Rоnald Daniel KELLY, Appellant, v. STATE of Oklahoma, Appellee.
No. F-82-309.
Court of Criminal Appeals of Oklahoma.
Nov. 30, 1984.
As Corrected Dec. 17, 1984.
692 P.2d 563
As to defense counsel‘s failure to argue for suppression of the appellant‘s statements, it should be noted that in it, the appellant сonsistently denied his involvement in the murder. This too, could have been viable strategy as could his decision not to object to the admission of the statement because he may have thought it was given voluntarily and knowingly.
Finally, we observe the particularly persuasive closing argument of defense cоunsel at the second stage of this capital case, wherein the appellant was spared the death penalty and given the minimum sentenсe for First Degree Murder.
This assignment of error is without merit.
Having found no errors requiring modification or reversal, the judgment and sentence is hereby AFFIRMED.
BRETT, J., concurs.
PARKS, J., Specially Concurs.
PARKS, Judge, specially concurring:
I concur in the results of this decision; howеver I feel it also necessary to note my objection to the prosecutor‘s comment quoted in Judge Bussey‘s Opinion. Even though the comments werе invited by defense counsel, the prosecutor strayed close to prejudicial comments and reversible error.
It is clear that there was strong circumstantial evidence against the defendant, and it is not apparent that there was any prejudicial effect that swayed the jury‘s verdict.
Michael C. Turpen, Atty. Gen., Alan B. Foster, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
BUSSEY, Presiding Judge:
Ronald Daniel Kelly was charged, tried and convicted of Murder in the First Degree and Conspiracy to Commit Murder, in Oklahoma County District Court, Case No. CRF-82-269. The jury assessed ten (10) years in prison and a five thousand dollar ($5,000) fine on the conspiracy charge, and the death penalty for the actual murder. He was sentenced accordingly. We are compelled to reverse and remand the cause for a new trial.
The evidence refleсts that appellant sold cocaine for the victim, Bobby Lykins, through a middleman, Richard McQuigg, and that appellant owed the victim five thousand dollars ($5,000). Sоmetime after 3:00 A.M. on the morning of October 14, 1981, McQuigg was abducted by appellant and two other men as he attempted to collect the debt for the victim.
McQuigg was driven to the victim‘s house. En route, his abductors expressed their intention to rob and kill the victim. They planned to use McQuigg to help them get inside the residence. However, one of the abductors crawled through a window in the house and admitted the other men. Two of the men went into a bedroom and fatally stabbed the victim as he lay sleeping in bed.
On appeal, the appellant correctly contends that the trial judge erroneously permitted the introduction of hearsay evidence over defense objections. Kenneth Bailey, the brother of one of the other men charged in connection with the slaying, stated that anоther accomplice, Ben Curliss, said that the appellant had hired him to kill the victim. The conversation between Bailey and Curliss occured two days after the crime, and the day after Bailey‘s brother, Danny Vining, was arrested for his part in the crime.
This testimony did not fall within
We cannot say that the admission of the improper hearsay evidence did not influence the jury‘s findings of guilt on both the murder and the conspiracy charges and influence the punishments imposed. Particularly is this true when co-defendants, Danny Richard Vining (conviction affirmed by this Court, see, Vining v. State, 675 P.2d 469 (Okl.Cr.1984)) and Ben Faron Curliss, (conviction affirmed by this Court, see, Curliss v. State, 692 P.2d 559 (Okl.Cr. 1984) (Case No. F-83-485), each received punishments of life imprisonment and the appellant received a penalty of death.
Accordingly, the judgments and sentences for murder in the first degree and conspiracy to commit murder are REVERSED and the cause REMANDED for a new trial.
PARKS, J., concurs in the reversal of this case for the reasons stated in Judge Bussey‘s Opinion. I also join Judge Brett in his Special Concurrence requiring complete stenographic recording in all future capital cases.
BRETT, Judge, specially concurring:
I concur that this case must be reversed, agreeing, as I do, that the hearsay evidence complained of was improperly admitted at both stages of triаl. However, I am also compelled to state my belief that, were it not for the above-mentioned errors, this Court would be required to reverse and remand the case for failure to supply an adequate record for appellate review.
In this case, we are without record of the jury selection, opening statement of the prosecutor, numerous bench conferences, and closing arguments in both stages. The record before us does not indicate why these proceedings were not stenographically reported. It is true that in all non-capital cases, it falls upon the appellant to see that the record is complete. Henderson v. State, 95 Okl. Cr. 342, 246 P.2d 393, 414 (1952). I would not depart from that general rule. However, in capi-
- Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
- Whether the evidence supports the jury‘s or judge‘s finding of a statutory aggravating circumstance as enumerated in this act; and,
- Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
By enacting this mandatory review, the Legislature obviously sought an additional assurance that the death penalty will not be imposed in an arbitrary and capricious manner. See Gregg v. Georgia, 428 U.S. 153, 199, 96 S.Ct. 2909, 2937, 49 L.Ed.2d 859 (1976) (noting that a similar mandatory review scheme in the Georgia statute guards аgainst arbitrariness). However, we cannot perform this mandatory function if the record, as here, is incomplete.
I believe there should be a judicial rule1 in this State that, in order to effectuate this Court‘s mandatory obligation under