Jackie Eugene HUMPHREYS, Appellant, v. STATE of Oklahoma, Appellee.
No. F-95-402.
Court of Criminal Appeals of Oklahoma.
Oct. 10, 1997.
Rehearing Denied Nov. 17, 1997.
947 P.2d 565
Our Rules do not specify the manner in which service may be effected. Notice to the adverse party may be perfected by mailing a copy of those items filed to each respondent and executing a proper certificate of mailing. The certificate should be appended at the end of the original of each document for which service is being certified. A party would also be in compliance with Rule 10.3 by filing a separate document listing each of the items which were mailed to the adverse party and which document properly certifies such mailing. Other valid forms of service, such as personal service by hand delivery, may be certified in a similar fashion.
IT IS THEREFORE THE ORDER OF THIS COURT that acceptance of original jurisdiction is DECLINED and Petitioner‘s May 9, 1997, Petition for Writ of Mandamus is hereby DISMISSED.
The Clerk for the Court of Criminal Appeals is directed to transmit a copy of this Court‘s Order to the Honorable John G. Lanning, Judge of the Washington County District Court; the Office of the District Attorney of Washington County; and to the Clerk of the District Court of Washington County, as well as to Petitioner.
IT IS SO ORDERED.
/s/ Charles S. Chapel
/s/ CHARLES S. CHAPEL, Presiding Judge
/s/ Reta M. Strubhar
/s/ RETA M. STRUBHAR, Vice Presiding Judge
/s/ Gary L. Lumpkin
/s/ GARY L. LUMPKIN, Judge
/s/ James F. Lane
/s/ JAMES F. LANE, Judge
/s/ Charles A. Johnson
/s/ CHARLES A. JOHNSON, Judge
Oliver R. Barris, III, Beryl R. Davis, Assistant District Attorneys, Eufaula, for the State at trial.
James A. Drummond, Cindy G. Brown, Capital Direct Appeals Div., Okla. Indigent Defense System, Norman, for appellant on appeal.
W.A. Drew Edmondson, Attorney General, Robert Whittaker, Assistant Attorney General, Oklahoma City, for appellee on appeal.
OPINION
STRUBHAR, Vice Presiding Judge:
Appellant, Jackie Eugene Humphreys,1 was tried by jury and convicted of one count of Murder in the first degree (
The facts of this case are set out in detail in Humphrey v. State, 864 P.2d at 344. Stated briefly, Appellant stabbed to death his common law wife, Bessie Phipps, on New Years Day 1987 in the Cuban Bar in Henryetta, Oklahoma. The evidence showed both Appellant and Phipps were alcoholics whose relationship was marked with violence. Phipps had moved out of Appellant‘s home prior to the murder. Other facts will be discussed as they become relevant.
In his first proposition of error, Appellant argues the trial court‘s death-qualifying questions improperly diminished the jurors’ sense of responsibility in determining the appropriate penalty because the trial court asked the prospective jurors if they could “recommend” a death sentence rather than whether they could “impose” a death sentence. See Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); Mayes v. State, 887 P.2d 1288, 1324 (Okl.Cr.1994) (Chapel, J. dissenting), cert. denied, 513 U.S. 1194, 115 S.Ct. 1260, 131 L.Ed.2d 140 (1995). Appellant contends asking jurors if they could recommend the death penalty rather than impose the death penalty conveyed to the jurors that their sentencing verdict would only be a recommendation which would be reviewed or considered for appropriateness.4
A death sentence is unconstitutional if it rests on a determination made by a jury which has been led to believe that the responsibility for deciding the appropriateness of the death penalty lies elsewhere. Caldwell, 472 U.S. at 329, 105 S.Ct. at 2639, 86 L.Ed.2d at 239. Only comments which mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision will violate Caldwell. Darden v. Wainwright, 477 U.S. 168, 183, n. 15, 106 S.Ct. 2464, 2472-73, n. 15, 91 L.Ed.2d 144 (1986).
In Romano v. State, 847 P.2d 368, 390 (Okl.Cr.1993), the trial judge advised each prospective juror during voir dire that it was his or her duty to determine whether or not, considering the evidence, death should be recommended. This Court held such a statement was not error as it was a proper statement of the law. Id. See also Wade v. State, 825 P.2d 1357, 1360 (Okl.Cr.1992) (holding prosecutor‘s use of the phrase “recommend the death penalty” during voir dire did not amount to plain error because the statement would not have caused a reasonable juror to feel his or her ultimate responsibility was diminished). The Supreme Court affirmed this Court‘s decision in Romano and held that a Caldwell violation is only established if the remarks improperly describe the role assigned to the jury by local law. Romano v. Oklahoma, 512 U.S. 1, 8, 114 S.Ct. 2004, 2010, 129 L.Ed.2d 1 (1994). As in Romano, the question posed in the instant case was a proper statement of the law. We further note the trial court administered explicit instructions concerning the jury‘s duty to determine punishment as was done in Romano. Accordingly, we find the question did not divert the jury from its “awesome responsibility” of deciding the appropriate punishment. Romano, 847 P.2d at 390.
Next, Appellant argues the trial court abused its discretion when it excused prospective jurors Fitzl and Coker for cause and refused to allow defense counsel to rehabilitate them. The decision whether to disqualify a prospective juror for cause rests in the trial court‘s sound discretion whose decision will not be disturbed unless an abuse of discretion is shown. Spears v. State, 900 P.2d 431, 437 (Okl.Cr.), cert. denied, 516 U.S. 1031, 116 S.Ct. 678, 133 L.Ed.2d 527 (1995); Allen v. State, 862 P.2d 487, 491 (Okl.Cr. 1993), cert. denied, 511 U.S. 1075, 114 S.Ct. 1657, 128 L.Ed.2d 375 (1994). To determine if the trial court properly excused a prospective juror for cause, this Court will review the entirety of the juror‘s voir dire examination. Carter v. State, 879 P.2d 1234, 1244 (Okl.Cr.1994), cert. denied, 513 U.S. 1172, 115
In the instant case, prospective juror Fitzl stated unequivocally during individual voir dire that she had views about capital punishment that would prevent or substantially impair her ability to consider the three punishment options. Fitzl further stated that even if the law and the evidence warranted a recommendation of the death penalty, she could not recommend a death sentence. The trial court properly excused Fitzl for cause and Appellant has failed to show any abuse of discretion.5
Prospective juror Coker stated during individual voir dire that she had a problem with [the death penalty]. The trial court asked if Coker could recommend the death penalty if the law and the evidence warranted it. Coker stated that she could and had no reservations about imposing a death sentence if the evidence warranted it. During general voir dire, the prosecutor asked Coker if she could return a verdict of death. Coker said she would have “a little problem with that....” A bench conference was held and the trial court made further inquiry. Coker then stated that she did not know whether she could impose the death penalty and that she had reservations about it. Before excusing Coker for cause the trial court asked:
THE COURT: Even, as I asked you this morning, if the facts and circumstances justify it, you don‘t know whether you could recommend it or not; is that correct?
JUROR COKER: Well, I thought at the time I could, but when I get right down to that—
THE COURT: You feel that you can‘t; is that correct or incorrect?
JUROR COKER: In all honesty, I feel—
THE COURT: You can stop down. You are excused.
When reviewing cases in which a prospective juror‘s answers are unclear or equivocal, this Court traditionally defers to the impressions of the trial court who can better assess whether a potential juror would be unable to fulfill his or her oath. Scott v. State, 891 P.2d 1283, 1289 (Okl.Cr.1995), cert. denied, 516 U.S. 1077, 116 S.Ct. 784, 133 L.Ed.2d 735 (1996); Allen v. State, 871 P.2d 79, 91 (Okl.Cr.), cert. denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994). After considering the entire record surrounding Coker‘s exclusion, and giving appropriate deference to the trial court, we find that Coker‘s responses sufficiently demonstrated that her beliefs about capital punishment would substantially impair her ability to serve as a juror. Accordingly, the trial court did not err in removing Coker for cause.
Appellant also complains that the trial court erred when it refused to allow defense counsel to rehabilitate Fitzl and Coker. Because proper questions were asked by the trial court to determine the prospective jurors’ fitness to hear this case, no error occurred when the trial court refused defense counsel‘s request to rehabilitate Fitzl and Coker. Scott, 891 P.2d at 1290.
Finally, Appellant argues he was denied a fair trial and impartial jury because the trial court did not conduct voir dire of prospective jurors individually about their feelings concerning the imposition of a sentence of either life or life without parole. Appellant relies on Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992) and argues the trial court improperly restricted inquiry into whether the prospective jurors would automatically impose the death penalty and fail to consider the punishment options of life and life without parole.
ISSUES RELATING TO PUNISHMENT
In his second proposition of error, Appellant argues the trial court misinterpreted
The trial court in the instant case ruled that it would admit any properly admitted evidence from Appellant‘s original trial. However, the trial court concluded that because this Court affirmed Appellant‘s conviction and remanded this case so a sentencing jury could consider life without parole,9 that all evidence admitted in the original proceeding must have been properly admitted. The trial court at resentencing refused to consider constitutional or evidentiary objections to any evidence which had been admitted in Appellant‘s original trial.
Neither Oklahoma nor the four other states with statutes similar to section 701.10a (4)10 have addressed whether this section allows defendants to challenge, in a subsequent resentencing trial, evidence admitted in the original trial based on allegations that such evidence was not properly admitted. Both parties agree that any evidentiary issue raised on direct appeal and ruled admissible by this Court is barred by res judicata. It is when an evidentiary issue is not contested at the original trial and not raised on direct appeal that requires this Court to define “properly admitted” as used in section 701.10a and to set out the role of the trial court in a resentencing proceeding.
Although Appellant claims that his custodial statements, his first stage testimony and State‘s exhibits 7, 9, 10, 12 and 13 were erroneously admitted based on the trial court‘s misinterpretation and reliance on 701.10a,11 the only evidence we will review based on a section 701.10a challenge is that evidence which was actually admitted in Appellant‘s original trial. The record shows that only his custodial statements to Officer Robertson and Jail Administrator Plaster, his first stage testimony and State‘s exhibit 7 were admitted at Appellant‘s original trial. Therefore, we will review this evidence in the original trial to determine if it was “properly admitted.” If such evidence was properly admitted, it is admissible by operation of law in the resentencing trial and we cannot entertain any other challenge to such evidence.
First, Appellant claims his custodial statements to Officer Robertson and Jail Administrator Plaster were involuntary and that he was denied due process because the trial court failed to hold a Jackson v. Denno12 hearing to determine if the statements were voluntarily made. Appellant‘s custodial statements were admitted in the original trial during second stage to support the “continuing threat” aggravator. A review of the record from Appellant‘s original trial shows that Appellant never contested the voluntariness of the statements or requested a Jackson v. Denno hearing. A defendant does not have the right to a Jackson v. Denno hearing as to the voluntariness of his inculpatory custodial statements where he does not object to the admission of the statements. Wainwright v. Sykes, 433 U.S. 72, 86, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Because Appellant did not object to the voluntariness of his custodial statements to Robertson or Plaster at his original trial, the trial court properly admitted the statements without a Jackson v. Denno hearing. See Wainwright, 433 U.S. at 86, 97 S.Ct. at 2506. Because the custodial statements were properly admitted in Appellant‘s original trial, they were admissible in Appellant‘s resentencing trial and no error occurred in their admission.
Next, Appellant complains that his first stage testimony violated his right to remain silent because it was induced by misconduct of the State. Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968). Appellant claims he testified in his original trial to put forth sufficient evidence to warrant an instruction on heat of passion manslaughter and to rebut the State‘s use of inadmissible evidence.
The general rule is that a defendant‘s testimony at a former trial is admissible in evidence against him in later proceedings. Harrison, 392 U.S. at 222, 88 S.Ct. at 2010. “A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives, and that waiver is no less effective or complete because the defendant may have been motivated to take the witness stand in the first place only by reason of the strength of the lawful evidence adduced against him.” Id.
Lastly, Appellant complains that State‘s exhibit 7 was improperly admitted in his original trial because it is hearsay. State‘s exhibit 7 was a list of Appellant‘s prior law enforcement contacts with the Henryetta Police Department. It contained three columns listing, respectively, a date, an offense, and a first initial and last name of the officer with whom the contact was had. The list was prepared by Henryetta Police Officer Eddie Hunt and was admitted in the second stage of Appellant‘s original trial. At the original trial, defense counsel objected to State‘s exhibit 7,13 stating the defense “objects to State‘s Exhibit 2 except for those items that resulted in a conviction of a felony.”14 The trial court overruled the objection.
A review of State‘s Exhibit 7 shows the trial court erred in admitting it in the original trial because it was hearsay which did not fall within the business record exception. See
We must now review Appellant‘s remaining claims concerning State‘s exhibits 9, 10, 12 and 13 which were not admitted in Appellant‘s original trial. Appellant argues the trial court in his resentencing trial erred in failing to determine the voluntariness of Appellant‘s confessions to two prison infractions contained in two DOC offense/investigation reports admitted as State‘s exhibits 9 and 10. Defense counsel objected citing the Fifth Amendment. However, counsel neither contested the voluntariness of the confessions nor requested a Jackson v. Denno hearing. Accordingly, the trial court properly admitted them without a hearing. Wainwright, 433 U.S. at 86, 97 S.Ct. at 2506.
Appellant claims the trial court erred in admitting State‘s exhibits 9, 10, 12 and 13 because they were inadmissible hearsay. He maintains their admission violated his right of confrontation. State‘s exhibit 9 contained DOC documents concerning an incident in which Appellant was accused of and found guilty in a disciplinary hearing of menacing another inmate. State‘s exhibit 10 contained DOC documents concerning an incident in which Appellant was accused of, and
Lastly, Appellant argues the trial court erred in admitting State‘s exhibits 12, Appellant‘s discharge summary from Eastern State Hospital and 13, an unsigned psychological evaluation performed Sept. 19, 1987. At the resentencing trial the State offered the exhibits during the cross-examination of Appellant‘s psychological expert, Dr. Nelda Ferguson. Defense counsel objected stating the documents had not been properly sponsored or identified. Appellant now contends these reports constitute inadmissible hearsay and that these reports were not properly sponsored, identified or authenticated.
In Ake v. State, 778 P.2d 460, 467-68 (Okl.Cr.1989), this Court found that the admission of facts or data relied upon by an expert was admissible as long as it was the type relied on by experts in the field. See also
In the instant case, the State certainly had the right to cross-examine Appellant‘s expert concerning the basis of her opinion. In so doing, the State questioned Ferguson about the records she relied on in reaching her opinion. The State quoted from several reports concerning Appellant to determine if Ferguson agreed or disagreed with other evaluations. In an attempt to impeach Ferguson, the State moved to admit State‘s exhibits 12 and 13 because she had reviewed them in reaching her opinion. Because this is the type of data relied on by other psychological experts in the field, Appellant cannot show that the trial court abused its discretion in admitting State‘s exhibits 12 and 13.
Appellant is correct that no limiting instruction was administered concerning the use of this evidence. However, because Appellant failed to request such an instruction, we will review for plain error. Hill v. State, 898 P.2d 155, 163 (Okl.Cr.1995). A review of the instructions given in this case shows the trial court administered OUJI-CR-907 concerning the credibility of witnesses generally and OUJI-CR-843 concerning the credibility of expert witnesses. Although we charge trial courts with the duty to administer a limiting instruction, we find the failure to administer an instruction limiting the use of State‘s exhibits 12 and 13 does not amount to plain error in this case.
In his seventh proposition of error,15 Appellant argues the evidence was insufficient to prove beyond a reasonable doubt that he was serving a sentence of imprisonment at the time the homicide occurred.
This Court has consistently rejected claims that this aggravator is limited to cases where the murder occurs in a prison facility. Duckett v. State, 919 P.2d 7, 25-26 (Okl.Cr.1995), cert. denied, 519 U.S. 1131, 117 S.Ct. 991, 136 L.Ed.2d 872 (1997); Cooper v. State, 889 P.2d 293, 315-16 (Okl.Cr.1995), reversed on other grounds, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996); McCracken v. State, 887 P.2d 323, 331 (Okl.Cr.1994), cert.
We must now review the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the facts necessary to support this aggravating circumstance beyond a reasonable doubt. Salazar v. State, 919 P.2d 1120, 1123 (Okl.Cr.1996); Malone v. State, 876 P.2d 707, 718 (Okl.Cr.1994). In the instant case, Jim Raybun, a records keeper for the Department of Corrections, testified Appellant was incarcerated in the Oklahoma Department of Corrections in the house arrest program at the time of the murder. Appellant was placed on house arrest on September 18, 1986. Raybun testified that under state law,16 the Department of Corrections could place an incarcerated offender at home under supervision to serve out the remainder of his or her sentence. He further testified that a person on house arrest was considered to be within the custody of the Department of Corrections and to be serving a sentence of imprisonment. Because this evidence shows that Appellant was serving his sentence under the supervision of the Department of Corrections in the house arrest program at the time of the murder, we find the State proved beyond a reasonable doubt that Appellant murdered Phipps while serving a sentence of imprisonment on conviction of a felony. McCracken, 887 P.2d at 331. Therefore, this proposition is denied.
In his eighth proposition of error, Appellant claims the aggravating circumstance “continuing threat to society”17 is unconstitutionally vague and overly broad on its face and as construed by this Court. Appellant further claims the evidence was insufficient to prove beyond a reasonable doubt that he constituted a continuing threat to society.
This Court has consistently upheld the constitutionality of the “continuing threat to society” aggravating circumstance and rejected claims that the aggravating circumstance is unconstitutionally vague on its face or as construed. Duckett, 919 P.2d at 26; Knighton v. State, 912 P.2d 878, 895 (Okl.Cr.), cert. denied, 519 U.S. 841, 117 S.Ct. 120, 136 L.Ed.2d 71 (1996); Richie v. State, 908 P.2d 268, 278 (Okl.Cr.1995), cert. denied, 519 U.S. 837, 117 S.Ct. 111, 136 L.Ed.2d 64 (1996); Malone, 876 P.2d at 715-16. We find the law is settled and Appellant has failed to give this Court any reason to revisit this issue now.
Next, we must determine whether the State proved beyond a reasonable doubt that there exists a probability that Appellant would constitute a continuing threat to society. “When the State alleges the continuing threat aggravating circumstance, it is required to present proof that the defendant‘s behavior presents a threat to society and that [the] threat will continue in the future.” Perry v. State, 893 P.2d 521, 536 (Okl.Cr. 1995). “The aggravator is not established unless the evidence at trial supports a finding that the defendant will continue to present a threat to society after sentencing.” Malone, 876 P.2d at 717. To prove this aggravator, “the State [must] present sufficient evidence concerning prior convictions or unadjudicated crimes to show a pattern of criminal conduct that will likely continue in the future to support its ‘continuing threat’ contention.” Id.
In the instant case, the State introduced evidence that Appellant had physically abused Phipps prior to the murder,18 that
In his ninth proposition of error, Appellant claims he was denied competent trial counsel at his resentencing trial in violation of the Sixth Amendment. Appellant argues trial counsel failed to fully investigate and present compelling evidence that served to mitigate punishment and to rebut the State‘s claim that Appellant constituted a continuing threat to society. Appellant also claims counsel failed to adequately prepare for the presentation of witnesses when he failed to interview both state and defense witnesses prior to their testimony.
Pursuant to Rule 3.11(B)(3)(b), Rules of the Court of Criminal Appeals,
This Court will review the trial court‘s findings and give them strong deference if supported by the record, but we shall determine the ultimate issue whether trial counsel was ineffective. Rule 3.11(B)(3)(b)(iv), Rules of the Court of Criminal Appeals,
To prevail on a claim of ineffective assistance of counsel, Appellant must overcome the strong presumption that counsel‘s conduct falls within the wide range of reasonable
“The fact that a defense attorney could have investigated an issue more thoroughly does not, in and of itself, constitute ineffective assistance.” Fontenot v. State, 881 P.2d 69, 86 (Okl.Cr.1994). We are bewildered by counsel‘s efforts or lack thereof to present evidence of Appellant‘s aid to an injured jailer and we are appalled at counsel‘s failure to interview witnesses prior to trial, especially the psychological expert. However, we have reviewed the evidence from the evidentiary hearing very carefully and find that Appellant cannot show that he was prejudiced by counsel‘s performance. We find that the evidence of Appellant‘s aid to the injured jailer and the additional and more detailed psychological evidence presented at the evidentiary hearing would not have affected the sentence rendered. We so find because the State‘s case in aggravation was very strong and because counsel presented the majority of the psychological evidence in mitigation. Accordingly, this proposition is denied.
In his final proposition of error, Appellant claims the accumulation of errors discussed above denied him a fair trial. Where no individual error occurred at the resentencing trial, there can be no accumulation of error necessitating reversal, modification or resentencing. As discussed above, we find no error that warrants relief. Therefore, we find Appellant‘s resentencing trial, although imperfect, was fair and impartial and that none of Appellant‘s substantial rights were prejudiced. Stout v. State, 693 P.2d 617, 628 (Okl.Cr.1984). Accordingly this proposition is denied.
MANDATORY SENTENCE REVIEW
Pursuant to
CHAPEL, P.J., and LANE and JOHNSON, JJ., concur.
LUMPKIN, J., concurs in result.
LUMPKIN, Judge, concurs in result:
I agree the sentence in this case should be affirmed. But because the opinion reviews material which it should not, I can only concur in result.
Procedurally, here‘s what has happened: Appellant appealed both the judgment of guilt and sentence of death to this Court. This Court affirmed the judgment of guilt, but vacated the sentence and remanded for
I set out this procedural history to make a point: Appellant had the opportunity to seek Supreme Court review of the guilt proceedings after the judgment of this Court affirming his guilt was handed down in 1993. He did not do so. Now, by performing a review of evidence in the first stage in this appeal dealing with the punishment phase, the Court is allowing a collateral review of guilt-stage evidence through the back door; a procedure that does not contribute to finality.27 Such a procedure is unfair to the opposing party, who in fact did seek certiorari review in a timely manner.
Issues pertaining to the guilt stage were decided in 1993. As a result, they should either be res judicata or waived. This Court would not hesitate to hold these very same issues waived had this come up on post-conviction.
Accordingly, I can only concur in result.
Notes
The law of the State of Oklahoma in this case permits only three possible punishments for a person found guilty of murder in the first degree. Those punishments are life, life without parole, and death. Do you have any views or feelings about the death penalty or capital punishment that would prevent or substantially impair you from considering the three punishments in reaching your verdict? If selected as a juror and if you find that the law and the evidence in this case warrants the recommendation of the death penalty, could you vote to recommend that penalty?
All exhibits and a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing shall be admissible in the new sentencing proceeding; additional relevant evidence may be admitted including testimony of witnesses who testified at the previous trial. (emphasis added)