*1 OK CR 10 GOODE, Jr., Appellant Rozell Clarence Oklahoma, Appellee.
STATE
DNo. 2008-43. Appeals of Oklahoma. of Criminal
Court 9, 2010.
June
673 *3 Edmondson, Attorney
W.A. Drew General Oklahoma, Strickland, Jennifer L. Assis- General, Attorney OK, tant City, Oklahoma Attorneys Appellee appeal. on OPINION LEWIS, Judge. Goode, Jr., 1 Clarence Rozell
charged, conjointly Dwayne with Ronald Thompson Johnson, and Kenneth Dominick murder, with three counts degree of first *4 with felony alternative theories of malice or murder, in violation of 21 O.S.Supp.2004, 701.7(A) (B), § and and one count of first degree burglary, O.S.2001, in violation of 21 § County Tulsa District Court case number CF-2005-3904.1 The State filed a Bill of alleging Particulars aggravating two circumstances for each of the three murder (1) knowingly offenses: the defendant creat- great ed a risk of death to more than one (2) person; and there a probability exists the defendant would commit criminal acts of violence that would constitute a con- tinuing society threat to for each of the three 701.12(2) O.S.2001, murder offenses. 21 and
¶2 Goode’s case was severed from his codefendants, and his trial commenced on December before the Honorable Tom Monroe, Larry Edwards, Tulsa, OK, Stan Gillert, C. Judge. jury District The found Attorneys for Defendant at trial. guilty Goode on all four counts and assessed punishment at death on each of the three Lockard, Chief, James H. Deputy Division degree convictions, first murder finding after Chesley, Appellant Counsel, Janet Defense that both aggravating of the circumstances Capital Division, Appeals Direct Indigent De- jury existed each murder. The assessed Norman, System, OK, fense Attorneys for (20) twenty years imprisonment and a Appellant appeal. on $10,000 fine on degree the first burglary Harris, Tim Attorney, District Steve Kunz- Judge count. formally Gillert sentenced weiler, Hawkins, James Assistant District Goode jury accordance with the verdict on Tulsa, Attorneys, OK, Attorneys January Thereafter, 2008. perfect- State at trial. appeal ed his to this Court.2 1. Kenneth Johnson was tried remaining after Goode twenty years two murder counts and counts; count, was convicted degree on all four burglary Johnson’s on the first his certiorari great appeal found the existence February risk of death to was denied on 2009 in Okla- circumstance, person more aggravating than one Appeals homa Court of Criminal case number C- punishment but set parole Thompson agreed at testify life without on 2008-541. had each Goode, and, return, against twenty years of the three agreed murder counts and on the State degree burglary particulars against ap- first to file a bill of count. Johnson’s him. peal was denied in Oklahoma Court of Criminal Appeals case number Appellant’s F-2008-291. Ronald 2. appeal notice of intent to was time- trials, Thompson, subsequent ly to both January entered filed on and his Petition in pleas guilty to all counts and received July life Error was filed with this Court on 2008. count, parole without on one murder Appellant February life on the filed his brief on 2009. The mother, people living had at the single
I. FACTS selling drugs. who were DHS started house Johnson, Goode, Thompson en- result, investigation as a a fraud Owasso, home of Mitch Oklahoma tered Mitch also inspection. a home scheduled Burchett-Thompson and Tara Thompson told she employer Michelle’s them called 25-26, August overnight hours of during the drugs, involved in and she was fired due Kayla, daughter, ten-year-old Tara’s reports. Evidence was introduced to these staying her mother on to be with happened brother, threatened to kill her that Michelle pallet next night, sleeping on particular actions, but, trial, she de- because of his All three intruders Thompsons’ bed.3 making the threats. Mitch also tried to nied The intruders handguns. armed with were job at get fired from his Brookhaven and killed the victims the bedroom entered selling Hospital by reporting that he was of the vic- firing shots into each several drugs. tims’ bodies. theory was that ¶8 of motive murders, 4 The State’s evening before the On had “Bunny” Thompson and Goode Ronald Thompson picked up Ronald at his Thompson and dispute in a with Mitch been p.m. place employment at about 10:00 for a few months. friend J.R. Hoffman in a Thompson testified that Goode arrived Thompson staying with Mitch Hoffman was by Kenneth “Fu Fu” Johnson. As car driven *5 Thompson, who was family. Ronald and his they away, Thomp- told Ronald drove Goode sister, cousin, living with Mitch’s Mitch’s of, they business to take care son that had Michelle Chastain Chastain. Michelle Thompson a .22 caliber re- and he handed girlfriends, and Goode also one of Goode’s gloves. Thompson latex volver and some of time at her house. great a deal spend handgun a said that Goode had .357 caliber handgun. and had a nine-millimeter Johnson ¶ July, in dispute escalated 5 This Michelle a car from Hoffman borrowed when ¶ They Thompson’s drove to Mitch to use the car to Hoffman was Chastain. car, house, got out of the and entered the Goode; however, pills Xanax for pickup some garage through open the overhead house the ear and was arrested wrecked Hoffman kicked in the door Ronald said he door. Goode re- driving under the influence. house, they garage into the because from the car, but Hoffman drugs from the covered the thought they he told him to. Ronald said damages to the car. pay to for the refused to scare Mitch. were there July, a month before the end of Toward Ronald, According way he went one murders, Thomp- to and Ronald these Hoffman and Johnson went financial dis- the house and Goode got fight into a over their son gunshots, so he fight parties sep- ended and the the other. Ronald heard putes. This occupied by a time. to the room Goode arated for short went put gun a to his He said Johnson Johnson. after, Thompson and Hoff- 6 Soon Mitch put in him that he needed to head and told to Michelle’s house armed man came back next, meaning or he was he need- some work Ronald a Goode and with baseball bat. shots or be shot. Ronald ed to fire some Thomp- Mitch Thompson were at the house. several shots into the wall said he fired bat. Ronald with the baseball beat son dropped They then left and off this room. everyone go pistol and made showed Goode associate, Damos guns the with another gun over to someone outside. He turned Joseph. “Peanut” fistfight Hoffman. else and started with a.m., arrived at this, 11 At about 4:15 Mitch called the Oklahoma 7 After (DHS), They argued house. child Michelle Chastain’s Department of Human Services Michelle, just “fucking her division, told her that he shot reported that welfare grandmother Kayla 3. lived with her maternal response on June 2009. filed its brief State spend Smalygo, the Court June to case was submitted to but was allowed The Brenda July reply Appellant's night. was filed particular brief night 2009. with her mother on this January argument was held 2009. Oral brother_” introduced through parts her John- of the bullets different and said he was his cousin. saw body. twice, son She Mitch had been shot once car, Ronald’s vest in Johnson’s but Wal-Mart upper back and once in the face. Thompson. she did not see Ronald Sig4 16 A total of casings seven .357 ¶ 12 formal Michelle received notification casings seven nine-millimeter were found just of her brother’s death after noon that projectile the bedroom. A .22 caliber day. Her father was also notified of the found in a cabinet drawer. This cabinet was death of his son and suffered heart attack near small A holes the wall. search of hearing after the news. at Michelle was Joseph’s Damos house resulted in the recov- hospital with her father when she first talked ery spent magnum two .22 shells and a .22 detectives, any not but she did volunteer magnum cartridge. cartridges These were knowledge information her about consistent with the .22 projectile caliber day, shooting. During that Goode called Mi- found at the murder scene. asking if chelle Chastain she had talked to police and he threatened her and her ¶ 17 Goode’smother and his fian- brother’s harm, family with if she him “made nervous” cé testified that Goode was at the mother’s by talking police. evening home the of the murders. flan- early morning eé, 13 Then Ruby hours of Gilyard, period said Goode left for a August a.m., at about 1:00 time, Goode and p.m. but returned at 11:00 She could Denny’s Michelle Chastain were Restau- say stayed whether night; howev- rant. gave Chastain testified that Goode her er, morning she did see him the next when killing by saying the details of the that Ron- up. she woke Mrs. Goode testified that he Thompson ald kicked in the door. He said spent night, traveling because were go spare Ronald was to into the bed- to visit Goode’sincarcerated brother the next Instead, room and kill Hoffman. Ronald fol- day. *6 lowed and Johnson into main Goode bed- child,
room shooting Kayla and started II. FIRST STAGE ISSUES Burchett. Goode said he and Johnson had no choice but to shoot as well. begins propositions 18 Goode of error ¶ 14 Goode told her that after the initial by one, claiming, proposition that the trial fired, noise, shots were he heard some so he court erred when it allowed the State to lights turned the on. He saw Mitch on the introduce, objection, over witness Michelle floor next to the bed and told Mitch to look video-taped Chastain’s statement made to him in the face. Goode told Mitch that he Owasso Police Detective Mike Denton. should have “never snitched on me” and said objected to the introduction of this “die like a bitch.” Then Goode shot Mitch grounds evidence at trial on the that it was again. Goode told her that Johnson shot prior not admissible aas consistent state- Burchett-Thompson, Tara would ment; the introduction tape violated Thompson, have shot Ronald but he took off clause;5 the confrontation tape the entire running. was not admissible based on the rule of times, completeness; Kayla tape, generally, was shot five con- once head, prejudicial once in tained irrelevant the back and three material times hip. hip One of the should noticeably by jury. wounds was not be viewed The trial others, smaller than court possibly coming tape ruled that the entire would be from .22 caliber gun- bullet. Tara had ten admissible under the completeness, rule of shot v.Utt wounds which citing could have been caused 595 P.2d shots, than paths less ten because of the 448. Sig pistol cartridge 4. A .357 is a caliber or char- 5. Amendment VI to the United States Constitu- shape acterized a bottle necked and made fоr tion and Article 20 of the Oklahoma Consti- pistols, semi-automatic not to be confused with tution. Magnum cartridge straight the .357 which has typically walled case and is used in revolvers. ¶23 ¶ Generally, we would review the Counsel then asked if she remem- an mentioning decision for abuse discre that he trial court’s bered believed tion. Williams actually that a “bum” at the restaurant was But, additional facts police an undercover officer. Chastain did ruling to the trial court’s show that deference remember that conversation. Chastain ad- case, may impossible. In this the trial be secretive, very mitted that Goode was so it did not review the court admitted why counsel asked her he would share all of stated, tape. trial court the details at the restaurant near someone he thought an police was undercover officer? it, I haven’t had a chance to review but again insisted that She the details were re- they’re if since the State knows Denny’s. along vealed at Counsel continued wrong, be and is this case will reversed lines, making any these but Chastain denied nothing that there is in that that confident police. inconsistent statements that, prejudicial, knowing statement that is your objec- go I’ll ahead and admit it over ease, 24 During the defense Goode’s at- tion. torney testify. called Denton to Counsel ¶20 This statement alone shows that the played portions of the recorded statement discretion, trial court failed to exercise its when Denton could not remember the con- gate- because the trial court abdicates its tents of the conversation he had with Chas- by relying keeping responsibility rep- on the testimony tain. Denton’s recording and the parties.6 though resentations of the Even essentially impeach used to Chastain’s judi- proper the trial court failed to exercise testimony, proper pursuant which discretion, fortunately, cial its decision that 2613(B).7 O.S.2001, § During the examina- tape was admissible was correct. tion, counsel asked Denton about Chastain’s regarding statements where Goode confided ¶ Uniquely, tape present person” in her and the “homeless Chastain, ed, during the examination of police believed to be an undercover officer. but the defense’s case-in-chief exami The record does not reveal how much of the nation of Detective Denton. While Goode’s tape played jury. for the attorney examined about Chastain the incon sistencies between her and her ¶ Afterwards, during the State’s cross- interview, taped statements in this counsel Denton, requested еxamination of the State *7 tape during did not seek to introduce the recordings the entire of two Chastain testimony. Chastain’s interviews be introduced as evidence.8 De- objected, stating tapes fense counsel that the ¶22 Counsel’s cross-examination of Chas- prior were not admissible as consistent state- tain and her inconsistent statements on this inquired ments. The trial court whether the tape centered on the location where Chastain recordings were admissible under the rule of relayed remembered that Goode details of completeness. Defense counsel then insisted crime; Denny’s whether it was at the using tape that he was the to refresh the restaurant, testified, as she had or whether interview; however, memory officer’s of the the details were revealed Goode at her disputed trial the court that fact and noted phone, house and on the as she had told trial, played recording that defense counsel taped Denton in the interview. At the for jury Denny’s Chastain insisted it at the and asked Denton to confirm was and not the the latter. contents.
6.Moreover, hands, equally disturbing, sitting is the trial stead of on its defense counsel Court, attempt prose- court's cution, to use this and the have should insisted that the trial court view scapegоat, by saying tape making as his the before a decision. prosecution wrong knows that if are about prejudicial tape, governs material in the the case will be 7. This Statute the introduction of extrin- diligent prior reversed. courts should be Trial sic evidence of inconsistent statements. trial, during their effort to cure errors so that expense Ultimately, only sought the more, of retrial can be avoided. Further- 8. the State introduction tape, defense counsel is far from blame. In- of one State's exhibit 144.
¶
ruling
apparent
on the
to be introduced to rebut
The trial court reserved
admissibility
tape,
impeachment.
permit-
it wanted
of
because
Counsel cannot be
completeness.
ted,
As a
the rule of
purpose
impeaching
to review
for the
a wit-
ness,
defense counsel countered
argument,
final
to introduce extracts of the former
prejudicial informa-
irrelevant
witness,
that there was
testimony of such
and then be
tape,
on the
but counsel
tion contained
complain
heard to
that the whole of such
prosecution responded that
specific.
The
introduced,
testimony was
and the whole
any historical information
it did not recall
given
jury....
truth
to the
might
prejudicial.
be
Utt,
37, 5,
CR
at
OK
stage
of the first
27 At the conclusion
quoting Huntley
Territory,
1898 OK
triаl,
up
admissibility
took
the trial court
¶ 12,
Here,
A cannot offer in part evidence a of a document, conversation, danger prejudice, of unfair transcript or of a confusion issues, See any danger. or purpose witness’ for the of im- other *8 witness, Furthermore, peaching O.S.Supp.2003, § complain and then 2403.10 we permits that the court that tape the remainder of find the admission of this did not document, conversation, transcript improperly such testimony.11 or bolster Chastain’s jury 9.The record does not reveal whether not the true even we or This is if assume that the jury tape, hour-long viewed the which is an inter- equipment jury had the in the room and did in view of Chastain in a small interview room. tape entirety. fact view the its in presеnt. Chastain's cousin is also Chastain is very emotional this interview as she deals jury 11. The was instructed on the use of Chas- with the death of her brother at the hands of her prior tain’s inconsistent statements with OUJI boyfriend, and her father’s heart attack which 9-20, prior CR 2d the use of Goode’s bad acts day occurred a after her brother was killed. 9-9, judging with OUJI CR 2d and their role in Apparently, tape enough tire was not loud to be credibility 2d of witnesses with OUJI CR 10- courtroom, played only way in so the to hear 8. These instructions were sufficient to inform recording juty in the confines of the apply tape context on how to in the so, room. Even there is no indication that the of this trial. jury played tape. 679 testimony. argued He that their intent Finally, we address Goode’s to use Clemons’ inconsistent statements argument. Goode bases as clause confrontation Now, against evidence introduction of the substantive Goode. argument, that the clause, appeal, complains that on Clemons’ recording the confrontation violates relevant, testimony lacking was not in Washington, reading of v. on his Crawford 1354, credibility, pretext introducing and was a for 36, 124 S.Ct. 158 L.Ed.2d 541 U.S. (2004). However, prior as substantive sup in inconsistent statements language Craivford guilt. evidence opposite ports an conclusion. for cross- appears the declarant
[W]hen
¶ 34 We review this claim under an abuse
trial,
at
the Confrontation
examination
of discretion standard. An abuse of discretion
all
places no constraints at
on the
Clause
unreasonable,
“any
has been defined as
un-
prior testimonial statements.
use of his
arbitrary
action taken
conscionable
with-
Green,
162,
149,
v.
399 U.S.
See
proper
California
consideration of the facts
law
out
489]
26 L.Ed.2d
[90 S.Ct.
pertaining
to the matter
submitted.”
It is therefore irrelevant that
Williams,
19, 27,
CR
at
2008 OK
reliability of some out-of-court statements
(citations omitted).
if
replicated,
“cannot be
even the declarant
in
35 Goode met Fred Clemons
the Tulsa
in court.”
testifies to the same matters
Jail,
County
in
where
were incarcerated
Post,
(quoting
at 1377
United States
“pod”
couple
days.
the same
for a
Accord-
[106
475 U.S.
S.Ct.
Inadi
ing
testimony,
to Clemons’
Goode told him he
(1986)).
1126, L.Ed.2d
The Clause
390]
triple
was accused of the
homicide in Owasso.
does not bar admission of a statement so
trying
Goode told Clemons that Chastain was
present
trial to
long as the declarant is
at
him up,
to set
and he would like to have her
(The
explain
defend or
it.
Clause also does
killed. Clemons asked him “How much?”
not bar the use of testimonial statements
and Goode said “Ten thousand.” Goode then
purрoses
establishing
other than
anyone
asked if Clemons
knew
would do
truth
the matter asserted.
Tennes-
See
get
it.
Clemons told Goode
he would
Street,
see v.
U.S.
S.Ct.
him.
back with
(1985).)
2078,
fied that Goode evidence). (defining § shootings. relevant Goode however, way complains, that the Clemons that believed testified Goode 39 Clemons questioned it as if had was made seem Goode Mitch occurred because that the murder confessed to the crime. baby away take Chastain’s caused DHS to and because Mitch had beaten from her ¶43 testimony differently. We read the Thompson uncon- Thompson until became repeatedly testified that told Clemons Clemons, According to Goode said scious. murders, him that he was not involved the with the .22. Thompson shot the child girlfriend trying up him for his was to set murders, and Goode never told him that he examination, again cross Clemons On Furthermore, at the crime scene. was him he testified that Goode told was with his statements, jury’s prior use of Clemons’ in- present when mother and was the shoot- testimony, properly consistent with this was ing place. took He said that Goode never by channeled an instruction which told them any involvement in the murders. admitted only prior that could use in- Clemons’ willing police He that he was to tell testified impeachment as consistent statements anything get he could relief on cases in so guilt. proof not as substantive In conclu- Texas. He also testified that he had testified sion, we the trial find court did not previous a case 1995 and was able to permitting abuse its discretion this testi- charges against him have dismissed. Clem- mony. making assump- that he ons admitted was police when he talked to the and he tions attacks, in proposi Goode next basically police, telling lied to the but he was three, tion the admission of certain evidence at trial. the truth which, claims, was irrelevant or for which ¶41 redirect On Clemons testified substantially outweighed relevance was told him details about the murders of O.S.2001, by dangers in 12 outlined unaware, as, which he was such there were § 2403. The admission of evidence is left to .22, nine-millimeter, guns a three used: court, the sound discretion of the trial which police a .357. He claimed that he told that we will not absent an of that disturb abuse present said he was not when the raised, objection discretion. Where no occurred, murders but he could not find in plain only. we review for error transcript of the interviews where ¶45 complains He first about the occurred. an tape admission of audio of the 911 call Obviously, Goode had information Smalygo upon discovering made Brenda willing about this case and share this daughter granddaugh the bodies of her information with A Clemons. review of ter at the crime scene.12 Defense counsel Clemons’ reveals his testimo- objected tape to the introduction of this on ny was relevant on account. Even prejudice grounds. relevance and After the Goode admits that that a defendant playing tape, counsel asked for a mis crime, relayed only has details of a which trial, prejudicial because of the nature of the perpetrator known, could have is relevant. tape Smalygo’s response emotional State, See Dodd v. 2004 OK CR tape. The motion for mistrial was de (holding proprie- P.3d defendant’s nied. tary knowledge regarding details of a crime arrest). Now, provided probable appeal, cause for Evi- on Goode claims that the irrelevant, and, showing knowledge tape minimally dence defendant’s even if crime, relevant, substantially the details of which have not been its relevance was out- public, weighed by danger released to the prejudice.13 is relevant to show of unfair 114-17, ¶¶ 269; 12. State's Exhibit 18. 59, ¶ 56, v. AlMosawi past, In the this Court has held that some 911 However, hearsay 283-284. is not tape recordings hearsay are not excluded issue here. O.S.2001, 2803; rule. 12 Stauffer
681
Walker,
State,
tape
v.
In
this Court held that a 911
opposition,
in
cites Williams
208,
State,
19, 188 P.3d
as
calling
saying
killing
2008 OK CR
a victim
and
“he’s
me”
tapes.
In
admission of 911
support for the
prejudicial
“I’m
irrelevant and
dead” was
Williams, however,
objection to
there was no
because it did not name the defendant nor
tapes
tapes
and the
of the
the introduction
prove
aforethought.
it
malice
Due
did
to
recordings of victims and witnesses who
were
Walker,
overwhelming
guilt in
evidence of
crime, just
heard evidence of a
observed or
the introduction was held harmless.
Id.
that,
held
while the
after its occurrence. We
Likewise,
case,
in
the
had
may have been cumulative to the wit-
tapes
alrеady
Smalygo
heard from
whose emotion-
testimony,
nature did
the cumulative
nesses’
testimony
al
described how she found the
relevance,
substantially outweigh the
not
Williams,
body
granddaughter, Kayla,
of her dead
plain
there was no
error.
thus
19, ¶73,
attempted
grand-
and the
during
Johnson used a nine-millimeter
grounds.
vance
in
murder. We find no reversible error
closing argument,
during
52 Then
introduction of this evidence.
stating
comments
prosecution made several
trying
day
modern
that
was
to be the
¶ 56 Goode’s next claim of evi-
objection to the
There was no
Scarface.
error,
dentiary
four,
in proposition
raised
closing argument.
trial
that
court abused its discrеtion
theory
The
of the State’s case was
53
photograph
when it allowed introduction of a
himself as a modern
that Goode envisioned
victim,
alive,
of the child
taken while she was
Scarface,
of
day
who took care
his own busi-
objection
over defense counsel’s
on relevance
by
The statements
Goode to
ness with force.
grounds. Oklahoma State law allows the
possession fan
Chastain and his
type
photograph.
introduction of this
Scarface
paraphernalia provided a basis for this theo-
§
O.S.Supp.2003,
pro
2403. This section
ry. We find that this evidence was relevant
that,
vides
motive for these crimes.
to show Goode’s
prosecution
any
criminal homi-
[I]n
cide,
appropriate photograph
an
of the vic-
¶ Next,
complains
about
tim while alive shall be admissible evidence
relevant,
of firearms which were not
by
attorney
when offered
the district
to
not connected to
ease.
because
were
this
general appearance
show the
and condition
handguns
contemporaneous
found
The
were
of the victim while alive.
ly with the arrest of co-defendant Johnson
arrested outside the home of Tam
who was
17,
In this case the State offered exhibit
my
handgun
Hamilton. A nine-millimeter
Burchett,
portrаit
Kayla
which was a
found
next to him
was
on the seat
when he
ten-year-old
youngest
of the three vic-
was arrested and a .357 caliber revolver was
Along
statutory
in
tims
this case.
with the
Hamilton,
found in a car owned Ms.
which
relevance,
authority indicating
photograph
parked
was
outside the home. Evidence
prior
being
of a victim taken
to
killed is
about the .357 revolver was first elicited
proving
relevant to
the defendant killed a live
prosecution only
defense counsel and the
being
proving
human
and relevant
it
mentioned
later to show that it was not
victim,
identity
disput-
whether or not
crime; therefore,
in
used
this
Goode cannot
trial,
always
ed at
because the State
has the
complain
pistol.
about the reference to this
proving every
burden of
element of the of-
State,
Glossip
fense.
v.
Regarding
the nine-millimeter
¶¶ 78-79,
156-57;
Coddington
157 P.3d
Johnson;
pistol
although
found next to
¶¶
53-57,
v.
142 P.3d
pistol
in
nine-millimeter
was used
these
437, 452-53.16
homicides,
pistol
positively
this
could not
be
relevant,
Although
evidence,
matched to the evidence found at the scene.
like all
prosecution’s theory in
photograph may
this case was
the “in life”
if
be excluded
handgun
substantially outweighed by
Johnson used a nine-millimeter
its relevance is
O.S.2001,
dangers
the crime. The
nine-millimeter cas
outlined
ings
very
found at the scene showed
The trial court
similarities
careful
the use of
casings
with
photograph.
which were test fired from the
The trial court did not
pistol
parties
photograph
nine-millimeter
found with Johnson
allow the
to use the
However,
jury
closing argument,
the car.
photo-
State told the
nor did he allow the
it
gun
graph
jury during
did not believe that
used
taken
be
with the
delib-
gun
the crime. The relevance of this
erations. The record
reflects
only
photograph
establish
Johnson’s caliber of choice
had a
brief view this
gun
initially
was the nine-millimeter. This
did have
the time it was
admitted. We find
relevance, although slight,
some
and served
that the trial court did not abuse its discre-
(Ind.2008).
Riojas,
16. State v.
288 Kan.
(2009);
also see
N.E.2d
Pittman
*12
¶
Dodd,
95,
984;
31,
§
100 P.3d
photograph, thus
OK CR
it admitted this
tion when
part:
at 1044. Section 984 reads
here.
is no error
there
impact
“Victim
statements” means infor-
financial, emotional, psy-
mation about the
III. SECOND STAGE ISSUES
chological,
physical
effects of a violent
¶
proposition
crime on each victim and members of their
argues,
58 Goode
family,
person designated by
immediate
or
im
seven,
impact evidence was
that victim
by family
the victim or
members of the
stage
during the second
of
admitted
properly
victim and includes information about the
trial,
requested that no
Prior to
trial.
victim,
surrounding
circumstances
admitted; howev
impact evidence be
victim
crime,
in which
the manner
the crime was
trial,
er,
During
request
denied.
perpetrated,
opinion
and the
of a
victim’s
objected to the statement of Tessa
sentence;
recommended
Amaro,
person
was not a
author
because she
give a
by
Statutes to
“victim
ized
Oklahoma
¶
family”
62 “Members of the immediate
impact
impact statement” about the
spouse,
adop-
child
means the
a
birth or
niece, Kayla
her
Burchett. The
death of
tion,
stepchild, parent,
sibling
or a
of each
testify,
ruled that Amaro could
as
trial court
984(2).
O.S.2001,
though
Even
victim.
Kayla
family designee,
impact
about
admissible,
may
evidence
be introduced that
death,
only
Kayla’s
immediate
Burchett’s
as
unduly prejudicial
“is so
that it
renders
alongside her.
family members were killed
unfair,”
fundamentally
implicating
trial
thus
the Due Process Clause of the Fourteenth
im-
sponsored three victim
59 The State
Amendment. Lott v.
2004 OK CR
Amaro,
witnesses,
including
each of
pact
¶ 109,
quoting Payne
prepared
read a
statement
these witnesses
Tennessee,
501 U.S.
S.Ct.
Bur-
other witnesses were Jim
trial. The
2608,115
L.Ed.2d
chett,
of victim Tara Burchett and
father
Lott,
63 In
two members of the immedi-
Burchett,
Kayla
victim
grandfather of
family
ate
testified —the victim’s son
Davidson,
victim Mitch
the sister of
Gwen
witness,
daughter. Another
similar to the
indicated that
Thompson. The trial court
bar,
case at
also testified —the victim’s
designee
Kayla
for victim
Amaro was the
granddaughter
“representative.”
who was a
only person who
Burchett. Amaro was the
granddaughter
testified
the im-
about
regarding
impact
of the
gave a statement
family,
pact of the death on the entire
her
Kayla Burchett.
death of child-victim
In
father
and her aunts and uncles.
¶ Now,
argues
appeal,
on
Williams,
19, 100, 188 P.3d at
proper sponsor
not a
of victim
Amaro was
family
that a
member
this Court held
testimony
impact
and her
did not
testimony
give
impact
can
victim
on behalf
impact
victim
evidence. Goode
qualify as
members,
family
long
several immediate
as
Amaro,
aunt,
Kayla
argues that
as
Burchett’s
testimony
is otherwise admissible.
as
impact
give a
about the
could not
statement
¶ Here,
rep-
Amaro
as a
while
testified
Kayla
on her.
of the death
resentative,
proper
under our ease
which
law,
im-
also testified about the effect of
has addressed victim
she
61 This Court
daughter.17
holding
Kayla’s death on her and her own
pact
past
in the
that both
issues
Kay-
relationship
im-
between
impact statements” and “victim
She described
“victim
sisters;
daughter as like
capital
in a
la and her own
pact evidence” are admissible
however,
daughter,
neither she nor her
meet
sentencing procedure. This includes a rendi-
family
“immediate
member.”
surrounding
the definition of
the “circumstances
tion of
testimony
crime,
her
concerned the
the crime was While some of
the manner
which
persons
on
who were not immediate
opinion of a
effects
perpetrated, and the victim’s
members,
O.S.2001,
family
of her testi-
portions
other
See
recommended sentence.”
sister,
testimony
proper
on her.
17. Her
also included
Burchett,
impact
her
of death of Tara
about
the immedi-
an
raony
“superaggravator.”
were relevant to show how
as
unauthorized
We
consistently rejected
family
argument,
have
ate
members’ interaction with others
we find no reason to revisit the
issue here.
impacted
the death. The remainder
Jackson v.
testimony gave
glimpse
a brief
into the
(and
therein).
603-04
cases cited
Kayla Thompson and the circum-
life of
crime,
surrounding the
which
stances
sentencing stage argu-
68 Goode’s next
*13
admissible.
ment,
in proposition eight,
found
is that the
defining mitigating
instructions
family dynamic repre-
65 The unusual
argues
were insufficient. He
that the trial
presents
in
case
a situation that
sented
this
court’s instruction
mitigating
which defines
by
contemplated
impact
is not
thе victim
fairness, sym-
evidence as factors which “in
Kayla
being
primarily
statutes.
raised
pathy,
mercy, may
and
extenuate or reduce
by
grandparents
her
who were also Amaro’s
degree
culpability
of moral
or blame”
only
parents. Kayla’s
family
“immediate
impermissibly narrows the characterization
members,”
father,
her mother and
were also
mitigation.18
of
OUJI-CR 2d 4-78
in
possibly
killed
this crime. While one could
argument
recently rejected
This same
in
Kayla
conclude that the closeness of
to Ama-
State,
Rojem
15, ¶26,
v.
sisters,
ro was much like that of
Amaro
light
in
even
of our decision to
Kayla
daughter
testified that
and her
were
have the instruction modified in Hams v.
sisters,
Kayla
like
not that she and
were like
State,
1103,
164 P.3d
type
relationship
sisters. Because this
of
is
1114.
We find that the
in this case was
not one which is defined as an “immediate
ability
not
in
limited
their
miti-
consider
member,”
family
testimony
we find that
re-
gating evidence.
garding
impact Kayla’s
of
death on Ama-
six,
argues,
in proposition
Goode next
daughter
proper.
ro and her
was not
that
“continuing
aggrava-
Oklahoma’s
threat”
¶ Although
we find that much of Ama-
ting
circumstance
is
unconstitutional.19
testimony describing
ro’s
impact
recognizes
consistently
that we have
daughter
death on her and her
was not ad-
rejected
claim,
urges
this
but
reevаluation of
missible,
testimony
we cannot find that this
circumstance,
aggravating
this
because it has
prejudiced
any way. Kayla
in
been some time
analysis
since a substantive
only one of three victims in this case. Ama-
aggravating
this
circumstance has been
ro’s
of a prepared
consisted
state-
undertaken
argues
this Court. Goode
taking up
pages
transcript.
ment
two
Her
that
past
this Court’s
reliance on Jurek v.
testimony, generally, was about the effect of Texas,
2950,
428 U.S.
96 S.Ct.
Kayla’s death on
family
the immediate
and
(1976),
L.Ed.2d 929
in which the United
family dynamic,
which was admissible.
Supreme
States
continuing
Court found a
portion
admissible,
The small
which was not
threat aggravating circumstance in Texas’s
in light
permissible
of the remaining
victim
penalty
constitutional,
death
scheme
is mis-
evidence,
impact
did not contribute to the
guided
penalty
because Oklahoma’s death
Lott,
in
sentence
this case. See
2004 OK CR procedure is much different from the Texas
¶27, 114,
P.3d and citations omit- ted] AND VI. CUMULATIVE ERROR
¶ MANDATORY SENTENCE called in 94 Counsel two witnesses the REVIEW mother, stage, Margaret second Goode’s fiancé, Goode, his and Larenda Carter. This ¶ case, reviewing After this entire we along stage testimony, with the first testimo- requires find no individual error which rever- ny Sharpe, of Teresa formed the coworker alleged sal. Even when we view these errors evidence, mitigation basis of Goode’s which fashion, in a cumulative find that we no relief in jury.23 an the outlined instruction to required, thus cumulative is Goode’s error ¶ case, State, 95 In this Goode cannot show that claim must fail. 1984 OK Woods v. CR ¶ 10, by 24, 1150,1154. prejudiced he was the absence addition- 674 P.2d leading family helping a his The evidence was that Goode had secure a role in after the pаrents; father; healthy and attachment with responsible both death of his Goode was a age Goode lived the same home birth to in from daughter father to his and wants to continue a 18; only parents sibling; Goode one had Goode’s children; positive relationship his with models, presented good strong role work ethic very caring helpful with seniors and where ties; church; family strong and Goode attended worked; gainfully employed Goode was for 5- children and con- has four who love him arrest; years years before his Good was 29 1/2 him; tinue to be contact with mother in Goode’s old at the time of these homicides. him; family support Goode took continue JOHNSON, JOHNSON, J., ¶ P. and A. C. there is sufficient find that 98 We V.P.J., concur. circumstances aggravating for the (1) created jury: the defendant by the found LUMPKIN, J., in concurs results. per than one of death to more great risk a LUMPKIN, Judge, in concurs result. (2) probability son; exists there ¶ criminal acts of commit defendant will in the decision to I concur Court’s continuing constitute in judgments that would and sentences violence affirm society. However, disagreement I have some threat case. arrives at those decisions. in how the Court Here, of death is great risk disagree the Court’s decision as I with peo clear that three The evidence is clear. admissibility tape. of the 911 to the room, in the same and killed ple were shot tape. says it finds no relevance to the Court aggrava of this satisfying the elements thus However, than what can be more relevant Dodd, 2004 OK CR See ting circumstance. reporting question of the crimes 31, 106, 1048. Evidence of 100 P.3d at surrounding Regretfully, the it? the events proven the callous continuing threat was analysis fact engages in an after the Court crime, harm threats to of this Goode’s nature the State needed the evidence whether family after the and her Chastain Michelle it relevant or not. determining whether was murder, to kill attempt to hire someone jury thought was It is hard to know what the posses Chastain, prior conviction for and his making, it necessary in their decision but firearm, of a after former conviction of a sion they wanted undeniable would have least District Court felony, in the United States to know how the crime was discovered of Oklahoma.24 Northern District for the reporting it. actions that were taken ¶ 14, State, 28, Harris v. See directly scope tape falls within the This 911 1103,1110. 164 P.3d admissibility approved the U.S. Su- Washington, 547 in Davis v. preme Court evidence, mitigating presented 100 Goode 165 L.Ed.2d 126 S.Ct. U.S. in- and listed an summarized which was just appear this action is It would addition, trial jury. In to the struction na- attempt to the horrific anоther sanitize instructed, that the could decide court benefit. this crime for the defendant’s ture of exist and mitigating circumstances that other in the I believe it was admissible Because Obviously consider them as well. could necessary perform place, it was not first that, even with the jury chose to find analysis. harmless error evidence, should be sen- mitigating agree. to death. We tenced v. 3 While I concurred Walker I have since beyond say, can a reasonable 101 We regarding concerned time become doubt, jury’s verdict was born proclivity for after the fact determi- Court’s prejudice or passion, influence of under the necessary proof in for the nation of what factor, and the evidence any arbitrary other Lowery at trial. OK cases See findings aggrava- jury’s supported (Lumpkin, 1273-1275 CR *18 O.S.2001, circumstances. See ting Part). What J.: Concur Part/Dissent § 701.13. unnecessary to meet burden of may seem fact a convic- requirements after the warranting proof reversal find no error 102 We extremely may sentences; by have been there- tion or convictions of Goode’s making pro- jury’s decision important in the fore, Judgments and Sentences pro- Evidence Code are, Pur- cess. The Oklahoma hereby, AFFIRMED. trial court means evidence “‘Relevant evidence’ 3.15, vides Rules of the Oklahoma to Rule suant 22, Ch.18, tendency to make the existence having any Appeals, Title of Criminal Court the deter- consequence to (2010), any fact that is of is ORDERED the MANDATE App. probable or less the action more filing this mination of delivery and upon the issued without the evi- than it would be probable decision. exhibit No. 145. 24. State's O.S.2001, § 2401. I person designated by
dence’.” would sub- “or by the victim or tape qualifies mit that a 911 for admis- family members of the victim”. Section 984(1) pursuant Washington, supra, sion to Davis v. impact defines victim statements and relevant evidence for admissible as may Section 984.1 present states who victim jury to in their consider deliberations. impact opinion statements. The apparently has confused the two and failed to recognize ¶ 4 disagree analy- I also with the Court’s 984(1) that section allows for the victim im- impact presented sis of the victim pact statement impact include the on a spends Tessa Amaro. While the Court “person designated by the victim family or discussing much family” time the “immediate members of the victim” and that is what was O.S.2001, provision 984(2), § 22of it fails to Therefore, done here. I testimony find the recognize the “or” in the statute that allows by O.S.2001, Tessa Amaro to be allowed person designated by “or the victim or § 984 and 984.1. family testify members of the victim” to 984(1). impact as set out Section opinion recognizes While the Amaro testified representative testimony
as and that the proper, opinion makes the mistake of
thinking impact is restricted to 984(1) family
on the immediate when Section
says impact can family be on immediate