Liles v. State

felony murder be- murder conviction LILES, evidence that Roy Appellant, insufficient

cause there was Mark the decedent at to rob intended v. kill Yar- helped brother the time Oklahoma, Appellee. STATE of brough. F-83-427. No. appellant and of his The statements appel- at trial were introduced brother Appeals of Oklahoma. Court of Criminal robbery plan. nothing of the knew lant 20, 1985. great of circumstan- June deal But there was jury could from which the tial evidence Rehearing July Denied 1985. portion A of that evidence infer otherwise. As Sept. 13, Corrected 1985. motel room appellant was was that brother, entry standing behind with his entered,

door, where he the decedent when invited, predetermined time. at a

had been manager the club where Gail saw Gail leave

working testified she morning killing with Yar-

club the stopped by herself to

brough, that she pickup in a to two men black

talk like the one Virginia plate, license

West Appellant admitted by appellant.

owned burglarized shop, Yarbrough,

he robbed body. He dispose of his helped as he and

captured in the decedent’s van tried to leave town.

his brother consistently held that

We have is evidence from which

when there guilty that the accused

could conclude not disturb that

charged, this Court will sharp

finding though there are conflicts State, 607 P.2d

the evidence. Renfro (Okl.Cr.1980). prima case of A facie Jetton established.

felony-murder was (Okl.Cr.1981). There is 632 P.2d 432 regard.

no error warranting reversal or

Finding no error

modification, is AF- judgment and sentence

FIRMED. BRETT, J.,

PARKS, P.J., and CONCUR. guns. Upon returning

T-shirts two room, they Yarbrough’s motel their stuffed dumped it body into footlocker and River. South Canadian Gail Conner was highway to the interstate taken and she left Oklahoma. day, Yarbrough’s the same

Later best Russell, friend, Dennis the Liles in the saw van, finally stop able them after Palmer, Appellate by colliding into Deputy Patti Public chase vehicle theirs. Defender, Norman, for appellant. days in jail, Two later while re- quested speak police told Gen., Turpén, Atty. Susan Michael C. facts, Detective Koonce above and stat- Dickerson, Gen., Atty. Okla- Asst. Stewart stated, ed, as his brother Daniel also later City, appellee. homa for nothing knew that his brother the rob- prior bery plot Yarbrough’s OPINION arrival motel room. Daniel’s statement dif- BUSSEY, Judge: Yarbrough in that did not fered mention Roy Murder Mark Liles was convicted pulling a knife in the room. motel County Degree in Oklahoma in the First Appellant togeth- and Daniel tried were Punishment was assessed District Court. life imprisonment Daniel received er. injection. lethal appealed separately, part and has Case his 29, 1982, August appellant police told On No. F-83-746. he Larry Koonce that killed Joe officer 27,1982, as a Yarbrough August part During sentencing phase, jury of the on the plot. Appellant aggravating had come to Okla- robbery of the existence two found City Virginia his from West warranting penal- homa the death circumstances Liles, girl- O.S.1981, Daniel and Daniel’s were, brother according to These ty. friend, had Gail Mark asked Gail Conner. one, espe- that the murder was 701.12: § bring Yarbrough to the motel room so cruel; and, to heinous, atrocious, or cially him head knock in the and rob he could probability a that the two, existence of Yarbrough met at a club him. Gail had of commit criminal acts would defendant days for told she two and worked where continuing constitute that could violence At roll of he carried. Mark about the bills society. The added to to threat time, brought she him to the appointed following statement: verdict they in, As walked Daniel motel room. body, jury, as the members We entry door and Mark came stood behind the against the vic- crime committed feel the According appel- of restroom. out by pitiless means be cruel tim to statement, pulled Yarbrough a knife lant’s taken as evidenced his life was which grabbed he Daniel. Daniel Yar- saw when inflicted to his wounds number of requested to as he was brough from behind he subsequent pain which body and the Yar- Mark then bounded for by Mark. do it feel is atro- before death. We suffered in the brough him seven times and stabbed physical abuse due to the serious cious 1953 Italian Stiletto switch- with a chest the victim. upon inflicted fatally Yarbrough was wounded blade. assign- a number Appellant makes in motel bleeding left and was sentencing regarding the of error ments Liles, who had taken the two room while First, appellant claims proceedings. keys, and went bur- wallet decedent’s federal con- statutory his state and and his motorcycle At shop. Yarbrough’s glarize by the were violated rights stitutional car shop, Liles traded decedent’s complete notice coins, provide a failure to van, jewelry, also took State’s for sentencing trial, to be used hearing, stage of evidence first of jury and then prove trial to phase of his there existed a stage at the second Appellant’s trial. he probability that would commit acts of attorney ample opportunity had to cross-ex- continuing violence that would constitute a regarding amine this witness society. We note that trial threat coun- statements to him. He volunteered in his object sel failed to at trial to the introduc- testimony preliminary hearing tion the evidence of which he now com- appellant had discussed a number plains. urges that Appellant his counsel’s things, including being “kicked out” of the object failure to at trial should not be con- However, Marines. defense cut counsel sidered a waiver of this error it because off his statements and continued cross-ex- surprise this was due to the error created. amination other matters. 701.10, O.S.1981, pro Section Admissions of a defendant re that, “Only aggrava vides such evidence in garding activity unrelated criminal is rele tion as the state has made known punishment vant and admissible in the prior to his trial shall defendant be admissi stage capital of a case. Johnson v. ble.” In 665 P.2d 815 Johnson supra. danger surprise appellant (Okl.Cr.1982)(remanded grounds), on other nearly nonexistent under the circum recognized process requires we that due stances, error in introduction was the defendant be of what notified the State object. waived failure to Jones prove intends to at trial. (Okl.Cr.1983). 660 P.2d 634 trial, Prior to the State filed no- written Appellant complains there insuffi- prove tice that it would offer evidence to cient support jury’s finding evidence to prior possession for arrest and conviction beyond a reasonable doubt the existence of Brookshire, shotgun of a sawed-off Tex- aggravating ap- circumstance that the trial, arresting as. At officer testified pellant would commit criminal acts of vio- of the arrest and the circumstances sur- continuing lence that would constitute rounding He the incident. testified that society. 701.13(C)(2), threat to Section Ti- prior to arrest he had watched O.S.1981, tle directs that we review the approximately hours five because of a in a capital evidence case to consider tip from an informant who claimed to have supports judge whether it jury’s appellant plan robbery. overheard a A fel- finding an aggravating of circumstance. charge ony to a was reduced misdemeanor appeal on sufficiency The test for the of procedural appellant due to a error and prima evidence is whether facie case has pled guilty charge. to the We find the State, been established. v. 607 Renfro adequate apprise notice he received was to (Okl.Cr.1980). P.2d 703 If test is satis- him of this evidence. fied, jury ques- then the must resolve the Other at evidence introduced tions of fact. Id. complains trial of which he now were state- ments he to made Detective Koonce which The nature and circumstances part provide were not his itself killing may probative made written state- evi ment. These statements concerned such dence of future acts violence. Robison being put State, (Okl.Cr.1984); matters as out of the Marine v. 677 P.2d 1080 Staf State, Corps, prosti- (Okl.Cr.1983), being previously involved in v. 669 P.2d 285 ford — activities, U.S.-, grounds, on tution and narcotics related remanded other 2652, fights. (1984) His 104 involvement in statement to S.Ct. 81 L.Ed.2d 359 697 (1985); State, he had P.2d Detective Koonce that also done 165 v. 665 P.2d Stafford (Okl.Cr.1983), things divulge anyone he 1205 would never remanded on other — U.S.-, jury. grounds, 2651, was also related to the Detective 104 81 S.Ct. (1984) (1985); through- Koonce was endorsed as a witness L.Ed.2d 359 56 O.B.A.J. 1152 against (Okl.Cr.1983), P.2d 1 proceedings out course of the Ake v. 663 re- — U.S.-, appellant. grounds other preliminary He testified at the versed on 105

1031 (1985). ciety,” claiming it 1087, jury In each allows a L.Ed.2d 53 unlimited 84 S.Ct. meting penalty. discretion out that the calloused we found of these cases supported defendant’s acts nature of the 262, Texas, In Jurek v. 428 U.S. 96 S.Ct. finding aggravating cir- jury’s of this 2950, (1976), par- L.Ed.2d 929 when case, appellant present In the cumstance. aggravating appellant ticular circumstance decedent to their persuaded Conner to lure challenges interpreted now to allow a lay in to attack he wait motel room where bring jury’s defendant to attention By unsuspecting victim. his own ad- his mitigating he may whatever circumstances mission, Yarbrough, brutally assailed he show, be able to the Court said the death help to engaging render his brother’s being imposed penalty not in an un- The calculated and 273-74, victim defenseless. guided 428 U.S. manner. at certainly of the attack 2957, bloodedness fact, cold In S.Ct. at L.Ed.2d 939. nature. by directing jury weigh mitigating reflects a calloused against aggravating this cir- circumstances supported evidence which Other cumstance, “guides it and focuses the finding potential future vio jury’s jury’s objective partic- consideration of 1) things appel such as: lence included circumstances of individual of- ularized possession of prior lant’s conviction it fense and the individual offender before 2) possession his on shotgun; sawed-off impose can of death.” Id. sentence from guns he had stolen arrest of two scheme, statutory jury Under our 3) attempt shop; apparent decedent’s an aggravating must circum- find weapons being use these when locate and outweigh mitigating stances circum- Russell; and, 4) stopped in the van it authorized to consider stances before is reported dangerous conduct previous O.S.1981, penalty. 21 701.11. the death § We find the evi it to Detective Koonce. may “any relevant A defendant offer evi- jury’s finding of amply supports the dence dence, the limitations of the rules of within aggravating circumstance. character, evidence, bearing prior of the of- record or the circumstances Appellant now claims that 269, P.2d Chaney fense.” specifi have an instruction jury should had (construing 21 (Okl.Cr.1980) O.S. 279-80 aggra cally defining the elements 1981, 701.10). judge herein in- The trial § vating that there existed the circumstance list of jury of exhaustive structed the commit probability that the would consider, mitigating circumstances which would constitute a acts violence they consider other them could advised pre society. We have continuing threat as well. circumstances question, Chaney viously addressed this sufficient We that the received hold (Okl.Cr.1980), 612 P.2d arbitrary or prevent an dis- guidance to aggravating position that this reaffirm our application of the death sen- criminatory specific, vague, and is circumstance State, P.2d 665 815 tence. v. Johnson Having failed to readily understandable.1 (remanded grounds). (Okl.Cr.1982) on other trial, appel request such an instruction assignments of Appellant’s next two er- assignment of error. lant has waived this aggravating circum- regard ror the second State, (Okl.Cr.1982). 686 v. 651 P.2d Parks found, murder jury that the stance the heinous, atrocious, challenges the con or cruel.” “especially Next First, O.S.1981, 701.12(4). he claims aggravating circum 21 stitutionality of the § support was not sufficient “probability that the defendant the evidence stance of second, he And jury’s conclusion. acts of violence that the commit criminal would application of this this Court’s continuing to so- claims that threat would constitute 2950, aggravating See, Texas, 262, circumstance. justified this Court U.S. 96 S.Ct. 1. Jurek v. 428 (1976), Supreme wherein the 929 49 L.Ed.2d 1032 the aggravating circumstance allows death violation of Godfrey Georgia, tion v. 446 arbitrary

penalty 420, to be assessed and 1759, U.S. 100 S.Ct. 64 L.Ed.2d 398 capricious manner. (1980). points He out upheld that we have penalty the death on this circumstance Appellant’s assertion the evi where torture like conduct has been in- support dence did not this circumstance is volved, and in other cases where it was not premised on his conclusion that there was involved. killing insufficient torture involved the for apart killings, set relying to be from other Our recent opinion in Cart State, Odum v. opinion in on our 651 P.2d wright v. 695 P.2d (Okl.Cr.1985), 548 (Okl.Cr.1982). Appellant simply 703 dis explains that the statute is written in the agrees they jury's finding with the as not disjunctive, and torture is not only the They specially ed in their verdict. it found justifying finding factor that a murder is pitiless the murder to be because the especially, heinous, atrocious or cruel. suffering amount endured victim. upon physical Based abuse victim supported by The conclusion was the testi suffered, jury found the crime atro mony of the examiner. medical jury The cious. also it found was cruel Odum distinguishable. is It involved upon pitiless based infliction of the aby victim hit once bullet who was ren- consequent suffering wounds en immediately dered unconscious and died opinion dured. See our in Nuckols v. jury’s We soon thereafter. reversed (Okl.Cr.1984), 690 P.2d 463 where we finding for suffering lack of evidence of explained that this circumstance includes the manner killing and because itself did consideration killing of manner of as well finding. Id. not warrant as killer’s attitude to determine wheth present given The case was it pitiless er was atrocious or cold and instruction, 436, uniform No. OUJI-Cr. de- supported here. The evidence jury’s fining previously ap- these terms as we findings and their decision was not proved: unguided capriciousness.2 result of extremely ‘heinous’ means wicked or vile; shockingly ‘atrocious’ means out- assignment As seventh vile; rageously wicked ‘cruel’ means error, he contends the penalty death to, pitiless enjoy- or utter indifference except should be allowed for an intend of, sufferings ment of others. killing. Essentially, ed is requesting Eddings v. (Okl.Cr. penalty this Court to 616 abolish for P.2d 1159 1980), felony resentencing, appellant’s argu murder. We find remanded for 455 U.S. 869, 104, (1982), nonpersuasive provides S.Ct. L.Ed.2d ment and he no grounds, pertinent authority modified on other 688 P.2d 342 for this action. En (1984). Florida, jury’s 782, statement added to the mund 458 U.S. 102 S.Ct. explicitly grounds verdict 3368, stated what (1982), imposi L.Ed.2d 1140 forbid they aggravating found this circumstance penalty against tion the death certain present. find We sufficient evidence nontriggermen, but it in otherwise leaves support in the record to their determina policy allowing tact the the death sentence Renfro, supra. tion. felony those convicted of murder. Michigan appellate aWhile court disman

Appellant’s aggra- contention that vating Michigan’s felony-murder that a tled doctrine in circumstance murder “es- Aaron, People pecially heinous, atrocious or cruel” 409 Mich. allows (1980), arbitrary capricious imposition opinion N.W.2d 304 is neither persuasive penalty controlling death is based on his that assertion nor to this Court. applica- Court felony statutory this has allowed overbroad Their rule not murder was 6, Cartwright, supra, disproportion- we 2. As noted in at n. tent his is sentence excessive or appellant complain arbitrary penalty imposed cannot of our ate to the in similar cases. 21 O.S.1981, 701.13(C)(3). appellants except of treatment other to the ex- § a recognized court that nor indicated deadlock. Here too the is and that as ours may jury ability be inferred when one intention- to indicated their reach a deci- malice likely force to kill or motion a ally expressed sets and to The sion a desire do so. See, great bodily Brogie harm. cause judge’s rulings proper. trial were (Okl.Cr.1985), where we 695 P.2d 538 Appellant that he was claims denied due rejected request- and discussed process equal protection and of the law ed rule. the trial to grant because court refused for jury appellant being the had deliberated request, indigent, an for After following 1) hours the slightly psychiatrist less than three to funds hire to State trial, appellant’s stage coun punishment of sanity at the time the of- evaluate of requested 2) the court to act as authorized fense; sel expert testify who could re- 701.11, O.S.1981, and take the case by garding appellant’s capacity § rehabilita- jury impose the sentence of tion; and, 3) from sociologist expert who was imprisonment for life. This section directs penalty on the death who could advise the if the judge jury trial to do so cannot jury of the circumstances which punishment to within a reasonable agree as of penalty given death were the recidi- request, After the trial time. counsel’s capital rate of convicted of mur- vism those jury called to the courtroom. judge der. not that verdict had The foreman advised circumstances, the Under certain reached, that further delibera been but provide may obligated be to an indi State After eat tions could result in a verdict. competent gent defendant access to supper, jury resumed ing deliberations. preparing assistance in his or later, hour and a half Approximately an — Oklahoma, U.S. her defense. Ake v. again requested appellant’s counsel 1087, (Feb. -, 105 S.Ct. 84 L.Ed.2d 53 jury. to case from the court take the 26; 1985). process, trigger To the de- jury bring the bailiff sent to When “to the trial must demonstrate fendant courtroom, they they announced that to the sanity at the judge that his time of Thirty quite ready not to return. were significant is to be a factor offense later, they jury minutes advised that ” 1092, at-, Id. 105 S.Ct. at trial.... of lethal had reached a sentence at 60. L.Ed.2d injection. hours, three or even that herein do not We find We consider His length of time demonstration. hours an unreasonable to make such a five failed jury they the decision were trial was evaluated competency for the make to stand They reported: to care- examining psychiatrist were asked asked make.3 as well fully instructions consider detailed [appel- opinion of our staff that is the [I]t jury ex- days four of evidence. as fully comprehend the ex- is able lant] opportunity at each pressed judge pending proceedings act nature ver- they could reach a probability that is the consensus against him.... [I]t dict. is in need [appellant] not staff that our could ... psychiatric/treatment [W]e Woundenberg v. noted in We Van con- agree [appellant] could be not length (Okl.Cr.1976), 545 P.2d mentally person ill sidered to be a is within may time a deliberate 43A, Title Okla- under defined Section that there We held trial court’s discretion. has been no be- There homa Statutes. when no abuse that discretion [appel- part displayed on havior nonstop un- deliberate jury was allowed to the staff that a.m., to indicate early 4:10 morning hour of lant] til the dangerous to be would be considered they requested a break had neither when since that was Judge specially time’’ unwarranted Appellant’s sonable reliance on Brett’s 3. being concurring opinion him. 617 P.2d addressed in Irvin the issue (Okl.Cr. 1980), a "rea- what constituted as to 1034 society, and/or

himself others at least hold the did evidence not warrant the in struction, a psychotic given not as result overt and adequately those ap prised symptoms during period applicable elicited his law. Jet ton hospital. (Okl.Cr.1981). in this 632 P.2d confinement The given instructions to be are discretion appellant Two months later filed a mo- ary, with the trial court determining wheth employ tion to requesting psychia- funds a er the evidence warrants instructions of a psychologist trist or to determine whether lesser included offense. There was no to ability distinguish right he had from abuse herein. Boling v. 589 P.2d wrong the time of the at offense and to (Okl.Cr.1979). circumstances, mitigating determine con- Appellant contends he received ineffec- temporaneously asserting that he was com- tive assistance of counsel in sentencing petent Appellant assist in his defense. stage of trial. initially He makes clear that attempted prove plead never or an insan- his gener- claim is not that his counsel was ity funds, applying defense. In for the ineffective, ally but names a number of appellant failed to show doubting cause for by actions and inactions counsel he claims sanity. appeal suggests his Counsel on contributed to receiving pen- the death placed psy- fact that the was on alty. chotrophic drugs hospi- State mental tal is sufficient to raise doubts as to his by The test which of inef claims we mental state. But consider this circum- judged fective assistance of counsel are inadequate to stance demonstrate that in- components: includes two sanity key to appellant’s would be a factor A convicted defendant’s claim that coun- trial, that defense at or his mental condi- sel’s was assistance so as defective seriously question. tion require reversal of a conviction or death First, components. sentence has two rely

The did State evi- per- defendant must show that counsel’s It did not make appellant’s dence at trial. requires formance was deficient. This mental condition relevant. showing that counsel was not function- This case is much different than that ing guaranteed as ‘counsel’ the de- Ake, supra, a which involved di- defendant fendant the Sixth Amendment. Sec- agnosed psychotic as who advised ondly, the defendant must that the show court that would raise a defense of performance prejudiced deficient the de- insanity case, In at trial. the State requires showing fendant. This presented psychiatric against evidence counsel’s errors were so serious as to defendant. We find that the trial court deprive trial, the defendant aof fair a denying the instant case did not err in trial whose result is reliable. Unless a requested motion for the funds. showings, both it defendant makes can- Appellant asserts that the trial court not be said that the conviction give refusing erred in an instruction of sentence from resulted a breakdown in Manslaughter Degree. in the First The adversary process that renders requested instruction is that the elements result unreliable. degree manslaughter of first include a U.S.-, Washington, Strickland v. homicide, “Perpetrated design without a -, 2052, 2064, 104 S.Ct. 80 L.Ed.2d death, dangerous effect ... means of a (1984). applies This same test whether weapon.” given instructions were not, capital case is case or there degree felony first murder of second strong presumption assistance of counsel degree felony murder. adequate. our order in See Coleman (Okl.Cr.1984). 693 P.2d Considering appellant’s confes exposed killing part of Appellant sion which claims that counsel failed to Yarbrough, scheme request to rob and Conner’s from severance trial codefend- confession, testimony corroborating we ant Daniel We note that the record Liles.

1035 He it was error for his trial of severance was asserts that the issue reflects litigated prior to trial. our to not all reference to See counsel have thoroughly State, 1022, prior “drugs” 702 excised from his confession in Liles P.2d 56 opinion v. — (Okl.Cr.1985)(See publica- jury. this He to its submission to believes O.B.A.J. tion). improperly exposed jury that this confession, In his crimes” “other evidence. his Appellant claims trial counsel “drugs” told Detective Koonce that the he motions, timely discovery make failed to were his. But there found within van prior filing them one reasoning that week is indication in the statement these no A review of trial was sufficient. to drugs, possession illicit were of which dis motions for reveals exhaustive record would constitute a crime. claim by appellant. This covery were filed of ineffectiveness his additional claim improperly and He asserts that his counsel transcript failing challenge to have a made in to introduced dur- failed evidence he hearing substance because stage. lack We ing sentencing motion addressed any harm re assignment demonstrate which in does not the first and this evidence inactions. from these find error. sulted did not reversible assigns as his trial He error finally complains that his coun He voir dire the veniremen counsel’s failure to failing object to was ineffective to sel did, attorney’s his failure than and more prosecutorial miscon alleged instances of peremptory available seven to exercise duct, point out instances yet he fails to guess challenges. We refuse second Coleman, supra, we In refused of this. rap strategy. attorney’s An trial counsel’s strategy judge guess trial and to second judgment and potential jurors port with hindsight. Again, of claims on basis discretionary jurors highly challenging fallen to such a think has we and be with trial counsel should matter unable to show temptation. Appellant is presumption with a effective reviewed process was undermined the adversarial P.2d 975 v. 685 ness. See Collis This as experienced counsel. defense (Okl.Cr.1984). Appellant has not overcome signment is overruled. presumption. He his counsel failed to ob claims Appellant contends that since his Daniel Liles’ con ject to the admission of jury composed only of quali those who appellant. At tri implicated which fession fied Witherspoon Illinois, under v. 391 al, found to have been the statement was 510, 1770, U.S. 88 S.Ct. 20 L.Ed.2d 776 interlocking na voluntary and due to (1968), he was denied a fair impartial and statements, no error we found ture of guaranteed trial by the Sixth Amendment. joint trial in admitting them at their We have on a number of occasions con 442 Liles, supra. Randolph, v. Parker procedure sidered excusing venire 62, 2132, 60 L.Ed.2d 99 S.Ct. U.S. men who were irrevocalby committed to (1979). against vote penalty, the death and have counsel Gail Appellant claims his called against it upheld charge that it denied testimo- testify at trial her Conners a fair trial. E.g., Chaney v. her damaging to him. We note ny was (Okl.Cr.1980). P.2d 269 See also Wain- by appellant’s testimony was corroborated wright Witt,-U.S.-, 105 S.Ct. confessions. (1983). 83 L.Ed.2d 841 We find no error. was in Appellant claims counsel complains certain Appellant an instruction requesting in not error prosecutor by the made was an accom comments testimony, who Conner’s fact, questions he asked it was certain In must be corroborated. plice, None of the comments stepfather trial. physical evidence corroborated complained of were ob- questions now confession. each Liles’ jected at trial nor was admonishment stances were not outweighed by those of- disregard them requested. mitigation. fered in (Okl.Cr. Burrows P.2d Finally, O.S.1981, under 21 1982). Therefore, review is for fundamen 701.13(C)(3), we must consider § whether tal error. appellant’s sentence is excessive or dispro Our the review of record reveals portionate to penalty imposed the in similar that of egre none the comments were so Therefore, cases. compared we have it in gious error, as constitute reversible es relation other cases in which the homi pecially light in of overwhelming the evi cide offenses, was connected type to theft guilt including dence of a confession. and find it not to be or dispropor excessive prejudicial None were so as to have effect compare tionate. We refuse to undecided Mahorney State, v. ed the verdict. 664 requested by cases as appellant, to do nor (Okl.Cr.1983); Burrows, P.2d 1042 supra. comparison to be limited to cases in which the declined to recommend the particular Of appellant concern to penalty. The cases considered in stepfather by cross-examination of Brogie State, v. clude: (Okl. 695 P.2d 538 prosecutor appellant the as to whether had State, Cr.1985); Robison v. 677 P.2d 1080 drinking in been trouble for fighting (Okl.Cr.1984); State, Dutton v. 674 P.2d a town near to their step home town. His (Okl.Cr.1984); 1134 State, Coleman v. 670 reported father that had not been in State, (Okl.Cr.1983); P.2d 596 v. any formed of such prosecu trouble. The Stafford 285, (Okl.Cr.1983); 669 P.2d 286 Coleman any tor did not offer support evidence State, v. 668 P.2d (Okl.Cr.1983); 1126 the insinuation. stepfather denied the Staf State, v. (Okl.Cr.1983); 665 P.2d 1205 of such problems appellant. existence with ford State, Johnson v. (Okl.Cr. 665 P.2d 815 position While it has been our that State, 1983); Glidewell v. 663 P.2d 738 prosecutor questions should ask not State, (Okl.Cr.1983); Ake v. 663 P.2d 1 make proper insinuations or references not (Okl.Cr.1983); State, Hatch v. 662 P.2d State, ly proven by evidence, Love v. State, (Okl.Cr.1983); Smith v. 1377 659 (Okl.Cr.1960), 360 P.2d 954 we do not be — (Okl.Cr.1983), P.2d 330 vacated U.S. significantly lieve prejudiced -, 324, 297; 104 S.Ct. 78 L.Ed.2d Bout light of the tremendous evidence of well (Okl.Cr.1983); 659 P.2d 322 guilt. Mahorney, supra. Irvin v. (Okl.Cr.1980); 617 P.2d 588 This Court must determine certain and, Hays (Okl.Cr. 617 P.2d 223 according O.S.1981, matters to 21 701.- § 1980). 13(C) capital First, because this is a case. Finding no error warranting reversal or we must determine whether the death sen modification, judgment and sentence is AF- imposed tence was under the of influence FIRMED. passion, prejudice, arbitrary other factor. findWe that it was not. The sen J., BRETT, specially concurs. reasonably tence is supported by the at tending circumstances and of law P.J., PARKS, dissents. this State. BRETT, Judge, specially concurring:

Further, must we determine supports whether the evidence aggra of Reversal this case on the basis of the vating circumstances found jury. assignment ninth represent error would O.S.1981, 701.13(C)(2). Oklahoma, previously We Ake v. dramatic extension § — U.S.-, opinion considered whether the evi S.Ct. L.Ed.2d 53 dence supported jury’s finding (1985). In the case at bar the defendant aggravating existence lesser significantly two circum made “preliminary did, stances. We held showing sanity that it and we reaf at time of the firm our view that aggravating likely significant circum- offense is be a factor at at-, at-, 105 al.” Id. 105 S.Ct. at 1092. The Ake. id. trial” than did See Rehnquist suggested psychiatrists prescribed Thorazine and rec- at 1092. Justice S.Ct. Ake, holding that provided “Before in his dissent to ommended that the defendant be obligated Notwithstanding to furnish servic- follow-up the State is care. indigent to an witness Thorazine, es of mg. of 150 administration reasonably contests his san- defendant who anything facts these do indicate more crime, require I would ity time presence than the of anxieties and emotion- showing considerably greater than clearly [that problems, report al where stat- at-, Id. Ake has which made].” that the defendant no ed exhibited overt apply the rule I would same at 1101. S.Ct. psychotic symptoms or behavior. To hold to this case. every who make defendant could some showing anxiety problems and emotional an considered absolute Ake should be psychiatric entitled to assistance would is showing that the defendant’s minimum for equivalent holding every be that defend- likely is sanity at time of the offense the I ant is entitled to such assistance. believe Rehnquist significant factor at trial. hbe beyond clearly an is that such extension justify did the facts in Ake not wrote that Supreme contemplated by the Court. principle. a For such the establishment a much weaker Court to follow Ake on this great reads The dissent also a deal of Ake, Judge as of facts is uncalled for. set report. into the examination Not doubt opinion, in- Bussey correctly in his evident, mony so and the burden on the at-, fense.” Id. at 1094-95. S.Ct. slim, so process requires State due ac- analysis Applying its constitutional psychiatric to a cess examination rele- Ake, the facts in the said: “We hold Court issues, psy- vant the testimony of prelimi- that when a made a defendant has chiatrist, and preparation to assistance in nary showing at the sanity that his time of sentencing phase. at the significant a likely the offense is to be at-, Obviously, Id. 105 S.Ct. at 1097. if trial, requires factor at the Constitution required every is in defendant case to provide psychia- that a State to a access preliminary “a showing make that his sani- issue, if trist’s assistance on this the de- likely time ty at the of the offense is be fendant cannot otherwise afford one.” Id. trial,” significant factor at he would fre- at-, language, 105 S.Ct. at 1092. This quently presenting be “denied the means of however, simply is as a intended statement evidence rebut the State’s evidence holding, of the Court’s dictated the dangerousness.” his future clearly facts in Ake. Since Ake had demon- Discussing requirement psychiatric the sanity strated “that his the time at strong showing the context Ake’s likely significant offense to be [was] need, Court said: the “The risk error trial,” holding factor at a broader was not assistance, of such from denial as well as necessary. language This was intend- value, probable are predictably its most at bright-line ed establish a rule or to con- height when the defendant’s mental mechanism, triggering stitute a as the ma- seriously question.” at condition Id. indicates, jority of supra this Court -, added). S.Ct. at (Emphasis 1097. Further, on the issue of the need to rebut analysis clearly The Court's in Ake dem- dangerous- the evidence of state’s future onstrates that not intended holding the was sentencing stage, the the Court ness at triggering Discussing as a mechanism. foregoing compels “The stated: discussion right psychiatric during Ake’s assistance conclusion in of a a similar the context trial, sentencing stage of his Court sentencing when the capital proceeding, stated: presents psychiatric evidence of the State Ake dangerousness.” also was means of future Id. at denied defendant’s added). presenting -, (Emphasis evidence to the State’s S.Ct. at 1097. rebut indicating evidence that dangerousness Clearly, of his Court is future Therefore, (1979). egregious ex- the trial court was represents an Ake situation of assistance. Under ample might possibly of the denial that there aware be some circumstances, indicating factors such disagreement among ap- the doctors as to height” “at their assistance are need for Fourth, pellant’s mental condition. “compels” a reversal. and a denial report psychiatric during indicated that however, not, interpret- be language should examination, period of°the that a defendant should ed as an indication appellant being mil- maintained on 150 compel- assistance in less always be denied ligrams per day. of Thorazine Thorazine is ling situations. extremely powerful psychotropic drug. interpretation of the Court’s proper A manage- Its most common use is for the probable analysis to indicate that seems ment of manifestations of psychotic disor- expert and the risk of assistance value Physician’s ders. See Desk Reference assistance is in a denial of error involved (39th 1985), Ed. Barnhart In a at 1977. important factor to consider. the most box, special warning Physician’s Desk rule, Therefore, when an general as a indi- that states Thorazine “is not Reference prelimi- to make a gent defendant is able drug therapy first to be used in for most testimony is like- nary showing expert patients non-psychotic anxiety be- significant factor at either ly to be a cause certain risks associated with its use trial, sentencing stage of his or guilt or are not shared common alternative expert testimony has made when the State _ in the treat- treatments When used charged, ag- the crime relevant because of non-psychotic anxiety ment of should [it] alleged testimony gravating factors not more not be administered doses of the defendant is entitled to presented, then Therefore, mg. per day_” than 100 Id. competent inde- provided access to State assuming that the doctors were fol- State’s expert at trial. As the pendent assistance practice, fact lowing standard medical has made the said: the State Court “[W]hen being on 150 maintained to his defendant’s mental condition relevant per day strongly milligrams of Thorazine punishment culpability and to the criminal that the doctors were concerned indicates suffer, might psychi- the assistance of a management manifestations of with “the may atrist well be critical to the defend- Fifth, psychiatric psychotic disorders.” ability to marshall his defense.” Id. ant’s appellant con- report recommended that the at-, 105 S.Ct. at 1095. “in order for tinue his Thorazine treatment case, present appellant was In the present degree of stabili- him to retain his preliminary showing that able to make a therapy that Thorazine ty.” The fact likely signifi- expert testimony was to be a appellant’s psychi- during the administered sentencing guilt at either the cant factor and the recommendation atric examination First, request stage he made a of his trial. re- psychiatric for continuation belie court-appointed psychiatrist and other for a appellant was “not port’s assertion that the expert request should assistance. Such and indi- psychiatric/treatment,” in need of expert testi- put a trial court on notice that serious that the doctors entertained cate mony might play significant part at trial. Sixth, stability. mental concern about his Second, previously had com- the trial court appellant’s men- concern about the doctor’s plied appellant’s request with and ordered by the illustrated tal condition was further question psychiatric on the examination report suggested psychiatric that the fact Third, competency trial. of his to stand a mental appellant be referred “to report that it was psychiatric indicated follow-up care in locale for health clinic his doctors that the “consensus” of the staff might be indi- out-patient basis as on an psychiatric appellant was not in need Seventh, report psychiatric cated.” stand tri- competent to treatment and was dis- “There has been no behavior stated: It ambiguous term. al. Consensus is an appellant] part of played on the major- may [the mean may unanimity mean or it con- he would be to the staff that Dictionary indicate ity. Collegiate Websters New dangerous to himself and/or that he “surprised by sidered be the death sen- society, in at least not as a result of tence,” others probable psychiatric value of symptoms psychotic overt elicited dur- assistance and the risk of error from its ing period hospi- of confinement basis, absence are manifest. On that I tal.” the fact that the State was Given would, therefore, reverse and remand this alleging aggravating specifically factor case for new Accordingly, respect- trial. I dangerousness, this statement future fully dissent. alone sufficient to alert a should be trial appellant’s court to the fact that state likely significant

of mind was to be a factor sentencing stage

at the of the trial. Final- assertion,

ly, contrary majority’s su-

pra 1033, the issue the state raised state of relevance by charging aggravating him

mind dangerousness factor of future and intro- BOLTON, Appellant, Bennie Wren testimony in ducing police and other attempt proof. to meet its burden of testimony by the

use of State Oklahoma, Appellee. The STATE of dangerousness future to establish makes a No. F-83-392. assistance, expert defendant’s need formulation, Supreme compel- Court’s Appeals Court Criminal of Oklahoma. However, ling. testimony such should not June 1985. triggering A making be the factor. rule appellant’s right assistance on this key depend prosecutor’s issue on the dis-

cretion would be untenable. theAs Su-

preme Court stated Ake: “Without a

psychiatrist’s assistance the defendant can- expert’s opposing

not offer a well-informed

view, thereby significant oppor- loses a

tunity juror’s ques- to raise in the minds proof aggra-

tions about the State’s of an

vating circumstance, factor. In such a consequence

where great, of error is so responsive psychiatric

the relevance of tes- evident,

timony so and the burden on the slim, process requires

State so due access

to a examination on relevant

issues, testimony psychiatrist, preparation

and to assistance at the sen-

tencing at-, stage.” Id. 105 S.Ct. 1097.

This apply regard- rationale would seem to psychi-

less of whether the State introduces testimony.

atric this,

In a case such as where the decision punishment difficult,

on where there is a evidence, body mitigating

substantial possible

where the deliberates time,

penalty length for a considerable judge where the trial states in his trial

report that, decision,” “it was a close notes apparent doubts from the only are there no diagnosed psychotic, as a defendant volved if the which the report, but doubts even a court he would raise advised the that who present lists the defendant did dissent were case, In insanity trial. that defense of at preliminary showing adequate an not make psychiatric evidence presented the State requires Ake the de- required by Ake. as Furthermore, Ake against the defendant. initiative; a to take the defendant fendant trial. diagnosed incompetent to stand rely intend to on an does not even who contrast, here made no In the defendant said to have insanity defense cannot be and request insanity an instruction judge that his sufficiently the trial shown insanity no on an defense. placed reliance sanity an issue trial. will be examining psychiatrist findings the The request mere assist- The was com- no that the defendant left doubt to meet the test is also not sufficient ance trial, clearly stated that petent to stand and Otherwise, such as- by Ake. established illness. no mental the defendant exhibited merely on re- available would be sistance rely psy- did not Additionally the State necessity cause as to show quest without during sentenc- at trial chiatric evidence Supreme required the Court. ing. reasons, I concur in this For the above risk of error that “the Ake reasoned decision. assistance, as as well from denial of such value, predictably at most probable are its PARKS, dissenting: Presiding Judge, mental the defendant’s height when — U.S.-, Oklahoma, In Ake seriously question.” Id. at in condition is (1985), the United L.Ed.2d S.Ct. -, Here the defend- at 1097. S.Ct. land- Supreme established Court his States question as to to raise ant failed by trial courts to be used guidelines mark sanity. criminal indigent an determining when in Parks dissenting opinion Judge The compe- given access to must be defendant showing of anxieties slight suggests that a Our task is independent psychiatrist. tent to sat- problems is sufficient and emotional guidelines apply those evaluate and in Ake the that isfy the test established in this case. the facts showing preliminary “a make defendant Ake, Court, three in identified The the is sanity at the time of offense determining relevant to being the tri- factors significant factor at likely to a be psychiatrist: appointed need for an recognized the We have repeatedly .... the First, defendant; the private the interest of compelling defendant’s in interest fair second, governmental adjudication interest of phase the at the sentencing of a third, charging jurisdiction; proba- capital too, pro- and case. The has a procedural safeguard found interest in assuring value of that its ulti- ble safeguard erroneously imposed if mate sanction is not risk of error is not factors, .... variable on evaluating In three which we must provided. is, therefore, focus probable value private “The interest in the Court said: assistance psychiatrist of a will accuracy proceeding of a criminal ... is _ area, have and the risk attendant uniquely compelling gov- almost on its absence. in denying ernmental interest ... the as- psychiatrist’s .... Without a assist- psychiatrist sistance of a substantial ” ance, the defendant cannot offer well- “considering pivotal role that .... expert’s view, informed opposing psychiatry play has come to criminal thereby significant loses a opportunity to State has proceedings .... when the made juror’s raise questions minds about the defendant’s mental condition relevant proof the State’s aggravating pun- culpability to his criminal and to the circumstance, In such factor. where suffer, might ishment the assistance of consequence great, of error is so psychiatrist may well critical to the be responsive psychiatric relevance of testi- ability defendant’s to marshall de-

Case Details

Case Name: Liles v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 13, 1985

Citation: 702 P.2d 1025

Docket Number: F-83-427

Court Abbreviation: Okla. Crim. App.