Grissom v. State

that could evidence' 'some record contains to Petition- attached in the letter videotape is Form, disciplin- at the Appeal reached support Misconduct the decision er's Offender's good time credits. hearing revoke ary after Peti- February is dated which at an end. review is hearing on Janu- Judicial disciplinary prison tioner's Thus, has not estab- Petitioner ary 2010. THE ORDER THEREFORE IT IS properly raised timely and he lished judgment final that the THIS COURT OF camera. the surveillance concerning claim Dis- September on entered bur- misapprehends Moreover, Petitioner County, No. Case of Oklahoma trict Court judicial review action for in an proof den CV-2010-753, relief under denying Petitioner It is Court. the District as that before such 564.1, § is AFFIRMED. 0.8.S8upp.2005, burden, moving party, as the Petitioner's 8.15, {21 Rules to Rule Pursuant See 57 tape existed. alleged video show Title Appeals, Court Criminal Oklahoma 564.1(C) ("The petition § O.S.Supp.2010, (2011), MANDATE IS OR- App. Ch. provid- not process was due shall assert this filing of upon the DERED ISSUED process, of due element prove which ed and decision. disci- administrative only prison ato relevant by the provided not proceeding, plinary 1 22 IT IS SO ORDERED. added). Moreover, staff,") (emphasis prison Arlene Johnson /s/ response to the in its reveals the record JOHNSON, Presiding Judge ARLENE Review, provided DOC for Judicial Petition B. Lewis David /s/ from an awith statement Court the District LEWIS, Presiding Judge B. Vice DAVID facility where prison of the warden assistant The assistant occurred. alleged offense L. Lumpkin Gary /s/ facili- indicated statement warden's LUMPKIN, Judge L. GARY recording had no system ty's surveillance A. Johnson Charles /s/ (O.R.84.) only a monitor. and was capability JOHNSON, Judge A. CHARLES contrary except Peti- anything Absent /s/) assertions, Court Smith the District Clancy bare tioner's SMITH, Judge finding against Petitioner CLANCY justified - this issue. clearly show pleadings

T 18 Petitioner's sufficiencyof the evi- challenge

wants to discipline. prison impose his used to

dence authorized

However, challenge is not such 455-56, Hill, constitution, 472 U.S. by the statutorily 2768, and in fact is 105 S.Ct. OK CR 3 564.1(E) (ju- § 0.8$.Supp.2010, prohibited. GRISSOM, Appellant, Arden Wendell independent be an review shall dicial credibility any witness of the assessment evidence). only weighing aor Appellee. Oklahoma, STATE regard to the evidence requirement in the record evidence is some there No. D-2008-595. base a hearing officer could upon which Appeals of Oklahoma. of Criminal Court O0.8.Supp.2010, guilt. finding - - 455-56, Hill, 564.1(D)(T7); 472 U.S. at § April S.Ct. {19 matter, hearing report In this hearing states disciplinary

from Petitioner's finding of for a relied on evidence that the one sharpened at of rebar piece

guilt was right boot in Petitioner's was found

end that (O.R.77). Clearly, his locker.

under 1705; 0.8.2001, § in violation of

larceny, after of a firearm possession Count felony, in violation of a conviction former § in Blaine O.S8.Rev.Supp.2005, Court, No. Case CF-2005-80 County District murder in alleged that the The State .1 cireum- statutory aggravating three volved knowingly created a The defendant stances: person; one more than of death to great risk person by a serv was committed the murder on conviction imprisonment ing a sentence probability of a felony; and the existence aof acts of commit criminal Appellant would continuing that would constitute violence 0.8.2001, 701.12(2), § society. 21 threat aggra (6), jury found all three Appel sentenced vating cireumstances and degree, murder in the first death for lant to intent to shooting with imprisonment for life (25) years imprisonment for kill, twenty-five (40) years imprison forty larceny, and grand after former a firearm possession for ment Ron felony. The Honorable of a conviction Franklin, presided Judge, District ald G. judgment pronounced trial and over 17, 2008. This Court on June and sentence judgment sen stayed execution 1, appeals. July Mr. Grissom tence on IV, III, W. Coyle John Coyle W. John at trial. attorneys for defendant FACTS Fields, Retherford, Asst. Dis- Barry Mike Appellant left OK, attorneys November for T2 On Watonga, Attorneys trict Interstate west on and headed Arkansas at trial. the State truck. Just driving his white Chevrolet Smith, Morehead, M. Kathleen D. Michael line, up picked state across Oklahoma Norman, System, Indigent Defense Okla. they hitchhiker, As Johns. Jessie a homeless appeal. on OK, attorneys appellant whiskey west, two men drank continued General, Edmondson, Attorney Drew W.A. discussed They also acquainted. got Attorney Strickland, Gener- Asst. L. Jennifer burglaries robberies to commit some plans OK, Appel- attorneys for al, City, Oklahoma evening, Appel- money. Later that raise appeal. lee on City, in Oklahoma into a hotel lant checked Appel- weekly rental. for a paying $266.00 OPINION evening with Jessie his room lant shared Johns, slept the floor. who LEWIS, Judge. Johns morning, Jessie following Grissom, {1 T3 The Appellant, Arden Wendell him how showed Appellant as watched guilty of Count found by jury and tried

was pistol, one of powder 44 caliber black load a in violation of degree, in the first murder 701.7(A); at the Appellant's possession § Count in 0.S.Rev.Supp.2005, two firearms .22 caliber a two-shot The other was kill, time. violation shooting with intent to more alcohol men drank derringer. The two 652(A); grand § Count O.S.Rev.Supp.2005, felonies, (2) namely found, two or more conviction alleged, and the 1. The State Appellant. by the burglaries prior committed former through after 4 were committed Counts morning they again as headed life, west in beg Matthews report her and the Appellant's truck They on Interstate pistol. Kopf escaped Ms. stopped around 10:45 a.m. at the Love's from the house to garage her and activated Country security Store on Exit where the overhead door. Realizing that she was buying pair cameras recorded each man leaving follow, a blood trail for her killer to she knew she could not hide. She saw the gloves. They brown cotton then drove into County, rural looking Blaine for a house to white truck in driveway pointed her toward burglarize. the road getaway, for a and ran toward it. Appellant ultimately parked his truck T7 Jessie Johns had left the truck and driveway of the residence of approached Matt and hearing residence after sev- Kopf, Hitchcock, Dreu near in rural Blaine eral Kopf shots. He saw Ms. run from the County. He told Jessie Johns to wait until stepped house. He through the shattered shooting was over and then come door Appellant and found standing over a help him burglarize Appellant the house. wounded Amber Matthews. He watched as approached sliding door at the rear of fired another shot into Ms. Mat- residence Kopf and knocked. Dreu was in- thews with the .44. Appel- Johns then told morning side her home that with her best lant that someone had run from the house. friend, Matthews, Amber and her two young truck, ran toward the get tried to children, eighteen Rylie inside, month-old and infant pistol fired his 44 again at Ms. Rylie Gracie Jo. her crib the Kopf pulled as she away. Not far from her Kopf bedroom and Ms. holding house, Gracie. Kopf flagged Dreu down a trio of Ms. Matthews sliding glass answered the hauling truckers rock and told them that her Kopf door as Ms. glider turned in her chair friend and children were dead and she had speak Appellant. Kopf He asked Ms. been drivers, shot. One of the truck himself if her husband was home. replied She police officer, a retired got into the truck her husband was at work. told with Kopf. Ms. reported He shooting by the her he would come back later. phone Ms. Mat- Kingfisher to the County Sheriff's Of- door, thews closed the but Ap- seconds later fice and Kopf drove Ms. hospital in peliant reappeared. Kopf Ms. nearby handed the Watonga. baby to Ms. Matthews approached the T8 Realizing plans foiled, their Ap- again. Appellant door pistol shot a round pellant attempted and Johns escape their into large glass pane the and shattered it. from the crime scene on a red four-wheeler He then stepped into the residence and fired they ATV found in Kopf's garage. the A a second shot at Kopf, striking Ms. her in the postal delivery man saw two men on the red hand. leaving Kopf four-wheeler the residence with T5 Amber Matthews ran with baby the dog a black chasing haulers, them. The rock Rylie's into bedroom. Kopf fought Ms. with who had Kopf encountered Dreu only a few the pushed intruder and him earlier, across the room minutes speed saw two men past onto a couch. Kopf While Ms. top was on them on a red four-wheeler. The men on the him, fighting begged she him to four-wheeler gas ran out of after a short take what he wanted just distance, and leave. He but managed to hitch a ride with a laughed at her pulled as he powder the black passing farmer, they who assumed were la- pistol from put his waist and it to her head. gave borers. He them a ride to the Hillstop grabbed She at weapon it, the Cafe, as he fired just but over Kingfisher the County line on a through bullet tore her hand and struck Highway head, side of fracturing her her Ap- skull. T 9 The two women who were running the pellant then big pistol stuck the hip her Hillstop day Cafe that frightened became again. and fired The force of this shot threw they when pair noticed a looking men Kopf Ms. onto the floor. the windows of the store from outside and {6 Appellant got up and headed looking toward parked inside cars at Hillstop. the bedroom where the children and Ms. The two men then came the store. Each Matthews were. Kopf Ms. bought then heard Ms. an individual can of beer. One of profile a DNA jeans matched to Johns, Appellant's walked men, as Jessie later identified Kopf. Appel- Dreu known blood of from the trees, into some ducked highway, across trial, but the State testify lant did not The other his beer. drinking there and sat on foot. a wheat field across his statement to videotape headed a presented man describes these appeal, Appellant police. On across the street back later walked Johns no discernible tragedy with crimes as "a After can of beer. a second purchased time, of the cause," one Amber Mat- admitting the second shot the store he left County Sheriff's Kingfisher called clerks "for reasons even he Kopf and Dreu thews addi- We will relate suspicious men not understand." does two reported Office The clerks also store. around the hanging individual with the facts connection tional store, a local of error. in the propositions only customer asked lunch, stay them to waiting on his man ANALYSIS gone. strangers were the two

until appeal, Appel connection to Recognizing possible with this 13 In connection nearby Kopf shooting at the New Trial timely filed a Motion report of lant earlier, King- thirty minutes Evidence Ju Newly about Discovered Based residence 2.1(A)(8), raced to- officers now Rules of the County Sheriffs Rule fisher ror Misconduct. away, emer- Hillstop Appeals, O.S.Supp.2010, Not far Cafe. ward Court Criminal of Okla App. We directed State Ch. of the various officers personnel geney motion, the Blaine Department, and subse Watonga respond Police homa Office, and the County Sheriffs presented the issues quently 4/11/2011 remanded on the Patrol descended Highway Oklahoma the district court for evi- pleadings those report of permit development the initial dentiary hearing after Kopf residence the home cau- approached The evidence received shooting. complete Officers record. and find the and is managed hearing to enter now before us tiously, but in that original Matthews was hereby incorporated part alive. Amber as Kopf children 3.11(A), mortally 0.8.Supp. wounded. She appeal. Rule unconscious record on App. Ch. an flight during a medical evacuation died City hospital. Oklahoma New Motion Cafe, Kingfish- Hillstop Back at the Newly Discovered Evidence Based on Trial approached Jessie County deputy sheriff er Misconduct, argues he reversible Juror road, the Johns, walking down who was now juror, prospective la when a error occurred dep- investigation. The him for and detained jury, on the failed selected to serve ter briefly, him searched uty questioned Johns that he during voir dire examination disclose him back weapons, and drove charged with arrested and previously was Meanwhile, law enforcement Hillstop Cafe. the establishes that The record two crimes. gather information officers continued charged and juror arrested was Kopf residence and at the the crimes about retailer, a from a larceny of merchandise Hills- reported at the suspicious persons the guilty to the plea felony. He entered being forty-five minutes after top. About a deferral of sentence and received offense detained, Johns for police arrested Jessie (1) a term year. completion After for one theft and four-wheeler involvement charge dismissed. The was probation, Kopf residence. crimes at the other time juror was arrested second prospective {12 Ap- eventually located with three misdemean Investigators charged and in 2007 marijuana, pos ors, including possession Hillstop pile near hiding a rock pellant failure to drug paraphernalia, and pis- .22 session They recovered blood-stained Cafe. form. Those security verification maintain gloves from his pair cotton and a of brown tol on the subsequently dismissed charges were Appel- They ultimately recovered person. presented Appellant also motion. pair of brown State's pistol a second lant's if he trial counsel testimony from his the crime scene. gloves discarded near cotton juror's prior prospective had known of that a presented evidence also The State inquired charges, he would have arrests blood stains profile isolated from DNA prospective juror's further to determine the counsel of information that could lead to the qualifications. intelligent peremptory exercise of a chal lenge is a denial of an appellant's right to a ¶ 15 During the district court's voir dire Id., impartial jury." fair and 1987 OK CR examination,2 directly the court asked each 164, ¶7, 740 P.2d at 1206. In Peres Enri- panel prospective jurors they if had ever ques, juror informed the during trial court "charged been with or accused of a crime?" the trial when she a primary realized defense jurors responded affirmatively Several witness-appellant's sister had-defrauded gave accounts of their arrests convic and/or pregnant her and become having while an prospective ju tions of various crimes. The juror's affair with the juror ex-husband. The ror with we are whom concerned here did not explained previously that she had known the respond affirmatively question. to this He witness Despite another name. this reve also demurred when the court if asked lation, the trial court instructed the had answers he felt the court or attor decision, submitted the case for a resulting neys prosecutor "need to hear." The later appellant's Only conviction. after asked, anyone "is there that had indicated verdict did juror the court interview the con previously they prior had a contact with cerning knowledge her of the defense wit law enforcement I spoken have not juror ness. The then told the court that her Again, juror with?" did not reveal his prior involvement with the witness made it prior charges. arrests or prosecu When the impossible to believe testimony her alibi at jurors tor prospective they asked if "any had trial, but that her verdict would have been contact Attorney's office," with the District ¶¶ Id., 164, 4-6, the same. 1987 OK CR juror responded: you "I know high P.2d at 1205. This Court concluded that the school thing. so that's another going I was juror facts showed "the highly preju to mention that prosecutor earlier." The witness," id., diced towards the acknowledged that prospective he and the 164, ¶ 5, 1205-6; 740 P.2d at and that the juror "played a little together." football The appellant clearly harmed the non prospective juror then denied there was disclosure, because "his defense stood or fell "anything about you the fact have credibility with the of his testimony." sister's you known me that would cause not to be fair impartial in this case?" The record also prejudiced One biased juror enough prosecutor reflects that in this case did require remand to assure appellant represent the State in either of the crimi receives a fair trial. applaud While we against nal cases filed the prospective Juror. courage juror] and candor displayed [the parties passed prospective juror by informing the trial court of previous her cause and he served on the jury. In an experience witness, with the such belated affidavit and his subsequent testimony at the information does not cure her failure to evidentiary hearing, juror explained that timely reveal prejudice her bias and so he believed he did not have to disclose his that defense counsel challenge could either prior arrests charges because the in both her for intelligently cause or exercise his cases were dismissed. He conceded at the remaining peremptory last challenge. evidentiary hearing that his failure to answer questions affirmatively these entirely (internal was omitted). Id. citations juror truthful. The also having any denied Enriquez Perez opinions cited earlier against parties, bias for or stating the that he State, 29, Bass v. 1987 OK CR 733 P.2d juror only served as a reluctantly because he 1340, State, 43, and Tibbetts v. 1985 OK CR duty. felt it was his Bass, 698 P.2d 942. In after the was State, Enriques Perez v. sworn, 1987 OK juror selected and a revealed that the CR cases, 740 P.2d and earlier eyewitness this State's to the crime was his sis Court has "[dlepriving held that juror defense ter's fiance. apparently The had not 2. The questionnaires district court also used had felony. juror ever been convicted of a The collect prospective jurors. information from The question truthfully answered "no." questionnaire only prospective jurors asked if Id., during trial. the out of the courtroom it was read name when the witness's heard ¶43, 4, at 944. 698P.2d 1985OK CR for a Counsel moved during voir dire. aloud Relying Tib- mistrial, was denied. which the convie- again Court reversed 19 This betts, juror's non argued the appellant the trial, finding for a tion and remanded new right to him "deprived [of] disclosure juror impartial that she was not an "apparent chal peremptory exercise his intelligently one;" saying she could be despite her venireman, him denied and thus lenges to the exempt not be although would "[she 29, ¶¶ 2-3, Bass, 1987 OK CR trial." a fair jury duty relationship due to her with against have evidence deputy ... that information should at 1341. The 733 P.2d circumstantial, eyewit Id., appellant parties." made known to all been T4, greatest de 698 P.2d at 945-46. testimony "provided ness's of the robber discription during [sic] voir tail in the that trial counsel Court reasoned 29, ¶6, Bass, relationship 1987 OK CR getaway type car." "the dire had made clear for," looking appellant and that the he was in Bass held at 1342. The Court "effectively opportunity denied the that: knowledge potential challenge a gain to base was not informed counsel since defense cause, or, least, preemptory a chal- man- relationship after he had [juror's] Id., 48, 18, 698 P.2d at lenge." 1985OK CR in- by specific therein his interest ifested again quoted its statement 946. The Court a more incorporated into terrogatories any that "we do not doubt from Manuel effectively ... he was general examination attorney challenge pro- a would so defense fully explore opportunity to deprived of an juror kinship to an spective with such for a potential foundation area as a when, here, adversary, as employee of his Additionally, the de- challenge for cause. permit." quot- circumstances otherwise very deprived of at the least fendant was 174, 17, 1975 OK CR ing Mamuel v. intelligent- knowledge upon which he could at 287. 541 P.2d challenge, for we ly peremptory exercise 1 20 In Allison attorney any not doubt do defense sought appellant reversal of juror prospective challenge a so would juror failed to because a trial his conviction employee kinship to an such a during dire that his mother-in- voir disclose here, when, circumstances adversary as Attor employedby the District law had been permat. otherwise year the trial This ney's before office 1841-42, P.2d at matter for an evidentia- remanded the Court 1975 OK quoting Manuel developed at the hear ry hearing. The facts added). (emphasis juror's mother-in-law ing showed that employed legal as a researcher had been Tibbetts, kidnap prosecution 118 In months be resigned position her seven had assault, ju prospective ping and sexual law school. appellant's trial to attend fore any if member of repeatedly asked rors were Attorney, District employee an While the victim of similar family had been their appellant's contact with case. she had no rela They also asked about crimes. juror about spoke with the She never witnesses, parties, any tionships to case, although she was appellant's trial of involved in the attorneys, faraily members Finally, juror. his service as a aware of case; they could if there was reason his mother-in- juror himself testified that the Id., jurors. impartial not sit as fair and the District employment with previous law's ¶¶ 1, 6, In the 698 P.2d at 944. OK CR bearing deci no on his Attorney's officehad juror prospective a questions, face of these Id., 1983 OK CR in the case. sion awas that her son-in-law failed to disclose ¶¶ 52-55, at 151-52. 675P.2d county the as deputy in the same Sheriffs {21 facts, in Allison the Court On these trial; seeking employment with that he was any demon- office; "in the absence asked whether Attorney's and that her the District ... is the assertion prejudice a stration of recently a victim of sex had been daughter a have exercised appellant that he would in and the was also deputy The sheriff crime. peremptory challenge juror, to remove the sit a fair impartial juror, could as and and had he known before trial what he now that the record before us does not estab- knows, sufficient cause to mandate reversal However, lish that he failed to do so ... ¶ Id., of this case?" 1983OK CR since defense counsel was not informed of P.2d at ques Court answered this relationship after he had manifested negative, finding tion in the "no evidence by specific interest therein interrogato- the record which would lead us to believe incorporated ries general into a more ex- prejudiced that the appellant was the fact amination at a time when the veniremen Id., juror] jury." that sat [the on his probably and most prosecution 169, ¶ 62, OK CR 675 P.2d at 153. The thereof, knowledgeable effectively he was case, distinguished Court the Manuel where deprived of an opportunity fully explore that prospective juror's had concluded a potential this area as a foundation for a marriage failure to disclose his to the District challenge for Additionally, cause. the de- Attorney's secretary chief warranted rever very fendant was at deprived least sal. The Court reasoned that employ knowledge upon which he intelligent- could juror's ment aof mother-in-law legal as a ly a peremptory exercise challenge, for we researcher for the District Attorney did not do any not doubt attorney defense "approach being cause;" challenge for a challenge would so prospective juror was "a far more relationship attenuated be such a kinship employee to an of his adver- prosecution juror" tween the and the than when, sary here, as cireumstances other- relationship the undisclosed in Manuel. Al permit. wise lison, ¶¶ 169, 59-60, 1983OK CR 675 P.2d at Id., 174, ¶¶ 15-7, 541 P.2d at 236-37. convict, Manuel, 22 In appellant ed of murder and sentenced fimprison to life 1 Although defense counsel this case During examination, ment. voir dire counsel had not "manifested his interest" in topic repeatedly inquired prospective jurors' about prospective jurors' prior spe arrests with relationships with agencies law enforcement questions cific on subject during his voir Attorney's the District office. Counsel examination, Manuel, dire see did not learn day until the second of trial 174, ¶¶ 5-7, 541 P.2d at counsel was jurors one of the was married to the rely entitled to jurors the candor of when secretary chief employed by the District At they gave responses questions posed by torney. objected Counsel to the verdiet and prosecutor.3 court and the We find in trial, moved for a new which was denied. general case that "the parameters of the ¶¶ 174, 1, 4, 1975OK CR 541 P.2d at 235. voir dire examination should have elicited a reversed, This Court finding: response" from prospective juror, disclos marriage [tThe venireman's employee to an ing prior that he had arrests charges. of the Attorney's District Office was cer- Id. tainly himself, known to proba- and in all ¶ 24 However, bility prosecutor known to the the relevant facts of Perez his assis- Bass, Emriquezs, Tibbetts, tant perhaps the trial court in such a Manuel are rurally populated distinguishable thereof, area ... view the situation that con we are opinion today. fronts us that the Unlike nonfeasance the facts revealed of at jurors cases, least the about proba- veniremen and most those the undis bly prosecution in failing to closed information inform the shown here sup does not port defense counsel of challenge situation was not cause or show im principles commensurate with proper relationship funda- "approach would mental recognize fairness. We challenge Allison, that in oth- for cause." er voir dire examination Mr. Cunningham 675 P.2d at 153. And we cannot indicated that he opinion say, that he cases, as the Court did those 3. This case illustrates how inquiry prior counsel must exercise charges concerns arrests or that did "greater examining care prospective jurors" Tibbefts, in not result in convictions. 43, ¶ about contacts with law enforcement where the 698 P.2d at 945. bias, statute, express or plied bias defined peremptorily attorney" would "any defense i.e., showing prospective solely on a state of mind juror based prospective challenge a Indeed, try impartially). the case juror cannot prior arrests. knowledge of their case who jurors in this prospective other two falls short of demon- claim for disor prior arrests-one their disclosed juror's any injury from the strating actual eruelty to ani for derly and another conduct juror ar- previously The non-disclosure. on and served passed for cause mals-were two occa- charged with crimes on rested and juror disclosed prospective jury. A third the nondisclosure. this is the sum of his sions: for a sentence on a deferred he was arising those arrests were charges from The cause, but passed for felony. He was also juror the eviden- testified at dismissed. panel. the final to serve on not drawn (in- honestly tiary hearing that he believed that a any suggestion contradicts The record out) not re- correctly, it turns that he was arrest would have juror's prior prospective prior arrests. He had quired disclose his challenge peremptory inexorably led case; no knowledge of the facts no the defense.4 relationship to the material wit- undisclosed ¶ 25 that "it is in Manuel This Court said juror parties. The testified on nesses or the judgments of that reverses not error alone gone high school and votr dire that he had in this but error of crime convictions prosecutor the lead played football with ap the injury, upon the burden is plus case, one of the witnesses this and knew the court the appellate establish to pellant to casually, apparently raised no concerns which substantial prejudiced his fact that he was impartiality. his for the defense about Id., 1975 of error." rights by the commission ¶ 27 evidentiary juror hearing, the At the 174, 5-7, quoting P.2d at CROK partially working he was as a testified that 15, 10, 519 Thompson v. salesperson at the time commissioned opinion Alli The Court's 541. trial, children, eight two and his wife was had must do more appellant that an son shows pregnant. He testified and a half months he would have used simply assert that than willing to his reluctant but do that he was challenge if he had known then peremptory try juror and did not to excuse duty as a Appellant does not knows now. what he job jury duty of his or himself from because Trial counsel's that claim here. even make having family cireumstances. He denied evidentiary hearing shows testimony at the mislead the court or counsel. intention to inquired further into the might have that he inference, dispel the so cireumstances These arrests, have would details of urged by Appellant, that this imaginatively juror's prior arrests weighed prospective his juror corruptly concealed the truth about peremptory chall exercising his as a factor jury. get seated on this arrests himself also testified enges.5 Trial counsel juror's non do not condone the While we known hearing that if he had evidentiary disclosure, no find that suffered we juror's failure to disclose the prospective it. No relief is warranted prejudice from arrests, challenged the he would have prior Appel controlling authorities under However, even if counsel juror cause. Based On For A New Trial lant's Motion juror's during voir dire had discovered Mis Newly Evidence Juror Discovered mistaken, honest, about his obli belief but denied. conduct is arrests, ju prior his gation to disclose One, Appellant Proposition supported a chal not have ror's error would 0.8.2001, §§ revers lenge argues cause. district court committed failing on to instruct im ible error must show either (challenge for cause evidentiary hearing testimony Despite at the his Notwithstanding, at the trial counsel testified charges were prior criminal this, arrests and hearing evidentiary in a case such as among prospective paramount concerns for his people with criminal arrests want did not case, points jurors State out jury, sitting because in convictions single question of a did not ask defense counsel life people lived a moral experience who had concerning prior juror arrest or prospective likely give a life sentence. more charge. criminal degree the lesser-included offenses of second Counsel manages to degree passion murder and first heat of any avoid mention of a fact that this Court manslaughter misdemeanor and other lesser significant finds to the Ap issue before us: applicable non-capital offenses to pellant effectively guilt conceded his all to of charges. Appellant has waived review of charges these at trial. beginning alleged by failing request these errors express dire, Appellant's defense voir and with instructions on lesser-included offenses and ent,6 defense counsel pro stated to cons failing object given by to the instructions spective Jurors: court trial. district at We review these I trying have been think about how to plain only, claims for error which this Court say really I this and don't know other "going has defined as error to the foundation way say say it than to it. The evidence taking of the case or from the defendant a going to show that on November 2005 right Simpson essential to his defense." about 12:30in the afternoon that Wendell 40, ¶12, Grissom shot and murdered a beautiful 23 year girl old in cold blood. So now I said argument bases his you it. Now it. know It will show that he these lesser-included offense instructions on young girl also shot another who was there alleged his intoxication at the time of the struggled with her children. She for her points crimes. He to his recorded state got away life and ... The evidence will ments that he and co-defendant Jessie Johns show that Wendell Grissom was the man had whiskey consumed on previous day pulled who trigger. driving City. while into Oklahoma He also During examination, 1 31 his voir dire police crimes, told that on morning counsel described crime as "a beers, he drank three prescription took a cold-blooded, calculated, premeditated act of a, anti-depressant, and drank half-pint bottle prospective jurors: murder." He told argues vodka. He consumption prima intoxicants created a case of going I'm you to make sure understand facie voluntary intoxication, which could have ne question there is no ... he is gated respective specific elements of in guilty premeditated degree first mur- required tent to convict him of malice afore der; murder, thought degree felony first murder * * # in the degree commission of first burglary, ny. He required to determine whether he lacked the requisite intent shooting with intent concludes that if the to commit these crimes kill, jury grand had been larce aas first It will be a clear cut case of degree, ^[*] I can #k assure #k murder you that; proven voluntary will result of [IJt be guilty given ap he will be intoxication and plicable instructions, lesser-included offense murder degree the first pre- and in a he would have guilty been found of man meditated year manner took the life of a 28 or, most, slaughter degree second murder. girl old nothing who had to do with it. In a argument, Proposition related Two it;" There is no reason for claims that incomplete the court's instruc tions to the voluntary the defense of

intoxication caused reversible error in I you both And will tell get because we want to capital non-capital charges. people on the who give are able to transcript 6. The trial following: reflects the ment with that and he will state that important. Court. I think that's only DEFENSE COUNSEL: And then the oth- thing er we have is that we wanted to make THE COURT: Mr. Grissom, is that correct? strategy clear for the record that that we THE Yes, DEFENDANT: sir. trial, employed you fully essentially have THE COURT: Are taking in this aware of the tac- responsibility happened for what tics that have on November been taken? that we have THE Yes, discussed DEFENDANT: sir. completely Grissom, that with Mr. you approve course we have THE COURT: And of that? him, agree- discussed and he is in THE Yes, DEFENDANT: sir.

981 truly all him. a meaningful consideration to overtook He is remorseful real in the case ... the evi- possible penalties man for what occurred. prosecutors introduce will that dence { strategy 33 Defense counsel modified his 28 you that he murdered beautiful show only slightly stage closing argu- in his first beautiful year girl old and he shot another ment, again emphasizing Appellant's "accep- any involvement girl, neither of which had responsibility," referencing tance of but cause, it, they didn't have they didn't consumption suggesting of alcohol and it. That is what the anything to do with jurors find did not act could that's evidence will show this case. So aforethought. jurors: malice Counsel told case, going to in this

where we are to come night He drank a fifth of alcoholthe before jury you if to sit on this is that are selected began drinking thing and the first the next you going ... to have to decide wheth- are I morning. cigarette Words. want a is all young man dies. Because er that lives or says fifty goes about times. He into going that's what the evidence is to show. type lunatic rant this about his ex-wife again, problems over and over about the x * x she caused him. has His demeanor. Look present on behalf of Mr. will evidence [We at the video. And his motive. His motive. about his life and evi- Grissom evidence He admits to the crime. Wendell Grissom happened dence about what his life that calculated killer. He is a lost soul magic day. Things brought him to that spiraled whose life out of control. I take drinking problem, very like his incredible actions, nothing away you from his but ask happened. time it are drunk at the Those everything happened to look at things. They legal are not some defenses day up and led to these events. It's of They mitigation are in to murder. depression lost man whose aleoholism and not, penalty or to the he should whether as spiraled recipe into a for destruction. added). (emphasis receive. point 34 Defense counsel at no contested opening jury, T32 In statements Appellant's guilt degree of first murder or strategy trial counsel continued this con- non-capital charges. The record is re ceding that "there are no excuses for what plete with Appel counsel's statements admitting lant degree he committed first day." Wendell Arden Grissom did that jury Counsel told the the facts of alleged, murder and the other crimes and life, the facts of the as had simply seeking crimes persuade them, admitted him a man spare described as his life due to his remorse and other control, spiraled "whose alcoholism has out of mitigation Supreme evidence. The Court nothing done [who] has but drink since aptly point strategy described the of such a emphasized Appellant's 2002." Counsel de- in Florida v. 543 U.S. 125 S.Ct. (2004): 160L.Ed.2d 565 accept responsibility, saying, sire to "Wendell ran, has never once for one second ran from may reasonably decide to focus [Counsel] always up this crime ... He has stood penalty phase, on the trial's at which time I I'm said did here to face it." Trial persuade counsel's mission is to the trier opening counsel concluded his statement that his life spared. client's should be Un- saying: negotiate guilty plea exchange able to sentence, for a life defense counsel must And when this is all said and done I'm guilt phase strive at the to avoid a counter- going you my guilty, to ask to find client productive [by] attempting course ... guilty felony murder. And after that impress with his candor and his go stage. we'll on to another And from unwillingness engage in "a useless cha- you there will see who Wendell Grissom is rade." you'll appropriate decide what punishment quoting should ... at be Wendell Gris- U.S. S.Ct. Cronic, going up say som is not to sit here and n. United States U.S. 2039,2044, 9, n. 104 S.Ct. L.Ed.2d that Jessie made him do this Johns him n. he did this because Satan took over or The Tenth Circuit Court of recognized viability theory other of defense or a Appeals has also lesser-included strategy in circumstances where evi expressly offense.7 We now hold that overwhelming. v. guilt is Charm dence of applies same rule to a defendant who offers (10th Cir.2002)(un Mullin, Appx. 475 37 Fed. through his defense statements his counsel rejected capital pris court published), testimony. Specifically, rather than his own strategy resulted argument oner's where defendant makes admissions counsel, in ineffective assistance describ during every counsel trial that render de remarkably similar to the case ing a situation one, fense unavailable save he is deemed to before us: defense; may, by have elected that his with counsel was faced over- [DJefense election, foreclose the submission of instruc establishing pris- whelming [the evidence tions on other theories of defense or lesser- including guilt, foremost own oner's] [his] included offenses inconsistent with his de videotaped describing in detail confession Bennett, 208, 113, fense. 1987 OK CR 743 participation his these horrific crimes (holding P.2d at 1098 where there is no pursue pre- ... counsel did And defense offense, support evidence to lesser included behalf, prisoner's] on [the trial motions right jury the court has no to ask the witnesses, cross-examined State's issue); State, consider the Ybarra v. 1987 OK evidentiary objections made at trial and 16, 733 31, 1342, (finding CR P.2d 1345 ¶ prisoner's] in [the asserted defense the appellant was not entitled to instructions of indicating minimal evidence available manslaughter self defense or which in might have been [he] intoxicated defense). theory consistent his ... ap- time of the crimes Trial counsel's parent strategy credibility was to maintain question 136 simply The before us is jury during stage with the the first so that plain whether the trial court committed error strongly pursue he could a sentence less jury its failure to instruct on lesser- during penalty phase. than death And capital included offenses to the and non- fully did in mitigation counsel assert case capital charges. We find that during capital-sentencing stage. trial's guilt charges, through admission of to the (internal Fed.Appx. at 37 480 citations during numerous statements of his counsel omitted); also, Mullin, see Turrentine v. 390 trial, strategic constituted a valid election to (10th 1181, F.3d Cir.2004)(finding 1208 trial present only sentencing stage By defense. overwhelming counsel faced with evidence of defense, electing sentencing stage Appel guilt reasonably guilt could concede of two lant first-stage jury foreclosed his claim to premeditated persua- counts of murder instructions on lesser-included offenses. The sively argue remaining counts and retain district failure court's to instruct on credibility sentencing phase). "go lesser-included offenses did not to the foundation of the case" or take from the ¶ 35 This Court follows the "well es Appellant any "right essential to his de defendant, tablished rule that when a who fense," plain and thus was not error. right defenses, has a of election as to several 40, ¶ 12, Simpson, 1994 OK CR 876 P.2d at takes the stand aas witness and makes such Proposition One is denied. every theory admissions as to render of de one, fense unavailable save he will be deemed Two, In Proposition 137

to have elected that one." Williamson v. State, 68, ¶ 55, argues court committed reversible 1991 OK CR 812 P.2d 399; State, giving incomplete error Sayers v. 10 instructions on Okl.Cr. 135 court, voluntary P. usually 1077 Such cases intoxication. The district give testimony request involve defendants who a without a from the defense or an specific then, objection State, appeal, gave following defense at trial and from the claim entitlement voluntary instructions on some instructions on the defense of in- State, 70, ¶ 36, E.g., Mitchell v. 1994 OK CR State, 20, ¶¶19-21, v. 695 Collums Seegars 1186, 1200-01; State, 884 P.2d Bennett v. P.2d 1982 872, 876; OK 208, ¶ 112, 1096, 1098; Spuehler OK CR ¶¶ 3-4, 563, 565; 655 P.2d Jones v. 204; 1069-70. stage in the first cation shall be deemed less criminal rea- toxication having son been such condition." trial: 0.9.2001, § 158. The statutes further introduced of intoxi Evidence has been provide that "[hJomicide committed with a the defendant as a defense to the cation of design to effect death is not the less mur- committed charge that the defendant has perpetrator der because the in a state Degree crime of First Murder.8 voluntary anger intoxication at the Degree crime of Murder the First 0.98.2001, § time." 704. Our case law specific criminal has as an element long recognized exception has an to these Aforethought. A person Malice intent of utterly negates rules where intoxication voluntary to the defense of in is entitled necessary mens rea for the crime. This person incapable if that was of toxication parameters Court has described the narrow forming specific eriminal intent be voluntary intoxication defense: intoxication.9 cause of his voluntary A defense of intoxication re- Drugs-Substances Definitions: intended - defendant, first, quires that a be intoxicat- cure, diagnosis, mitigation, use in the for and, second, utterly intoxicated, ed be so treatment, prevention or of disease a overcome, powers his mental are ren- that animal; human or other substances other dering impossible it a to defendant than intended to affect the structure food specific criminal intent ... ele- form any body function of the of a human or or ment the crime. of animal; law, other under the the substance State, McElmurry 40, ¶ 72, v. 2002 OK CR Cymbalta drug.10 ais 4, 23, State, quoting Jackson v. 1998 give applicable The district court did not ¶89, 67, 875, (emphasis OK CR 964P.2d 892 proof on the burden of for a instructions added). agree Appellant upon We with that intoxication,11 voluntary defense of or various case, proper showing prima a of a facie vol definitions related to this defense.12 As dis untary may provide partial intoxication a de One, in Proposition cussed the district court specific charged fense to the intent crimes give did not instructions on lesser-inelud- State, 34, 122, v. here. Malone 2007 OK CR specific ed offenses related to the intent 185, (murder); Grayson 196 v. charged Appel crimes in the information. ¶ State, 87, 5, 747, 1984OK CR 687P.2d 748- alleged by failing lant waived these errors 49, kill); 1 (shooting n. with intent Huff object grounds to the instructions on these State, 292, 298-299, man v. 24 Okl.Cr. 217 P. request lesser-included offense instruc (1928) (grand larceny). 1072-73 We only at trial. review tions We these claims agree Appellant also that when the dis plain Simpson, error. 1994 OK CR voluntary trict court instructs on intoxication 12,11 876P.2d at 695. murder, degree as a to first defense the court provide give a corresponding Oklahoma Statutes must instruction on the generally degree "[nlo that act committed a lesser-included offenses of second person voluntary degree manslaughter. while a state of intoxi- murder first 8-35, OUJI-CR(2d). 8. Instruction No. doubt each [Lesser element of the crime - Included Offense]. OUJI-CR(2d). 8-36, 9. Instruction No. - 12. a The trial court omitted definition of the OUJI-CR(2d). phrase forming 8-39, Instruction No. "incapable specific criminal intent," which the uniform define instructions as 8-38, OUJI-CR(2d) provides: Instruction No. powers "the state in which one's mental have intoxication, prove beyond through rendering It is the burden of the State to a been overcome it impossible reasonable doubt the defendant formed to form a criminal intent." Instruc- 8-39, OUJI-CR(2d). specific intent of the crime ... If No. The court also criminal tion you give find has failed State failed sustain the uniform definition of term burden, by [Name "[a] reason of the intoxication of ''intoxication'' which is state in which person is so far under influence of an intoxi- Defendant], [Name then must Defendant] may guilty cating liquor/drug/substance [Name be found not ... You find to such an extent (passions visibly excited)/(Gudg- are guilty his/her Defendant] [Lesser Offense], Included proved beyond impaired). the State has a reasonable ment is Id. if 984 ¶ State, State, Taylor 513 1973 OK CR 2000 OK CR 998

Williams v. 335, 339; capital 1958 OK P.2d the trial court in a P.2d Oxendine murder 940, 944; 104, ¶10, P.2d Miller v. prosecution voluntary instructed the 57-58, 180 P. 814 intoxication but failed to 9 Okl.Cr. give an instruction degree (1913).13 However, on the lesser-included offense of first premises cannot these Id., obtain relief for the here. 6, ¶ 17, manslaughter. P.2d 1230. This Court declinedto reverse In Frederick v. conviction, finding the murder 908,942, 130, 87 this Court said: give "able to detailed account of the consumption alcohol and mari- Mere night question," events of the and had not juona to raise the volun- is not sufficient voluntary shown entitlement intoxi tary intoxication without show- defense cation instruction. prevented ing that defendant 998 P.2d at 1230. The Court held: forming Appel- premeditated intent. murder, lant, committing the after voluntary an instruction on intoxication able to drive over 300 miles the victim's was not warranted the evidence and it Dumas, Texas, register pickup to at a was error the trial court to so instruct alias, using another motel where he listed [Appellant] ... was not entitled to an in- pickup registration slip. on the Beck's degree manslaughter. struction on first Bell, his statement to Officer he was able proposition This is therefore denied. give description a detailed of how "Jeff" Id., 2000 OK CR 998 P.2d at 1230-31 body, dumped had Beck's after he had added). (emphasis him, open Spencer, killed in an field in Oklahoma, uncovered, and unburied. Jeff 41 In Charm v. 1996 OK CR using was the name he was in Oklahoma capital 924 P.2d murder defendant accuracy the week of the murder. The gave claimed the trial court erred when it description his was confirmed when Beck's voluntary instructions on the defense of in body was found. Frederick never claimed give toxication but refused to defendant's in his statement to Officer Bell that he requested lesser-included offense instruc Beck, intoxicated had been when he killed degree tions on second murder or first de fact he was able to describe the Id., gree manslaughter. 40, ¶ 5, 1996 OK CR added). clearly (emphasis events argued 924 P.2d at 759. The defendant error, jury's because of the trial upon facts, court's "the Based its examination of the only options convicting acquitting were Court Frederick concluded: Id., degree him of first murder." 1996 OK there was insufficient in- [als evidence of 40, ¶ 6, CR 924 P2d at 759. This Court presented toxication at trial from which a conviction, again finding affirmed the murder jury rational could find that the defendant voluntary the evidence of intoxication was utterly was "so intoxicated" that his mental insufficient to warrant an instruction in the overcome, powers totally rendering it place. first The Court held: also impossible for him specific to form the kill, voluntary intent to an instruction on [Appellant] cannot use the fact that warranted, intoxication was not and it unjustifiable given sup- instruction was would have jury been error to instruct port his current claim that the evidence on that defense. warranted lesser offense instructions on Id., 34, ¶ 131, 2001 OK CR at degree degree second murder and first added). (emphasis manslaughter. quoted operate exemp- The Court in Miller Wharton on Homi toxication cannot as an entire (3d Ed.), cide 809 where it is said: tion from criminal and it is not responsibility, against conclusive the existence of criminal Homicide committed when the accused was so only intent. At the it utmost extenuates the intoxicated that no intent to commit the crime existed, however, of murder could have manslaughter, crime from murder and it being degree, murder in the first does not do this as a matter of law. is either man- slaughter degree. or murder in the second In- 57-58, 9 Okl.Cr. at 130 P. at 814. ¶ 13, Id, bought gloves accomplice 924 P.2d at 761 at a 1996 OK CR convenience added). shortly (emphasis targeted store before the crimes. He an isolated rural residence for a home inva- 42 In Malone v. burglary money. sion because he needed He 185, this Court found that evidence parked driveway his truck of the home methamphet capital of a murder defendant's pointed quick getaway, toward the road for a was sufficient to create a amine intoxication telling accomplice his to follow him when the prima facie case and warranted instructions shooting stopped. engaged He his unsus- manslaughter. voluntary intoxication and pecting pretextual conversation, in a Id., victims at 196. giving them a phony false name and a cover instructions, gave those but The trial court story, gunfire. then stormed the home with errors, impor they contained several most homeowner, attempted He to murder the tantly failing jury specif to inform the "what surely succeeded, believing he had he execut- issue, [by] referring ic mental state was at " ed her friend with two intent,' shots to the head from general phrase 'specific criminal his 44. He fled on a stolen four wheeler aforethought rather than the malice neces surviving when the victim took waiting sary for a murder conviction. 2007 OK ¶34, 31, P.3d at 199. escape. bought truck and made her He paid country beer cafe within an "significant the Court found a While shootings. Appellant hour of the later sur- voluntary error" in the instructions on cooperated rendered and authorities Malone, ultimately it intoxication conelud- locating weapon the murder where he had harmless, ed the error was because shortly discarded after his crimes. only was well aware that the defendant's kill specific Appellant gave defense was lack of intent to due a detailed confession intoxication; shootings. to and there was "no reasonable within hours after the He was possibility jury that Malone's would have able to recount the details of his recent activ agreed accepted voluntary history with and his intox leading up ities and his life defense, regardless thoroughly effectively ication of how crimes. He also admitted his Id., jury trial, upon guilt was instructed it" 2007 OK of murder at hoping to avoid the ¶¶ 34, 28, CR 168P.3d at 201. punishment. extreme Under these cireum- stances, we find the trial court abused its juror all [NJo reasonable who heard administering voluntary discretion in even stage in evidence the first of his trial could instruction; Appellant intoxication and can possibly have concluded that [defendant] unjustifiable not use the fact in aforethought" was unable to form "malice given struction was to obtain reversal. Ma shooting at the time of or that he did lone, 34, ¶ 39, 2007 OK CR 168 P.3d at 202 deliberately not kill intend to ... The evi- (defendant's solely that he admission was ... overwhelming clearly dence was death, responsible for the victim's and the established that knew what he [defendant] close-range two shots fired into the victim's doing deliberately was chose to shoot head, "leave no reasonable doubt" about his kill [the victim]. ¶ Charm, kill); intent to 1996 OK CR Id., 34, ¶ 38, 2007 OK P.3d at CR 201- 924 P.2d at 761. The instructions on volun tary plain intoxication were not error. {44 From these authorities we conclude Simpson, 1994 OK CR 876 P.2d at apparent that no relief is warranted for the requires Proposition Two no relief. in errors the trial court's instructions on $46 Three, voluntary Proposition Appel intoxication. the evidence While Appellant's consumption by allowing of alco- lant the trial court established claims erred medication, prescription jury Appellant hol and to for the did sentence non- prima Appellant capital charges, prior felony enhanced his create case facie convictions, during that he could not form the deliberations in the first so intoxicated 0.8.2001, § specific Ap- stage crimes. of trial 860.1. He intent to commit these space" pellant pistols "breathing left cites the need for between loaded his Oklahoma jury's non-capital on his City morning driving west. He and his deliberations mer crimes, charged jury "after former convictions during which their conviction," charge degree guilt" of first determination of in and the a eriminal trial Chapple, 1993 OK holding 866 P.2d at cites our murder. "prejudicial 866 P.2d 1217. The Chapple contemplated misuse" Chapple the follow occurs when the Court established the fact of a prior where involving allegations unfairly conviction is procedure brought for trials ing to bear on the punish felony convictionsto enhance prior question guilt of the current charges. Appellant's argument again ig ment: the fact nores that he prior admitted both his charged a defendant is Whenever guilt convictions his of the current counts, require multiple one or more which charges during stage the first trial. prior conviction as an element of the Be appellate "nothing cause counsel sees be not, crime, and one or more which do trial gained having for Mr. Grissom in Those erimes which shall be bifurcated. prior aware of these felonies" while deliber an con- do not contain element former ating guilt charge on degree his of first guilt viction shall be tried to or innocence murder, argues that the failure bifur stage. in the first Those crimes which proceedings cate the was reversible error. prior contain the element of conviction guilt shall tried to or innocence be ¶ 48 Despite appellate counsel's dis stage. second agreement strategy, Ap with trial counsel's 38, ¶18, at 1217. pellant's prior admission of his convictions argues that now this Court must entirely maintaining consistent with all four counts because "there no reverse credibility in stage the first of trial and dedi personally that Mr. indication Grissom cating the best efforts the defense to mandatory right his waived have his avoiding punishment. capital strategy regarding non-capi bifurcated the enhanced concluding sentencing non-capital on ... expose tal counts so as not to charges stage permitted the first of trial previously the fact he had been convict jury's solely counsel focus attention 14 Appellant ed of two more felonies." capital punishment issue the second objection procedure made no followed stage, consistent with the overall defense regarding sentencing in the trial court on the strategy. Since the Court's decision non-capital charges enhanced in the first- Chapple, principle we have reaffirmed the stage He deliberations. has therefore that a defendant who the fact of admits - his plain Simpson, waived all but error. 1994 prior during testimony in convictions the first OK CR 876 P.2d 695. stage effectively of trial protec waives the begin two-stage 147 We with the observation that of a proceeding. tions Dodd v. State, 20, ¶4, 982 P.2d procedure promulgated the bifurcation Chapple to is intended shield criminal de- 4; also, State, Ray n. see 1990 OK 15, ¶7, 1384,1386; misuse of his for- 788 P.2d Wilmeth v. prejudicial fendant "from Yes, transcript following contains the ex- THE DEFENDANT: sir. change between the Court and Mr. Grissom: you THE Is that what COURT: wish do? Grissom, Coyle THE COURT: Mr. Mr. has Yes, THE DEFENDANT: sir. you testify that indicated me did not want to you THE COURT: And have consulted counsel stage you in this of the trial. Do understand this; about is that correct? you right testify you have an absolute if Yes, THE DEFENDANT: sir. desire, you right so but also have an absolute voluntary your THE COURT: Free and testify. you not to Do understand that? part? Yes, THE sir. DEFENDANT: Yes, THE DEFENDANT: sir. you testify COURT: Do wish to in the THE right. THE COURT: All The Court will find stage first of this trial? you freely voluntarily stipulated have No, THE DEFENDANT: sir. agreed prior and admitted the convictions your attorney Coyle THE COURT: Also Mr. affirmatively you and have want stated did not you has indicated that he he wishes to-that testify. stipulate agree you wish to or have been alleged convicted of offenses in the Infor- the mation, prior offenses. State, 52, 6, 1974OK CR 520 P.2d 700. withdrawn from operation general here, grand larceny also, principle applicable Riley statute." We find the same See 183, 187, 64 Okl.Cr. though personally did not tes defendant agrees The State Appellant tify jury. By before the his own statements counsel, charged should have larceny been with of a admitting and those of his the fact of convictions, motor vehicle under section 1720 rather than prior Appellant clearly his statute, grand larceny and that con statutory protections waived the of the two- stage procedure. Considering the over larceny viction should be modified to of a agree motor vehicle. Appellant's We with evidence, whelming possibility find no we claim that charge grand larceny degree that the conviction of first improper clearly ap where another statute "prejudicial murder from the resulted misuse plied to this theft aof motor vehicle. jury during of his former convictions guilt." Chapple, their determination argues, also how 38, ¶18, P.2d at 1217. Because ever, that the guilty evidence shows he is Appellant has not shown that the failure to no more than the lesser-included offense of goes bifurcate his trial to "the foundation of vehicle, unauthorized use of a motor in viola any "right the case" or takes essential to his 0.$.2001, § tion of 47 4-102. The elements defense," plain there was no error. of unauthorized use of a motor vehicle are: Simpson, 1994 CROK 876 P.2d at (1) (2) (8) taking, using, vehicle; driving; Proposition Three denied. (4) defendant; by the without the consent of (5) owner; deprive the intent to Four, Proposition In%49 owner, otherwise, temporarily or of the vehi challenges sufficiency of the evidence to possession. cle or its This crime "differs larceny. him grand convict He also ar Larceny only of an Automobile 11(A) gues that under section of Title requires perpetrator intended to tem Statutes, Oklahoma because the item he took porarily deprive possession the owner of vehicle, a motor State should have opposed his vehicle as permanently depriv charged him specific under the more statute ing vehicle," possession the owner of of his larceny of a motor vehicle. The relevant punishment. and carries a lesser minimum (1) grand larceny taking; elements of are: Fox v. (2) (8) away; carrying personal property 292,293; 0.S.2001,§ 17-102. (4) another; valued at more than $500 (5) another; sufficiency person 152 We review this challenge dollars or from the (6) stealth; fraud or with the intent to de evidence, to determine whether in the light per mostfavorableto the would 5-98, prive permanently. Instruction No. OUJI-CR(@d); 0.8.2001, § 21 1701. The el mit rational trier of fact to find the larceny ements of the crime of aof motor beyond essential elements of the crime a (1) (2) (8) trespassory; taking; vehicle are: State, Spuehler reasonable doubt. v. 1985 132, (4) ¶7, 202, automobile, carrying away; OK CR Appel 709 P.2d the air craft, vehicle, equip construction or farm four-wheeler, taking lant admits the of the vehicle; (5) (6) argues that another; but the evidence shows no intent ment of with the 5-100, intent to steal. Instruction No. permanently deprive to the owners of its OUJI-CR(2d); 0.98.2001,§ 21 possession, pointing to the fact that he used solely escape the vehicle to from the murder 388, In Jackson v. 22 Okl.Cr. scene, by then abandoned the side of the 353, 1066, (1923), 211 P. 1072 this Court held road. enactment, Legislature's that 1919,15 defining of the statute the crime of 153 We first note the statement in the larceny vehicle, 5-100, of a motor "[alutomobiles Committee Comments to Instruction and automotive driven were vehicles OUJI-CR(2d), that the "intent to steal" ele- 1919, 102, 155, 1, p. provided: punished by § 15. Laws c. shall be confinement in the state "Any person in this state who shall steal an (5) a of than term not less five penitentiary automobile or other automotive driven vehicle (20) years, twenty years." nor more than guilty felony, upon shall be of a conviction 988 house, money at fifteen miles "encom- his mother's larceny a motor vehicle

ment car away. The defendant then drove the deprive the concepts: intent to passes two away dealership without the own to convert to from the and intent permanently; owner trial, knowledge permission. At Contrary Appel- to er's use." the taker's own the car tem claimed he had taken reasoning, our cases also show defendant lant's intent, and porarily and without a felonious his "intent to use the Appellant calls what get to way to his mother's house thing not the same was on temporarily" is vehicle Id., 1963 money payment. for a down deprive the owner of its as the intent to law ¶¶ 102, 1-4, at 147. This OK CR temporarity. Supreme Court use sufficient to found the evidence was Territory reversed a conviction Court Oklahoma conviction, fol Territory, support approved 7 a but in Mitchell v. grounds similar lowing as a correct statement of Defendants lived instruction 54 P. 782 Okla. acreage the law: family on an with their subject boundary dispute neigh- of a with to You are instructed that for the State began plowing a neighbor When the bor. charge against the defendant of sustain line, disputed property defen- field inside automobile, necessary larceny of an it is prevent to him dants took his mule team prove specifically the State to that the plowing. The were secreted on a mules by the accused with automobile was taken nearby property, and defendants testified deprive to the owner felonious intent they planned the mules in to release permanently thereof and to convert pasture tempers when cooled. their owner's Any tak- automobile to accused's own use. supreme court found that evidence of

'The ing personalty deprive to with intent contemporaneous statements the defendants' temporarily ouner and then to re- thereof arrest, stating to officers at the time of their personalty turn the does constitute facts, improperly exelud- these essential larceny, trespass, taking but is a since the supreme trial. The ed from evidence permanently deprive must the owner be held; court property of the to constitute felonious Any taking personal property intent. temporarily deprive the owner intent Barnes, ¶ 11, 387 P.2d at same, thereof, and then return the does added). (emphasis larceny, trespass. not constitute but Hughes 1 55 In 61 Okl.Cr. 44- intent, order constitute felonious (19837),quoting Huffman taking permanently deprive must be to P. property ... [Defen- the owner of the (1923), acknowledged again the Court wrongful taking admitted the dants] "property may be taken with an intent property, but claimed it was taken with no it, mistake, return or be taken or some deprive permanent- owner intention deprive intent other than to the owner there ly property, only temporarily; of his but not, course, of, larceny in which case has time, they keep intended to it a short added). (emphasis been While a committed" proper and return it to him. This was a property to defendants' intent to return the legitimate charge defense rightful wrongful taking owner after a its larceny, they right and one that had a req larceny, potentially negates the mens of jury pass upon. have the property point at mere abandonment of some Mitchell, 533-34, 7 at 54 P. at 784 Okla. not. 96 after its theft does Traxler added). (emphasis (1953) 231, 251 P.2d 815 well illus Okl.Cr. why this is not the law.

54 In Barnes v. trates the reasons Traxler, being pur affirmed a conviction while defendant was this Court (and owner, officers, larceny by he took a its of of an automobile. The car sued car Convict, hostage) point gun. question dealership. was for sale at a The as a at the of weapon, negotiated robbery dangerous ed with a he defendant terms for sale of of agreed payment, vehicle and an down but appeal that the instructions failed claimed on required element of animus get told the dealer he would have to to state the Id., fwrandi, permanently or deprive 836-87, the intent to at Okl.Cr. 251 P.2d at and property. the owner of the n. 11. ¶ 57 Appellant's argument here would ¶ 56 here, Appellant argued Like the have gnat, this Court "strain at a and swal taking that "his intention at the time of was low a episode camel.16 This entire only escape car to use the the officers." born of intent to permanently 96 Okl.Cr. at 251 P.2d at 835-36. deprive quiet possession others of the of statutes, robbery This Court found the property, indeed, their very and their lives. O.S., 797-801, §§ incorporate did not a mens jury beyond found a reasonable doubt furandi, rea element of animus and instruc Appellant possessed per the intent language robbery tions of the statute manently deprive the property owners of Traxler,

were sufficient. at Okl.Cr. charge connection with the grand larceny. of passage perti- 251 P.2d at 837. In a finding supported That by is sufficient direct discussion, to the current the Court nencee and circumstantial evidence. The evidence said: is likewise sufficient support finding he could temporarily use the car and be If Appellant guilty lareeny of of a motor to have the consider such cntitled vehicle. modify We will therefore the con guilty him question find if the viction in larceny Count 8 to of a motor only taking temporary depriva- for a vehicle, (2) prior after two felony more tion, many days hours or could he how use convictions, to a sentence car, and how far could he drive it? (25) twenty-five years term of imprisonment. mile, hundred, One one or ten thousand or ¶ 58 Proposition argues Five . theory temporarily more? Such of the trial court's admission photographs taking by analysis the most causal is to the crime seene was Appel reversible error. any point how far show it can be objects lant specifically to exhibits depicting reduced ad absurdum. jeans Matthews, vomit on the of Amber An accord principle with the contended for bloody by baby shirt Kopf worn Gracie at the destroy would tend to weaken and law and time shootings, pool and a blood death, order and make all citizens liable to the floor of the bedroom where humiliation or at least a loss in the value of murdered Amber Matthews. The admission property their at the irrespon- whim of the photographs is within the trial court's dangerous sible and and facilitate the es- discretion and will not be disturbed absent cape gangsters, murderers or other Browning abuse of discretion. criminal, expected and could be to lead to 8, ¶32, 837. Trial disrespect for law and force the citizen for objected counsel jeans to the vomit stained protection to personal resort to drastic ac- irrelevant, as bloody baby clothing as tion. "repetitive," object and failed to to the exhib depicting close-up pool view of the of Ms. Matthews' blood. question But the fact that such is submit- many ted to the instances in Photographic may exhibits be past permitted escape persons has probative of the nature and location of taking gun point practically wounds, may render- testimony corroborate the valueless, ing personal property, witnesses, and then including examiner, the medical by right reason of question may to have the show the nature of the crime scene. jury, decided Browning, ¶32, the services of 134 P.3d at an lawyer, adroit and brilliant eriminal gruesome Gruesome crimes make for making the efforts of the photographs, law enforcement crime scene but the real issue history officers seem ludicrous. The of probative the is whether the value of relevant practice in each state and each decade is substantially outweighed by evidence is full of danger illustrations. prejudice, of unfair confusion of the 23:24(KJV); State, 1123, (1913). 16. Matt. see also Arnold v. 48 Okl.Cr. 132 P. will constitute a mit acts of violence which of cumulative issues, presentation needless 2401-2403; O.S.2001, §§ Pa society, continuing threat to we have held evidence. P.3d State, 2007 OK CR vatt v. of the callousness of the evidence 272, which the defendant was con- murder for supporting evi- victed can be considered as of Amber Matthews' photograph T 60 The dence, history prior criminal as well as testimony her con- about jeans corroborated of the murder for which the the facts by police officers found she was dition when (internal quota- defendant was convicted. personnel. Consid- emergency medical omitted). tions against evidence light of other ered evi- probative value this Appellant, and circum- T 62 find sufficient direct We by substantially outweighed jury's finding dence was not support stantial evidence prejudice or other factors of unfair the risk aggravating cir- "continuing threat" the Evidence 2408 of identified section doubt. beyond a reasonable cumstance In bloody baby clothing itself, established The Code. crime addition to the facts of the which proximity to Amber Matthews the infant's pitiless slaying, the a callous and show State shooting. While the evidence the time of the Appellant's prior presented evidence bur- glaries, progressed probative Appellant's which from auto burgla- disturbing, it is is intent to kill Ms. Matthews premeditated ries to residential break-ins. told Appellayft slightest regard for the defense- without the investigator an after his arrest for liesiden— in her arms. We review less child she held have burglary tial in Texas that he would objection depicting to the exhibit Appellant's if had been con- "whatever took" done plain pool and brain material for of blood occupant the residence he fronted an only. Again, photograph corrobo- error burglarizing. This revealed the forma- testimony concerning of witnesses rates the and his Appellant's tion of criminal attitude nature of the wounds to Ms. Matthews to achieve his willingness to use violence is intent. There and the issue objectives. presented evi- The State also violently requires Proposition Five assaulted and no plain dence no error. relief. his then-wife with a loaded fire- threatened during dispute. arm a domestic $61 Six, Appellant Proposition In place within the con- was able to these facts argues that evidence is insufficient Appellant's life text of other evidence of his- jury's finding aggravating support the alcoholism, life, tory, unstable home his probability there exists a cireumstance unemployment, depression. We find the will commit eriminal acts of defendant Appellant's prior history criminal evidence of continuing violence that will constitute jury's properly admitted for the consid- society. challenge threat We review this aggravating eration in connection with this evidence, in the to determine whether cireumstance, jury's finding sup- and the prosecution, light most favorable proposi- ported sufficient evidence. This trier of fact to find permit would a rational tion is denied. beyond a aggravating cireumstance rea Seven, Proposition In doubt. Jones v. 2006 OK CR sonable 4, 132 1, 2; P.3d see also Lewis defining claims the uniform instruction 764, 781-83, Jeffers, 497 U.S. 110 S.Ct. cireumstances, No. 4- mitigating Instruction 3102-04, 111 In Gilson L.Ed.2d OUJI-CR(2d), unconstitutionally limited 14, 1157, P.3d 2000 OK CR jury's ability fully mitigating consider held: this Court Eighth cireumstances violation of and the Oklahoma continuing Fourteenth Amendments support aggravator To con addressed similar threat, present evidence Constitution. We the State must 28, 164 in Harris v. behavior demon- cerns showing the defendant's concluded that the definition society probabili- a threat and a strated uniform instruction does to exist in the current ty that threat would continue properly considering prohibit jurors evaluating whether there is the future. mitigating evidence. the defendant will com- probability

991 ¶ 25, Wood, at require 164 P.8d 1113. We see no reason to instruction did not reversal. 19, ¶ 48, 1998 OK CR 959 P.2d at 13. The depart from this settled law. The Court did the instruction modified in the Harris said; order Court in Wood noting opinion, "the consistent misuse of the Considering stage the second instructions language in this instruction in the State's whole, as a we do not find the admission of 28, closing arguments." 2007 OK CR impact the victim evidence altered or ne- ¶ 26, Appellant points 164 P.3d at 1114. gated Appellant said instructions. has language this modification of the as further failed to jury's demonstrate that sen- However, support argument. for his tencing properly discretion was not chan- specified language Court Harris that given neled the instructions to them or legally of the current instruction "is not inac impact that the victim evidence influenced curate, unconstitutional," inadequate, or jury impose a sentence sup- not in which cases the instruction is used ported by the evidence. subject "are not to reversal on this basis." Id. in has shown that this The Court has reached the same conclusion unconstitutionally jury's struction limited the State, in several other cases. Conover v. mitigating consideration cireumstances. ¶¶ \ 6, 75-76, 904, 922; 1997 OK CR 933 P.2d "Proposition requires Seven no relief. State, Charm v. 1996 OK CR 754, Proposition In Eight, Appellant argues give the trial court's failure to 1 66 undoubtedly powerful, While the vie- uniform impact instruction on victim evi impact tim evidence in this case was brief dence denied him a fair trial a carefully Indeed, Appel cireumseribed. guilt aggravating determination of his lant raises no claim of appeal error on Eighth cireumstances in violation of the respect presentation to the of the victim im correctly Fourteenth Amendments. He - pact testimony itself. These distinguish facts points give out that the trial courts should present case from those which the capital the uniform instruction in cases where give Court has found the limiting failure a impact victim Cargle evidence is introduced. required instruction reversal. Those cases ¶ State, 77, 77, 806, 1995 OK CR 909 P.2d impact involved victim evidence that was ei 828-29; 9-45, Instruction No. OUJI-CR ther or "borderline" violated the limitations (2d). object Trial counsel failed State, Cargle. established in Malone v. ground instructions on request ¶¶ 34, 62-64, OK CR 168 P.3d 211-12 trial, different instructions at and thus (holding Cargle lack of plain instruction was plain Simpson, waived all but error. requiring testimony error reversal where ¶40, 12, OK CR 876P.2d at 695. beyond" appropriate was "well impact vietim ¶ evidence, 65 Under the mandate forth in including "highly prejudicial set sen tencing recommendation"); Cargle, Miller v. court's failure to administer ¶¶ 36-39, evi OK CR 290P.3d impact the uniform instruction on victim previously dence was error. We have (finding Cargle held lack of instruction made impossible to find errors admission of while the uniform instruction on victim impact given evidence should prejudicial be when such impact testimony victim harmless). trial, evidence is introduced at Considering "the failure to the instructions as a in light impact testimony whole of the victim give the automatically instruction is not fa tal." Powell v. trial, given we find the error here did not go 995 P.2d Wood to the foundation of the case or take from tried right case before the essential to his defense. decision, Cargle 40, ¶12, the Court Simpson, concluded 876 P.2d at give limiting failure to grave instruction on victim 695. The error creates no doubt that impact evidence did not warrant remand for it had substantial influence on the out resentencing. trial, The Court in Wood noted that come at and is therefore harmless. ¶¶ 36-87, Simpson, 1994OK.CR itself, given Cargle no such instruction Proposition Eight at 702. yet the is denied. had Court found the absence of such 992

¶ 67 argues Proposi in jurors story told from childhood in which prosecutorial "your misconduct mother him tion Nine that his would tell actions have closing arguments sentencing phase loudly ren spoken your so I cannot hear a word unreliable and unfair. sentence saying." ders his death applied homespun He then this long parties allowedcounsel for the haveWe saying Appellant's mitigating to evidence: and illustration" range "a of discussion wide spoken The defendant's actions have so State, argument. Hamilton v. 79 closing loudly decisively nothing and so that (1944). 124, 291, 135, 152 P.2d 296 Okl.Cr. says can problems, be heard. Alcohol rela- enjoy "right fully to from discuss Counsel tionship problems, speech problems, none standpoint their the evidence the infer things of these even comes elose to out- arising from it." ences and deductions Fred weighing outweigh what he did. Doesn't ¶ State, 34, 150, erick v. 2001 OK CR 87 P.3d person, the fact that he shot one that he State, 946, 908, citing Brown v. 52 Okl.Cr. another, murdered and he could have (1931) 307, 129, (Syllabus). 4 P.2d 130 We outweigh killed two babies. It doesn't judgment modify will reverse the the sen fact that he murdered Amber while he was "only grossly improper where and un tence parole laying helplessly out on and she was argument warranted affects a defendant's outweigh It his feet. doesn't the fact! State, 42, ¶ 57, rights." Ball v. 2007 OK CR continuing that he is a threat to 81, 95, State, citing society/f 173 P.3d Howell v. 2006 In fact it doesn't even come close. 28, 11, 549, 1 138P.3d Appellant argues that these statements and challenged We review the com "attempted destroy others like them to error, only plain ments here due to the Mr. right jury Grissom's to have the consider any timely objection lack of to the comments mitigating relevant evidence" in violation of 40, ¶ 12, Simpson, at trial. 1994 CROK protections Eighth of the Amendment comment, as prose P.2d at 695. In the first Ohio, expressed 586, in Lockett v. closing argument rhetorically cutor in U.S. asked 2954, S.Ct. 57 L.Ed.2d 973 jurors: you go path Will choose down the State, 40, T 70 Warner v. 2006 OK CR you go the defendant wants down? Or 838, prosecutor 144 P.3d capital in a you path give will choose the other sentencing argued mitigation that no justice? him Appellant's culpability evidence could reduce argument seems to construe this improper expression prosecutor's anas raping beating baby to death a [and] personal opinion. disagree. We This Court you . if up mitigation add ... and has held similar plain comments were not you multiplied it times ten ... would they phrased error where in per were "not heinous, atrocious, outweigh way eruel terms, appealed jury's sonal but un that this defendant treated [the victim] the justice derstanding of asked stan minutes, last 80 minutes of her life?" upheld." dard be Lockett v. 2002 OK 21, 418, 425, citing 53 P.3d Mitchell ¶ Id., 2006 OK CR 144 P.3d at 890. ¶ 1994OK CR This Court held Warner the chal and Hammon v. 2000 OK CR error, lenged plain comments were not rea ¶ 62, P.2d 1097. We found in Lock- soning prosecutors right have "the prosecutor basically argued ett that "the during stage discuss evidence the second jury justice required pen the death arguing appropriate punishment for an ... alty imposed particular be under the facts of may properly attempt [and] to minimize the case, upon personal opin not based his presented by effect of the evidence the de Lockett, ion." 40, ¶1 92,144 fense." at 425. We reach the same conclusion here. Warner, at 890-91. Like the argument plain error. "appropriately in this case was instructed as ¶ 69 Appellant argues prosecutor mitigating evidence and not in denigrated mitigation way precluded considering any evidence when he and all mitigating prosecutor's evidence" ar- passionately argued defense counsel conflict gument. plain Id. We find no error. ing meaning justice views about the in this jurors case. The were well aware that ¶ 71 Appellant alleges next that the statements of counsel were not evidence and prosecutor's closing arguments improperly persuade were intended to jury during sympathy elicited the victims of his its deliberations. Under these circumstances Reviewing crimes. the comments identified say we cannot that challenged comments brief, in we find the comments plain here were error. Even if individual properly are based on the evidence admitted comments in the closing argument State's jurors at trial exhorted the to consider erroneous, we grave have no doubt that particular in determining punishment. facts erroneous comments had a substantial influ improper argument. In This is his final ence on the Simpson, outcome at trial. closing argument prosecutor said: OK CR 876 P.2d at 702. Proposi I go wonder how it must feel to to Amber's requires tion Nine no relief. grave birthday. site on her I wonder how Knowing that coming feels. she is never Propositions Eleven, 74 In Ten and Ap why? back. And for What reason? No pellant claims the performance deficient reason at all. Howmust that feel? That's attorneys his trial right violated his a celebration of life that [her father] assistance of counsel under the Sixth and get engage doesn't to in. That's a celebra- II, Fourteenth Amendments and Article see get. tion of life he doesn't tion 20 of the Oklahoma Ap Constitution. response We find this comment was in pellant argues that counsel was ineffective in argument jurors defense counsel's that could failing request proper instructions, failing sanctity celebrate the of human life show object to inadmissible evidence and im ing merey non-capital to the defendant with a proper arguments, failing and in to discover argument sentence. As the proper was a and utilize additional mitigating evidence of defense, response to plain there is no Appellant's alleged dementia or brain dam error. Andrew v. age resulting from inju alcoholism and head ¶ 135, 164P.3d claim, ries. In connection with this latter ¶ 72 Appellant finally argues has filed a supplement motion to appel prosecutor improperly aligned himself request late record and evidentiary hear closing with the argument. pros The ing permitted by 3.11(B), as Rule Rules of jurors ecutor's comment told that after the the Oklahoma Court Appeals, Criminal crime, defendant's began" "another mission O.S.Supp.2010, App. Ch. bring justice. the killers to police The had carried the "torch they sought of truth" as 175 We address complaints these apprehend perpetrators. They passed applying required by the familiar test prosecutors, the torch on to the who "stood Supreme Washington, Court Strickland v. family arm arm with the Matthews 2052, 2064, 466 U.S. 104 S.Ct. justice." continued that march toward The L.Ed.2d 674 strongly This Court prosecutor explained argument that after his presumes that counsel rendered reasonable truth, handing you "we are torch of professional Appellant assistance. must es hoping and trusting you carry will (1) contrary by tablish the showing: justice across the line where awaits. Justice performance deficient; trial counsel's in this case ais death sentence." (2) prejudiced that he was by the defi This Court said Sanchez v. performance. Spears cient 1995 OK ¶ 980,1005, OK CR that ¶ 54, 445. To deter require it "will not counsel in such serious mine whether performance counsel's was de ficient, cases to address the with lifeless and we challenged ask whether the act or omission objectively timid recitations void of moral reflection or reasonable under persuasive power." The prevailing professional comments chal norms. inqui lenged only here form part ry, Appellant small of a must show that counsel com lengthy summation in which the State and mitted errors so serious that he was not 3.11(B),Appellant pres by Rule permitted guaranteed the counsel

functioning as 8,%14, neuropsy- report affidavit and ents the Browning, 2006 Constitution. for this coun- evaluated right chologist to effective who P.3d at 830. evaluation, the her report In the appeal. enforcing the Constitution's sel is a means trial, impartial mean- neuropsychologist fair and concludes of a guarantee result. The over- diagnostic a reliable criteria for dementia ing a trial with meets the per- judging possi counsel's etiologies, specifically riding multiple concern due to birth, during oxygen his deprivation fulfilled the ble counsel is "whether formance testing the adversarial making injuries, function of and chronic abuse history of head neuropsychologist concludes 2001 OK aleohol. Hooks process work." T Appellant: that Appellant average shows intellectual abili- Where low has overall objectively memory representation moderately severe counsel's ... with ties professional prevailing significant impairment under dysfunction unreasonable and that he suf norms, further show he must abilities. His planning organization and of counsel's er as a result prejudice and relatively comprehension fered intact verbal de Supreme Court Strickland rors. The vocabulary give appearance him the skills probability a reasonable prejudice as fined functioning than is the higher that he is errors, that, unprofessional but for counsel's case, pattern of cognitively. His overall sentencing would the trial or the outcome of appears consistent cognitive dysfunction Hooks, id., citing different. have been insults, possibly begin- multiple brain with Taylor, 529 U.S. 120 S.Ct. Williams oxygen at ning reported lack of with the We will re 146 LEd.2d 485 birth, are the re- particularly relevant but only where judgment and sentence verse injuries in adult- peated significant head un counsel made record demonstrates chronic, severe, hood in combination with deprive serious as to professional errors "so sug- consumption and heavy alcohol and trial, a trial whose of a fair the defendant temporal gests primary involvement Strickland, 466 U.S. at result is reliable." lobes, bilaterally, implication If before at 2064. the record 104 S.Ct. systems as well. frontal a claim of ineffece- resolution of permits us cognitive difficulties Mr. Grissom's ground that Strickland's on the tiveness Manual Diagnostic and Statistical meet the satisfied, we prong has not been prejudice Edition, for Mental Disorders-Fourth Phillips, ordinarily this course. follow will Due to criteria for Dementia Text Revision ... Multiple Etiologies failure to regard to counsel's T77 With signifi- presently Mr. suffers Grissom and object allegedly inadmissible evidence dysfunction involving memo- cognitive cant instructions, request and to improper organiza- reasoning and ry planning, trial, conclusions at our different instructions cognitive ... Mr. Grissom's tion abilities at properly admitted the evidence was permanent or- impairment resulted from trial, jury instructions did and that erroneous repeated head of his ganic brain effects error, foreclose prejudicial not result al- injuries in with his severe combination based on these omis- claim of ineffectiveness the instant ... the time of [AJt coholism simply cannot show a rea- Appellant sions. memory significant offenses Mr. Grissom's that, for counsel's probability but sonable in planning, impairment and his difficulties errors, the outcome allegedly unprofessional reasoning, organization abilities Prop- trial would have been different. ingestion large of a by his made worse therefore denied. osition Ten is likely impaired his of alcohol and amount Eleven, Proposition counsel 178 In cognitively efficient ability function in a mitigating failure to utilize argues that manner. neurological deficits violated of his evidence Appel- also reflects The record In his accom T79 right effective counsel. his and a psychologist hearing lant retained a forensic evidentiary as request panying psychiatrist testify forensic request defense evidentiary for an hearing on a trial, expert These witnesses evaluated claim of ineffective assistance under Appellant gave testimony extensive 3.11, standard set forth in Rule we do not findings, including their Appellant's reported adjudication make the that defense counsel birth, history of a difficult academic and so- actually was merely ineffective. We find problems early cial age; history at an strong possibil- has shown a trauma; head history his criminal im- ity that counsel was ineffective and should alcohol; prisonment; depression; abuse of be afforded opportunity further present marriage. and his Ap- troubled Neither of support evidence in of his claim. Howev- pellant's expert expressly witnesses at trial er, when we deny review and a request for diagnosed Appellant suffering as from de- an evidentiary hearing on a claim of inef- mentia at the time of these offenses. fective assistance under the standard set 8.11, forth 8.11(B)(8)(b)(G), necessarily 80 Under Rule we Rule make this Court adjudication reviews the affidavits evidentiary has materi not shown defense counsel to be by ineffectiveunder the als Appellant submitted determine they whether rigorous contain "sufficient more information federal standard set forth in by to show this Court clear and convincing Strickland. evidence strong possibility there is a Simpson counsel was failing ineffective for to utilize or identify complained-of the evidence." If the Court application determines from the that a 1 82 considering After Appellant's claim in strong possibility shown, of ineffectiveness is light of the trial, evidence offered at the

we will "remand the matter to the trial court arguments brief, in supplemental his and his evidentiary for an hearing, utilizing the ad materials, the Court Appellant finds that has process, versarial and direct the trial court to not shown clear convincing and evidence that findings make of fact and conclusions of law suggests strong a possibility that trial coun- solely on the issues and evidence raised in sel was in failing ineffective to develop and 3.11(B)8)(b)(i). application." Rule The utilize type presented evidence here. evidentiary record thus in created the dis The neuropsychological report largely re- may trict court then be part admitted as flects the mitigating already pre- narrative appeal record on and considered con sented at aspects trial. Other report Appellant's nection with claims of ineffective equivocal, are at best: The mitigating force 8.11(B)(8) (C). counsel. Rule and reported memory, deficits in recently emphasized planning, 81 We have organizational and our skills-as a re- alleged sult of his significantly reading application dementia-is and of Rule 3.11 is not by Strickland; diminished undisputed other evidence of inconsistent with nor does it lade appellants with a heavier burden to demon- how he carried out these crimes. To borrow strate appeal ineffectiveness on than phrase Strick- expert, from his if Appellant had land itself. slightly been "cognitively more efficient" in plans, certainly execution of his would

This standard is intended to be less de- have Kopf, murdered Dreu manding might and imposed by than the test have Strick- apprehension avoided altogether, or at least land and we believe that this intent Indeed, long enough endanger additional realized. it is less of a lives. burden to show, proffered by Appellant's diagno- even evidenceof convincing clear and evi- dence, merely sis with dementia strong possibility accompanying and its defi- show, cits by appreciably counsel was ineffective than does not alter the balance of preponderance aggravating mitigating of the evidence that and coun- cireumstances performance actually sel's was deficient considered at trial. We conclude errors, and that unprofessional Appellant but for the has not shown counsel would have was ineffective for failing type to utilize the proceeding result of the required been different as is presented Strick- of evidence supplemental Thus, materials, land. when grant we review and evidentiary hearing no is nec- (2010), 18, App. Ch. evidentiary Appeals, nal Title request essary. Appellant's upon the issued MANDATE is ORDERED Eleven are denied. Proposition hearing and delivery filing of this decision. ¶ 83 aceu- argues the Proposition Twelve re case warrants in this of errors mulation JOHNSON, P.J., JOHNSON, and C. A. This the sentence. or modification versal SMITH, JJ.: Coneurs. court's deci district error in the found Court the defense give instructions sion LUMPKIN, Specially J.: Coneurs. intoxication, failure to in the voluntary LUMPKIN, Judge: Specially Concur. impact on victim uniform instruction give the {1 shown that has not evidence. in the Court's decision I concur to him. prejudice errors resulted these in this judgments and sentences affirm was errone found also 8. How- The Court the modification Count case and grand convicted ously charged with and statutory ever, point out a distinc- I write to larce the conviction to larceny, Proposi- modified general rule addressed tion to find no other vehicle. We ny addressing of a motor the issue II. In footnote tion evidence of trial had no there was sufficient errors at of whether conclude the errors and trial un voluntary intoxicationwhich necessitated that rendered cumulative effect instruction, Proposition included giving of a lesser unreliable. or the outcome fair requires no relief. for the quotes Twelve Wharton on Homicide Court if sufficient evidence exists proposition every must determine This Court voluntary require- intoxication to meet (1) of the sentence whether capital case: "manslaughter murder or ments then either the influence of imposed under death was proper degree" would be the in the second arbitrary any fac or other passion, prejudice legal instruction. While included lesser - (2) supports tor; the evidence whether gener- conveying treatises are valuable cireum- finding aggravating jury's of it neces- legal principles practices, is al 701.18(C). 0.9.2001, jury § The 21 stances. if to determine sary go specific statutes that the aggravating circumstances found the general prin- legislature has followed the great risk of death to created a defendant through the ciples or has deviated from them that he committed person; than one more penal specific statutes. enactment imprison serving a sentence of murder while ment; probability of a and the existence on a Determining 2 whether instructions eriminal acts of would commit given is a the defendant offense should be lesser included continuing that would constitute violence First, deter step analysis. must be two 701.122), 0.8.2001, § society. 21 threat alleged offense is whether the lesser mined (7). (5), Appellant presented substantial recognized included offense legally lesser as de mitigating civreumstances evidence State, v. 1999 charged offense. Shrum carefully reviewed 1032, 41, ¶ 7, tailed above. We have 1035. This 991 P.2d OK CR was not record and find that traditionally the statuto looked to Court has prejudice, by passion, improperly influenced any charged crime and ry of the elements arbitrary in the determi factor or other crime to determine the exis degree lesser guilt nation of or sentence. offenses. Id. any lesser included tence of case-specific determination is This DECISION statutory by looking at only made can be 41, ¶ 5, 991 P.2d 1999OK CR elements. of the Judgment and Sentence T85 The V.P.J., concurring in re 1, (Lumpkin, at 1038 County Counts Court of Blaine District sults). part of the A offense is a 2, Judgment lesser and 4 are AFFIRMED. to a is MODIFIED Count 3 when the establishment greater Sentence offense greater offense vehicle, the essential elements larceny of a motor conviction for all the elements re (2) necessarily establishes felony convie- previous more after two the lesser included offense. quired prove tions, sentenced to for which Uriarite, 916; 00.98.2001, 1991 (25) § State v. Pursu- 22 twenty years imprisonment. five 193, 80, ¶ 8, also P.2d 195. See 815 of Crimi- 3.15, Rules of the Court ant to Rule

997 States, 705, 716- U.S. v. United 2011 OK CR 13 Schmuck LEd.2d 734 717, S.Ct. Eugene JONES, Appellant, Gregory analysis looks to step of T 3 The second Oklahoma, Appellee. STATE prima whether to determine the evidence recognized lesser No. F-2009-906. legally evidence of the facie at trial. presented has been included offense Appeals Court of Criminal of Oklahoma. State, 11, 156, 4 P.3d 2000 OK CR Bland v. State, April7,2011. 2007 OK also Ball v. 719-20. See Prima 173 P.8d CR facie is that a lesser included offense evidence of rationally would allow

evidence which guilty the lesser of the accused

to find Eigem greater. acquit him of the fense and ¶29, 111, State, 2007 OK CR ber v. Gibson, Hogan v. 197 F.3d citing (10th Cir.1999) . 1297,1305 Degree Murder Historically, Second included recognized as a lesser

has been Degree Murder.1 See

offense of First State, 6, 116-18, 2010 OK CR

Simpson v. Ball, 888, 897;

¶ 37, 91; 173 P.3d at Williams 711-712; 9, ¶¶ 22-28, 22 P.3d OK ¶¶ 9-12,

Freeman v. 286; 1977 OK Dennis v. 88, 94-95; v. Gibson CR ¶¶ 9-10, 476 P.2d 362, 364-865; Territory, 4 Okl. Jewell

43 P. 1078-1082 Next, looking in this at the evidence

case, acquitted have no rational would Degree Murder in favor of

Appellant of First Degree finding guilt Murder.

a Second

Therefore, its the trial court did abuse a instruc- failing to submit

discretion Degree Murder as lesser

tion on Second Degree Murder. offense of First

included see, bright give bench and bar line Willingham 1997 OK trial contra 1. But 20-27, (sec determining ¶¶ apply offenses as lesser included 1080-1081 CR degree Degree, Willing included of murder is not lesser ond Murder, First I concurred interpre murder) part, I accede to the current degree ham. However overruled in fense of first Shrum, bench and bar have at 1036. tation to ensure 1999 OK analyze cases. years method to future and a desire unified over the Due to the confusion

Case Details

Case Name: Grissom v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 1, 2011

Citation: 253 P.3d 969

Docket Number: D-2008-595

Court Abbreviation: Okla. Crim. App.