Jackson v. State

CR 39 JACKSON, Appellant, Larry Kenneth Oklahoma, Appellee.

The STATE F-95-1429.

No. Appeals of Criminal of Oklahoma.

Court 30, 1998.

June Aug.

Rehearing Denied

878

880

882 Albert, Walker, Barry City. Gina Pub- Thorpe Assistant Oklahoma Cade went to the Jim Defenders, City, building lic working Sep- Oklahoma for Defendant on where Jackson was 6,1994. They together at trial. left in tember Cade’s Jeep According Cherokee at about 10:00 a.m. H. Macy, Attorney, Ray Robert District Jackson, they arguing were about their Elliott, Deutsch, Stephen Assistant District relationship. left Jackson with the tools he City, Attorneys, Oklahoma for at the State using, utility was included a knife.2 which trail. Shortly thereafter, Jackson was discovered Sutton, B. Wendell Assistant De- Public missing Department and the of Corrections fender, City, ap- for on Oklahoma Jackson placed escape Jackson on status. peal. stopped Jackson and Cade first at a Loving, Attorney B. Susan General of at Broadway convenience store 23rd and Humes, Oklahoma, William L. Assistant At- purchased quart where Jackson a of beer and General, torney City, Appellee Oklahoma for cigarettes. said Cade Jackson went appeal. liquor bought across the street a store type beverage. “fifth” of some

a alcoholic Gulley’s They then drove to Martha house OPINION (Cade’s mother) dropped where Cade off her PER CURIAM: year daughter. old Jackson, Appellant, Larry Kenneth that, they After drove around for charged degree with was first murder malice City some time north of the Oklahoma met- O.S.1991, 701.7, § of 21 violation ropolitan they stopped area. Around noon Coimty, District Court Oklahoma Case No. bought Kentucky chicken at a Fried CF-94-6070. The filed a Bill State of Particu- They Chicken restaurant. then went to a alleging aggravating lars three circum- 6 at N.E. 122nd Motel and 1-35. stances. A trial was held before the motel, they 6 At the cheeked into a Owens, Judge. Honorable Daniel L. District room, ate their chicken and had intercourse. degree found guilty Jackson of first that, according they began After murder ag- and found the existence of two fighting “blimped” being he out due to gravating circumstances murder angry. either intoxicated or Jackson left the heinous, atrocious, especially or cruel and Jeep got motel far Cade’s as the previously convicted ramp Turnpike, just entrance the Turner felony involving the use threat of violence 1-35, north 122nd and where had an person.1 to the Jackson was sentenced accident, disabling Jeep. day, Later that death. From Judgment and Sentence p.m., Jeep at 3:30 about was found perfected appeal. Jackson has patrol highway trooper. waking up 7 Jackson next remembered I. FACTS field. hitched ride ¶ Wendy 2 and Cade had an on- apartments Court Ambassador at 1634 South going relationship while Jackson incar- was Phillips where his believed sister worked. he Joseph cerated Harp at Correctional Institu- Arriving p.m., there at about 6:00 to 6:30 he they tion. Jackson believed would be sister, was unable to find his but he did find married prison. when was released from woman, Leffette, Dorothy a who allowed him engaged Cade was to Victor Dizer and was at stay apartment. her attempting change relationship she ¶ 7, 1994, September On at around 9:00 had with Jackson. Gulley, a.m. Dizer Victor Cade’s Martha ¶ mother, assigned 3 Jackson was on a de- work fiance and went to the area where installing tail Jeep furniture State in for Oklahoma was found order to search for Thorpe building They at in Industries Jim Cade. went to Motel at N.E. 122 blades, alleged posed disposable sharp 1. The State’also a A knife uses razor continuing threat. called also a box knife. jurors sufficiently prospective a broad had rented and learned that Cade and 1-35 jury affected upon afford a defendant police notified and The were room. influences, personal interests room, outside they Cade’s nude checking the found bias, questioning judge’s to limit decision against throat body lying the bed. Cade’s an abuse of discretion. not be ruled will bathroom slashed and the entire had been rulings lay within the trial dire blood; however, Voir very covered with floor was “determina- judge’s discretion because the body. had blood was on Cade’s Cade little which demeanor impartiality, in tion thirty wounds. Cause over slash/stab important part, particular- plays such an deep be the incised was determined to death judge.” ly province of the trial within jug- severed both wound to her throat which knife, ¶ utility wrapped ular veins. The Walker cloth, denied, stuck between the 859, was found wash cert. 516 U.S. P.2d springs (1995)(alterations bed. 166, mattress box 133 L.Ed.2d (citations omitted). original) are not We by police at Lef- located Jackson was ques not a in whether or certain interested Septem- at noon on apartment fette’s about asked, but rather tion was allowed to be 7, custody. In into 1994. He taken ber the defendant was allowed sufficient whether was arrested the the room where Jackson grounds determine if there were voir dire to watch, keys jewelry, police found Cade’s juror challenge particular for cause police Jeep. Jackson admitted intelligently preemptory chal exercise his it, dead, did hot if he did but he Cade lenges. killing. details of the want to talk about the 136, ¶ 12 1983 OK CR In Nauni 130, 126, no held that abuse we II. ISSUES JURY SELECTION judge re- occurred when the discretion proposition one Jackson contends regarding legal questioning dire stricted voir by prohibiting coun- that the trial court erred had to instruct the the trial court issues conducting dire on his defense sel from voir ease, upon. trial court did not In this theory capacity. Jack- of diminished mental disallowing Jackson’s abuse its discretion complains error for that was son also questions regarding theory of defense. his inquiring from prohibit court to counsel trial jurors’ to test questions were effort juror’s perception of a “life sen- about the accept theory of defense willingness to tence.” impartiality. their Ulti- rather than to test voluntary intoxication mately, instructions on claims, first, that he Therefore, defense counsel’s given. were voir right to effective dire was denied his only questions have confused proposed would poten being prohibited inquiring about jury. juror’s feelings toward a defense di tial drug capacity or alcohol minished based to Jackson’s second answer extent of voir consumption. The manner and allowing no in not allegation, there was error discretion of the dire rests within sound jurors regarding probe counsel to defense court. Plantz a “life We perception of sentence.” their told held that the be never should have 1130, 130 L.Ed.2d 1091 115 S.Ct. sys workings parole about the inner jurors tem, held that should nor have we life sentences length governing sufficiency informed about principles “The possibili life sentences of without the Sixth versus questions of voir dire derive from State, 1996 CR ty parole. OK impartial jury of of Johnson guarantee Amendment 309, 319-20, ¶¶ 45-49, de P.2d cert. purpose “The of prosecutions.” in criminal — -, S.Ct. whether there ... is to ascertain voir dire nied the mean We hold that challenge L.Ed.2d 54 to for either actual grounds are life a sentence of permit ing a life sentence and to the intelli- of implied [and] or bias subject for proper not a parole is preemptory chal- without gent [sic] exercise of long voir dire. lenges.” as the examination of As two, proposition person 14 In who been a a has convicted of cause, rights that his felony subject being

claims were violated to excused for juror prospective Stempf. removal of Juror with no of of mention the status his civil Stempf years pri- admitted that about twelve rights. prospective The decision to excuse a convicted, toor this trial he had been in a juror for cause rests within the sound discre court, illegally Wyoming carrying of a federal judge, tion not of trial whose decision will firearm an Air Stempf on Force base. be overturned unless an abuse of discretion agreed it a felony was conviction and Spears shown. already expired. that the sentence had ¶ 9, Stempf trial court Mr. excused based his 1031, 116 678, 133 L.Ed.2d 527. felony objection conviction Jack over of ¶ 18 The trial court had sufficient infor- son. Stempf mation to determine s con- whether argues Stempf 15 Jackson that because Therefore, felony. viction was a we not need sentence, completed rights had his his civil determine whether the was or conviction was eligible were restored and he was to serve on felony not a under law. Oklahoma Juror jury. qualified this Persons who are not subject Stempf being challenged for jurors serve as are: Therefore, pursuant cause to section 658. who any Persons have been convicted of removing the trial court in did not err him. felony or who a of have served term im- ’ prisonment any penitentiary, in state or claims, proposition 19 Petitioner federal, felony; for the of commission three, trial court erred when any convicted, provided, such citizen who jurors prospective two removed for cause fully has been restored to or her civil adequately they establishing before rights, eligible juror; shall be to serve as a jurors Prospective could not follow the law. they Williams and Hah indicated that would 28(B)(6) § O.S.Supp.1995, [emphasis add- imposing penalty. have trouble the death interpretation. section needs ed]. This no legislature The clear intent of the tois ex- ¶20 Williams was removed sua clude those who have either been convicted sponte the trial court. Her removal was felony of or have served a term of im- objection. contemporaneous met with a prisonment any penitentiary for the com- Therefore, we her will review removal for felony person mission unless that has plain only. error Lawson fully rights. been restored to his her civil Williams person’s argues that a civil regardless indicated that of the law and the rights fully are restored after the term of facts, impose penalty she could imprisonment expired. has Therefore, death. proper. her removal was argument, O.S.1991, this Jackson cites 4-101, § suspends voting rights only which ¶21 Hall he first indicated that period equal pre- for time the time give meaningful could not consideration to judgment scribed Fur- and sentence. penalty of death. Then he said that if it ther, O.S.1991, 65, § Jackson cites which doubt,” “beyond he inflict could imprisonment “[a] states that sentence of that, if penalty, proves death the State Department under the of Corrections sus- case, its ranges would consider each of the pends rights person all the civil so Later, punishment. when court sentenced, during ... the term of such im- clarify position, tried to Hall’s Hall stated prisonment.” that, prescribe “I couldn’t to him death be just cause I one put don’t want to be the 17 We need not discuss the issue asked, Finally, person’s rights, civil someone death.” when including whether a right jury, you impose penalty, to serve on a are “Could vote to restored death upon upon you of a the termination sentence. While based the facts and evidence hear juror may ease, Stempf eligible as a you serve see if believe the cir Oklahoma, O.S.1991, 658, juror § imposition 22 states cumstances warrants the of that

885 ¶¶ 251, denied, 32, 17-18, 240, 876 P.2d cert. you that?” Hall stat- punishment? Could do 1090, 115 752, 130 ed, L.Ed.2d 651 “I think so.” 513 U.S. S.Ct. don’t (1995) “I think I could” Responses such as don’t punishment op- available

consider all three juror tions, consider” that the “could not III. FIRST STAGE ISSUES that “it be penalty, would death five, proposition 24 In Jack juror impossible” for the to consider the argues presented son State insuffi ju- potential penalty indicate these death aforethought, be cient evidence of malice personal put not their rors could aside to raise cause there was sufficient evidence to the law and their beliefs deference was so intoxi reasonable doubt that Jackson Therefore, jurors. they were oath as passion as be cated in the heat of to and/or properly excused for cause. forming specific kill. incapable of intent to State, 49, 22, OK CR 879 v. 1994 Carter may While there was evidence that denied, 1245, 1172, 1234, cert. 513 P.2d U.S. may ar have been have been intoxicated (1995)[cita 1149, 115 130 L.Ed.2d 1107 S.Ct. killing, guing with Cade at the time State, held in Davis v. tions We omitted]. there was also evidence that Jackson acted 57, ¶ 20, 1194, 1186, CR 665 P.2d aforethought. of mind is with malice State denied, 203, 865, 104 78 cert. S.Ct. circumstantially. fact generally proved The 177, that look at the entire L.Ed.2d we must throat was cut from “ear to ear” Cade’s juror’s ty of the voir dire examination to enough with a razor knife is sufficient properly if trial court excused determine Mal show that the attacker intended death. Davis, jurors jurors for cause. who aforethought nothing than requires more ice ambiguous, equivocal hesitant and were intention to take the life deliberate concerning responding questions the death justification. v. Huckaby another without properly penalty were found to be excluded ¶¶ State, 84, 22-27, P.2d OK CR for cause. Hall was likewise hesitant and 447, in may 452. be “formed This intent therefore, equivocal; properly he exclud stantly committing the act which it before ed for cause. O.S.1991, is carried into execution.” fourteen, proposition 22 In Jack § 703. prosecutor argues that committed son during First voir dire. misconduct ¶25 “Although may there attempt prosecutor’s error the claims as compe testimony, if there is conflict in the distinguish aforethought malice between jury’s finding, tent evidence during voir dire. We find that premeditation will not disturb the verdict this Court egre prosecutor’s were not remarks so 72, State, Cheney v. 1995 OK CR appeal.” to constitute reversible error. See gious as 44, quoting, Woodruff State, Byrne 1124, 7, ¶ 30, P.2d OK CR claims that the 621. Next Jackson improperly defined reasonable prosecutor quite possible L.Ed.2d 313. It prosecutor’s during voir dire. The doubt Jackson's chose to disbelieve beyond a reasonable doubt did remarks that did, testimony that he drank as much did not create an beyond all doubt not mean especially light the fact that Jackson impression. Diaz v. erroneous changed story the fact that he to include ¶¶ 18-19, CR OK additional “fifth” of alcohol before drank an Therefore, error occurred. no killing. thirteen, sufficiency where for of evidence part of test proposition 1Í23 In is circumstantial all of the evidence urges position us reconsider our tends to ex- potential the State’s evidence allows whether regarding the statute which every hypothesis other reasonable seventy years age opt, out of clude jurors over However, circumstantial guilt. to hold that the than We continue service. every possibility need exclude a defen is valid and does violate statute implementing this guilt. Bryson other than When rights. OK dant’s 886

standard, impact testify the evidence and upon jury. its inferences of his refusal to the light cases, in a must be considered favor- jury most “In proceedings shall be conduct- State, ed, able to the and the determination practicable, to the extent to so as facili- will whether the be based on rational trier making privilege tate the of claims with- guilt. of fact could have found O.S.1991, knowledge jury.” out the of the added). 2513(B) (emphasis § Regardless Duckett CROK — validity claim privilege, the law U.S. -, requires that the claim be asserted outside 136 L.Ed.2d 872 Based on jury’s practica- case, presence, “to extent facts this sufficient circumstantial ble.” Id. jury’s presented evidence was conclusion Jackson killed Cade with mal case, 29 In this the State admitted that aforethought.

ice We find no merit in this Wilkenson told them that he would have proposition. memory, selective not but the State did know six, In proposition flatly testify. he would refuse to As soon as claims that reversible error occurred when answer, Wilkenson refused to a bench confer- Roy the State called witness Wilkenson who objected ence was held where Jackson and preliminary questions, answered several but moved for a mistrial. when asked about incident which occurred ¶ 30 Wilkenson was taken back to the Wendy between Jackson and Cade at the judge’s lengthy chambers where a conference Joseph Harp visitation area of Correctional regarding was held whether the State knew Center, by say Wilkenson refused to answer testify. Wilkenson would refuse During ing, “I got go can’t do that. I’ve back conference, this the State decided that argues there.” Jackson that Wilkenson was not would call Wilkenson back to the stand. invoking right his Fifth Amendment to re After the conference was over the trial court main silent. Reversible error a occurs when instructed the to disregard Wilkenson’s witness claims the Fifth privi Amendment testimony speculate and not to about what he lege in front of a “where trial counsel may have testified about. The trial court objects and the makes a State conscious and properly acted under the circumstances and flagrant attempt to build its from case infer properly O.S.1991, § followed 2513. arising ences invoking from witness’s There was no error here. Fifth, or that the witness’s refusal to answer questions weight critical added State’s seven, proposition Jackson ar- subject in form case not to cross-examina gues, eight sub-propositions, that inadmis- tion.” Johnson v. CR OK objection sible evidence was introduced over ¶ 11, during first stages. and second We will during address the evidence introduced case, However, in Wilkenson did stage re-urges here. first Jackson first not privilege invoke valid court reference, incorporates by in his first sub- duly right noted. The to remain silent found proposition, his trial motions that two video in the Fifth Amendment to the United States interviews, taped City one with Oklahoma II, Constitution and in Article Section 21 Police detectives one Department with a protects persons Oklahoma Constitution investigator, of Corrections were inadmissi- being compelled give separate for four ble reasons: did against Skelly themselves. knowingly voluntarily rights; waive his 55, ¶ 29, 407. There proper probable hearing cause was not held nothing in the record to indicate that Wilken- hours; forty-eight within Department being give testimony son was asked to which inadequate; Corrections waiver form would have incriminated himself. Nor can statements were otherwise inadmis- testify Wilkenson’s refusal be based on discovery sible because the code does not statutory privileges. See O.S. allow their admission. § seq. et trial, Whether during Wilkenson has in- At an in camera hear- privilege objected voked valid ing, tape does not lessen the because the

887 Miranda, “no of for which talismanic tates not allow for admis- Discovery Code does required satisfy to its sought stric- tapes. [is] the State incantation of When video sion 195, Eagan, 492 U.S. taped be- tures.” Duckworth v. interview introduce video to 2875, 2880, City 203, 166 Police 109 106 L.Ed.2d Oklahoma S.Ct. Jackson and tween (1989), detectives, Prysock, 453 general objection quoting made a Jackson California 69 suppression of 101 tape and moved for U.S. S.Ct. (1981) curiam). argu- (per based earlier L.Ed.2d 696 statement Jackson’s referring to apparently was ments. ¶36 Fourth, interesting, most was suppress, citing only pre-trial motion to Dis- counsel’s claim that the Oklahoma hearings authority on the and the general allow the introduction covery Code does not motion. by the accused. of recorded statements made 2002(B)(2), §' First, O.S.Supp.1996, 22 states hearing Denno3 a Jackson v. b,a, subparagraph under made a statement “[a] the trial court was held wherein filed A or B of paragraph of subsection c statements were determination both Jackson, at is not admissible voluntarily. this section knowingly made 2002(A)(1) added). (emphasis any trial.” Section appeal, nor on cites au neither at trial defense, request of the “[u]pon states that courts’ decision thority to show that the trial required to disclose the the State shall be in error. was (c) any ... or recorded following: written Second, trial court denied Jack- any oral the substance statements and sup- statements motion to have the son’s by by the accused or made statements made probable hearing because a cause pressed, codefendant, of an ...” accused Statements forty-eight hours. The within was not held as non- against him are admissible offered taken within taped interview was first video O.S.1991, 2801(4)(b) § hearsay pursuant to 12 A forty-eight hours of Jackson’s arrest. long taking of the statement com- as made was probable cause determination safeguards. plies procedural with Hall, Special Judge Russell the Honorable day County, p.m. 1:00 for Oklahoma at interpret language 37 We arrest, following well within Jackson’s Discovery say that statements Code to McLaugh- County Riverside v. dictates made will not be not otherwise admissible lin, 44, 1661, 114 L.Ed.2d 500 U.S. 111 S.Ct. example, For the Code. admissible under (1991). occurred here. No error ad will not be witnesses’ sworn statement under the merely is filed missible because Third, made a deter- trial court Discovery Code. produced form that the waiver mination investigator Department of Corrections Discovery Code does 38 The prior to signed by which found the rules of evidence Okla supplant the mandates Mi- complied with interview or other relevant stat Evidence Code homa’s requires that a v. Arizona.4 Miranda randa allowing for the admission utory authority interrogation undergoing custodial person otherwise If are the statements evidence. any questioning prior to “must be warned law specific rule of other under admissible silent, that right to remain he has merely with the district being “filed” than him in says against used anything can be he code, discovery the state under the court law, right to the that he has the a court of ments are admissible. attorney, if cannot of an and that he presence reaching we this conclusion appointed for attorney one will be afford an construed are that statutes any if so de- note questioning prior him determine, legis if the intent of Id., 479, possible, at 86 S.Ct. at 1630. sires.” rendering lature, reconciling provisions, them authority, nor have we has cited no intelligent giving effect authority the notion consistent found ¶ 17, 55, Lozoya satisfy the dic- each. form used does that the 16 L.Ed.2d 694 4. 384 12 L.Ed.2d 908 84 S.Ct. 3. 378 U.S. (1966). legislature charged. 28. The intent of the with the connection” offenses (Okl. wording in including making Dunagan certain keep Cr.1987); items was not intended to inadmissible Bruner v. being (Okl.Cr.1980). items admit-

otherwise admissible gestae” exception This “res ted, obviously but meant to limit admis- exceptions differs from the other listed sibility already to those un- rule; items admissible the in evidence that in the listed der language other statutes. This was used exceptions, the other offense is intentional promote through to full and fair disclosure ly proven, gestae excep in while the res discovery by having relieving the fear of tion, incidentally emerg the other offense being otherwise non-admissible statements State, 102, Dunagan es. v. 755 P.2d 104 introduced at trial. (Okl.Cr.1988). “Evidence of another crime where, here, will not be excluded as it ¶ sub-proposition, 40 Under this Jackson incidentally emerges as events are re “reargues requests also the for redaction [of sequence.” in vealed their natural Shelton tapes] the which were overruled at trial.” State, (Okl.Cr.1990). 866, v. 793 P.2d portion tape Jackson refers to a of the where purchased confirms that he cocaine crack ¶ Neill, 69, 36, CROK 896 P.2d at 550- killing after Cade. Trial counsel did ob- However, 51. the defendants in Neill used ject tape grounds the on to redacted that money during robbery marked obtained a it contained “other crimes evidence.” Coun- partake spending spree, including a first, merely objected by motion, sel that the cocaine, purchase of which led to their arrest. tape was inadmissible for the reasons stated Neill, occurring In evidence events above and more specifically that the discov- during spending spree closely “were so ery code not allow for did admission. We robbery related to the bank and murders shall discuss the introduction of the “other they logical formed a connection with crimes evidence” below it Jackson’s charged offenses so as to be relevant sub-proposition proposition second seven. Neill, 69, 37, evidence.” 1994 OK CR Furthermore, P.2d at 551. ¶41 argues Jackson Neill evidence re pre-trial State included this evidence in its garding purchase of improp cocaine was Notice of Evidence Other Crimes and erly admitted as “other crimes evidence” and evidence was relevant to connect the defen- give failed State notice of the intended charged dants with crimes. by required use of this information at trial as State, 10, 11-19, Burks ¶ 43 The evidence of co Jackson’s 771, 774-75; part overruled in on other case, purchases, caine in this have no rele grounds, Jones v. 1989 OK CR proving vance to that Jackson murdered 922, Dorothy 772 P.2d Leffette testified Wendy persuaded Cade. We are not purchased that Mr. twice Jackson cocaine purchases Jackson’s cocaine was during evening September 6. After necessary jury’s understanding elicited, testimony this was trial counsel sequence of events. What with Jackson did mistrial, for moved a which was overruled. money is irrelevant to the crimes This evidence was also included Jackson’s charged. State admits that evi taped police, video interview with as men prejudicial. However, dence was somewhat tioned above. given presented against the evidence Jackson argues 42 The State that the evidence police and his admissions to the wherein he purchases part of cocaine of the res “I’m I guilty. go stated don’t want gestae of the murder. The State cites Neill through dead, the details” and “If I she’s did 537, cert. it,” persuaded we are the evidence of denied, 116 S.Ct. activity play crack part cocaine did not a (1996), L.Ed.2d 740 this Court where held guilty play part verdict nor did in the penalty of Rogers death. Cf. ¶8, may evidence of other crimes be admissi- OK CR they part ble where form of an “entire “logical

transaction” where there is a L.Ed.2d 215. apartment; of the entire sub-proposition, sent search third therefore, of the items was autho- personal property- the seizure that Cade’s claims Jackson apartment where rized. seized from the least, where Jackson authority obtaining a search warrant. apartment where Jackson sufficient search the error. entire that when party who that The premises by the v.] tual use prosecution is party control of ally over, 45 The warrantless search that the introduction authority apartment, preponderance not limited to arrested should Matlock, joint sufficient. United consent was obtained from apartment, consent or evidence to show defendant; or apartment property, control over sufficient seize to consent police property possessed property, 415 U.S. States had Dorothy Leffette. There is claims that the prove adequate prosecution cases. See The showing these items without slept. including the have been obtained was burden instead, the evidence Supreme by proving from the resident relationship to be searched. of this evidence was ^[164] or to a search of the common that consent held to be that Leffette spent She joint seeks [United rests at police had no part authority consent had, Court, suppressed 177-78, may consent, was access to authority upon in third to, a third portion justify gener- at the States night. given show held first Mu- had by or it which was sustained inmates told had sent time. The that he tion, ing up Cade’s letters had been nation of hearsay was as follows: timony This say. Witness question. Corrections wasn’t A. The other letters you Q. he had been about sent him. Now at one Jackson, witness testimony [referring jury’s asked Apparently had torn belonging to him that Ms. Cade had it true that he had torn Grady tearing him. The was he asked Jackson investigator, prosecutor, relationship him youDo was successful with the exposure Randy claims that he was Next, tearing him was followed questioning admonished. was point to the interview that Jackson inmates her up during that—something in the fifth remember that? Grady, trying some letters that Cade by stuff her letters prior to the murder. when to inadmissible during cross-exami- with Ms. testified responded I up Grady’s interview talked surrounding to elicit trial court and Department you’re talking for had been if sub-proposi it was up. quite some prejudiced that other Cade, objection up some Jackson] this that told about, hear tear true next tes- this me ... he

S.Ct. ^[988] at 996-97, [39 L.Ed.2d 242 MR. ALBERT: Judge, I object to hear- (1974)]. consenting party say. if Even . authority possess in fact actual not does You know Sustained. THE COURT: consent, justi- may be a warrantless search that, Agent. better than have reason to fied the authorities when you fact, you Q. corrected and told he consenting party apparent has believe up for tearing her stuff that he had been authority. time, quite hadn’t he? some CR 1991 OK Reeves v. Yes, A. Sir. 495, 503. P.2d objection fact that the 49 In view of the ¶46 on Minnesota v. reliance Jackson’s request made to and no was sustained was Olson, for and no motion admonished have (1990), persuasive. Minne- L.Ed.2d made, relief was reversal mistrial or other proposition stands for sota v. Olson required. Shepard v. legitimate expecta- overnight guest has a ¶ 7, 600. Id., 495 privacy in his host’s home. tion of sixth claims in his 50 Jackson officers in at 1689. The at 110 S.Ct im lay was sub-proposition that a witness resi- permission to enter the had no Olson opinion as to give her properly allowed dence, byor warrant. We consent either purchased have alcohol- authority would con- whether Cade had the that Leffette find ic beverages questioning during for The closing. Jackson. allowed Brown leading objection 1078, 1080. centered around- OK CR beverages Cade’s use of alcoholic and wheth- ¶ 54 Jackson next claims that er she would have consumed alcoholic bever- prosecutor impermissible hearsay relied on ages or would have allowed them to be con- supported and other evidence not by anyone presence day sumed her on the prosecutor record. The referred to the objection of her death. No was made to tearing up statements Jackson had been questions. these for Cade’s letters some time and remarked questioning clearly This an ef- struggle no blood evidence of a fort to show whether Cade acted in conform- Jeep. prosecutor found in the The also stated ance to day her character of her daughter, that Cade’s who was in the back pursu- death. Such evidence is inadmissible being Jeep before taken to moth Cade’s O.S.1991, However, § ant Jack- house, er’s never said that Jackson or Cade clear, statement, son during opening made it yelling arguing. prosecutor were present intended to evidence that also stated that Jackson box knife in left the purchased Cade of an bottle alcoholic bev- the Jeep when he and Cade went into the erage for him to consume. Jackson has not complains motel room. Jackson also that the testimony shown how caused him harm. prosecutor improperly sympathy elicited for Jackson bears of showing the burden that he Cade-by referring young to her as a mother “prejudiced rights by was in his substantial trying get who was to straight her life and State, 89, the error.” Smith v. 1982 OK CR by repeatedly turn toward and Christ refer ¶ 6, 277, 656 P.2d 284. Jackson has failed to ring thirty to the more than cuts sustained prejudiced by show that he was the testimo- by Cade. None of these comments were met therefore, ny; we find error harmless. Therefore, timely objections. with we review plain State, only. for error Freeman v. 1994 ¶ argues, 52 portion prop Jackson in a ¶ 40, 15, 283, 287, OK CR 876 P.2d cert. eight, osition the trial court erred in denied, 1022, 590, 513 U.S. 115 S.Ct. refusing to allow the introduction of Defen Upon L.Ed.2d 503. review the record we 1, liquor. dant’s Exhibit bottle Alize find that to these comments did not rise Jackson asserted that this bottle was similar plain level of error. to purchased by a bottle of alcohol that was Cade, prior which he drank to Cade’s death. ¶ Next, argues it jury The to was able view this bottle as it prosecutor was error for the to ask the being examined both Jackson and Dr. speculate to on what Mr. Jackson was think Donica. Jackson has supply any failed to ing when he had to leave the bathroom and authority to show the failure to intro go get the knife. supported The evidence into duce bottle evidence was error. the inference that to Jackson had retrieve Therefore, alleged properly error the knife from pants Jeep. either his or the State, Wolfenbarger before this Court. v. reasonably This supported by comment was 116, cert. ¶ 114, 1985 OK CR 710 P.2d the evidence. Jackson next claims that the denied, 1182, 2915, 106 S.Ct. 91 prosecutor gave opinion his that Jackson was (1986). L.Ed.2d 544 guilty of murder and not manslaughter. complained None of the comments now complains 53 Jackson proposition trial; objected therefore, were to at all but prosecutor fourteen that the committed mis- plain error is waived. These comments did during stage conduct the first closing argu- plain not raise the level of error. First, ment. prose- Jackson claims that the persuade attempted cutor argues prose- next that the following of manslaughter the law improperly and to cutor misstated facts when he by finding hold Jackson accountable him cross-examined Jackson. These statements guilty degree of first murder. findWe that were minor and did not affect the outcome arguments trial; therefore, these were based on prejudice. the law there was no State, overstep 60, 40, did not of argument bounds Charm CR — U.S. -, give Instruction denied, an instruction as 770, 117 court did cert. “dangerous a reference to which included 1560, 137 L.Ed.2d S.Ct. manslaughter context. weapon” in the clearer. Howev- could have been STAGE INSTRUCTION instruction FIRST IV. er, proposi- on this grant relief we decline ISSUES tion. argues eight, Jackson proposition error fail- court committed that the trial trial 62 Jackson next attacks the sec- requested ing give instructions his requested give instruc courts’ failure mind) murder, first (depraved degree ond a de voluntary intoxication. After tions on voluntary in- manslaughter, degree has presented the trial court fense is voluntary intoxication. adequately duty whether to determine argues that the 58 Jackson so, instruction, and if to warrant raised in given requested have court should must determine whether finder of fact then of homicide on “lesser included” structions Spunaugle worthy of belief. the defense is calling other first errs in fenses. 47, ¶ 28, 1997 OK CR offenses” of crimes “lesser included homicidal 251-52. Jackson cites degree malice murder. first 122, 397 P.2d Our most recent cases have Gann v. giving guideline court has for the proposition stringent that a trial forth a for the set voluntary included of instructions. See duty on all lesser intoxication to instruct ¶¶ 57-58, OK prosecution of murder. Gann Valdez fenses dangerous battery with for assault and (to 425, 133 be entitled has lesser included offense L.Ed.2d weapon which voluntary battery. on the defense of simple an instruction assault intoxication, present had to evidence Valdez case, ¶ he claimed that 59 In this Jackson a reasonable doubt con sufficient to raise angry have an or too to either too drunk was requisite crim cerning ability his to form the jury argues Jackson intent to kill. intent). test, a requires which This inal on second de have been instructed should of in introduce sufficient evidence defendant However, in gree depraved mind murder. toas his raise reasonable doubt toxication to 62, ¶ 28, State, Willingham 1997 OK CR v. intent, requisite was ability criminal to form 1074, 1081-82, stated “second P.2d we State, 1982 OK in Norman first announced is a lesser depraved mind murder not degree ¶¶ 5-6, 1243, 109, 1245. This 648 P.2d CR mur degree malice included offense of first sup in Norman was rule announced Therefore, on this offense instructions der.” authority contra existing ported then required. were not resting on defendant to a the burden dicted next claims that 60 Jackson to on entitled instructions that he was show given instructions on court should have State, Lee v. See common defenses. other under degree felony murder with the second (It ¶ 18, 879, 152, 637 P.2d 1981 OK CR being penal insti felony escape from lying to accused is entitled that an is well-settled Jackson had The facts indicate that tution. any sup theory of defense on an instruction penal escape from a crime of completed the evidence, long that theo as ported long the homicide occurred. before institution law). if of Even ry as a matter is tenable Therefore, offense were instructions on this discredited, and whol is evidence defendant’s warranted. jury serving, must be advised ly self there is theory of defense where Next, defendant’s claims that he State, 1955 support it. Holt v. degree “dan- evidence to first instructions on entitled to ¶ 12, 855, P.2d 857.5 manslaughter. trial OK CR gerous weapon” simply in this context 633. Sufficient responsibility of is the hold that it 5. Our cases that, alone, prima standing there is judge evidence is determine if the means to the trial facia defense, nothing to the defense instruction. more. evidence of the sufficient Cf. ¶ 9, Kinsey giving 64 The test for the in find that We has on voluntary probably present structions intoxication failed to evidence that his mental language powers its through found basis for the defense of were so intoxi overcome insanity. specific cation that he could not form the testimony to kill. Expert intent revealed plea insanity interposed, When the if person consumed as much alcohol as defendant, proof the burden is on the consumed, Jackson claimed to have would part unless the evidence on stupor markedly be with diminished purpose, State is sufficient for in- things going awareness of on around him and

troduce sufficient to raise’ in evidence ability have diminished to focus attention and jury minds of a a reasonable doubt of the severely impaired would have motor func sanity. defendant’s However, tioning. testimony Jackson’s re Mott v. 94 Okl.Cr. vealed that he did not suffer these (1951). However, insanity even for an conditions. instruction, any if insanity raised, the trial court must instruct the ¶ 69 Jackson testified that he was aware But, on insanity. the defense of unless the things going on just him around before presented determines the defendant has just after the murder. Dr. told evidence sufficient a reasonable raise Donica physically that he and Cade were sanity doubt as to his at the time of the fighting room, they interrupted in the motel offense, presumption sanity prevails. fighting long enough their up make Brewer sex, they began hitting have then each other 871, 107 again. Jackson said he went into the bath- 93 L.Ed.2d 169. put room to on his clothes and Cade came in him, hitting stringent they started both fell Because more test floor, they got both up, continuing seems to have evolved for the each defense of hit other, intoxication, voluntary then fell necessary we Cade to the floor. He find left the bed, clarify the test bathroom and sat on determining used when when he went if back into voluntary laying an instruction on the bathroom he intoxication saw Cade given. should be The test floor with blood on her. used should be no He told frightened different from the Donica that he got test used on other so he sufficient, testimony clothes on left. prima defense. When evi and This belied facia presented legal dence is Jackson’s defense that he was so which meets the intoxicated voluntary requisite for the could not form the criteria defense intoxi intent to kill. cation, any defense, other an instruction ¶ given.

should Jury instructions are left to the discretion of they the trial court. When ¶ 66 The evidence of the defense fairly accurately law, applicable and state the may come source and should not be this will Court not disturb them. Morris v. weighed by the trial The trial court. court 1388, OK 766 P.2d CR weighing should leave the of the evidence to 1390. We find that present Jackson to failed fact, the judgment finders in whose our enough evidence to giving the system by jury of trial is based. voluntary intoxication, instructions and we test, find clarifying given fairly 67 In that the instructions this we now apply accurately applicable this test to the stated the facts of this case. A law. There fore, assignment voluntary this requires defense of of error is denied. intoxication defendant, first, and, that a be intoxicated

second, intoxicated, utterly be so that his argues, in proposition overcome, powers twelve, mental rendering are jury” charge the “deadlocked impossible specif given a jury for defendant to form the to during stage the the first delib ic or special criminal intent rights mental element erations violated his constitutional to a Cr.2d, of the crime. O.U.J.I. & 8-39 sentencing procedure. 8-36 fair trial and a reliable (1996). object Jackson’s counsel not to decided Tennessee, 808, 111 jury” Payne See or Allen6 “deadlocked

giving (1991). Al- stage 115 L.Ed.2d during first deliberations. S.Ct. charge object prior to our grant- though to this case was tried deci- to counsel intended Defense impact discharging jury. Cargle, find that victim ing The sion we a mistrial and charge properly restricted. gave Allen after seven evidence was trial court About an half hours of deliberations. and a re- impact evidence should be “[V]ictim instruction, giving a half after hour and unique to characteristics stricted those guilt with verdict of returned died, individual who has define the which Any giving degree error in murder. first prospective cir- contemporaneous during stage charge first deadlocked death, surrounding that cumstances was waived. financially, those circumstances have how emotionally, physically psychologically, and V. SECOND STAGE ISSUES im- impacted on members of the victim’s family.” sub-proposition In his mediate seventh that, seven, argues proposition ¶77, 74, Cargle, CR 909 P.2d at 828. 1995 OK during stage, the introduction the second allowing Therefore, no there was error relating prior convictions for sec facts presented. impact victim battery degree assault and ond murder and objected also 75 Jackson deadly to kill weapon with intent with a cry Gulley began to and sob fact that Jackson also prejudicial. irrelevant crying during testimony. her She continued testifying about investigator claims jury. in front of the for at two minutes least personal prior not have this murder did place no in victim Emotional outbursts have testifying knowledge he was of the facts impact testimony. impact When victim about. emotions, to their witness succumbs ¶73 First, was rele the evidence appropriate action. duty take court has continuing to show that Jackson was vant ¶77, 80, at Cargle, by the society, alleged State. threat State, 1994 OK CR citing, Mitchell jury did not find the existence of Because the argument is some aggravator, Jackson’s 95, 133 827, 116 L.Ed.2d 50 Finally, the record discloses what dubious. objected testimony from to further investigator sufficient “first Sellers had Gulley to Gulley. trial court allowed prior gained through his knowledge hand” outbursts no more continue and emotional investigation testify wounds to about the occurred. testify that the evi victim and to prior record, can- entire we 76 Based on the Jackson’s sto not consistent with dence was discre- say court abused his that the trial shooting There ry was accidental. testifying. allowing Gulley continue tion proposition is denied. fore this case, have of this we Based on the facts ¶74 eighth his argues, in Jackson crying and this incident of determined that proposition sev sub-proposition final jury’s an effect on the sobbing not have did en, prejudiced improper sec he that punishment. determination stage Jackson impact victim evidence. ond nine, testimony proposition what specifically to state fails mitiga of certain argues that exclusion to than reference complains about other Jackson claims objec tion evidence was error. objections The first overruled at trial. to introduce been allowed generally. he should have impact evidence was to victim tion him to prosecutors had allowed impact evidence that evidence is have held that victim We conviction plea bargain prior murder degree prosecution in a first murder relevant ¶¶ degree of 77, 67-78, murder. State, to a non-intentional down Cargle OK CR v. 1995 — denied, negligence of 806, 825-26, Jackson claims cert. U.S. 909 P.2d - allowing (1996). 100, attorney’s office in district L.Ed.2d 54 117 136 S.Ct. 154, (1896). 492, States, 41 L.Ed. 528 S.Ct. 164 U.S. 17 6. Allen v. United 894 “prior felony”

to a crime plea prove ag enter to which would allow cient to violent him gravating to be on a work detail to reviewing out contributed circumstance. When argument specula- sufficiency aggravating- this crime. Jackson’s evidence of circumstances, nothing tive at best. This evidence has to do the standard of review is whether, character, viewing prior any after in the with Jackson’s record or evidence light prosecution, any most favorable to the the circumstances of the offense. See Oklahoma, 104, 110, rational trier fact could have found Eddings v. 455 U.S. 102 (1982) (the aggravating beyond 869, 874, circumstance a reason 71 1 S.Ct. L.Ed.2d State, 37, able doubt. v. Powell 1995 OK CR Eighth require and Fourteenth Amendments ¶ 82, 783, denied, 765, P.2d cert. U.S. precluded the sentencer not be 1144, 1438, (1996), S.Ct. L.Ed.2d 560 factor, considering, mitigating as a as- 764, citing v. Jeffers, Lewis 497 U.S. pect of a or defendant’s character record and 3092, (1990). Jackson, S.Ct. 111 L.Ed.2d 606 any of the circumstances of the offense that State, following guidelines Brewer proffers the defendant as a basis for sen- 128, ¶ 41, 54, 63, 1982 OK CR 650 P.2d death). cert. tence less than This evidence is not denied, 1150, 794, 459 U.S. mitigating properly evidence. It was exclud- (1983), stipulated L.Ed.2d that he had ed. previously degree been convicted second proposition, 78 Under this Jack depraved mind murder and assault and bat argues son next that he was not allowed tery deadly weapon with a with intent to kill present that, testimony in a structured envi and that these offenses did use involve the females, ronment much without contact with Therefore, person. threat of violence to the explosive unlikely Jackson’s behavior was this claim is without merit. First, recur. we note that the did not ¶ 81 Next Jackson claims that posed find that Jackson a continuing threat there was insufficient the. “hei therefore, society; specific evidence is nous, aggravator. atrocious or cruel” To Second, attempting moot. Jackson is to nar prove aggravator, pres the State must “society” prison society. row We have prove beyond ent sufficient evidence to consistently refused follow this definition preceded by reasonable doubt that death was State, and do so now. Hooker v. physical conscious serious abuse or torture or ¶¶ 75, 45-46, 1365, 1851, 887 P.2d cert. heinous, mental torture. The atrocious or denied, 858, 164, 516 U.S. 116 S.Ct. aggravating cruel circumstance is restricted (1995). L.Ed.2d 106 those murders which torture or serious complains, 79 Jackson in this physical present. abuse is Nuckols v. proposition, juror sleeping during that a ¶10, 5-6, 1991 OK CR testimony stage of second defense wit denied, 960, 2276, 114 cert. 111 S.Ct. Ferguson. ness Dr. Nelda M. Juror miscon 727; L.Ed.2d 1987 OK CR Stouffer proven duct must be clear and convincing evidence. Wofford 108 S.Ct. 98 L.Ed.2d 779 ¶ 8, 675. Jackson has failed to argues meet this burden. also Examiner, 82 Medical Dr. Bald by giving trial court committed error ing testified thirty that Cade suffered cuts to jurors stage during the first instructions sec neck, body her and hands. evi Sufficient stage ond deliberations. Jackson has not presented was jury dence from which the any authority support allegation cited this have could concluded that the cuts occurred nor prejudiced by has he shown that he was before Cade suffered the fatal slash to her Therefore, argument this action. this is mer- throat. The evidence does not show that the itless. cuts, other some of which were described ¶ ten, wounds, 80 proposition In Jackson defensive were inflicted after the complains relating aggrava errors to the fatal ultimately slash which led to Cade’s loss ting First, jury. found circumstances the of consciousness and ultimate death. There argues Jackson the that evidence was insuffi- sufficient was evidence from which a reason-

895 the not have reached conclusion that that was could jury have found Cade able could appropriate the this consciously being she sliced death was sentence aware that was physically suffered. find no error here. a razor knife case. We with amounted to of these wounds The multitude ¶ complains also that 86 Jackson State, v. physical abuse. See Hooker serious during prosecutor committed error the ¶¶ 75, 43-44, 1364- 887 P.2d at 1994 CROK opined that stage second when he Jackson was sufficient 65. Such penalty; candidate for the death proper was a atrocious, heinous, aggravating or cruel argument; misrepresented counsel’s defense circumstance. record; denigrated alter argued outside ¶83 argues that both punishments; referenced inadmissible native aggravating circumstances are these evidence; denigrated ex other crimes heinous, or vague. Regarding the atrocious jumbo.” pert testimony as “mumbo witness jurisdiction it aggravator, this “[i]n cruel objection prosecutor’s no to the There was ‘heinous, or that atrocious well settled regarding punishment that comments aggravating circumstance is not arbi cruel’ plain no There was Jackson should receive. run trary capricious, and not afoul does prosecutor’s The error these statements. consti Eighth Amendment of federal testimony expert witness comment State, 36, tution.” Johnson v. jumbo” by an cured ad was “mumbo ¶ 28, regard P.2d at 316. to the 928 With State, jury. to the v. Miller monishment felony” aggravator, “prior violent ¶ 18, 739. The OK CR any argument authority no or made has cited proper comments other comments were aggravator vague. how this to show the evidence. Therefore, properly is not before this issue specific must cite relevant and us. Jackson STAGE INSTRUCTION VI. SECOND for, error, plain we will not authority, absent authority. ISSUES unsupported legal assertions address CR Mosawi Al- ju- During sentencing stage, — denied, 270, 278, P.2d cert. stage requested copy first in- rors -, 118 S.Ct. 139 L.Ed.2d deliberating seven and after about structions plain is no error here. There given These instructions were half hours. eleven, ar proposition In objection. jury defense counsel’s over mitigation out gues that the evidence in- these instructions Jackson asserts weighed aggravation. the evidence charge. given Allen cluded the earlier pre examining aggravators whether the two generally held that 88 We have outweighed mitigating fac sented here stage incorporate the first is not error to behalf, we ex presented on Jackson’s tors stage. Specifi into second instructions according the criteria the record amine stage in instructions cally, when the first in Fisher OK established jury instructing the allow one clude 85, ¶ 25, deliberations, sympathy to into the enter 2833, 100 L.Ed.2d is no error. Ledbetter there (1988) (this evi review such Court will ¶ 67, OK CR necessary only to deter to the extent dence sufficient evidence mine there was whether for al deliberated sentencer could find from which rational receiving the first after most seven hours mitigat aggravating that the balance of they reached ver before stage instructions a death sen ing warranted circumstances fact, punishment. we can Given dict on tence). into reach say was coerced that the say examining We cannot Therefore, no error. there ing a verdict. sup- presented in the evidence record complains 90 Jackson aggravating circumstance was port sequestering jury the in not trial erred by mitigating evidence. We .court outweighed the nine p.m., At 11:05 during deliberations. say that a rational sentencer are unable to evidence, punishment beginning process. hours after delibera- violates due Jackson has tions, requested ju- defense counsel that the change position not convinced us to our that sequestered. rors be Defense counsel’s re- Ledbetter, proper. this instruction is quest request well as as his for mistrial and 5, 68, OK CR 933 P.2d at 898. imposition punishment by of the court were later, a.m., denied. An at hour 12:10 the trial ¶ 93 complains that the jurors court they convened the and if asked given requested court should have the deliberating seques- wanted continue or be explaining instruction the difference between tered at hotel resume deliberations the life and parole. life without The trial court day. jurors next decided to continue gave the approved instruction which was in a.m., deliberating. jurors At 4:00 the re- Johnson, 1996 OK CR at quested a again hotel. Defense counsel 320: jury discharged, asked that the but before Oklahoma, Under law of the State of convened, jury could be a verdict of every person guilty of in found murder death was reached at 4:06 a.m. Under these degree punished death, first shall be or facts, jury’s we do not find that the verdict imprisonment possibili- for life without the coerced passion nor was it the result ty parole, or imprisonment for life with prejudice. or possibility of parole. proposition thirteen, Jack preserve son raises several in issues order to given This instruction is all that should be his rights subsequent in state and federal jury they should not be confused with First, proceedings. Jackson claims that the working parole system. inner jury should have been find informed its urges 94 Jackson us to reconsid ings regarding mitigating circumstances did allowing er defendants to present evidence have be unanimous. This Court has that it costs more to execute than someone it repeatedly rejected argument we do does to incarcerate them. We decline to do State, again. so 1995 OK Duckett CR so. Smallwood v. 1995 OK CR next, argues 919 P.2d at 23. Jackson — ¶ 62, given that the jury instructions to the on the -, 117 S.Ct. 136 L.Ed.2d 330 mitigation permitted jurors issue of argues should have ignore mitigating altogether evidence presumption been on the instructed of a life seriously mitigat diminished the effect of the Again, sentence. we find no in error ing presented this case. Jackson in Duckett, giving this instruction. points upheld out that this Court has ¶61, 63, 919 P.2d at 22. given same similar instructions to those this case Johnson v. CROK 36, 31, 928 P.2d at 317. We decline to VII. ISSUES AFFECTING BOTH our prior

reconsider decisions this issue. FIRST AND SECOND STAGE ¶ 92 Jackson next argues that the complains II95 his fourth trial court committed error when failed to proposition of error that his constitutional jurors they instruct the could consider a rights process, to due a fair trial and a fair parole sentence of life and life without even sentencing hearing reliable were violated though they had found the existence an display highly preju- the admission and aggravating circumstance. Such instruc inflammatory dicial and photographs and required tion is not and this Court has been medical examiner charts. Jackson claims rejection consistent our argument. of this probative ¶¶ value of photographs 68-71, Ledbetter v. substantially outweighed by danger their 933 P.2d at 899-900. find no error in the We prejudice jury. unfair omission this instruction. Jackson next instruction, complains that OUJI-CR regarding weigh photographs how 96 The. com

aggravating against plained injuries mitigating depict circumstances sustained

897 Balding’s Dr. opinion not within scene.7 the of the crime photographs and victim specific objection is knowledge. admissibility photographs is When of for The test trial, objection will be or inflamma no different they gruesome are made at whether not State, v. probative appeal. value is on Al-Mosawi tory, their considered but whether 59, ¶ 22, danger at 278. by the of CR substantially outweighed 1996 OK State, Therefore, plain has waived all but Hooks OK Jackson prejudice. unfair 1280, cert. ¶ testimony not did P.2d error. We find that CR plain L.Ed.2d constitute error. U.S. (1994); O.S.1991, § to 2403. Whether victim is photographs of homicide introduce OTHER PROPOSITIONS VIII. trial court’s largely the a decision within ¶ A court’s decision us urges Id. next to reconsider discretion. 100 Jackson will photographs of not constitutionality the introduction of Oklahoma’s death allow the specifically an abuse discretion. generally disturbed absent be- penalty be scheme special to make requires cause it ¶ claims that the cause 97 Jackson upheld have Oklahoma’s findings of fact. We placement wounds was not dis death both accounts. penalty scheme on death therefore, trial; photographs at puted 61, 91, 919 Duckett depicting Photographs not relevant. were P.2d 27. at probative many can murder victims nature, They extent respects. can show the error, proposition of 101 In his fifteenth wounds, depict the crime location of are argues that if none of the errors Jackson a medical examiner’s and corroborate scene own, on for reversal their then sufficient Willingham testimony. 1997 OK deprived him of effect of the errors combined 1074, 1083. ¶62, 38, In addition CR requires error a fair trial and the cumulative examples, photo to the aforementioned single no we have found error reversal. As ranging the wide loca graphs, which showed reversal, that the requiring we cannot find wounds, were relevant to of the victim’s tions whole, unfair. proceedings, as a were We jury’s of malice afore determination consistently is no held that where there have thought. no for error there can be reversal individual Fields v. cumulative error. argues also that 98 Jackson ¶ 76, de during photographs introduction of —nied, -, 1704, 137 117 S.Ct. sentencing in a stage of trial resulted second L.Ed.2d 829 that did meet constitutional procedure during requirements. Photographs admitted sixteen, re- In Jackson proposition stage relevant to show the ex second were im- issues quests that this Court review injuries of the allow tent plain for properly preserved trial counsel injuries physical caused decide whether assistance coun- error and for ineffective to torture. There was suffering or amounted propositions reviewed sel. We have admitting photographs of the no error plain for error and have found at trial waived the first or in this case either shown, victim by specific has none. Jackson stage of trial. instances, second preserve these failure ineffective assis- at trial constituted errors sub-proposi the fourth tance of counsel. seven, argues proposition tion of Jackson, alternative, asks testimony re examiners the medical evidentiary remand the case for pain suffered we garding Cade whether. adequate record body hearing prepare irrelevant to inflicted on her cuts trial, ineffec- only trial counsel was At determine whether guilty. prove Jackson pointed spe- has not testimony Again, ground tive. objected to this carpet; ex- and thirteen medical photographs blood stained photographs included three room; photographs injuries photographs six to Cade. at the motel the deceased aminer bathroom; bloody photograph one 898 J., LUMPKIN,

cifie instances of conduct that should be ex- in results. concurs plored evidentiary hearing. in an STRUBHAR, V.P.J., LANE, J., and dissent.

IX. MANDATORY SENTENCE REVIEW LUMPKIN, Judge, concur result: O.S.1991, Pursuant ¶ 1 I by concur the results reached the 701.13(C), § we must determine the whether However, join Court in this I case. cannot imposed of sentence death was under the analysis verbiage the and utilized the passion, prejudice of influence or other Court as to several of the issues raised in arbitrary factor and whether the evidence appeal. this supports jury’s finding aggravating the the of ¶2 I previously my have stated belief jury circumstance. The found the existence Spuehler- adopt this should Court unified aggravating of two mur circumstances: the type approach evaluating sufficiency the heinous, especially der was atrocious cruel cases, the evidence in all whether the evi previously had been convicted of circumstantial, is dence direct and or wheth involving the felonies use of violence to the entirely er is .the evidence circumstantial. 701.12(4) O.S.1991, person. §§ See White v. 900 P.2d 701.12(1). We have found that both of these (Okl.Cr.1995)(Lumpkin, Specially J.: Concur aggravating supported were circumstances ' ring). urge I continue to adopt Court to by sufficient evidence. that unified standard of review even it ¶ 105 The mitigating evidence sum- and, applies proof of the state of mind marized into an instruction for the which case, our review of the determination expressed included Jackson’s remorse and by the trier of fact state had satis Cade; sorrow over the death of Jackson’s proof fied its burden as to malice afore capacity appreciate diminished wrong- thought. through fulness of his conduct alcohol and drug consumption; the fact that he was un- It Appellant appears miscon- der the influence of extreme mental or emo- concept strues the when lesser included disturbance; tional pro- the fact that he was offense instruction is warranted in a criminal Cade; voked proceeding. contention that Jackson’s we Willingham As reiterated in Cade; plan did not intend or to kill (Okl.Cr.1997), Jackson’s 947 P.2d prison; excellent record in family Jackson’s a lesser part included offense is a ties; fact that Jackson must serve the greater and the offense establishment of year prior thirty balance of his sentence. the essential greater elements of Further, they was told that could necessarily fense establishes all the ele mitigation determine pre- from the evidence required prove ments the lesser in sented. way, cluded offense. Stated another an independently weigh 106 When we offense is a lesser only included one mitigating against aggravating greater where the offense cannot be com necessarily circumstances each proven committing which were be- mitted without Uriarite, yond doubt, jury’s reasonable we find the lesser. State (Okl.Cr.1991); aggravating determination that Jennings circum- see also (Okl.Cr.1982) outweigh stances mitigating circum- (the amply supported by stances is elements of a the record. lesser included offense necessarily must be included in the of Finding no warranting error rever- charged). fense Sentence, modification, Judgment sal or County of the District Court Oklahoma is Willingham established once and for all sec- AFFIRMED. degree ond depraved mind murder not a lesser degree included offense of first malice

CHAPEL, P.J., JOHNSON, J., Likewise, readily murder. apparent sec- institution) concur. degree (escape penal ond Degree agree Man- I would that First criteria for a not meet murder does passion, could a lesser slaughter, heat included offense. lesser murder, of malice based included offense Appellant’s assertions offense, analysis of each elements duty a on all lesser court has instruct are i.e. of the lesser whether elements offenses to embrace included offenses seeks primary of included within elements within the of are contained elements that not Degree To First charge. determine whether Historically, charge. convictions primary Manslaughter, passion, is a lesser heat of per have been included offense on a lesser murder, must of malice one included offense lesser included offense is mitted because the intent, aforethought i.e. malice look at primary charge. There contained within life versus a sudden to take human intent fore, it is lesser included offense of because a passion. concept I of of submit that heat charged, there is no due specifically passion fairly is embraced and includ- heat of However, if not a problem. it is process pre-meditation. See ed the element within offense, 1452; a defendant has Schmuck, 720, included then lesser 109 S.Ct. at 489 U.S. at 313, charged States, with that crime never been 162 v. United U.S. Stevenson (1896). authority 320, with the has not been vested 16 40 L.Ed. 980 Court S.Ct. present could the un A in defense person accountable for defendant to hold knew person, Supreme evidence that killed States charged crime. The United doing, had a sudden heat of 353, what he was but Court, DeJonge Oregon, v. 299 U.S. passion is passion what caused 259, (1937), 362, 255, 81 L.Ed. 278 57 S.Ct. presented, on the evidence homicide. Based upon charge a held a not has conviction judge find it sufficient the trial could be a denial of the information would made on lesser included warrant an instruction process. also Dunn v. United See due Manslaughter, heat Degree of First offense 2194, States, 2190, S.Ct. 442 U.S. 99 passion. (1979). Supreme Court L.Ed.2d 743 60 process survey it where of first de- also stated offends due A of the statutes has degree manslaughter gree a and first appellate upholds conviction murder an court fifty several states have all states reveals charged not the infor grounds that were In similar to each statutes Oklahoma’s.1 conviction. See nor the basis of the mation states, includ- manslaughter a lesser these Arkansas, 196, 201, 68 S.Ct. Cole degree murder. In Wal- ed offense of first (1948); Dunn v. Unit 92 L.Ed. 644 Indiana, Ind.App. lace States, Similarly, this has Court ed infra. (1979), the Indiana Court N.E.2d insufficient information that while “an stated faced issue of deter- Appeals was with the conviction, it can a support a cannot passion man- heat of mining whether included offense for lesser conviction included offense slaughter could be a lesser alleged.” properly Morris which could, it finding of malice murder. (Okl.Cr.1979). 1157, 1161 reasoned: Court ¶ Granted, requested an if a defendant unlawful, in- Voluntary manslaughter is charged, one of an offense instruction being, killing without of a human tentional offense, the is not a lesser included Although which premeditation. malice and with say conviction for that of- heat,’ could Court a it is ‘upon adds sudden the statute However, how be invited error. fense would application of definition only in the we have invited error sustain must made can that this element be given case person of, thing has never been when a be<no conviction there could such use for mal- killing without See also Schmuck charged with that crime? an unlawful intentional 716-718, States, upon ice, a sudden heat. it was done unless v. United 1441-1452, the crime to mitigating fact reduces L.Ed.2d This upon if the whole evidence manslaughter, California, Florida, Wyoming. Dakota Geor- South include 1. These states Kansas, Nebraska, Idaho, Indiana, Iowa, gia, appears presump- it sufficient to rebut the such evidence is discredited”. We stated voluntary arising tion further: of malice

killing. instruction, a separate warrant a de- [t]o theory be legal fendant’s of defense must type Id. 395 N.E.2d at That is the recognized defense in the i.e. law statutes analysis applied to our that should stat- law, ... Legal or case are mat- defenses utes. go legal ters which exoneration case, requested 8 In this counsel sever- guilt may or evidence reduce the which argued al instructions on what he were lesser charge to a lesser included offense. Once ac- included offenses to malice murder. As presented, responsibility is then the brief, knowledged in Appellant’s the the trial judge the trial the determine if evidence all the requested court refused of instruc- is to support sufficient the instruction. degree except tions for first of the heat The defendant is then entitled to an in- passion manslaughter instructions.2 In ac- theory any sup- of struction on defense analysis, cordance the I with above find the evidence, by long ported the as that judge gave only in- trial the lesser included theory is a [cita- tenable as matter of law. in struction which was warranted case. this 633. omitted]. tions Id. at requested The other instructions do not raise agree I with the Court’s statement an issue of a lesser included of malice offense responsibility in footnote that it the of is Therefore, Appellant right murder. had no judge the trial if determine the evidence is to receive an instruction for an offense that support “sufficient” to the instruc- defense fairly primary embraced within the tion and that sufficient means a defendant case, charge. only degree In this heat first presented quantum has the of evidence re- passion manslaughter appropriate. quired prima showing to establish a facie part alleged As a of the raised errors However, the defense. I am concerned VIII, Proposition in relating to instructions opinion in language indicating about the the offenses, Appellant on lesser included also by weighed evidence should not be the trial regarding voluntary raises an issue in- and court and the Court’s use of “evidence” voluntary theory intoxication as a de- “enough terminology evidence” when the addressing fense. In this as it issue relates proof standard of is “sufficient evidence”.3 defense, a theory to defendant’s the Court previously, As stated I find use of this necessary clarify states that it finds “it “any terminology unsupported evidence” in However, clarification, test to be used”. that the law. See Nance v. effect, in creates more confusion for trial (Okl.Cr.1992) (Lumpkin, 517-18 J.: Concur practitioners judges regarding and a when Part). All language this Part/Dissent theory defendant’s of defense has been suffi- say by is does the Court will not be bound ciently supported by evidence an to warrant objective any provide standard for review or instruction. any the trial with court clarification toas applies. what standard Kinsey 10 In (Okl.Cr.1990), “a is, we said defendant problem is enti- The the trial court must theory tled an instruction on his weigh sufficiency defense of the evidence order it, where is if there evidence even to decide whether an instruction should be regarding 2. The Court's which confusion instruc- OR the instruction format for lesser includ- requested given Therefore, tions were and be can resolved ed offenses. whether a construed as Appellant's requested a review the record. manslaughter degree passion first heat of or dan- Manslaughter instructions on referenced OUJI- instruction, gerous weapon proper it is a instruc- "Manslaughter CR 455 is the which the First tion of the law under facts of this case. Degree by Heat of Passion-Elements” instruction original OUJI-CR instruction book. case, this is In burden confused when in instruction, Under that element three had two Paragraph says "[w]e Court find that options, [in i.e. "Inflicted and cruel unusual present Jackson has failed to ...” evidence [by dangerous weap- manner] [or] means of a Paragraph says then in "[w]e find Jack- given by on]”. Instruction 24 the Court in this present enough failed to ...” son evidence case tracks OUJI-CR 455 and references OUJI- determining responsibility when weighing of the evidence given. Some theory should necessary determine whether instruction on a of defense in order to an showing determining been made. North whether suffi- prima given. facie has When nice balance to presented Carolina has achieved to warrant cient has been evidence determining “in problem by holding instruction, elementary it is giving of an an give the substance of instruc whether “weigh” evi- judge must the trial defense, trial court concerning a tion judge must determine whether dence. legal first for the must assess evidence legally competent evidence has sufficient implicates, for the principle second prima put forth facie been to establish sufficiency, North of the evidence itself’. showing which would warrant instruction Marshall, N.C.App. Carolina determining whether a defense. legal measure of “[T]he S.E.2d showing has prima facie been established competent sufficiency ‘any evidence’ is the evidence, competent judge must an- Therefore, if there standard.... alyze presented, together with the evidence competent in the record when proof the burden of and the elements light in the most favorable to viewed defense. could deter defendant from which clouding issue of Rather than the theory], the [the mine existence of defense theory on a when an instruction defendant’s to instruction the defendant is entitled then given, truly of defense should be we should [theory].” Supreme The on the defense Id. clarify objective judges criteria trial can the adopted slightly of a different Court Idaho urge further utilize. I the Court to delineate terminology type of applying in the same Kinsey objective by in process the we set out That Court the follow standard. established from adopting additional criteria drawn the analysis dealing four-step for with de ing jurisdictions es- set out above. We should and included offense fense theories lesser following procedure applying for tablish the (1) Identify specific the ele instructions: Kinsey: in the set out standard necessary requested for the instruc ments (2) instruction, elements, tion; statutory as separate the or a a Define 1. To warrant case, common law elements of the theory is the the of must be a defendant’s defense (3) instruction; law, requested recognized Consider the evi in legal the i.e. defense 633) presented to whether such (Kinsey dence determine at or caselaw. statutes instruction; supports requested evidence the go Legal 2. are matters which defenses (4) requested If the instruction is and guilt or evidence legal the exoneration of evidence, must by the the Court supported charge the a may lesser which reduce reject instruction. Idaho requested the See 633) (Kinsey at included offense. Hawley, 395- 128 Idaho presented, responsibility the 3. Once is Lemons, Michigan v. In if the evi- judge to determine of the (1997), the 562 N.W.2d Mich. the instruc- dence is sufficient prima facie evidence as “evi Court defined 633) (Kinsey tion. at good on its face. dence and sufficient Such sufficiency legal is the 4. measure of The law, as, judgment in the of the is evidence ap- “any competent evidence” standard fact, given the a or sufficient to establish establishing proof a of plied prima facie constituting par the group or chain facts Therefore, any is if there the defense. defense, if ty’s and which not rebut claim record, in viewed competent the evidence contradicted, remain sufficient ted or will light in favorable to the defen- the most judgment a issue favor the sustain dant, the could from which determine it supports.” which ’ defense, legal then the the the existence of opin- statement 13 The Court’s is to an instruction defendant entitled may of the defense ion evidence “[t]he the defense. and not be source should come “any competent the evi- applying In 5. by is in con- weighed the trial court” direct (a) standard, the should Court defining the dence” large body of law flict with a specific elements Identify and the the of a trial judge the trial course define role of instruction, necessary requested analysis for i.e. appeal, provide of issues on we statutory or helpful practitioners either ease law elements for guidance trial (b) defense; time, judges Consider evidence deserve. At the same we disci- presented which meets the standard to pline by providing ourselves a consistent supports determine whether such evidence reviewing method for the cases which come defense; (e) each element of the If the appeal. discipline before us on That ensures by requested supported instruction is not application of principles the consistent these reject competent evidence the must Court protects system justice from natu- requested instruction. upon ral human vacillation how indi- based deciding might whether a has defendant viduals view the facts after fact. prima proof established facie of the de- “any using competent fense evidence” LANE, Judge, dissenting: standard, the Court shall determine if the respectfully VI I dissent to the result competent presented good reached majority this Court. I sufficient on face. That evi- its means applaud majority’s and concur with clari- which, law, judgment dence in the determining fication of test to used in fact, given sufficient to establish or the whether instruction on defendant’s theo- group or constituting chain facts However, ry given. of defense should be defense, defendant’s claim or if and which majority trap into falls the same as the trial contradicted, not rebutted or will remain by picking court out evidence which “belies” judgment sufficient to sustain favor supporting or discredits the evidence the de- supports. which it issue The issues of misapplies fense and the test announced. whether the evidence has been rebutted or weighing majority the evidence questions of contradicted are fact the for job them, jury. is a left for the “It is for proper to decide under instructions courts, generally, not appellate say and for the Court Court. The shall review the particular spoke that a or witness the truth presented evidence if determine the de- story.” fabricated a cock-and-bull United prima fendant has established proof facie Bailey, 414-15, States of the which an defense would warrant (1980). 637, 62 L.Ed.2d spec- instruction on the without defense

ulating on whether the will find the ¶ 2 I find that the District Court’s failure or contradicted rebutted. voluntary instruct on the defense of intoxi- cation of constituted abuse discretion and ¶ Applying this criteria the facts of Using created reversible error. the test an- case, agree I Appel- with the that Court nounced'by majority, the I would find that present lant failed to sufficient evidence to presented there was evidence which would support giving the of on instructions volun- support prima voluntary facia of intox- case tary intoxication. ication. before, As I many V16 have stated times give

we to be testified, need and the trial during consistent the first guidance trial, court clear stage to the rule of law to of that he consumed a “fifth”1 applied Alize, and be in thought the standards to utilized bottle of he what an alco- determining application content, the beverage rule holic of unknown alcohol law. quart Both its’ discussion of lesser included less than half bottle of 3.2 beer marijuana offenses and puffs cigarette instructions on defendant’s and took two of a defense, theory prior the Court confuses rather to the events that caused Ms. Cade’s than giving clarifies the than drinking issues. Rather death. Jackson started the Alize at objective many criteria the drinking Court creates about 10:15 a.m. and finished gray shades of which do not enhance the within 15 bottle minutes. Jackson took the justice By puffs marijuana administration of cigarette our courts. two before establishing clear, objective they purchased criteria our fried chicken lunch. for gallon Dictionary usually A "fifth” is one of a or fifth four fifths of A ml bottle is quart. University Webster's II New Riverside called a "fifth.” getting greater .20% blood-alcohol level would be the beer after Jackson drank stopping stupor markedly at the motel. in a with aware- but before diminished chicken things going on around him and have ness of feeling that he was Appellant testified ability to focus or to diminished attention “high” motel room. Jack- got when he happening him. He perceive what is around going not remember into the motel son did severely impaired also have motor would room, parts being in but remembers functioning. testimony along The of Jackson guessed he was “under the room. He testimony of with the Dr. Doniea was suffi- intoxicating liquor” at the time. influence giving of instructions on cient to having sexual Jackson remembered voluntary intoxication. defense He with Ms. Cade. remembered intercourse give court not to trial decided they talking their that after that sat about voluntary intoxication. instruction relationship. got up He from the bed and so, weighed court in- doing Jackson’s the shower. He turned around and went to testimony against his video court earlier standing hollering, there Ms. Cade was taped trial confession. The court believed kicking him. screaming hitting He about that Jackson sufficient details grabbed they related said that her wrestled leading to Ms. Cade the events the death of to the floor. after and sufficient details of events ¶ 6 did not how he remember negate voluntary death to the instructions on got knife in hand. He testified the box intoxication. cutting her. The he didn’t remember sitting on thing However, next he remembered was ruling the instruc- wrapping He didn’t remember the box warranted, bed. stated tion court putting knife in a wash cloth and it under the that, this upon Court did believe “based taking He Ms. mattress. didn’t remember beyond a that Mr. Jackson demonstrated jewelry or He Cade’s watch. remembers incapable of that he was reasonable doubt that, being Jeep in the after but didn’t re- aforethought performing requisite malice Jeep. driving member degree of the murder in first elements offense, position put which in the Court thing clearly 7 The next he remembers granting for the of not those instructions field, up starting being getting in a I the record.” reasons have articulated getting walk. He remembers a ride from apartments him guys three who took to some ¶ The that he trial court’s recitation his on Southeast 15th where sister worked. had “demon- did not believe Jackson got apartments at 6:00 or He about beyond doubt” his theo- strated a reasonable p.m. 6:30 complete ry the trial court’s of defense shows has of discretion. This Court never abuse testified that he didn’t re- high. so our most adopted a standard Even “[bjesides because, everything being member high. not announce test so recent cases do upset, guess high I I was off the beer and stuff, guess. I of I don’t know.” bottle ¶ State, v. found in Valdez test testimony equivocating This alone would not ¶¶ 363, 379, 18, 56-57, CR 900 P.2d 1995 OK Appellant was so be sufficient to show that 425, 967, 116 he not form malice intoxicated that could State, v. L.Ed.2d 341 and Charm However, aforethought. presented 754, 761,2 40, 13, that a defen CR alcohol, testimony regarding how present suffi required to dant is evidence him, would effect a amount consumed concerning raise a reasonable doubt cient to person. ability specific intent to kill his to form the that, before instructions if two because intoxication 9 Dr. Doniea testified hours given, plainly wrong. Once be is elapsed drank the alcohol must had after Jackson defense, it presents of a beer, evidence content would be defendant blood-alcohol beyond prove is burden to person with a the State’s .19%. Doniea testified that Therefore, Charm, option voluntary of a lesser included offense. intoxication instruc- 2. In distinguishable present given, is from the case. jury did have the were but the not tions instructions, up jury, proper reasonable doubt that defense invalid is or unbelievable. if the For decide evidence sufficient. reasons, these case reversed must be primary 14 In one of the on the cases new and remanded for a trial. giving of defense instructions we stated that “the must advised of defendant’s Judge 17 I am authorized to state that theory defense there is where evidence joins STRUBHAR in this dissent. it, support though even such dis- Holt credited.” OK ¶ 112, 857; Tully 278 P.2d also see 1986 OK CR

1211. In Nance v. this Court held that a op-

criminal defendant must be afforded portunity theory to have a consider his OK CR regardless of the relative merit of defense Sidney WORTHEN, Appellant, Allen evidence offéred of the de- evidence, “Any

fense. without consideration veracity, light weight its Oklahoma, Appellee. STATE of evidence, requires given that instruction be No. F-97-607. jury may so that make the ultimate accept reject decision whether the of- Appeals Court of Criminal of Oklahoma. (citations omitted). fered defense.” Id. Aug. 1998. case, present Jackson did not testify that he had sufficient recollection Rehearing Sept. Denied to, give concerning prior details events dur- ing Wendy or after the death Cade. The thought

trial court otherwise and believed had provided evi- sufficient “beyond

dence to show a reasonable doubt” was so intoxicated that he could requisite

form the aforethought malice ele- Furthermore,

ment. as evidence of an abuse discretion, court, Capital the trial in his Report,

Felony indicated that the evidence

did not foreclose all respecting doubt Jack- guilt

son’s and that' court believed

that Jackson was under the influence of alco- Clearly,

hol.3 the trial court believed was a

intoxication factor this case. How-

ever, improper rendition of his an test caused

him to abuse discretion. weighing 16 It both the evi- clearly

dence and the use of improper test constituted abuse discretion in this

case. A defendant provide does have to prove

sufficient evidence to his defense be-

yond get a reasonable doubt order to only

defense instruction. provide He has to

evidence to defense. Then C, 13.12, Questions O.S.Supp.1997, App. Section and 26 of form Ch. Appeals, Rules Court Criminal

Case Details

Case Name: Jackson v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Jun 30, 1998

Citation: 964 P.2d 875

Docket Number: F-95-1429

Court Abbreviation: Okla. Crim. App.