Grant v. State

GRANTED; PREVIOUSLY CERTIORARI THE OF CIV- OF COURT

OPINION III, APPEALS,

IL DIVISION VACAT-

ED; COURT’S DISMISS- DISTRICT REVERSED;

AL CAUSE ORDER PRO-

REMANDED FOR FURTHER WITH

CEEDINGS CONSISTENT

THIS OPINION. V.C.J., HODGES,

WATT, OPALA,

LAVENDER,

WINCHESTER, JJ., concur.

HARGRAVE, C.J., and KAUGER JJ.,

SUMMERS, dissent. OK CR 36 GRANT, Appellant, Marion

John Oklahoma, Appellee.

STATE

DNo. 2000-653. Appeals of Criminal of Oklahoma.

Court

Nov. Rehearing

As Modified Denial of

Jan.

787 Bowen, McTeer, Amy Indigent

James De- System, Division, Capital Sapul- fense Trial OK, pa, Attorneys for Defendant at trial. Stuart, Larry Attorney, District Keith Sims, Pawhuska, Attorney, Assistant District OK, Attorneys for the at trial. State Luker, William H. Sandra Mulair Cinna- mon, Lockard, Appellate James Defense Counsel, Division, Capital Appeals Direct In- Norman, OK, digent System, Defense Attor- neys Appellant appeal. for on Edmondson, Attorney W.A. Drew General Oklahoma, Brockman, David M. Assistant Attorney General, OK, City, Oklahoma attor- neys Appellee Appeal.

OPINION LILE, Judge.

¶ Appellant, Grant, John Marion in- an mate Department at the Oklahoma of Cor- (D.O.C.) rections Connor Correctional Cen- ter, charged Degree with the First (malice) employee Gay Murder1 of D.O.C. L. Court, Osage County Carter in District Case No. The CF-99-28.2 State filed a Bill of alleging aggravating Particulars three cir- previously cumstances: “The defendant felony involving convicted of a the use or person;” threat of violence to the mur- “The person der was committed while serv- ing a imprisonment sentence of on conviction felony;” of a proba- and “The existence of a bility that the defendant would commit crim- inal acts of violence that would constitute a continuing society.” threat A trial was held before the Honorable J.R. Pear- man, Judge. District found Grant guilty charged, as found the existence 701.7(A). 16, § 1. 21 April Supplemental O.S.1991 on 2002. Final briefs evidentiary hearing after a remanded were filed 2. This crime occurred on November 1998. by Appellant April by Appellee on 2002 and place February The trial took in and March 2000 April 2002. sentencing Ap- with formal on March pellant filed his Petition in Error on November O.S.1991, 701.12(1), (6), § 3.21 & Appellant’s 1, in Brief Chief was filed on August argument 2001. This Court heard oral circumstances, Hemphill and set Robert determined that aggravating Carter three punishment Death. died as result sixteen stab wounds. Car- punctured, causing rapid ter’s aorta was resulting in blood loss her death. I. FACTS savagely November Grant fled, On storage 7 The room to where Grant Carter, repeatedly Gay a food stabbed ceiling through has a wire mesh which Cor- supervisor service at the Connor Correction Tony rectional Officer Reeves observed Hominy, Grant used a Center Oklahoma. ignored Grant. Grant orders to lie down on sharpened to a prison-made “shank” similar the floor. held Grant the shank to his chest serving a screwdriver. Grant was total wall, apparently and ran into the in an at- (130) thirty years sepa- four one-hundred for tempt special to stab himself. A team of prison and had been in rate armed robberies correctional officers storage entered the twenty years prior to this offense. for about stabbing room Grant made motions to- previous stay On a at Connor Correctional ward the officers. The officers were able to Center, Grant had worked the kitchen and subdue Grant the use of an electrical however, Carter; job he knew Grant lost this shock device. fighting because he was with another inmate. propositions 8 Grant raises fifteen of er- morning morning 3 The of and the before appeal. propositions ror his These will be murder, argued Grant and Carter over addressed as at trial. arose tray the breakfast served to Giant. The Carter, previous morning get told “I’ll Grant II. JURY SELECTION ISSUES bitch,” you morning and the of the murder stated, Jerry “Your mine.” Inmates A. Kuykendall, jobs James and Ronald who held area, dining argu- witnessed these claims, proposition, in his first ments. that the trial court committed reversible er- by improperly denying challenges ror ¶4 argument, After the last James and against jurors expressed cause two who Kuykendall loitering storage in a saw Grant punishment reluctance to consider all three cleaning supplies kept, ad- area where were options. He claims that he was forced jacent dining main area. left to the Carter accept objectionable jurors other because he building dining go area to to another peremptory challenges re- had to use his where the kitchen was located. When she jurors move these two that have been should returned, pulled grabbed her and Grant her removed for cause. closet, mop into a closet. Inside the stabbed Carter numerous times the chest ¶ begin prem 10 We with the basic holding while her mouth closed. prospective that the decision to excuse a ise ¶ Sergeant 5 summoned Daniel Witnesses juror for cause rests within the sound discre Gomez, ar- the first Correctional Officer to judge, trial will not tion of the whose decision struggling rive. saw Grant still with Gomez unless an of discretion be overturned abuse up then and Carter. Grant stood faced Go- State, 25, Myers v. 2000 OK CR is shown. mez, stare, him looked at vacant cert, ¶ 1021, 1026, denied, 6, 17 P.3d 534 U.S. dining storage ran hall to the across (2001). 228, 900, 122 L.Ed.2d 163 S.Ct. 151 room, carrying while the shank in his still juror’s prospective will review the This Court door, closing hand. Grant shut the himself if entire voir dire examination to determine inside. discretionary proper trial made the court ¶ closet, juror mop prospective left the Id. A must be 6 After Grant medical decision. personnel They willing penalties provided all arrived to aid Carter. found to consider law, juror irrevocably breathing, by not be that she was not could must any signs. punishment to one before tri not find vital Carter was trans- committed ¶ 25, 6, ported hospital, begun. Myers, 2000 OK CR to the but efforts revive al has her were unsuccessful. Medical Examiner 17 P.3d at 1026-1027.

790 specifically 11 Grant claims that he and he must demonstrate that he was forced, objection, keep unaccep- peremptory challenges because over an lost two Warner, juror. 11, table 2001 OK wrongfully denied CR trial court his for-cause ¶ 10, 29 P.3d at 573-74.” challenges jurors Martin. Gee and jurors strongly does not claim that who were State, 16, 16, Matthews v. 2002 OK CR penalty biased toward the death were al 907, jury. lowed to He claims that sit on the Initially juror prospective Gee jurors unwilling Gee and Martin were proven stated that if it were that the murder the two consider one or both of “non-death” “premeditated planned” he would Oklahoma, punishment options. a defen penalty. question vote for the death After disagrees dant who with the trial court’s court, ing by prosecutor trial and the Gee juror refusal to remove a “for cause” must in insisted he would follow the Court’s challenge peremptory utilize a order sentencing all structions and consider three preserve appeal. claim on Ross v. Okla options. Then defense counsel resumed homa, 2273, 487 U.S. 108 S.Ct. 101 questioning by presenting hypotheti Gee (1988). L.Ed.2d 80 you proven cal that “the has State he Ross v. ¶49, 2273, 101 L.Ed.2d 80 move those for cause. Abshier v. must show that the (2002); ¶¶ 113-14, emptory if their relief based on the ty. Warner, prospective juror’s voir 29 P.3d at 573. On tially impair courts should consider the the death death for cause.’ possess actual bias and should be excused need not be resolved in favor of the er, doubts deciding which “Trial CR U.S. biased, ¶11, 6, Warner, also see Ross v. penalty ruling Oklahoma, 991, judges enjoy challenges 717 P.2d regarding juror impartiality 28 P.3d expressed feelings favoring 2001 appeal, prove penalty because he exhausted his their Warner Furthermore, OK CR should have been removed 579, members this challenges 573. This means trial with unmistakable clari- performance juror’s jury sitting State, ^[569] improper 1548, Court prevent ‘broad discretion in [v. 603-04, being forced to re 11, 8, dire State,] 2001 OK CR at 572. bias in favor of ¶ affd will entirety accused, a defendant 1986 OK CR cert, L.Ed.2d or substan- denial of a in the trial the venire weigh 29 as a determine not cause, sub nom 2001 OK ¶¶ P.3d at Howev- 6 & juror. grant must aof who per 13, all would even consider a life sentence for an punishment options. Even after intentional murder. After the move Martin. ed that he questioning by defense judge intentional he “wouldn’t did not assurances tially stated that he would consider all three dure ment would be for someone that committed then started to ask about instructions sentencing options. When defense counsel without got asked Martin what the to kill this woman stated, thought admitted that he was nervous and that he automatically give him about that one. After Gee [Grant] either think, confused. during punishment stage, replied and Gee the evidence and thought “I would abuse its discretion intended to kill this about hearing Gee prosecution explained murder, changed go that he would have to think Prospective replied, it interrupted about it for less go by he would consider all three He and did another than life for Martin stated that he would Clearly his mind and that he “Yes.” Defense counsel his instructions.” Gee given counsel, give no the death appropriate punish it, Juror Martin ini thing, good days but he intended without it his best shot. woman, responded the trial court questions failing Martin stat Martin opportunity reason or he penalty?” parole.” that he further proce to re gave just you ... challenge for cause unless the record affir- 15 The issue is harder whether the trial matively ruling failing that the shows erroneous court abused its discretion in to re- However, appellant’s reduced the number of the move Gee. Grant has not shown peremptory challenges prejudice arguably ruling to his that the erroneous reduced

791 fact, challenges peremptory proof. number of his of this burden of In defense jurors counsel told the that all prejudice, has not shown that he of their defini- his and he good, specifically tions were and he ex- forced, keep objection, to an unac- was over stated, pressed approval jurors of the therefore, who juror; we not decide ceptable need “You to be sure.” we said in have As this issue. State, 40, 2, Simpson v. 1994 OK CR 876 case, In after defense counsel 16 object specifici- P.2d failure to peremptory complement exhausted his ty trial, alleged to errors have occurred at challenges, advised the trial court counsel giving opportunity thus the trial court an if his he had not been forced use trial, during cure the error the course of Martin, peremptory challenges on Gee and appellate waives that error for review....” juror Hargrave. De- he would have removed plain are left We then to review for error peremptory utilized second fense counsel only, go i.e. errors “which to the foundation challenge prospective juror on Gee and his case, or which take from a defendant a peremptory challenge and final on ninth right which was essential to his defense.” Martin. ¶40, 12, Simpson, 1994 OK at CR 876 P.2d ¶ During 17 in-camera voir the individual prospective juror Hargrave, Appellant dire of ¶20 case, plain In this there is no error. cause; for how- moved to have her removed inquiry The main concern is whether the ever, questioning after the trial court and proof necessary lowered the standard of in a counsel, questioning by further defense Har- Louisiana, criminal case. See Sullivan v. grave unequivocally that she would stated 275, 276-81, 113 124 S.Ct. punishments. consider all three After the (1993) (when jury L.Ed.2d 182 is instructed dire, Hargrave Appellant voir exercised his standard, way in a that lowers the the verdict peremptory challenge, but not for Har- sixth cannot be considered a true verdict under trial, grave. Amendment). He claimed at and now on the Sixth In this case the appeal, keep Hargrave, that he was forced to questioning nothing did to lessen the burden juror.” proof. jury who he called an “undesirable How- of The was instructed that the ever, “beyond Appellant’s actions at trial contradict State’s evidence must convince them a reasonable doubt.” Neither the nor Appellant per- this claim. utilized two more State attempted the Trial Court to define the term emptory challenges jurors that he did jurors. questioning for the here was cause, challenge excusing without Har- analogous attempts more distinguish grave. jurors Grant excused a of three total “beyond between the a reasonable doubt” challenge whom he did not for cause after standard, “beyond all standard and doubt” seated; therefore, Hargrave was he cannot perfectly acceptable. which we have stated is jury prejudiced against show that ¶¶ Phillips v. 21- See OK CR him, ruling prejudiced or that the trial courts (such comments are Abshier, any way. him in See OK CR “merely attempts by prosecution to dis- ¶13, 114, 28 P.3d at 604. pel commonly held attitudes rather than at- fact, claim that the Grant does not cert, doubt.”), tempts to define reasonable jury was biased. The focus must be on the denied 531 U.S. prospective jurors ultimately who sat on the L.Ed.2d 56 There is no error here. Abshier, 13, ¶113, jury. Failing in the burden to show C. biased, has not ¶21 eases, potential In all criminal shown that this issue merits relief. jurors routinely are asked about their own personal experiences activity with criminal B. justice system. criminal Potential During selection jurors, in this asked how had were process, prospective jurors were asked to impacted by criminal been crime and the give personal legal their own definition of the justice system. complains, proposi in Grant concept “beyond a reasonable doubt.” Grant six, juror’s response tion that one went too two, complains, proposition in this constitut jury pool. far and tainted the entire This impermissible questioning. ed Not one time particular juror expressed anger over the during object trial did defense counsel to the person fact that the who murdered her fa jurors being personal only years forty- their asked definition ther served seventeen of a

792 D. year counsel re- five sentence. Defense quested a mistrial based on the statements ¶ closely 26 Correctional officers improperly in- arguing that the statements Grant, custody in the guarded who was of the possibility parole early troduced the of during Department of trial. Corrections prospective jurors. to the other This release seven, complains, proposition in juror potential was struck for cause in which these officers were es the method parties. agreement of the courtroom, corting him to and from the vio presumption of innocence. In this lated ¶22 day hearing The next an in camera case, prospective jury panel saw Grant During hearing on the was held issue. courtroom, being from the locked escorted specifically objected defense counsel to an trial, guards. prison arm in arm At with any ques- admonishment the court or to treatment, objected arguing to this tioning jurors regarding impact of the in placing it was tantamount him on them. Counsel felt that statements or and made him like handcuffs shackles look this would serve to reinforce the state- an animal. He raises the same issue here. jurors. ments on the minds of the O.S.2001, 15, § 22 pro 27 Title State, Mayes 1994 OK CR vides, part, person] in “in [a no event shall cert, ¶ 129, 1288, 1316, 887 P.2d denied 513 ... a while in or be tried before chains 1194, 115 U.S. designed shackles.” This statute is to allow (1995), that, this Court stated a defendant the “unrestrained use of his limbs,” “any physical the freedom from legislature’s making in The actions life might bonds or burdens which tend to con parole sentencing option without a viable faculties,” fuse or embarrass his mental degree obviously in first murder cases has prevent prejudice against the defendant previous rulings modified this Court’s inso- interfering presumption from with the of in prohibition far as mandate a blanket State, nocence. French v. 1962 OK CR against jury’s considering parole in ¶¶ 9, 19, 501, 503, quoting 377 P.2d Am. deciding appropriate. sentence is which Jur., p. prisoner “[A] 855. or convict is actions, By Legislature its has created trial, impartial fair entitled to same specialized area law which man- of the and is to be cloaked with full benefit of the possibility dates the must consider the presumption of innocence to which all men parole determining whether defen- French, are entitled.” 1962 OK CR first-degree dant convicted of murder must (cid:127) ¶ 19, 377 P.2d at 504. live die. ¶ However, clearly this Court has jurors must consider the While distinguished of armed between use possibility parole first-degree in a murder guards being in a courtroom and tried while prosecution parole” where “life without is one State, in “chains Vavra v. and shackles.” sentencing options, a trial court must 1384. parameters trying refrain from to define the Furthermore, viewing the unintentional of a parole regard ato certain defendant. being defendant while escorted handcuffs ¶44, 134, Mayes, 1994 OK CR 887 P.2d at outside courtroom does not violate 1317. O.S.2001, § Mehdipour v. ¶23, 14, CR OK opinion are of that the We state- ¶29 potential juror not taint ments did jurors, prospective in this jury pool, required. and mistrial was not fully prison were aware that Grant was potential juror This stated that the defendant charges crime unrelated when this occurred. pled guilty, in her jurors Father’s case and she did The trial court informed the that the pled guilty. not know to which crime he Department of Corrections officers were whole, reviewing prison When the voir dire on we there because Grant was when this “alleged” find that comments did not create re- After place. these crime took defense Grant, objected versible error. counsel to the treatment of before, guards day day the trial court asked the to refrain Carter the and not the of the arms, locking point murder. from and from that objections no more from defense

there were ¶ alleges preliminary Grant that counsel. hearing identification was the first time that James identified him as the one who threat- ¶ escorting find that the 30 We method day ened Carter on the of the murder. He and from Grant to the courtroom did not agent claims that an OSBI who told James 15 of Title nor it violate Section did that John Grant was the one who attacked presumption undermine the of innocence. identification, Carter tainted this and the equivalent The human was not the restraint identification was unreliable because Grant chains, using handcuffs or shackles. sitting was the black man at the defense trial, during Grant was not restrained table. the human restraint was limited to the time being he was escorted and from the court- held, 35 This Court has on more room. There is no error here. occasion, than one that an in court identifica excluded,

tion need not be even if there is impermissibly suggestive pretrial identifica III. FIRST STAGE ISSUES tions, independent when there is indicia of reliability. A. Young v. cert, ¶ 31, ¶ 31 The called in State two fellow against propo mates who testified Grant. (2001). This Court considers all of the sur three, argues sition that one of these rounding circumstances of the identification inmates’ identification of Grant as the one (1) including prior as well as factors day who threatened Carter on the opportunity of the witness to observe the sufficiently murder was not reliable to be during act; alleged defendant criminal admissible. (2) (3) degree witness; of attention of the Jerry working 32 Inmate James was next accuracy prior of the witness’ identifica Carter, hall, dining serving in the (4) break- tion; and, certainty; the witness’s level of morning fast on the (5) of Carter’s murder. He the time between the crime and the con morning testified that on that another inmate frontation. Id. (but hewho did not know whom he identified In the James had suffi- Grant) preliminary hearing and at trial as serving cient time to view Grant in the line to tray tried to take a other than his. Carter identify importantly, later him at trial. More tray go told him to “take the damn on.” loitering dining he saw Grant around the responded, The inmate “You’re mine.” stabbing room and later saw him Carter. that James also testified he saw Grant James said there was no doubt in his dining area after breakfast and that he saw mind that Grant the one who told Car- stabbing Carter. ter, mine,” “You’re and the one who later though attacked Carter. Even six months complains 33 Grant first that James’s elapsed had between the crime initial and the viewing inmate that was involved in identification, this event one that the confrontation with Carter was too brief quite impression have left an on James. support identification. Grant claims especially the identification James was Furthermore, defense counsel thor- damaging ill because it showed will between oughly cross-examined on his identifi- James negated possibili- himself and Carter and pointing cation out the facts there was ty consequences that he did not know the photographic initially line-up, no that he told day his actions on the of the murder. Grant investigators that the inmate who threatened disputes man, James’s identification with the use Carter was a medium built black which Kuykendall of inmate who testified he described five other men in the room at the time, never day saw Grant the line that even agent and that an had told him at OSBI though working he preliminary too was next to Carter. hearing that John Grant was the Kuykendall testified that Grant threatened one he saw.

¶ fully C. supports a The record as whole admissibility of of James’s identification seven, proposition ¶ 42 In ar Grant threatened Carter the as the one who Grant right to confront gues that his constitutional morning The trial court did of her murder. against him was and cross-examine witnesses allowing in the identi- not abuse its discretion court violated when the trial limited testimony. fication Frederick cross-examination of Dr. Smith. by Dr. called the State as a Smith was

B. Dr. testified that he rebuttal witness. Smith ¶39 complains in about the Grant all of Grant’s medical and mental reviewed he de photograph, a which troduction of by Depart records maintained health prejudicial in highly as irrelevant scribes Corrections, by including report of ment eight. photograph, proposition The State’s Dr. Elliot Mason. Dr. Smith concluded that 13, depicts portion of the victim’s exhibit any of mental illness he did not see body. photograph The shows cleaned nude present with Grant. bruising to puncture Carter’s wounds initially sought to introduce torso. The State ¶ cross-examination, attempt- Grant 43 On pictures during an in-eamera three such question portion Dr. about of ed Smith court, hearing, after careful but the trial by which report Dr. Mason contained review, only the State to introduce allowed Dr. Mason that he Grant’s statement photographs. now com one of the Grant thought security people were contaminat- plains photograph cumulative to counsel, objec- ing before his food. Defense report that contained the medical examiner’s State, by attempted to ask Dr. tion Smith showing the of the wounds. a chart location just part report. The if he missed that ¶ photo 40 In order to be admissible questioning trial court ruled that relevant, pho graphic evidence must be beyond scope of direct examination. probative tographs are admissible unless substantially outweighed by the

value is dan ¶ 44 Dr. Part of Smith’s testimo O.S.1991, ger prejudice. of unfair directly ny dealt with the issue of whether ¶ 2402-2403; 25, 33, Myers, §§ 2000 OK CR any signs having exhibited delu photo The 17 P.3d at 1031. admission Smith testified that he had reviewed sions. graphs a matter within the trial court’s is report reaching Dr. Mason’s before his con discretion, and this will not reverse the Court in The statement Dr. clusions. ruling trial court’s absent an abuse report part of Dr. Mason’s contradicted Myers, discretion. 17 P.3d at 1032. opinion signs that Grant exhibited no Smith’s having delusions. “The extent of cross- photograph was relevant because This examination rests the discretion of the closely depicted the nature and ex- it more trial court and reversal warranted tent of of the stab wounds on Carter’s some where there is an abuse of discretion result available, body any in- than other evidence ing prejudice Parker v. to the defendant.” depiction cluding the medical examiner’s State, 1996 OK CR the wound locations on a chart. best jurors evidence would have been to allow 777, 136 occurring. L.Ed.2d 721 it Second

to see the crime as was jurors would be to allow the to view best rule, general proper matter is a “As a body just was stabbed. victim’s after she subject which is re- of cross examination possibilities do not exist These two testimony sponsive given on direct ex- However, this evidence would have case. amination or which is material or relevant prejudicial than the gruesome more been elucidate, and which tends to modi- thereto sterile, body. photograph clinical of Carter’s testimony fy, explain, or rebut contradict ¶ 36, 17 P.3d at Myers, See 2000 OK CR given in chief the witness.” abuse its dis- 1032. The trial court did not 17, 14, allowing the introduction of this Smith cretion photograph. Applying general A these rules to defendant cannot be convicted of attempted second-degree we find that the if murder the evidence estab- beyond scope

cross-examination was not the lishes that he premeditated acted with a in- examination, O.S.1991, 701.8(1); § the trial tent to kill. direct court ¶¶ State, However, 9, inquiry. 23-25, Williams v. should have allowed 2001 OK CR cert, 702, 712, denied, prejudice must be shown. P.3d There was no 534 U.S. (2002). prejudice resulting from 122 S.Ct. Grant the trial case, ruling in this this clearly court’s case. establishes a premeditated design procured to kill. Grant ¶ history 46 There had been no of delusion- prison-made instrument, a stabbing capable years al in behavior the seventeen that Grant causing injuries. fatal He then waited for custody. in had been D.O.C. The failure to by closet, mop Carter come where he single, allow cross-examination on this self- grabbed her and forced her into the small serving days statement made three after room. He repeatedly then stabbed her in Grant murdered kitchen worker and con- the area where organs her vital were located. report impact in a tained second-hand had no simply The evidence support does not a find- jury’s guilt on the determination of or the ing that he premeditated acted without a Therefore, sentence in ease. this we find design to effect death. ruling that the trial court’s was harmless ¶ beyond First-degree manslaughter requires reasonable doubt. person that a passion” act with a “heat of by “adequate provocation.” caused 21 O.S. IV. FIRST STAGE INSTRUCTIONS 2001, § 711. support No evidence exists ¶ claims, proposition 47 Grant Therefore, either of these elements. the trial four, that the trial court committed error failing court did not err in give this re- failing jury to instruct the on lesser-included quested instruction. argues offenses. Grant the trial court ¶ proposition, 51 Within urges this Grant should have instructed on the lesser offenses recognize this Court to capaci- a “diminished second-degree first-degree murder and ty” degree defense first murder wherein a manslaughter. argument His is based on incapable defendant is forming specific that, claims, evidence of his mental illness he illness, yet intent due to mental something precluded forming him from specific ele complete insanity. less than compares He ment aforethought necessary of malice for a type this of defense to the intoxication de- first-degree trial, murder conviction. At fense. only requested jury Grant in be ¶52 first-degree By accepting defense, structed on the lesser offense of Grant ar manslaughter. gues capacity that the diminished less en the Degree “depraved offense to Second duty 48 It the trial court’s to mind” Degree Manslaugh Murder or First jury instruct the all on lesser related offenses ter. We need not reach the issue of a “di evidence, supported by that are even capacity” minished defense in this as request absent a from a defendant. Shrum regarding Grant’s evidence his mental illness State, 41, 6, v. 1999 OK CR 991 P.2d did not show that he suffered mental infirmi However, the trial court is re ties that would incapable have rendered him quired to instruct on lesser offenses that are forming specific necessary. intent Cf reasonably supported by the evidence. State, 39, 67, Jackson v. 1998 OK CR Shrum, 41, 11, 991 P.2d at 875, 892, 1008, 119 526 U.S. objective 1036. “The test is an one—we do 1150, 143 L.Ed.2d 217 ask to consider a lesser if offense rationally no could find both that the V. SECOND STAGE ISSUES lesser offense was committed and that ¶53 greater State, complains offense was not.” Frederick v. proposition ¶34, 137, prior OK CR 37 P.3d 943-44 eleven the use of his convictions to (emphasis original). prove circumstances, aggravating “prior two mitigation evi violated because rights were “murder committed felony” and

violent given treat are stricter felo- and witnesses of a dence on conviction person incarcerated are vic code than aggravating cir- under the evidence duplicitous ment ny,” resulted argues Finally weighing pro- impact witnesses. which skewed tim cumstances impact evi in Green of victim this issue the introduction addressed cess. We right Eighth State, Amendment CR violates 1985 OK dence cert, 1040-41, sentencing proceeding. To the denied a reliable (1986), on overruled issues raised L.Ed.2d 165 are different that there extent trial, 1986 OK by Brewer v. we will grounds raised at appeal other than those ¶ 354, 365, 51, n. 1. In 55, Green is only. 718 P.2d Plain error plain CR error review circum- aggravating that the two deprives we stated a defendant of constitu error different here cover complained goes statutory right, stances and tional or history. State, criminal aspects a defendant’s Stemple .of v. case. of the foundation on a ¶ focuses aggravating 61, 69, circumstance 4, 37, cert. One P.2d 994 2000 OK CR histo- pattern of violent criminal 247, denied, 905, defendant’s 148 121 S.Ct. 531 U.S. on his conduct ry the other focuses (2000). while L.Ed.2d 178 Green, 126, CR prison. 1985 OK in while ¶57 are contents of the statements ¶ 26, find that our at 1042. We 713 P.2d here, portion in except for a not at issue for determi- reasoning in is sufficient Green sentence, there is a recommendation which our we will not revisit of this issue and nation say it to later. Suffice which we will discuss using in evi- no error There was decision. complies of these statements that the content robbery sup- convictions dence of Grant’s impact victim state- the limitations on with aggravating circum- port of these both legisla- in our case law and ments set forth stances. tion. twelve, ¶ claims, proposition in 54 Grant ¶58 previously held that have aggravating cir- We “continuing threat” that the evidence, the nar impact which meets unconstitutionally vague victim and is cumstance definition, relevant in a first- rowly is narrowing process. defined proper not serve the does State, Cargle prosecution. v. degree murder upheld the repeatedly have constitution- We ¶ 806, 828, 77, 75, cert. 909 P.2d and CR aggravating circumstance 1995 OK ality 100, 831, denied, 136 117 S.Ct. Myers, 2000 519 U.S. here. this issue will not revisit (1996). ¶¶ after Cargle was decided 70-74, L.Ed.2d 54 17 P.3d at 1036-37. OK CR adopted “victim im legislature

this State’s IMPACT EVIDENCE VI. VICTIM response in United pact” statutes Payne v. decision Supreme Court’s States evidence, in this impact 55 Victim Tennessee, 115 by written Car- of two statements consisted 720 L.Ed.2d respectively. daughter and brother ter’s and read the first statement sister re- impact Carter’s evidence should be “[V]ictim ninth the second. his friend read unique Carter’s characteristics those stricted to complains died, the meth- about proposition, Grant individual who has define the which pre- impact evidence was in which victim od cir- contemporaneous prospective reading object death, not Grant did surrounding sented. cumstances statement, object to he did financially, first but of the have circumstances how those being by a “non- read second statement physically emotionally, psychologically, O.S.1991, 22 family in violation of member” im- of the victim’s impacted on members § family.” mediate ¶77, 75, at 828. 909 P.2d Cargle, 1995 OK CR argues that Appeal, Grant 56 On the rules of held that This has also Court right of confrontation Amendment his Sixth testimony. impact apply to victim right to effective evidence Amendment his Sixth ¶ 37, State, 19 P.3d CR v. 2001 OK of Hooks by the introduction was violated counsel — denied, —, 122 294, 313, U.S. argues hearsay He also statements. (2001); 371, 151 v. 282 Conover L.Ed.2d Process S.Ct. Due Fourteenth Amendment his

797 6, 72, State, independent that the readers had knowl- 933 P.2d OK CR 1997 984.1, § O.S.Supp.1993, edge of the facts the statements. There “Pursuant may family an im- family member no about also whether the victim’s through through testimony pact or members that wrote the statement statement were State, Hammon sentencing. statement.” attendance at written ¶7, 32, 1082,1091, cert reading 62 We find that the of the state- 1090, 121 U.S. parties comport did ments third not (2001). Clearly legislature L.Ed.2d 697 O.S.2001, provisions § of either 21 701.10 written statements to be admit- intended for O.S.2001, §§ & our or 984.1 or with statutory spite rules of evidence. ted not, prior cited case law above. Grant could the confrontation clause this offends Whether so, validity if to do he had chosen test the here. is the issue through meaningful the statements cross-ex- 5, CR In Ledbetter v. 1997 OK amination; therefore, right of confronta- ¶¶ recognized the we tion was and error occurred. hindered person designated by “a victim fact that ¶ Nevertheless, chose may members of the victim” challenge impact the content of the victim However, impact present victim statements. presented in an evidence this case even after legislature the that the intended that we held hearing in parties in-camera which all re impact “person chosen to the victim the viewed the statements and knew that thoughts or should use his “own statement” by parties. statements would be read third a express impact of death the observations objected, Ledbetter, merely during the in-camera 1997 of the victim.” on survivors ¶ reader, hearing, Larry the 38, second 5, P.2d at In Led bet- CR 933 893. OK Young, a ter, holding was not “member of the person allowed the chosen immediate our O.S.2001, family” § in 22 family as defined 984. members and to use those observe however, statement; in that The trial chose to wait rule this the court observations time, may composi- appropriate not receive aid in the issue at a more but Grant person reader, objection to statement from sources. raised no either includ tion of the outside ¶ Ledbetter, ing Young, impact the time 1997 OK CR 933 P.2d at the victim presented. evidence was 893.

¶ mind, thoughts we ¶ these 60 With choice, strategic may have 64 As a this process introducing a struggle with the of respective If the been a rather wise move. jury. impact the written victim statement testified, statements had the authors of the Usually written statements are intro- when surely would have been witnesses duced, sponsorship method of must be some highly outbursts. Grant’s choice emotional person prepared Either the who utilized. by in allowing the statements to be read identify the document someone who can parties the be these allowed statements to testify. and authenticate the document must prejudicial presented in less manner. O.S.2001, Alternatively, § 12 See ¶ Many 65 times this Court has found that may stipulate authenticity parties to the improperly impact victim evi- introduced the statements and allow the introduction Usually is due to the dence is harmless. this objection. without aggravating circum- fact that evidence ¶ case, ag- overwhelming, In 61 stances is evidence of the the statements outweighs clearly prepared gravating members the victim’s circumstances were evidence, family mitigation im- designees, and read court be and the victim short, pact “extremely far cause there was some indication that statements are get than the factual details of members would not be able less emotional evidence, breaking no through already statements death and of little or without 4 emotionally. weight in down There was no evidence and of themselves.” Thornburg 32, 13, 344, 352; State, OK 28 P.3d v. 1999 OK CR State, 4. See Abshier CR 15, 8, State, Welch v. 2 P.3d Darks v. 1998 OK CR 579, 606; State, 1234, 2000 OK CR 985 P.2d Selsor v. P.2d 356, 373; State, 2000 OK CR Therefore, can- Grant, he here, specific ¶ facts of his case. prison true The same is felonies, rights process were that his due inmate, serving for violent not show sentences employee over violently prison violated. stabbed dispute about his breakfast type of some that the intro Lastly he claims circumstances tray. aggravating The three violates the impact evidence duction of victim obviously outweighed clear and

were sentencing right to a fair Eighth Amendment mitigating evidence. times held numerous proceeding. We have fact, object In Grant does impact evi presented victim properly statements, nor impact the victim content of Eighth Amend not violate the dence does have cross-exam- say how he would does he that the method further find ment. We who wrote statements. ined the witnesses presented here did the evidence was which are the statements not claim that He does Eighth Amendment. not violate He are insincere. untrue or that the writers way by the prejudice before, or harm no does has shown 71 As stated presented impact request the victim for the sentence complain about the fact, it was the method in which here. We of death in each of statements. harmful may have been least presented height with a types of claims review these except presen- the mere method available degree scrutiny. Taylor v. ened jury. to the of the written statement tation Therefore, method was any error in this 1157, 121 S.Ct. beyond doubt. a reasonable harmless each In this identical and consisted request was almost Further, properly in- jury was request: “I believe that John one-sentence impact evidence. on the use of victim structed penal the death Marion should receive instructed, pursuant OUJI was ty.” (2000 (2d) Supp.), victim evi- 9-45 CR they after may be considered dence ¶ that a previously has held 72 This Court ag- more of one or “first find the existence a belief impact that contains victim statement proven be- has been gravating circumstance pen- receive death that the defendant should by evidence inde- yond a reasonable doubt admissible, simple alty but it must be impact evidence and pendent from the victim sentence of the recommended statement circumstance(s) aggravating find that Conover, amplification. 1997 OK CR without finding one or more outweigh the found ¶ Ledbetter, 6, 70, 921; 1997 OK 933 P.2d at This instruction mitigating circumstances.” ¶5, 31, exactly That is 933 P.2d at 891. CR sentencing jury’s de- properly channeled the find that this short what we have here. We cision, jury properly and we find that reliability undermine the statement did not followed the instructions. imposed. of the sentence ¶ further assertion that 69 Grant’s ¶ presented argument re- has no 73 Grant process because victim he was denied due in this impact evidence garding the victim scrutiny than impact given less evidence is requires relief. case that unpersuasive. mitigation evidence is also historically impact evidence has been Victim STAGE INSTRUCTIONS VII. SECOND scrutiny we have al close viewed with fourteen, ¶ claims, proposition in 74 Grant evidence to victim ways applied the rules of permitted mitigation on that the instructions Namely, victim impact because evidence. mitigation and diminish- jurors ignore remind the impact is intended to evidence pre- mitigating evidence ed the effect of an individual that “the victim is sentencer in his case. sented may represent unique loss to death whose consistently rejected the claim family!,]” “We have society and that victim and the they ‘may instructing consid- may in deter impact evidence be considered doubt as mitigating creates a er’ evidence appropriate punishment. OUJI mining the duty (2000 Furthermore, to consider (2d) jury’s constitutional Supp.). to the CR 9-45 recently reaffirmed deal with the such argument does not Grant’s State, holdings testimony in help. those Welch OK would be of little He felt ¶ 8, 49, 2 they CR P.3d if like testified about relationship, their they L.Ed.2d would be vulnerable on cross-examina- (2000).” they tion because hadn’t had contact him since he had been incarcerated. 3, 56,19 Pickens v. 866, 883. We will not revisit this issue in this found, 78 The concur, trial court and we case. family members could have been contacted with the use of information located VIII. INEFFECTIVE ASSISTANCE prison in they Grant’s records and COUNSEL CLAIMS OF willing have testify been at trial. The trial family 75 No members were called court also found that the witnesses’ testimo- provide mitigation evidence on Grant’s ny would have been cumulative to each other thirteen, proposition behalf. Grant claims positive and would not impact have had a that the failure to call certain mem jury. agree. We stage bers in the second constituted ineffec Grant, mother, 79 Ruth Appellant’s testi- evidentiary tive An assistance counsel. single fied she was a mother who raised 3.11, hearing pursuant held was to Rule Appellant and six of siblings impover- in Rules Oklahoma Court Criminal n ished conditions. She testified that (2001), Appeals, App. Title Ch. where City moved to Appellant Oklahoma when in the supple record this case could be years five old. She testified that he started regarding mented with the evidence this is getting into trouble when he was nine. She rule, sue. Pursuant to this the trial court spent boys’ testified that he time homes findings made written of fact and conclusions finally spent juvenile time in prisons. two give strong of law. We deference to the Oregon She moved to Appellant 1979while findings of fact and conclusions of law of the was incarcerated. She testified that she vis- determining propositions; trial court Appellant year ited for about one hour each however, we shall determine the ultimate prison. while he inwas regarding issue effective assistance of coun Appellant’s siblings sel. Several of Rule 3.11. testi- They fied. all Appellant testified that ¶ During evidentiary hearing, trial not violent anyone toward them or toward why family counsel was asked he did not call They Appellant household. testified that mitigation members as He witnesses. testi- grew up figure, with no except father for an fied that there were two main reasons. uncle, Clayton Black, nearby. who lived First, Grant basically told him that he no had They they also testified that would have family contact with his since he left at home jury spare asked the to Appellant’s his life. age of fifteen and was incarcerated since biological father testified that he had con- no age of nineteen. Grant indicated that he Appellant, tact with but would have asked family did not know where his was located jury spare his life. Oregon. other than somewhere in Grant told family him that he didn’t want his involved in ¶ 81 In order to show that counsel proceedings. Regardless, Bowen did ask failing was ineffective for this investigators try his and contact Grant’s trial, evidence at Grant must show both defi family. investigator One testified that he performance prejudice. cient Strickland family was unable to locate Grant’s before Washington, 466 U.S. 104 S.Ct. Grant, Appellant, testify trial. John did not (1984).5 80 L.Ed.2d 674 In hearing. at this Strickland, say the Court went on to ¶ Secondly, 77 strong presumption Bowen testified that be- there is a that counsel’s family cause the range members had no close con- conduct falls within the wide of reason conduct, twenty years, professional i.e., tact with Grant in appellant some their able an Cone, mitigation 5. The Strickland standard continues to be the lize evidence. Bell v. 535 U.S. examining correct test for (2002). claims of ineffective 122 S.Ct. assistance of counsel where counsel fails uti- time, that, home, at the for the first under that he left presumption overcome the must had been age He testified that he circumstances, of twelve. conduct consti- counsel’s years. Strickland, institutions since his teen in and out of strategy. trial tuted sound age he reached the that when 689,104 He testified at 2065. at S.Ct. U.S. prison to adult he was sentenced seventeen prejudice, Grant To establish year. that once one He testified and served proba that there is a “reasonable must show the robberies for got out he committed he that, unprofessional bility but for counsel’s when this crime he was incarcerated which errors, proceeding would result family place. apologized He took probabili A reasonable been different. have mitigating evidence Grant the victim. The to undermine ty probability is a sufficient attorney was ineffective now claims his Strickland, 466 in the outcome.” confidence repeated have Grant’s presenting would 694,104 at 2068. at S.Ct. U.S. own account of his childhood. capital of a sen pre- the context Considering all of the evidence inquiry is tencing proceeding, the relevant evidentiary hearing, at trial and at the sented probability there is a reasonable “whether that trial conduct we do not believe counsel’s errors, that, ... the sentencer range professionally absent the wide “outside Strickland, the balance of concluded competent would have 466 U.S. assistance.” mitigating circumstances aggravating presentation at 104 S.Ct. at 2065. The Strickland, 466 U.S. did not warrant death.” would have reinforced of this evidence 695,104 at 2069. repeat at S.Ct. has as a offender who Grant’s status psychiatrist Romano, trolled trial counsel’s actions mony been treated for formance gating ness of counsel’s actions dromes. exclude his own statements U.S. Gibson, L.Ed.2d 548 [v. Although trial counsel has ital sive to mitigation, (holding counsel’s ¶ cient, duty evidence or er’s wishes not to substantially influenced 85 Trial counsel did at Ward], and a sentencing proceeding was not defi- evidence where counsel 239 F.3d was not deficient. The investigate testified that Grant prison psychiatrist. The wishes counsel also challenge F.3d at 1181. Grant’s 191 F.3d including We find that counsel’s U.S. or actions. any from the performance during cap- of his present 1046, 122 mental illness acquiesced in at State’s may be determined present some miti- ^[1235] Grant’s client, has to be 2066; proceedings make a case Strickland, 466 (10th an the defendant’s any mitigating evidence). in this case. independent see Wallace Romano v. reasonable at 1247-48 had never own testi- Cir.2001), petition- 628,151 respon- wish to or prison per syn- con- rendered his sentence would not have made two, more tioning regarding failure to ineffective assistance between the would have been failure to find ly claims that he had shown 3114, 3126, of reasonable assistance. failure to ent their spent the sentence deficient er v. could not show knew has had no have asked the Even ¶ members 88 Grant has made no we determined Kemp, though they analogous nothing about his conduct Finally, given. testimony preserve performance, majority meaningful contact with the fami- the failure to who would have testified. In “beyond a reasonable doubt” that he was doubt constituted ineffective deficient our discussion Grant claims this evidence. expected their certain testified of his life in that the attempts to 776, 795-96, 107 S.Ct. unreliable. of counsel. He first trial or that personal definitions performance, object members and spare errors constituted difference prejudiced by the showing that the questioning his the result of prison. the failure proposition distinguish jury ques- See counsel’s life, Even prison. in the Burg- pres- They He if standard, ¶ childhood, “beyond all doubt” standard and testified about his 86 Grant perfectly acceptable. have stated is and which we eight that he had brothers and sisters factor, Therefore, object passion, prejudice. failure to did not counsel’s or The facts of performance. overwhelming to deficient this case and the amount evidence of aggravating simply circumstances war- claims that fail 90 Grant also penalty ranted the of death. proper objections ure of his counsel to make ¶ 94 We find no error warranting reversal impact constituted in to the victim evidence of Grant’s conviction or sentence of death for dealt with effective assistance. We counsel’s murder, first-degree therefore, Judgment regard impact to the performance with victim is, and Sentence of the trial hereby, court proposition in our discussion AFFIRMED. that trial nine. Our conclusion was counsel decisions; reasonably strategic made there P.J.,

fore, LUMPKIN, JOHNSON, performance V.P.J., his was not deficient. STRUBHAR, J., that trial Grant has not shown counsel’s con concur. pro duct fell below reasonable standards of CHAPEL, J., dissents.

fessionally any competent assistance area. CHAPEL, Judge, Dissenting: IX. CUMULATIVE ERROR 13, 1998, 1 On November John Marion urges pro 91 Grant us to consider his Gay Grant killed laying Carter in wait for posed prop errors a cumulative fashion her, her, grabbing dragging tiny her into a fifteen, if osition we find that none of them Center, room at the Connor Correctional individually necessitate reversal of his convic repeatedly brutally stabbing her tion and sentence. We have reviewed the previously death. Grant had worked for effect, any, if case to determine the of Carter, who a civilian supervi- cafeteria alleged Grant’s accumulation error. We According always sor. to Grant she had find, fashion, even in a cumulative viewed him, been kind to and he her considered require errors we identified do not relief. only prior dispute “friend.” Grant’s Woods v. disagreement relating Carter was a to his 1150, 1154. tray day breakfast on the before the murder again day on the of the murder. On X. MANDATORY SENTENCE occasions, however, both he threatened Car- REVIEW. ter; and after breakfast was over on the day, second he killed her. O.S.1991, 701.13, § 92 Title 21 requires this Court to determine the sen- “[w]hether ¶ 2 unprovoked The vicious and attack was imposed tence of death was under the influ- by eyewitnesses, observed and Grant was passion, prejudice any ence of or ar- other apprehended holding afterward still the mur- factor; bitrary and whether the evidence weapon. any der Thus there was never jury’s supports judge’s finding of a doubt it was Grant who killed Carter. statutory aggravating circumstance.” Suffi- addition, significant because Grant had no support finding cient evidence existed to illness, history of mental nor did doctor statutory aggravating the three circum- insane, ever determine that he was an insani- prison serving stances. Grant was a sen- ty defense had no realistic chance for success felony; tence for conviction of a he had Furthermore, at trial. because Grant com- violence; involving been convicted of felonies serving 130-year mitted the murder while prior past and based on his violent and the prison robbery sentence for four armed con- crime, jury violence of this could rea- victions, aggravating two of the three circum- sonably conclude that there was the exis- alleged capital in stances his trial were es- probability tence of a that the Grant would (i.e., sentially prior incontrovertible violent commit criminal acts of violence that would convietion(s) felony and that the murder was continuing society. constitute a threat to serving felony prison while committed a sen- tence), reviewing 93 After practically given entire record and the third a (ie., posed this we find that the continuing sentence of death as well that he a threat violence). imposed any arbitrary was not because of of future 802 life, etc., plead to for his ing of friends or Consequently, the essential task 3 trial, or in combination. Yet almost though at dif- either alone assigned counsel

Grant’s thing in sure, approaches of have one patently have been all these ficult to be should common; they rely presentation on the of jury spare life. give the a reason to clear: relating mitigating evidence to the individual certainly obligated to hold the Counsel centrality mitigat- Hence the proof throughout and defendant. to its burden of State capital ability. ing within a trial has been of his evidence to defend the case to best by repeatedly recognized the United crime and States Yet the circumstances of the Court, Court, history Supreme this and courts compel the conclusion Grant’s country.2 only provided throughout could be assistance effective (or give jury attempting to this case only mitigating 5 evidence can be Such juror) spare to single some reason at least a presented if it first discovered. Hence the is life.1 Grant’s Court, Court, Supreme and other courts that effective assis- persuading jurors spare have likewise insisted goal 4 The requires that defense person already have tance of counsel at trial the life of a develop diligently to obtain and degree pur- murder can be counsel seek convicted of first regarding mitigating evidence the defen- through at trial number of different sued obligation attempting “human- dant.3 And this includes investi- approaches, such as defendant, gating pursuing mitigating evidence re- suggesting that he de- and ize”- the background mercy lating to the defendant’s sympathy or because of serves some history, family history.4 Defense counsel who have present- his life the circumstances of State, case.”); capital jury Wallace v. 1995 OK CR a can sentence a defen a 1. In Oklahoma 19, 504, ("It beyond question if it that at least one 893 P.2d is dant to death first finds mitigating statutory evidence critical to the sentencer in aggravating exists in the circumstance denied, case.”) (citations omitted), circumstance(s) capital aggravating a case and that 888, 232, outweigh mitigating 116 S.Ct. 133 L.Ed.2d 160 circumstances in the 516 U.S. (1995). O.S.1991, § 701.11. Yet even when case. See 21 findings, jury it a made both of these none has a theless remains free to sentence defendant 393, See, Williams, e.g., U.S. at 120 S.Ct. 3. State, Carpenter parole. v. life or life without See (reversing capital sentence where "it is 1000; 56, 988, Walker v. 1996 OK CR 929 P.2d undisputed right indeed, had a a Williams — 273, State, 116, 284, cert. 1986 OK CR 723 P.2d constitutionally protected right provide the —to denied, 599, 995, 479 U.S. 107 S.Ct. 93 L.Ed.2d jury mitigating with the evidence that his trial capital jurors always offer”); retain the Thus failed to discover or failed to counsel either defendant, right regardless spare the life of the State, 13, 28 2001 OK CR v. Abshier specific the case. If even of the circumstances of 579, (recognizing duty defense counsel's 600-01 juror a defendant to one refuses to sentence mitigating capital investigate evidence death, impose cert, a sentence of the trial court must 1548, case), denied,-U.S.-, 122 S.Ct. parole. or life without See 21 O.S. either life (2002); Reynolds, 152 L.Ed.2d 472 Brecheen v. 1991, cannot, ("If § 701.11 within a Cir.1994) (10th (emphasizing F.3d time, agree punishment, reasonable as to capital attorney duty defense to con “has judge impose a sen shall dismiss the investigation, including an in duct a reasonable imprisonment parole tence of for life without or vestigation background, defendant’s life.”). imprisonment for evidence”) mitigating (emphasis opinion), possible rt. 515 U.S. 115 S.Ct. ce Gibson, (1995); v. 132 L.Ed.2d 817 Mitigating plays a central role in Battenfield Cir.2001) (10th (empha determination, 236 F.3d 1226-34 jury’s sentencing capital both in sizing importance capital critical counsel’s mandatory "weighing” aggravating evidence, duty develop mitigating out seek mitigating the ultimate se- circumstances and in defendant states that he does not even where penalty lection of for defendants who are "death trial). any mitigating evidence at want to eligible," process bound a selection that is not See, any particular guidelines e.g., standards. See, Williams, Taylor, 120 S.Ct. e.g., Williams v. 529 U.S. at (2000); ("Mitigating (noting capital evi- defense counsel's "obli- may dangerousness thorough investigation gation dence alter the unrelated to to conduct Warner, jury’s background"); penalty, even if it does not defendant's selection of prosecution’s death-eligi- (finding rebut the ineffective assistance of counsel undermine or case.”); attorney necessary steps bility to take where failed Warner 569, ("It beyond to dispute that ensure that defendant’s mother was allowed 29 P.3d 575 is trial); stage testify during capital Bre- mitigating second evidence critical to the sentencer in is

803 ¶7 diligently sought develop Although to obtain and such attorney an is entitled to enjoy deciding evidence broad discretion make strategic reasonable decisions about present how to it at trial and even whether to investigate which leads to and how far to present Capital it at all. counsel have no pursue particular investigations, strategic de- discretion, however, simply neglect to to seek cisions made incomplete after investigations out such evidence. according will be evaluated to the reasonable- ¶ Although plea mercy a for 6 naked could attorney’s ness of the decision to limit his or possibly constitute effective assistance in a investigation, her under all the circumstances (such particular diligent case as where of the case.6 In capital decisions investigation mitigating did not reveal viable approach about what pursue and what evidence), approach such an can be present evidence to stage, the second chosen after counsel first seeks to obtain when made adequate investigation without mitigating relating evidence to the individual potential evidence, mitigating justi- cannot be capital defendant. It ais cardinal rule of by merely invoking fied the mantra of “strat- (and logic) defense that counsel cannot be 7 egy.” exercising neglect- his or her “discretion” in ing present particular mitigating evidence error, proposition his thirteenth if counsel does not know that such evidence Grant claims that his trial counsel was inef- Similarly, exists. counsel cannot “reason- failing fective adequately for investigate ably” particular type decide not to present mitigating and evidence from mem- mitigating in- evidence—such as evidence family.8 sought bers of his an eviden- volving a defendant’s childhood and issue, tiary hearing 4, January on the and on history counsel does not first discover —if 2002, this Court remanded this case to the develop degree, and such evidence to some evidentiary district court for an potential impact hearing such that lim- its can be under- realistically stood and solely evaluated.5 ited to this evidentiary issue.9 The cheen, Brecheen, (duty investigate possi- ("[I]t 41 F.3d at 7. See impor- 41 F.3d at 1369 mitigating capital ble evidence in case includes tant to note that 'the mere incantation of "strate- duty investigate background); gy” attorney defendant's does not insulate behavior from review, Battenfield, (granting attorney F.3d at 1226-35 sec- an must have chosen not to ond-stage habeas present mitigating relief where counsel failed to having evidence after investi- parents gated interview defendant’s and other background, relatives the defendant’s and that possible mitigating and friends about evidence in choice must have been reasonable under the cir- ”) background). (citations (emphasis defendant’s opinion) cumstances.’ omitted); Battenfield, (finding 236 F.3d at 1229 investigate that counsel’s failure to defendant's 1155, Reynolds, 5. See v. 168 F.3d 1166— Stouffer background left him “unaware at the time of trial (10th Cir.1999) (rejecting argument that coun- mitigation strategies accompany- of various present mitigating sel’s failure to character evi- ing pieces pre- of evidence that could have been decision,” dence was “tactical where counsel during mitigation phase by sented [defen- investigate possible mitigating failed to family”). dant] or his friends and strategy illogical). and asserted 8. Claims of ineffective assistance for failure to Washington, 6. See Strickland v. 466 U.S. adequately investigate present mitigating evi- 690-91, (1984) 104 S.Ct. 80 L.Ed.2d 674 essentially dence are treated in the same manner ("[Strategic thorough choices made after inves claims, as most other ineffective assistance re- tigation plausible of law and facts relevant to quiring attorney performance both deficient options virtually unchallengeable; are and strate Strickland, prejudice to the defendant. See gic complete choices made after less than investi 686-87, 2052; Williams, U.S. at 104 S.Ct. gation precisely are reasonable to the extent that 390-91, U.S. at 120 S.Ct. 1495. professional judgments support reasonable words, investigation. limitations on In other duty investiga grant counsel has a evidentiary hearing, make reasonable In order to this tions or to required a reasonable make decision that Court was to find and did find that particular investigations unnecessary.”); "by makes convincing Grant had shown clear and evi- Morrison, 365, 384, strong Kimmelman v. 477 U.S. possibility there is a dence that his trial (1986) (quoting 91 L.Ed.2d failing develop counsel was ineffective Strickland); present mitigating see also Brown evidence from members of 3.11(B)(3)(b)(i), family.” [his] See Rule Rules of Appeals, the Oklahoma Court Criminal Title 804 they if had been asked have testified February and would

hearing held on was findings and its of fact do court filed to so. the district regarding the remanded of law conclusions Andrea, Ruth, LaRonda, Ann, Ruth 11 3, 2002. April

issue they that were Gregory, and O.C. testified gives strong Although defer- this Court 9 during the living in the time from Portland sup- findings that are to court ence district Gay killing of Carter November record, majority opinion by ported February/March trial. through Grant’s retains correctly recognizes that this Court living in he Los testified that was Ronnie authority whether to determine the ultimate the district Angeles during that time. Yet inef- performance constituted trial counsel’s family nine specifically found that all court Furthermore, of counsel.10 fective assistance tes- and would have members “were findable supported by findings are not that trial court they if had been asked.” This tified at trial “strong defer- not entitled to the record are amply supported by evi- finding is factual ence.” evidentiary hearing, presented at dence family whose of the members 10 All nine majority “we today’s states that and Court applica- attached to Grant’s affidavits were family have members could that concur evidentiary hearing at testified for an tion of information contacted with the use been family hearing. mem- evidentiary These and prison [that] records located Grant’s Ruth L. as follows: are related Grant bers willing testify at they would have been (father), (mother), Clay- Walter Grant Grant found that The district court also trial.” (maternal uncle), Ronnie Grant Black ton. develop mitigat- “trial counsel did little (oldest brother), (older sis- LaRonda Hovis persons have ing that these could evidence” (older sister), ter), Burley Ruth Ann Grant sup- finding amply This is likewise offered. half-sister), Gregory (younger Andrea Grant disputed ported by the record and is not half-brother), and Frazi- (younger O.C. majority.13 today’s half-brother). nine Of these (youngest er ¶ Nevertheless, court also the district members, from their family six traveled family calling members “[n]ot concluded Portland, Oregon to attend homes in strategy and not testify at trial was trial family members testified hearing.12 All nine part.” The oversight an on trial counsel’s they were never contacted defense finding trial, specific make a they court did not but that district regarding Grant’s counsel 930, (1998). evidentiary hearing App. Our Ch. 18 find- 141 L.Ed.2d district court to make ordered the remand (1) availability evidence and ings about Andrea, Ronnie, evidentiary hearing, Ruth, LaRonda, Gregory, presented at the witnesses (2) currently probable they effect of these witnesses live in Port- and O.C. testified trial, (3) land, they/it presented been Oregon evidence if had thereof. suburb . present develop and these the failure to whether trial this evidence was a matter of witnesses and trial counsel testified at the evidentia- 13. Grant’s (4) strategy, the evidence and wit- (Steve whether investigators ry hearing that two different or would have been cumulative nesses would Remington) Leedy on Grant’s and John worked jury's sentencing determina- have affected investigators to arid that he directed these case (B)(3)(b)(iii). We also direct- Rule 3.11 tion. See family. try He to locate members of Grant’s to determine whether ed the district court give that Grant did him names of some testified mitigating right waived thought gave and that he he these of his relatives so, family, the waiver and if whether from his investigators Trial counsel to the too. names intelligent. knowing saying know that he did not vacillated between investigators ever found whether either 3.11(B)(3)(b)(iv). saying Rule that he knew 10. See members ac- to do so. Counsel were not able State, brought envelope knowledged an that Grant him Glossip CR v. 2001 OK 11. See during ("This with his mother's name and give the trial will the trial court's Court it, gave the and that he supported by local return address on findings strong ord, the rec- deference if attempt Investigator Remington to' letter to determine ultimate issue but we shall her, ineffective.”) what (empha- but stated that he did not know contact whether trial counsel 3.11(B)(3)(b)(iv)); regard. added) happened Trial counsel acknowl- (citing in that see also Rule sis 1, 17; State, edged asked for a continuance that he never CR 959 P.2d 1998 OK Wood any of Grant’s relatives. find Humphreys v. performance whether trial counsel’s counsel’s develop about failure to seek out and “reasonably regard constituted effective this mitigating family evidence from Grant’s was assistance,” finding the that but court’s coun- reasonable. strategic present made a decision not to sel general, 14 In both the district court and testimony anyone family the of from Grant’s (without today’s majority opinion actually contacting speaking appear or to ever confuse any person), with such as well as the overall (1) and conflate two distinct issues: defense findings, suggests the tone court’s that obligation counsel’s investigate to and devel- perfor- that district court concluded counsel’s op mitigating regarding evidence capital adequate regard. mance was in this In addi- background family history, defendant’s and tion, today’s majority makes its own determi- (2) subsequent and the strategic decision performance that trial nation counsel’s mitigating about what present evidence to to adequate regard, seemingly in this based jury. the Grant’s counsel did not make a upon its own factual determination that strategic present mitigat- decision to not the presentation Grant waived the of evidence ing background family history and evidence family.14 from his that came evidentiary hearing. out at the. ¶ 13 Yet the district court found that Grant totally Grant’s counsel failed to discover this did not waive the presentation mitigating of evidence, anyone because he failed to contact family.15 from members of his evidence This family. from Grant’s the Hence district finding supported by is well the record.16 finding court’s that defense counsel’s failure majority The does not find that the trial present family testimony the “was trial finding court’s “no waiver” is erroneous or strategy oversight and not an on trial coun- supported by that it is not the record. part” sel’s does not majority rely Hence the make sense and is not cannot on its own finding justify by waiver supported its conclusion that the evidence. majority opinion’s analysis only 14. The is as follows: The evidence the record that Grant performance opportunity present "We find that testimony counsel’s was not "waived” the family evidentiary hearing deficient. reasonableness of from his is the counsel’s ac- testi- mony of may substantially his trial counsel that Grant tions be determined or "indicated to influ- really family that by me he didn’t want his to be enced the defendant’s own statements or ac- family testimony involved” and that "was not tions. ...” This statement followed citations something pursu- [Grant] that was interested in recognize principle to cases that the that defense hand, ing.” following On the other the evidence counsel’s actions must be evaluated in the con- strongly suggests in the record that Grant did not strategic of text the defendant's actions and that (1) presentation family testimony: waive the of presentation mitigating decisions about the of investigators the fact that trial counsel and his evidence can be made in consultation with the acknowledged having conversations with Grant defendant. family they about his members and could where found; (2) be the fact that counsel and the inves- 15. The court district found that "it be con- must tigators suggest do not that Grant refused specifically cluded that defendant not did waive information, provide family but he rather that presentation testimony.” of this (3) provided -possessed; what information he fact that counsel testified that he was familiar Although recognized this Court has a defen- requirements hearing with the for a waiver right presentation mitigat- dant’s to waive the of pre- event that a defendant desired to waive the ing during stage capi- evidence the second of his evidence, mitigating sentation of but that he nev- trial, any tal we have that insisted such waiver is seeking hearing er considered such a in Grant’s adequately valid if the defendant is advised case; (4) during and the fact that trial mitigating of and understands the nature of evi- provided counsel with a letter from his mother capital sentencing pro- dence and its role in the bearing a local return address. Wallace, cess. See 893 P.2d at 510-12. Conse- addition, In the record in this case could not quently, guidelines we have established and a possibly support any finding waiver procedure to be utilized whenever a defendant “knowing intelligent,” Grant was and since trial presentation mitigating desires to waive the acknowledged specific counsel that he had no evidence in his case. See id. at 512-13. This (1) discussing recollection of with Grant what procedure was not followed in Grant's about, (2) stage capital second of a trial was the record contains no evidence of state- potential importance family role testimo- regarding trial, (3) ments to the trial court ny Grant’s desire capital family in a fact presentation mitigating to waive important evidence members could be sources informa- trial, family. capital testify. from his tion in a even if did not warrant death.”20 did not reasonable cumstances had made 15 If trial counsel determination, making prejudice members locate and interview

efforts to not then decided must be newly proffered mitigating evidence Grant’s (i.e., testimony de- after first present mitigating along evi- considered likely testimony was termining what weighed then presented dence that testimony be), decision that was against aggravating trial have been a reasonable possibly could presented.21 of strategy.17 under the circumstances Yet ¶.17 empha- court Although the district not have trial counsel could rea- this predict what a that it hesitated sized testimony from mem- sonably decided any particular'case, it concluded do in family helpful, would not be bers Grant’s prejudice had not established that Grant interviewed first located and he had unless family present the testi- I the failure to Consequently, from of them.18 at least some pro- mony Specifically, did not the district that defense counsel in his case. conclude (1) in re- adequate family testimony of counsel was assistance that the vide court found presenting (2) miti- gard investigating “cumulative,” and had no that it “would have (3) has satisfied gating and that Grant evidence jury,” and that it positive effect on the prong the test for sec- “performance” jury’s on the sen- “would have had no effect ond-stage assistance. ineffective the evidence of the tencing determination as aggravating was over- three circumstances my opinion, question, in 16 The closer reviewing thoroughly whelming.” After In to obtain prejudice.19 order the issue by presented of Grant’s evidence members that there is a “rea- must show relief Grant (summa- family evidentiary hearing at the if trial had probability” that counsel sonable below), I conclude that the district rized mitigating evidence at presented the omitted findings regard sup- are not in this court’s trial, concluded that the “would have by mitigating ported cir- the record.22 aggravating and balance Gibson, Mayes 1289-90 18. See 210 F.3d that he not to call counsel testified chose 17.Trial Cir.2000) (10th (failure present mitigating evi- testify any family because members to of Grant's family of defendant's could dence from members continuously since Grant had been incarcerated justified strategic decision not be as reasonable years and had little contact with he was 19 old potential wit- never contacted where counsel family during period. con- this time Counsel inquiring into what the wit- "Without nesses: enduring by love claims of cluded that might say, counsel had no basis for decid- nesses appear family could insincere Grant's members testimony ing with their would be inconsistent on cross-examination. and would be vulnerable theory.”), his defense appear to have considered Yet counsel does not testimony fully appreciated the fact that from family than statements of affec- members other today’s majority opinion Surprisingly, focuses 19. and can be relevant even tion for the defendant analysis performance prong of all of its stage capital of a trial. In critical to the second claim, addressing assistance Grant’s ineffective appear have con- particular, does not counsel concluding prejudice claim testimony potential value that from sidered the (and conclusory) "[e]ven statement that if he had family could have had members of Grant's performance, Grant could not deficient shown background helping jury understand Grant’s prejudiced the failure to show he was grew in which he the difficult circumstances and present evidence.” this Furthermore, appear to up. counsel does not continuing the fact that lack of have considered Strickland, 466 U.S. at 104 S.Ct. 20. See mitigating family support potentially be a could 2052; 1997 OK CR 933 P.2d Brown v. itself, most or the fact that circumstance 316, 322. place family where he far from the Grant's lived incarcerated, helped ex- which would have Williams, 397-98, U.S. at 120 S.Ct. 21. See why family plain members did not visit more Williams, U.S. at often. See (finding counsel’s failure to although the district It should be noted that regarding mitigating family testimony defendant’s child- as "re- described the court retardation, hearsed,” family history, question the believa- borderline court did hood and not justified by good prison bility "not statements of fact con- behavior in of the numerous testimony, particularly those vol- within [defendant's] to focus on tained a tactical decision family history. It confession”). about Grant’s childhood untary family painted crime-ridden, tough, down, 18 The a rather members run danger- ous, depressing picture of the circumstances into particularly in projects. grew

which Grant was born and which he Ruth and the children who were still up. John Marion Grant was the sixth of nine Portland, home Oregon moved escape children and the last fathered his moth- neighborhood. Grant was go unable to husband, former er’s Walter Grant.23 Walter however, family, with the because he was Ada, family ap- home in left Oklahoma juvenile confined to a facility at the time. proximately one month before John was ¶ 21 members described Grant born, leaving Ruth with six children to raise “sweet,” being “loving,” as “quiet,” “sensi- Angeles on her moved to own. Walter Los tive,” “gentle” when he awas child. He provided any support and never financial pets, loved animals and especially dogs. Although Ruth or the children. the two Some of Grant’s sisters testified that he did eventually oldest brothers went to live with get much attention from their mother Angeles, Walter in Los Grant was left and that he needed more got. love than he very Oklahoma and had little contact his with Many family members remembered growing up. father while he was crying Grant a lot aas child. Ruth noted ¶ During years following the three Wal- having problems Grant first started and birth, departure ter’s and Grant’s Ruth had getting city into trouble when the started (Andrea, Gregory, three more children and busing the children to schools outside the O.C.), the last of which was named after their neighborhood. siblings Some of Grant’s tes- father, Frazier. Frazier O.C. O.C. never tified that when stealing Grant first started children, lived in Ruth’s home the with and adolescent, as an he stealing things was like experienced having John never a male role clothing younger and shoes for the children family Instead, model the home. the two family. in the family expected oldest sisters in the were younger siblings Grant’s testified that play very running substantial roles in the very protective he was of them and that he raising disciplining youn- home and and younger would come to the aid of his broth- children, ger Grant, including even while boys ers when neighborhood older in the they were still children themselves. fight threatened them or tried to them. only sup- 20 Ruth’s sources of income to Gregory gave testified that him “quite port large family her Dependent were Ad to growing up” bit of advice and that Grant part-time cleaning Children and some work attempted away to steer him from some of people’s homes. LaRonda described their guys” neighborhood. “badder He family poor, extremely as “dirt poor.” The though stated that even Grant did not follow family first home Ada had three advice, good pretty his own “he much wanted plumbing, rooms and no indoor and the fami- people youn- to make sure that the who were ly did not own a car. When Grant was ger get or his beloved brothers didn’t into approximately old, years family five type lifestyle got he into.” Andrea City, they moved to Oklahoma where lived testified that Grant was her “favorite broth- brother, Clayton next door to Ruth’s Black. they very er” and that were close as children. Black lived across the street from some O.C. likewise described Grant as a “cool apartment buildings that were known as “the always brother” who was there for him and projects,” and Ruth and the children eventu- helped who him out a lot. ally apartments. Family moved into these ¶23 things got members testified that even worse LaRonda testified that Grant once neighborhood, in the poor, helped escape new which boyfriend her from an abusive family testimony should likewise be noted that regarding within the State’s Grant's "Proposed Findings of Fact and Conclusions background childhood and was not credible. Law,” which was filed with the district court evidentiary hearing, proposed after the the State Grant, 23. The born children to Ruth and Walter specific that the court find as "facts” numerous birth, Kenneth, Ronnie, in the order of their LaRonda, were by family statements made members of Grant’s Ann, Norman, Ruth and John. childhood, background, about his and character. proposed findings suggest The State's nowhere ¶26 the district I likewise conclude very the con- touched and that she family testimony findings that court’s her children for her and cern he showed positive effect on the had “no would have al- Gregory that Grant testified that time. on its ultimate jury” and also “no effect” children, his particularly ways loved small were erroneous sentencing determination family all of the nephews. And nieces and itself district court unreasonable. As the and vio- was never testified that Grant members conceded, and would predicting what would family, verbally within abusive lent or necessarily a have mattered to even as an adolescent. highly imprecise exercise. dubious also testified that family members 24 The even the to countenance district court refuses they would they and that stilled loved Grant pro- information that the extensive possibility maintain or renew opportunity to like the family difficult about his vided Grant’s ex- relationships him. Some their childhood, personality deprived provide failure to regret their pressed about family, the cir- some of behavior within the support. All of the with more surrounding delinquent his initial cumstances they given had been testified that if members qualities, etc. behavior, positive some of his trial, testify at opportunity to Grant’s son, mercy their (along pleas for with the spare his have asked brother, nephew), could have touched life. spare jurors to Grant’s of one or more hearts me, deny possibili- ¶25 life. To this seems meaning the district The exact mercy, ty compassion and even for human testimony family was finding that the court’s “overwhelming” aggrava- the context of the that the extent is unclear. To “cumulative” I in the current case. ting circumstances finding that this testi- court was the district mitigating to be omitted evidence find the mony in relation to the evi- was cumulative I that powerful, and believe substantial and stage of during the second put dence on jurors have been affected or more could one trial, clearly finding is contra- Grant’s by it as well. only The by record in this case. dicted and testimony relating childhood to Grant’s could feel some- 27 Even if this Court during family put (as the second life that was judgment we making a what confident testimony that stage do) trial was his own of his a obligated to about whether are here sisters, among three he had five brothers and background jury would care about Grant’s in between.” childhood, which he was “somewhere not understand deprived and I do in a acknowledged that he was also the side of why would choose to err on we during juvenile death, his of institutions quickly number his sending a man more age years hypo- home at the teen and that he left a upon speculation about what based description do, of minimal allow an of Grant’s rather than seventeen. thetical determination, family and his the number of children to make that actual teenager that placements equipped as a certain- all of the information some of his array mitigating put it. I conclude ly rightfully make the vast of be before does not should family there is a by of his established that presented members that Grant has Furthermore, juror that at least one merely probability to the “cumulative.”24 reasonable affected finding that at his trial would have been was extent that the district court evidence, family to vote for so as not testimony in rela- omitted family was cumulative (because I find family penalty case. Hence many the death in his of the tion to itself to investi- failure of defense counsel way), a that the in the same such members testified from present mitigating evidence gate and justify trial counsel’s failure finding could not family constituted consti- of testimony members Grant’s from of counsel tutionally ineffective assistance members, only that he did suggest but would prejudiced this fail- was and that Grant testimony from all of them. not need reasonably siblings counting cannot be one's Today’s majority opinion "[t]he that tes- states providing account of one’s attorney as an timony was inef- construed now claims his "childhood,” to be ridicu- repeated I find this statement presenting would have fective for not patently lous and false. childhood." Because own account of his Grant's emptory challenge be a This case should remanded for due ure. to the need to “cor- basis, resentencing proceeding on this I rect” improper a trial court’s denial of a for- majority’s challenge so. from the refusal to do cause is not dissent itself constitutional violation,27 Grant is entitled to relief if importance jury’s 28 The of critical he can that challenge show his for-cause of spare of a about whether life decision either or wrongly Gee Martin was denied him capital defendant or sentence to death is using necessity that the a peremptory upon at the heart of another issue which also challenge juror prevented to strike that him today’s majority opinion. I from dissent removing “unacceptable” from another error, proposition his first Grant chal- juror “undesirable” from panel.28 lenges the trial denial of court’s his for-cause challenges jurors prospective properly preserved Gee 30 Grant this claim at Martin, upon unwillingness by asserting based their to trial that the denials of his for- challenges one or consider both of “non-death” sen- cause of Gee and Martin were (i.e., tencing options improper, using under law life Oklahoma all peremptory nine of his parole). challenges, requesting and life without Grant maintains peremptory additional jurors challenges, specifically naming court’s failure excuse these juror through (juror for cause necessitated their removal Hargrave) that he considered undesir- peremptory challenges, thereby prejudicially able whom he but was unable to remove due denying him necessity the use of two of his nine to the using peremptory statu- chal- challenges.25 tory peremptory lenges on Today’s both Gee and Martin.29 majority opinion dispute does not that Grant important 29 It understand properly preserved this claim. complain juror Grant does not who ¶31 strongly penalty majority assert, biased toward death opinion does Rather, however, in his case. he was allowed serve that Grant “has not shown that he complains forced, challenges objection, keep his for-cause over an unac- wrongfully ceptable and Martin were juror” Gee and then concludes that it thereby forcing per- him use two of to his “need not decide” the of issue whether the emptory challenges persons to remove these trial court in failing abused its discretion jury.26 effect, juror from the the per- Because loss of a remove Gee.30 majority In the O.S.1991, (both parties 22 § 25. 655 prejudice, appel See entitled dice.... In order to show the challenges peremptory first-degree forced, to nine lant must demonstrate that was he over cases). murder (cita objection, keep juror.”) unacceptable an omitted); State, Thompson tions v. 1974 OK CR party requires 26. Oklahoma law a to "cure” a 15, 538, (reversing 519 P.2d 541 conviction wrongful through challenge denial of a for-cause peremptory where defendant had to use chal challenge. peremptory use of a the See v. Ross lenge juror to remove who have should been Oklahoma, 81, 89, 2273, 487 U.S. 108 S.Ct. 101 thereby precluded removed for cause "and was (1988) (recognizing "long L.Ed.2d 80 settled removing prospective juror pan from from the principle of Oklahoma law that a defendant who el, whom he considered to be undesirable to his disagrees ruling with the trial court’s for- on a State, position”); see also Warner v. 2001 OK CR must, challenge preserve cause order to the 11, 569, Hawkins); (quoting 29 P.3d 573-74 ..., peremptory challenge claim exercise a State, 37, 765, Powell v. 1995 OK CR 906 P.2d cases). juror”) (citing remove the 772, denied, 1144, 1438, cert. 517 U.S. 116 S.Ct. ("[W]e State, reject (1996); 27. id. at 88 See the notion the that 134 L.Ed.2d 560 v. Brown 1987 181, peremptory challenge of a 133, loss vio- constitutes a OK CR 743 P.2d 139. right impartial lation of the constitutional to an (“[T]he jury.”); 'right' id. at peremptory 89 State, 25, 29. See v. CR 1996 OK 919 P.2d Salazar challenges impaired’ only is 'denied if 1128; 1120, State, 45, Cannon v. 1995 OK CR defendant does not that law receive which state 89, 98, denied, 904 P.2d cert. U.S. provides.”). (1996); Patton v. State, Hawkins See OK CR 145 L.Ed.2d (“The long standing rule improper Oklahoma is that an denial of a chal- lenge prejudicial for be cause will not it unless affirmatively agree majority opinion be I with the that can shown in the record wheth- that ruling ap- juror erroneous reduced the number er Gee should have for been struck cause is issue,” Martin, pellant’s peremptory challenges preju- juror to his the "harder since unlike accu- not for cause.” This statement is opinion that Grant has removed finds because rate, from the district court’s “prejudice” shown but irrelevant. cause, it Gee need not refusal to remove for ¶33 Hargrave is not Grant’s claim that its the district abused decide whether court cause, an removable for but that she was was refusing Gee. The ma- discretion in to strike juror” re- that he could have “undesirable

jority opinion reflects a fundamental misun- peremptory last of his nine moved applicable legal standards derstanding of challenges, if he not been to use a had forced claim, evaluating Grant’s as well as the for. juror peremptory challenge to remove Gee challenges purpose peremptory nature and cause).32 (who should have been struck for trial. criminal within It to use is also irrelevant that Grant chose repeatedly that 32 This Court has held challenges peremptory to strike his available is in this “prejudice” context established jurors Hargrave than he like- other and that showing injured defendant challenge potential these wise did not other for- improper trial court’s denial his jurors Again, majority cause. seems for challenge, because he was forced to use eause forget that the heart Grant’s claim get challenge to rid of the peremptory he was denied the use of all of have juror, which would otherwise biased statutory pur- peremptory challenges, potential ju- to strike another been available pose allow him remove of which is to “unaccep- that the defendant considered ror persons from “undesir- seem pur- The central table” or “undesirable.” able,” but who would not otherwise be re- pose challenges is peremptory to allow for movable cause. jury persons that parties from the to remove 34 It does not matter that chose sympathetic to do believe will be not persons Hargrave; than nor strike other though potential ju- position, their even persons it matter that none of the stringent does legal do meet the stan- rors peremptory challenges thereby through he being struck dards of “biased” remova- (with Gee) opinion exception juror re- majority challenge peremptory a to can entitle defendant cause, opinion’s analysis about the additional relief, however, Grant needs show that "preju- whether the defendant could have been juror have been struck for cause. Gee should by the is dicta. diced" trial court’s action mere I address Grant’s claim in Thus will not further and Id. at 603-04. I dissented from Abshier regard to Martin. opinion’s specifically noted the error within the J., analysis. (Chapel, prejudice id. at See Today’s supra 28. See cited in note 31. cases dissenting). initially majority opinion articulates Grant’s change "long dicta of did not the The Abshier prejudicial peremptory of a claim about the loss Oklahoma,” standing rule articulated in in as correctly, challenge confuses with an but later it establishing preju- progeny, its and for Hawkins (which entirely Grant not claim does different supra in this See cited in dice context. cases make) jury actually decided his case that the that required 28. Grant that the note is not to show biased, one or more was because it contained impartial. jury case that decided his was not persons struck cause. should have been for that majority opinion incorrectly today’s states Hence Hargrave initially During juror stat- voir 32. dire jury required that is to show "that the automatically give she the death ed that sitting impartial” trial not and later in the person penalty a committed if she found that had not entitled to relief concludes that is Although first-degree was later re- murder. she has not that the because “he shown habilitated, her initial '.'untutored” statements against prejudiced him.” surely enough to make were her undesirable/un- opinion CR The cites Abshier 2001 OK majori- perspective. acceptqble from The Grant’s deny Hargrave ty opinion does that was an (2002), not support in of Abshier, "unacceptable" juror from "undesirable” or purported requirement. in un this Yet perspective. majority in the court affir- Grant’s like the current ”37 ably in required that a claimant this context clear.’ Our Court has likewise re- ly “ up all anything cently than that he used regarding more reaffirmed that ‘all show doubts challenges peremptory and that he was juror his impartiality in must be resolved favor ” “ juror; we accused,’ left with an “undesirable” still and that this ‘rule is in- right a questioned never defendant’s have apply tended to to both the trial courts and ”38 over juror undesirable choose to strike one Appeals.’ the Court of Criminal showing some further To demand another.33 sought granted 37 Grant and was individ- is “prejudice” establish this context sequestered ual voir dire the issue on unreasonable, unfafr, corruptive of potential ability jurors’ all consider three very concept peremptory challenges. options first-degree murder, sentencing for majority Although fails to deter- prospective jurors ques- and all of the were dis- whether trial court its mine abused extensively regarding tioned views their on juror for failing to strike Gee cretion punishment. key questioning of Gee cause, I issue herein in order address the (and many prospective jurors) other centered granted have a Grant should been show around issue of believed whether he claim, resentencing on selection as this premeditated all murder deserved the death on assistance claim well as the ineffective penalty. During questioning, his initial Gee addressed above. that, in opin- indicated at least six times evaluating for 36 The standard whether ion, anyone premeditated who commits mur- capital juror should be for potential excused get penalty. der should death On the juror’s pun- upon views on cause based hand, other Gee also maintained that he juror’s ishment is “whether views would “automatically” give would not the death substantially impair perfor- ‘prevent penalty first-degree for murder and that he juror mance of his duties as accordance life imprison- would consider sentences of ”34 It and his oath.’ with his instructions parole. ment and life without Grant chal- juror established that who will auto- well lenged Gee cause at the conclusion of his matically penalty death vote for the should questioning. initial The trial court denied jurors who excused for Yet even be cause.35 challenge, finding that Gee seemed con- they clearly do state that will “automati- fused. death, cally” penalty may vote be for the During subsequent questioning regard sentencing, biased such prosecutor explained premeditation serve, suf- such should not be allowed first-degree ficient to constitute murder can need not with “unmistak- bias be established in an instant clarity.”36 Supreme has be formed and summarized the able As Court noted, “many simply type aggravating mitigating veniremen cannot be put enough questions point during sentencing to reach the that could asked be capital stage where their been made trial. Gee then bias has ‘unmistak- of a After re- See, 539-41; e.g., Thompson, penalty regardless mitigating 519 P.2d at Sa- on conviction lazar, 1128; Patton, evidence."). P.2d at Witt, 424, 412, Wainwright 34. See 105 v. 424, Wainwright, 36. See 469 U.S. at 105 S.Ct. 844, (1985) (quoting S.Ct. 83 L.Ed.2d 841 Adams 844; Warner, (quoting 573 see also 29 P.3d at Texas, 38, 45, v. 448 100 S.Ct. 65 U.S. Wainwright). Warner, (1980)); L.Ed.2d 581 see also 29 P.3d (quoting Wainwright); Williams v. Wainwright, 37. See 469 U.S. at 105 S.Ct. 2001 OK CR 22 U.S.-, cert recently jurors Court that Our has noted “willing go must be into trial with no the preconceived regarding appropriate notions the Illinois, 504 Morgan See v. U.S. life,” jurors penalty, death or and that with a (1992) (juror that 119 L.Ed.2d "strong penally” towards the death are not bias automatically give will death sentence is not im impartial should for cause. and be excused See partial, imposed by jury con and death sentence Warner, at 573.- executed); taining juror even one such cannot be Cannon, (“A see P.2d at also criminal Warner, Hawkins, right (quoting defendant has a to remove for 38. See 29 P.3d at 572 cause 1158). juror automatically who would vote for the death 717 P.2d at anything, an or intended to he would follow accident that court’s asserted them, sentencing you three con- and consider all them and killed would instructions kill was options, sider, maintained that Gee you the State instruc- would follow Court’s simply and that he had been “rehabilitated” giving something him tions and consider confused. penalty? less than death began re-ques- counsel then 39 Defense ordered, If the if the Court has Gee: Court Gee, following exchange oc- tioning and the asked us do that. curred: Defense renewed his chal- counsel you pretend al- Let’s that have Counsel: cause, it, lenge for the trial court denied but ready guilty. heard Mr. Grant You found stating, request “And will be denied. As that you evidence and found him all of the re-question- I when we started this stated beyond rea- guilty. are convinced You I think ing[,] I think he was confused and guilty De- that he’s First sonable doubt up. fully [he] that he cleared that Now Murder, okay?

gree talking Gee understands what he’s about.” head.) (Nodded Gee: he “nervous” then volunteered that and got that? Counsel: You country “just he lived out too that Uh-huh. Gee: if guess.” asked he long, I court When part is And of that that Counsel: understood, answered, “I felt like he now Gee State, part that of that the State idea got now. I think I understand it confused proven you that he to kill has intended for a while and I think I understand it. there woman, thought that he either it about give weigh both go I’ll there and sides days just thought he about it and did my all I do.” The it best shot. That’s can it, intended to kill this woman for but he agreed, trial court and Gee was returned to good Okay? no reason. box. (Nodded head.) Gee: thing, hearing another Counsel: Without in favor of Whether Gee biased automatically give you him would penalty court the death such the district penalty? death him for is a have struck cause close should consistently main- Now, though call. Even Gee going I am to have to think Gee: tained that he would follow the trial court’s about. sentencing and consider all three instructions Okay. it. Think about Counsel: options, emphatically repeatedly he also I’ll to think about that one. Gee: have that, anyone com- opinion, who stated give your it and Counsel: Think about me premeditated/intentional mitted murder answer. get penalty. Morgan the death should Gee: Yes. Illinois,39 Supreme Court discussed the you Counsel: Yes would? jurors sincerely problem prospective who Yes. Gee: to follow whatever instructions the intend Now, Judge gave you if what Counsel: them, sincerely gives court but who likewise happened— other instructions anyone first-degree believe that who commits bygo I his instructions. Gee: would get penalty: “It murder should the death could, may juror good con- be point on Gee maintained that he From that instructions, science, yet uphold the Court’s swear to law be would follow questioning maintaining dogmatic concluded as defense counsel’s unaware that such be- penalty prevent follows: liefs about death doing Morgan him her from so.”40 The you Okay. though So even were Counsel: recognized persons who function Court that that Mr. Grant here murdered convinced that, “misconception” should not be al- somebody do it was under this and intended to at 2222. 119 L.Ed.2d 40. Id. 112 S.Ct. 39. 504 U.S. (1) 44 Thus has to serve.41 established that he

lowed required a peremptory challenge to use possible Gee was appears quite 42 It that juror remove a who to should have been repeatedly juror type. of He admitted this (2) cause, struck for that all he used of his confused; and even at the con- that he was (3) remaining peremptory challenges, and questioning, he does of his extensive clusion juror an jury that undesirable was left on his appear understood that his stated not to have panel. Consequently, Grant entitled to is penalty only was the belief the death claim, jury relief on his selection as well as premeditated penalty for a mur- appropriate assistance ineffective claim addressed promise with his to fol- der was inconsistent above. Because both these claims relate whatever the Court ordered the to low only determination, jury’s sentencing do. however, they legitimacy not do affect the ¶43 Although questioning first-degree of Gee did Grant’s murder conviction.42 Al- “unmistakably though agree today’s majority make it clear” that he I with penalty, be in favor of the death biased Grant’s murder conviction be af- should certainty firmed, required is not in this I opinion kind of dissent from the Court’s repeated provide I as- context. conclude Gee’s and its refusal a new penalty only capital sentencing proceeding. sertion that the death I conclude appropriate premeditated sentence for a that Grant has established that he is entitled adequate sentencing been to cause upon murder should have relief based both his sec- for ond-stage district court to strike cause. Gee ineffective assistance claim and his acknowledge claim, question individually I While selection both through court abused its discre- upon whether district their cumulative effect the sen- call, tencing refusing stage capital strike Gee is a close his tion trial. prior holdings

this Court should abide its regarding juror impartiality

that doubts in favor

should be resolved of the accused. good impar-

There reason doubt Gee’s

tiality sentencing, regarding and Grant a peremp- not have been forced to use

should keep

tory challenge jury. Gee off 735-36, Id. 2222. Gee cause is to remand the case for a new Salazar, sentencing proceeding. See P.2d at challenge Grant’s to Gee bias involved 1127-20. regard penalty stage to the Hence the trial. remedy for the district court’s failure remove notes were for cause. ble previous- have sought Hargrave never to have movable for cause. We never that “Grant Gee, matively challenged juror juror ultimately quite was not that he found that the clear (de- sentencing options major- Today’s would consider all three for Id. at 603. removable cause. spite statements that he would not ity neglects his initial to decide whether Gee should have pa- addition, sentence less than life without consider removed for cause. because been who committed an intentional role for someone murder). majority trial court the Abshier found that the statutory even Because loss of one challenge correctly denied the defendant’s

Case Details

Case Name: Grant v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jan 24, 2003

Citation: 58 P.3d 783

Docket Number: D 2000-653

Court Abbreviation: Okla. Crim. App.