; or detention First, 5. The prison defendant is amenable to a by citing the Court errs as au- setting pose thority and will little risk in such a for the decision rendered cases from setting; structured other states that are not precedent valid jurisprudence this Court. The from this family The defendant has a who love Court is more than sufficient to sustain the life; him and value his analysis Thus, and decision of the Court. 7. Has limited education and did not that case law should be cited and not cases graduate high from school. He has av- from irrelevant states. erage intelligence or above. He has re- G.E.D.; ceived his Second, 1 3 agree while I the trial court's preserve failure to the demonstrative aids for school, leaving 8. After the defendant had error, record this case was I continuous, cannot gainful employment find error in the use of them in this case. age 9, 1997; 16 to January his arrest on aids, These demonstrative poster ie. sheets 9. The defendant could pris- contribute to contemporaneous listing of accurate society and be an assistance to oth- by witnesses, statements nothing were more ers; group And, than taking. note this Court has arrest, 10. Prior to his the defendant had ‘ pushed taking note missionary with a zeal. history aggression; no While individual taking note cannot be moni- 11. The defendant present was not when accuracy, tored for individual group this note Barry Van Treese was killed. taking was monitored the court and the 12. The significant defendant has no drug accuracy ensured. The notes were not over- or history. aleohol abuse ly emphasized because as demonstrative aides, they were not allowed to be taken addition, into instructed, 1 133 In the trial court jury room. mitigat- could decide that other ing circumstances exist and could con- CHAPEL,
sider them Judge, as well. Dissenting: honestly say 134 We can jury's 4 1 I today's dissent from decision because verdict was not born under the disagree influence I majority's with the treatment passion, prejudice any arbitrary Proposition other fac- III and the result reached on tor, and the supported jury's this claim. I also write to note that although findings of the aggravating circumstances. I concur Propo- conclusion reached on 0.8.2001, § See I, 701.18. convie- sition I majority believe the overstates the tions and his sentences should be strength affirmed. accomplice corroboration evi- We find no error warranting reversal case, dence in confusing the narrow those who did not do particularly for taking, Glossip's over- question with of this analysis *21 explained that witnesses regularly, and claim. it sufficiency of the evidence all rely upon their "collective to would have III, I find that Proposition Regarding T2 juror note-taking was Hence memories.2 objec- decision, defense over court's the trial permitted.3 of summaries tion, post to the State to allow throughout the courtroom testimony witness in noteworthy occurrence T4 The second exhibits these demonstrative to leave and of sequestration rule of witnesses. volved the witnesses, the jurors later to and visible rule" properly invoked "the Gossip's counsel conclu- until the they first crafted time were beginning requested of trial and also at the trial, Clossip's was stage of the first sion of Treese, the of the brother that Kenneth Van find that the I also discretion. an abuse of victim, in the court allowed to remain not be clear counsel's of defense cоurt's denial trial testimony of Donna Van during the room these exhib- request to allow and reasonable Treese, The trial court the victim's wife. digitally intact or preserved to be either its had been invoked recognized that the rule Court, was by this for review photographed, request counsel's re acceded to and even trial of discretion. an abuse likewise Treese, over State ob Kenneth Van garding totally regard were in this court's actions of caution." jection, out of "an abundance a Glossip's right to unjustified prejudiced and recognition trial Unfortunately, the court's of his informed consideration fair trial and an be distract note-taking can sometimes that appeal. claims on trial, during a as problems ing and create presen the things occurred before 1 3 Two to re court's careful attention well as the Glossip's trial that at any evidence tation of did not sequestration, rule of specting the current claim. noteworthy light in of his seem throughout Glossip's trial. consistent remain asked, First, member jury panel venire a testimony of the State's During T5 the dire, allowed to jurors would be during if voir Treese, witness, prose Donna Van first responded with The trial court notes.1 take writing on and started got cutor out an easel pitfalls of note- of the lengthy explanation a notes, you're you've years taken jurors since practice it's been of addressed the 1. This Court explained lousy then pretty at it." The court taking Cohee v. *22 During testimony testimony T6 Mrs. Van Treese's testifying witness after the witness day, prosecutor excused, the next again began the placed had been it because unfair writing pad, summarizing on the emphasis certain bits on the testimony.10 selected The testimony.7 of In particular, she recorded responded State that it right had a to make testimony Mrs. Van Treese's about demonstrative suggested exhibits and that it telling her that he had seen her Glossip's husband on was own fault that the exhibits were necessary.11 The trial agreed morning January court and the of 1997.8 Later that day, during testimony ossip's the of objection. live-in overruled the The court did not girlfriend, Wood, D-Anna prosecutor specifically the objec address defense counsel's likewise what Glossip recorded told her after posting tion to the of the exhibits or his emphasis" complaint.12 "undue up during "early Justin Sneed woke them the infra, 5. As addressed further the leаving go record in this between 7 and 7:30. He was to to the paper buy case does not contain supplies." either the actual store and some any photographs exhibits at issue or of them. however, parties agree, The seem to the suggests point The record that at some paper pad, which was used to create the various Wood, the cross examination of defense counsel demonstrative exhibits at herein, issue was ap- well, paper pad wrote on the as since he refers to proximately 2 feet 3 feet in size. "1-7," for 7th, and to Wood January explains Barry that "BVT" stands for Van Treese. Yet the transcript 6. The in this trial sometimes reveals else, transcript totally any- is unclear what if down, prosecutor what was written because the thing, defense counsel wrote down. makes the statement "I have written ..." and (presumably) exactly then states what was writ- 10. Defense counsel stated: examining prosecutor ten. At other times the objection We want to make an for the record recording indicates that certain testimo- he/she posting to the of demonstrative exhibits that but then fails to state what ny, has exactly he/she basically are an accumulation of notes written entirely possible recorded. And it is that on prosecutors throughout to remain some occasions statements were written down variety course of the of witnesses. examining attorney mentioning without the it at I understand the need sometimes for a de- transcript all. Hence the serves as a limited and particular monstrative exhibit with a witness fundamentally incomplete record of what was you bringing and then a demonstrative exhibit large paper written on the demonstrative exhibits others, basically out with but all this does is Glossip's strongly disagree I trial. with the emphasize testimony only part of-it's of majority opinion's suggestion that a careful re- testimony. And as a result of that we do transcript only way view of the is "the to deter- object. posters, mine what was on the in Toto [sic]." only way The complete to determine the contents prosecutor 11. The asserted: posters posters. is to review the actual right Homor, Your we have a to make example, prosecutor 7. For recorded that the demonstrative exhibit. I have not and will not bookkeeping (during hotel the second half of move to introduce those exhibits into evidence. 2006) up par" apparently was "not to and also running, This demonstrative exhibit is a con- "lifestyle wrote decision not to fire dur- tinuing tally spins of the various that this De- ing family "year-end turmoil" and totals and on, know, put you fendant has his version of change." Although losses demand none of these many the facts. It's fault his that there are so them, remarks were actual from the witness, many peo- there are so quotes witnesses and apparent- these and similar statements that were ple that he talked to. ly written down were reasonable summaries of challenged, witness and were not appeal 12. The State asserts on this Court content, terms appeal. either at trial or on Glossip's regarding post- should review claim ing only "plain of the demonstrative exhibits wrote, prosecutor error," apparently 8. "Last time I since counsel did not re-raise Barry morning saw objection every it was on the 7th in the prosecutor posted his time the writing going to start that she was Hooper, nounced Billye testimony of During the T 8 Bender Glossip had said to City things that down the Oklahoma day clerk at who was victim had been after the January began again Inn, prosecutor Budget Best As interviewed. Glossiphad been paper about found large pad notes on taking in her to her Glossip said summarized things prosecutor testified numerous Bender cable hotel pay the asking her to to various assent presence: got his his (so Treese said, Van money she Clossip had things her own quotations bill disconnected), of this it had been the middle find out them down.15 would wrote morning early on the up got Treese that Van interrupted court note-taking process, get breakfast January 7 and went bench-ap attorneys called the had Barry Treese materials, repair wrote down prosecutor after parently drunks," "couple of to a Room rented Glossip telling Bender something about window," and not out a "busted had who victim, knew that he kill the but didn't he report, housekeeping on the room put prosecutor that the suggested did-and who going to were Hossip and Sneed because her piece of information particular add testimo When up themselves.13 clean *23 The of fairness." notes, interest "in the the court addressed began prosecutor the ny that recorded apparently then prosecutor Honor, may take me this saying, "Your who police the did not tell (Gossip said he all this try and write minute, going I'mbut Glossip "was because Treese killed Van testified, pros the the witness As up here." ossip that warned life" and for his fear re repeatedly summarize ecutor would leave even probably that he should Bender said, get in order to just been had what state to be motel, it was about Tulsa because the accuracy of to the agreement witness's the "brought down." summary of this written prosecutor's the testimony.14 same {10 tak continued prosecutor This same during the tes pad paper the ing notes on wit the next testimony of During the T9 Williams,18 Kayla Jacquelyn timony of Bender, managed had ness, who William Pursley,20 as she and Michael Pursley,19 an Inn, prosecutor Budget Best Tulsa as follows: exchange bench was at the 16. The made comments Yet on-the-record exhibit. new Glossip's trial stage of the first end of at the that other matter There's one COURT: THE of posting and also of the issue that indicate there, up be listed should think in fairness I may been further have exhibits preserving these [Glossip] [sic] told them he is that which Furthermore, record, addressed, at trial. off the fear for his life. he was in [Bender] fully was trial court that the indicates the record Okay. Iwill. MS. SMOTHERMON: objection emphasis" Glossip's "undue of aware fairness, of in the interest COURT: And THE sustaining I it. Hence no intention and had that, just you'll fix that-if to make sure I want adequately preserved was this claim find that please. trial. will. I MS. SMOTHERMON: attempted to record prosecutor also 13. The does not the record again, these state- however, each of at which 17. Once approximate time down. precisely what was written reveal Glossip. by was made ments testimony, Hooper's part direct the later 14. housekeeper who Jacquelyn Williams what, exactly if impossible to tell it becomes rent-free, but who Budget Inn the Best lived in down, though the fa- being anything, is written The paid her services. otherwise was not testimony Hooper's nature vorable portion of clearly one transcript only indicates wanting to about initial remark prosecutor's down, prosecutor testimony wrote that the her prose- suggests that the up here" "all this write stay her room namely, told her portions to summarize may continued have cutor prosecu- Yet came around. owner when the pad. testimony paper on the Hooper's clarifying repeatedly questioning, style of tor's information, suggests that pieces of particular down example, wrote she 15. For testimo- taking on other may been notes have she victim, found who had been described ny well. doornail," evening, than as "deader previous ice," bloody pulp." The to a and "beat "cold as gas night at a shift Pursley Kayla worked ver- apparently some recorded prosecutor also Budget The Inn. the Best across station if the to Bender remark sion prosecutor wrote that the around," transcript clear makes he to "stick police told him hadn't a.m., January Glos- 8:30 that around down gone." already been have "would questioned During each one of them. exactly Mi- much or what being written down.21 Pursley's testimony, chael prosecutor as the attempted accuracy to confirm the of her Everhart, security Clifford who did
notes-by
repeating
testimony
and ask-
work at the
participated
hotel and who
ing Pursley
affirm
what she had writ-
search for Mr.
present
Van Treese and was
objected
ten-defense
counsel
discovered,
body
when his
was examined
prosecutor
"repeating
and rehashing
"note-taking prosecutor."
The tran-
already
jury."
that's
before the
seript
specific
indicates some
occasions dur
objection
The court overruled the
without
ing
prosecutor
this
took
comment.
summarizing
notes
what (Glossip had said to
Brown,
Timothy
Officer
who assisted Everhart and when it was said.22 Once
Barry
in the search for
Van Treese and who
however,
again,
entirely unclear,
it remains
body
discovered his
in Room
was exam
upon even a careful
transcript,
review of the
prosecutor.
ined
the other
It is not clear
prosecutor
whether
this
wrote down other
whether
prosecutor
any
himself wrote
testimony,
*24
by Gossip
ments made
and Brown's
paper
investi
sheets of
that have certain writings on
gation of Van
disappearance.
Treese's
It
taped
is
them and have been
places
to various
in the courtroom." Defense counsel noted
apparent
sometimes
in the record that
note-taking prosecutor memorializing
is
testi
that
requested
he had earlier
that
these ex
mony-such
as when
examining prosecu
hibits be
part
included as
of
original
asks,
that,
tor
get
"Can we
Ms. Smother-
record and that the trial court had asked for
mon?"-but
impossible
is often
authority
to tell how somе
on this issue. Counsel then
sip
Pursley
fight
told
Barry
that "there was a
between
getting
at 7:00 a.m." After
confirmation
they
two
Brown,
drunks and
had
thrown
footstool
quote
examining
of this
prose-
from
through
the window,"
and that
"one
of
get
cutor asks, "Now, did we
that, Ms. Smother-
strange guy
[Pursley]
drunks was the
that
had
mon?",
"Yes,
responds,
and she
sir." Yet on
earlier,"
seen
and
that
Sneed
examining
other
Glossip
prosecutor
occasions the
asks
prosecutor
"threw the drunks out." The
later
Brown to confirm "what Ms. Smothermon is
writing
indicated that she was
down other testi-
writing"
right,"
and that she "has it
but fails to
mony
forget,"
apparently
"before I
which
includ-
review what has been written.
Glossip's
ed
Pursley
statements to
about the bro-
102, i.e.,
ken window in Room
that he and Sneed
transcript
22. The
indicates that she wrote down
"already
up"
cleaned that
and that one of them
returning
statements about Van Treese
"got
prosecutor
cut."
It is unclear whether the
from Tulsa around 2:30 or 3:00 a.m. on the
wrote
Kayla Pursley.
down other
morning
7, that
had last seen
January
Glossip
Van Treese
morning,
around 7:00 a.m. that same
Pursley
20.
Kayla
Michael
had been married to
Glossip
and that
said he had rented Room 102 to
Pursley
living
and was
with her and their chil-
couple
cowboys,"
"a
gotten
of drunk
who had
Budget
dren at the Best
Inn at the time. The
fight
into a
and broken the window.
transcript
prosecutor
indicates
that
wrote
down his
that around
a.m.,
8:30
on
prosecutor
challenge
The
did
January
not
defense
told him that he "knew the
description
paper
counsel's
of the
demonstrative
window
[in Room
102]
broken,"
had been
that
being "taped
places
exhibits
to various
in the
and Sneed
had "been in the
room,"
Glossip's appellate
that
courtroom."
knew "who had broken the window"
brief asserts
"going
and were
to
bill them for it."
according
that
to his
counsel,
"there were at
posters plastered
least twelve of the
up
State's
table,
prosecutor's
quite
Sometimes the
across the front
record is
clear about
the trial
written,
bench,
being
any
what is
prosecu-
space
such as when
other available
in the
Brown,
quotes Glossip
saying
tor
"Things
as
couriroom."
The
record,
current
however,
is
around,
keep getting
say
inadequate
turned
I didn't
specific
I saw
to evaluate this
claim.
State,24
being one of
You know what? What
as
THE COURT:
Anderson v.
cited
permission
is for
you're asking me to do
establishing
defendant's
cases
number
of the
your
record is
record outside
adequate
make
own
that an
ensure
duty to
Appeals,
of Criminal
the Court
The Court's ree-
Denied.
provided
record.
Court's
appeal.
you
And if
going
on
to stand.
of claims
is what's
ord
for the determination
do
It's
up, you
He added:
them
can
so.
want to look
nothing
transeript.
There is
all in the
really
they will
go, then
If these don't
memorialized,
not been
this that has
about
concern was
our
an idea of what
have
way
make
transcript
that we
that,
we
bulky to do
If it's too
the record.
courts.
in Oklahoma
digital photo-
a record
willing to take some
are
all,
things
these
graphs of each-first
think the better
We
MR. WOODYARD:
and of each
in the courtroom
appear
actually
things
these
sit
way
how
to show
if
an aid to the
that's
items to submit
these
exactly
writ-
courtroom and
what's
or the Court
reporter or to the Court
court
have the documents
be to either
ten would
we do renew
Appeals. But
of Criminal
making
so we're
digital photograph,
or the
at this time.
request
I
the Court's
request and
understand
responded
prosecutor
denying
request.
our
note-taking
1 14 The
regarding
already clear
the record
understanding is
Your
THE COURT:
entail,"
aids
be
these demonstrative
"what
absolutely
target.
put
I
into the
had "made sure
cause she
preceding
me that
T16 It seems to
prose
being written."
what was
record
in this case
transcript
record
of the
review
paper,
"using the same size
cutor noted
(though cer-
thing quite clear
makes a few
marker,
has made five
the Defense
the same
challenged
tainly not
the contents
ilk,
of similar
aids of their own
demonstrative
exhibits).
com-
record is not
The current
lengths of
displayed various
that had been
on the demons-
what was written
plete
about
noted
jury."
She also
to the
time
exhibits;
written
everything that was
trative
demons
to use the
was free
defense counsel
memorialized
was not
on these exhibits
down
but
closing arguments,
trative aids
record; and the tran-
into the
by being read
sent
they would not be
*25
a fair
adequate for
are not
scripts alone
prosecutor
The
the record.
included with
appeal.
De-
current claim
of the
review
record
asserting that the
by again
concluded
photo-
digitally
to
request
fense counsel's
already
was
written down
what had been
of
exhibits,
they
the demonstrative
graph
complete.26
courtroom,
either
and to
appeared
the actual
court noted
115 The trial
digitally photograph
intact or
preserve
be somewhat
exhibits "would
demonstrative
entirely reasonable.
exhibits
individual
already
that the record
bulky," indicated
discre-
abused its
the trial court
I conclude
memorialized,"
being
to what was
"explicit as
in
requests
counsel's
denying
in
defense
tion
request. When
counsel's
denied defense
regard.
this
for
"permission
for
counsel asked
defense
dili-
more than
counsel was
T 17 Defense
to
our own record
purposes and for
our own
this Court with
exhibits,
attempting
provide
to
gent in
in case
challenged
photograph"
Proposition
review his
adequate record to
got
trial court
destroyed,
they were later
certainly cannot fault
Hence we
III claim.
following exchange occurred:
angry, and
dispute the
did not
counsel
Defense
others.
94, ¶ 4,
CR
State, 1985 OK
24. See Anderson
five
("It
he had created
prosecutor's
well established
assertion
is
duty
comparable
[sic]
to insure
to those made
has
defendant
aids
counsel for
demonstrative
Court,
provided to this
record
sufficient
by the State.
issues.") (citation
may determine the
we
so that
omitted).
everything
put
very
hard
"I worked
sure
and to make
the record
written into
an ex-
prosecutor described
particular,
In
aids were read
demonstrative
all of their
recording
Sueed de-
in which
a statement
hibit
to be
the record
I believe
the record. And
into
Treese,
was dis-
which
killed Van
nied he had
complete."
and that
played
Sneed's
inadequacy
for the
of the current
decisive,
might
review
not be
particularly
fact,
regard.
in
majority
record
this
In
since this Court still would not know how the
opinion acknowledges being "extremely trou-
various
displayed
exhibits were
in the court
bled
the trial
turn,
court's attitude toward de-
I
up lossip's
room.
take
claims in
attempt
preserve
fense counsel's
the de- based
upon
currently
the limited record
be
fore the Court.
appellate
monstrative
aides
review."
"(tlhe
agree
majority
And I
with the
¶ 20 First,
I agree that
the manner
total recalcitrance of the trial court to allow a which the State was allowed to record and
record to be made creates error
in itself."
post
testimony,
selected witness
in the con
Consequently,
I cannot understand the ma-
trial,
Glossip's capital
text of
placed undue
jority's
summary conclusion-made without
emphasis upon
testimony.
this
While this
attempting to review the actual exhibits at
repeatedly
Court
approved
has
the use of
"[aluy
issue-that
error
the utilization of
exhibits, including
demonstrative
summaries
posters
these
was harmless."
testimony,
witness
to aid the
in its
¶18 The
represented
evidence,
State has
to this
consideration of
we have also rec
Court that it still
poster
ognized
has the actual
exhib
that demonstrative exhibits can be
Glossip's
brief,
its from
trial.27
reply
In his
misleading and can be
misused
the trial
Glossip requests that
State,29
we order the State to setting.28 In Moore v.
we addressed
supplement
the record with these
ex
a claim that
the State's use of a written
actual
view,
my
going
deny
hibits.
if we
summary
are
expert
of an
witness's
claim,
Glossip's
we
placed
should not do so without
emphasis"
"undue
on the summarized
reviewing
at least
the actual
rejected
claim,
demonstrative
evidence. We
upon
based
exhibits,
available,
if
particular
are still
jurors
the fact that
only
had access to the
ly
diligently
since
counsel
sought
summary
during the time that
expert
have these exhibits included in
appellate
actually
witness was
testifying.30 We also
record.
summary
noted that the
assisted the trier of
fact,
helped explain
since it
"the extensive
¶19
rub,
course,
is that Glossip
fiber evidence in the case at bar.31 The
(and
not)
does not
challenge
did
accuracy
current
distinguishable
case is
on its facts.
trial,
prosecutor
notes taken
¶ 21
prosecutorial
nor does he raise a
misconduct
Glossip's jury was able to review the
claim in
regard.
@lossip's
Prop
claim in
State's hand-written summaries of witness
III
posted
osition
is that the
exhibits of
testimony long
after the testifying witnesses
prosecutor's notes from
stand,
selected witness tes
left the
throughout
stage
the first
(1)
timony
placed
emphasis
undue
Furthermore,
on the
his trial.
despite the State's
(2)
testimony,
chosen
violated the rule of
catalog
desire to
display
its favorite tes
(8)
sequestration
witnesses,
timony,
amounted
recording
hardly
such
can
be de-
*26
to a
closing argument."
"continuous
Review
"necessary"
seribed as
jury's
for the
under
ing
paper
the actual
potentially
exhibits
standing
could
in this
Although
case.
the trial was
help
claims,
us resolve these
but
long
many
testified,
such a
and
witnesses
the evi-
however,
Appellate
27.
Glossip,
ap-
counsel for
outweighed by
danger
value is
prej
the
of unfair
parently
possess
poster
does not
the
exhibits that
(confusion
udice or
other trial considerations
were made
issues,
defense counsel at
trial.
evidence,
delay,
undue
cumulative
etc.).
(cita
Id. at ¶¶ 53-54,
139
at
P.3d
246-47
See,
eg.,
29, ¶ 64,
28.
Dunkle v.
omitted).
tion
Demonstrative exhibits that sum
228,
(finding
249
that State's use of
testimony
marize witness
can be authenticated
exhibits,
computer-
demonstrative
in the form of
by demonstrating
summary provid
that
the
generated
animations
"reenactments,"
was
is consistent with the
ed/created
witness's testi
"inappropriate
highly misleading").
This
mony.
recognized
though
Court
in Dunkle that even
demonstrative
exhibits "should not be made
5,
29.
171 wit- testimony of earlier the actually "hear" complex to not relate did summarized dence it-is ridie- to read nesses-they would have were concepts that testimony or to expert certainly violate It would my view. average citizens. in ulous to readily accessible not later provide a to sequestration exhibits rule of demonstrative the if the actual even And an earlier wit- transcript has never of awith witness uncontroversial-and are nesg's in them- occurred testimony, to create and what right trial challenged the State's for al justification of absolutely no a limited version trial was Hossip's was there in the courtroom remain lowing phenomenon. them to same first-stage evidence taking of throughout the ¶ Furthermore, a later possibility of the 23 that the I conclude Glossip's trial.32 in testimony earli of learning about the witness post the continuous allow court's decision lingering exhibits through these er witnesses any limitation exhibits, without ing of these in this danger a theoretical than more was of an abuse objection, over defense Treese testimony of Kenneth Van case. un undue and discretion, placed it because reading and that he was quite clear made testimony. the summarized emphasis on fair testimony of the posted the responding posting of the that conclude T22 I also the him.35 Hence preceded who witnesses during the summaries hand-written these exhibits violated the demonstrative posting of rule the violated later witnesses testimony of as well. witnesses of sequestration of the rule rule is This of witnesses. sequestration of ¶ effect of the overall agree that 24 I also 2615, 00.98.2001,§ and was at codified favorite the State's of posted summaries at tria counsel by defense invoked properly allowing the State akin to testimony was fairly obvi is of this rule purpose l.33 The to make its case and theory of the post its "It exercises well established: and is ous stage first throughout argument closing tailoring their testimo on witnesses restraint I conclude Hence Glossip's trials.36 of witnesses; in it aids earlier ny to that of in allow its discretion abused the trial court than candid." testimony is less detecting objection, to dis defense over ing the post argument The State's 34 of summaries written prosecutor's play the seques rule of not violate did ed exhibits throughout testimony selected witness couldn't later witnesses tration because 1335, 1330, 87, States, S.Ct. 425 U.S. (Ky. S.W.2d Lanning Brown, 377 592). that the opinion notes The Clark 1964), highest noted L.Ed.2d Kentucky's state court witnesses, order to display sum sequestering a chart although proper practice days her truth, about injured as the marizing goes victim's back "as far seek testimony, ¶ 5, "it damages that wilness's at story Id. of Susanna." and the Daniel segment particular thing to allow quite another at 950-51. P.2d fashion, advertised, bill-board to be of testimony stand," vacated living has witness after asked what Van Treese When Kenneth being used in exhibit "is particularly if the regard- him on said to January subsequent of oth with the connection Treese, Barry he disappearance of ing the Lanning court at 594. The Id. er witnesses." thing [Glossip] the same told me responded: "He allowing court erred that the trial concluded having About up are about. here these notes vi exhibit to remain damages demonstrative blah, and so blah, know, 7:00, seen you Barry through objection, courtroom, over sible in the same told me words, he In other Id. Because forth." the trial. out the remainder witnesses, as we however, story the other he told dispute, lame damages was not amount their posted summaries prejudice these can did not all see the error the court found granted testimony. no relief. that case defendants in *27 Id. Ark. Vanlandingham Gartman, 236 eg., v. See, 36. 0.$.2001, ("At request aof § the 2615 33. See 12 111, (1963) ("[Allthough 114 367 S.W.2d so excluded order witnesses party shall the court to or blackboard attorney might use a chart testimony of other hear the cannot that witnesses."). be fair argument, not it would his illustrate as "the known is also This rule by seen could be where it place illustration the typically at invoked and is exclusion" rule of using attorney jury the at times when the there While referring simply to "the rule." by see argument. the could making If in his rule, by statutory and exceptions this both are arguing the same as day[,] be the it would it all case. in this are relevant law, nome common day."). case all Co., OK 1987 Tank Clark v. Continental 34. 6,¶ v. United (quoting Geders 951 172 apparently
courtroom-and
visible to
following
both
the
independent evidence to be ade
jurors and testifying
any
witnesses-without
quately corroborating:
"evidence of stolen
throughout
limitation and
evidentiary
goods
the
in
found
the
possession,
defendant's
portion
guilt stage
Clossip's
trial.
the
non-accomplice
associates of
And I find merit
in each
Glossip's
defendant,
three
by
[and] admissions
the defendant."
challenges to this decision. Although it is
41
This Court has never found that
confidently
difficult to
prejudice
evaluate the
evidence that a defendant had a motive to
error,
from this trial
strongly
court
I
dissent
particular
commit a
crime or that
helped
he
majority opinion's
summary finding
conceal a crime
committed
another
any
regard
"harmless,"
error in this
enough,
alone,
standing
to link that defen
particularly when we do not even seek to
dant with the actual commission of the crime
at issue. Yet this is the "corroboration"
review the actual demonstrative exhibits at
issue.
upon
evidence
today's
focused
majority
opinion.42
I,
125 Regarding Proposition
I strongly
disagree
majority
with the
opinion's treat
T 26
opinion
The Court's
initially notes that
ment
CGlossip'schallenge
accomplice
State concedes that motive alone is not
"Itlhe
corroboration
evidence
this case.
In Pink
sufficient to
accomplice's
corroborate an
tes
State,37
v.
a case that
majority
opinion
timony."
opinion
Yet the
then attempts
barely acknowledges,
this
recently
demonstrate,
Court
by relying
Texas,
on cases from
summarized and clarified
California,
Oklahoma's corrob
Georgia,
that evidence of a
requirement
oration
for cases involving ac
motive,
defendant's
as well as evidence about
complice testimony,
found at 22 Okla.Stat.
concealing the commission of a crime and
2001, §
Pink,
742.38 As we
noted
in cases
attempted flight, can be adequate as corrobo
where
upon
the State relies
аccomplice testi
rating evidence. These cases
entirely
are
mony, the defendant
only
can
be convicted
irrelevant
to interpreting
very
Oklahoma's
specific,
where the
presents
State also
accomplice corroboration statute.43
evidence that
alone,
"standing
tends to link the defendant And
majority opinion
any
does not cite
with
commission
(or
offense
authority
Oklahoma
for
persua
make a
39
charged."
Hence the
present
State must
for)
argument
sive
assumption
its
that non-
"at
least one material
fact of independent
accomplice
suggesting
evidence
that a defen
evidence that tends to connect the defendant
dant
crime,
had a motive to commit a
assist
erime,"
the commission of the
which is
ed
perpetrator
crime,
in concealing a
entirely separate from
accomplice
planned
testi
to leave the area
qual
afterward can
mony, but which corroborates
ify
some material
adequate
corroborating
link
aspect
testimony.40
of that
We
in ing
noted
a defendant
to the actual commission of
Pink that
this Court has in
0.8.2001,
erime
22
§
past
under
742.44
found
37. 2004 OK CR
173
corroboration,
however,
held
fact,
specifically
adequacy of
has
this Court
T27
CHossip'sinef
to reverse on
choosing
instead
as an
a defendant
implicating
that evidence
claim.51
assistance
fective
fact"-through
his ac
"accessory after
body,
victim's
dispose of the
helping
tions of
¶ 29
recognizing
after
opinion,
current
The
attempting to conceal
police,
lying to the
very
takes a
requirement,
corroboration
others to
had directed
that he
a murder
case,
pre
"In this
the State
tone:
different
"independently
to
adequate
commit-is
compelling case which showed
sented
of [the]
commission
to the actual
him
connect
position
in a
place himself
Sneed
Justin
murder,"
accommodation
under Oklahoma's
dependent
Glossip."
on
totally
where he was
Cummings are
of
The facts
requirement.45
nothing
inde
to do with
course that has
Of
Cummings
case.
the current
quite similar
actu
linking
to the
pendent evidence
to kill
of his wives
directed both
apparently
Barry
the murder of
Van
al commission of
her,
pres
was not
shooting
but
his sister
opinion then discusses Sneed's
Treese.
by his
committed
murder was
when the
ent
as
testimony and the State's case
accomplice
home, he
he returned
When
second wife.
focus
I
that we must first
a whole.
believe
body
his sister's
disposal of
assisted
very
question of whether
upon the
narrow
Despite the
it.46
police
to the
about
and lied
evidence, inde
separate
presented
the State
includ
Cummings's guilt,
of
strong evidence
Sneed, that con
testimony of
pendent of the
(accomplice)
testimony
of his
of both
ing the
and that
Gossip to
actual murder
nects
for
wives,
conviction
reversed his
this Court
aspect
of
materially
corroborates
some
the accom
upon
murdering his sister based
testimony.
accomplice
Sneed's
rule.47
plice corroboration
close,
¶ 30
very
I
question is
Although the
case,
¶ 28
in
opinion
this
2001
This Court's
com
majority that "the most
agree with the
Glossip's conviction
in
we reversed
which
...
dis
evidence
is the
pelling corroborative
counsel,48
ineffectiveassistance
upon
based
Glossip's possession."
money in
covery of the
of the cor
minimal nature
emрhasized the
conclusory sen
Unfortunately,
single,
this
case. We stated:
roborating
evidence
entirety of the Court's
represents
tence
tending
corroborate
at trial
"The evidence
I offer the
analysis
this critical
issue.
extremely
testimony
weak."
was
Sneed's
alternative, more narrow res
following
an
as
inadmissible
certain
also characterized
We
olution of this issue.
testimony
"arguably the
hearsay
double
case,
in this
According to the record
trial that tended
presented at
only evidence
ar
and then
Gossip
questioned
when
any portion of
corroborate
independently
carrying
he was
January
rested on
Appel
testimony implicating
Sneed's
Justin
$1,200
cash,
which
$1,757
approximately
establishing a motive."
in the crime
lant
by Glossip.52
for
not be accounted
could
question
declined to reach
50 We
CR
29 P.3d
2001 OK
48. See
v.
45, ¶ 21,
CR
Cummings
1998 OK
45. See
597.
P.2d
830.
We also noted that
2-11,
¶¶
at 599.
¶ 8,
49.
Id. at
29 P.3d
June of 1998,
before he was arrested
37, ¶ 16,
(em
55. 2004 OK CR
regard. memory. Done their sharpens standing, and ade distinguish the a fair and part of important important right, It is it is an 1 33 run trial found well requirement corroboration quate only to Stat.2001, applies § which Okla. Here, image an American of T3 testimony, from involving accomplice cases poster-size with plastered courtroom stan sufficiency the evidence general we see prosecutor, taken notes interrupt witnesses curiam). jurors not be able to would held that it was (per We P.2d 211 during jurors a order to who took notes to allow ask them to not error testimony, and repeat jury with into the room notes, of their and described take their notes trial to ensure accuracy juror's written notes сonflict- where a a scenario during at 942 P.2d Id. them deliberations. juror's memory what was said: of require ed Although with did not Cohkee confused[,] notes, you're is what I wrote recognized "And then jurors take it judges allow right." way it right I remember down or is it note-taking potential benefits has substantial during a trial: provide judge would noted that she 3. The trial jury during may their aid the of notes Use day, log happened each jurors a of what may jurors benefit We find deliberations. they jurors "really helps" what remember which (1) may ways: jurors in several from notes a exhibit with contains court heard. The record closely pay proceedings more follow general a log testified, with witnesses who a of use; they take notes for later attention as more were, "girlfriend as description who such (2) easily may more jurors' be memories defendant," Glossip's jury. given which deliberations; (3) ju- during reliably refreshed summary log other sub- contains no Yet this portions may requests to have fewer rors make regarding actual testi- information stantive during transcript delibera- read back of a trial mony of the witnesses. tions; (4) may ability to use their notes juror satisfac- morale and in increased result going since there court ruled that 4. The trial tion. testimony of overlap between to be some would at 212. I ¶ 4, Id. at hope were immedi- jurors both whom considering to allow these two whether trial courts persons, victim's victim, potential members of the weigh bene ate would these to take notes family courtroom to leave the would be asked brother practice. against potential from this risks fits (Al- wife. of the victim's know, Van Treese though that Mrs. taking the record reveals is a note "You 2. The court stated: 2003, she is changed name in you her remarried job where you're or a student If skill. trial, herein, as Donna was at as she proficient at referred every day, you get pretty take notes Treese.) If pretty good skill level at it. you it and have large paper pad placed upon Although it.5 morning January namely, hours" of exactly the record does not establish what "two drunks broke a window" and that Glos- sip up." written, told Sneed "to clean prosecutor's comments indi specific picces cate that she recorded certain day, T7 At the end after the pad, on the such time dismissed, had been objected defense counsel Gossip told Mrs. Van Treese he had last being to the post, State аllowed to seen her husband and when this statement courtroom, large pieces paper contain object.6 was made. Defense counsel did not ing the summarizing particular State's notes
Notes
notes from Everhart's without notes, questioning but after ap Brown for verbally noting doing. what she was proximately twenty transeript pages, he prosecutor up asked the first to come first-stage T13 After all the evidence had transcript take notes for him. presented indicates been and the had been ex prosecutor notes, cused, this first then took Hossip's counsel noted his earlier ob examining while the prosecutor jections continued to "to what has been labeled as de question regarding exhibits, Brown numerous state monstrative which basically are
notes any conviction. applied to dard, be can which wrong. badly gone practice stan corroboration independent After prosecution, allowed the process 1 4 The accomplice testi any for met has been dard closing argument, effect, a continuous all the consider can and will mony, this Court sequestra- the rule have violated may well trial, including accom presented evidence judge cannot This Court tion of witnesses. suffi whether testimony, to determine plice this defendant's process on of the the effect convict the presented cient evidence any assurance be- trial with to a fair right agree I regard, In this defendant.59 the defendant's court refused the trial cause strong presented majority that the State place- and their posters to have request Glossip, which against case circumstantial part made in the courtroom ment testimony of Sneed with the combined when those cireum- Under record. appellate than was more (ilossip, directly implicating stances, this error not assume we should his conviction sustain adequate to harmless. Barry Treese. murder of first-degree today's Nevertheless, I dissent M34 Glossip's analysis of upon my decision based III claim. Proposition Dissenting: JOHNSON, Judge, A. expressed reasons well for the 1 I dissent dissenting opinion. Chapel's Judge guilt our overall within going to consciousness majority opinion's reject although I Hence analysis, ade- immediately after sufficiency evidence failure suggestion that murder knowledge Van Treese's his is established. quate disclose corroboration investigation can serve misleading of the his § corroborating under adequate as be considered agree evidence can I