Lott v. State

CR 27 2004 OK LOTT, Appellant

Ronald Clinton Oklahoma, Appellee.

STATE of

No. D-2002-88. Appeals

Court Criminal Oklahoma.

Sept.

Craig Corgan, Wayna Tyner, Perry Hud- son, Norman, Indigent System, OK, Defense Albert, OK, City, John Oklahoma counsel for appellant at trial. Lane,

Wesley Attorney, District Richard Wintory, Mashburn, Greg Assistant District Attorneys, OK, City, Oklahoma counsel for at trial. State Mosley, Gretchen Quick, Garner Traci J. OK, Indigent System, Sapulpa, Defense appellant appeal. counsel for Edmondson, Attorney W.A. Drew General Oklahoma, Brockman, David M. Robert Whittaker, Attorneys General, Assistant OK, City, Oklahoma counsel for the State. OPINION LUMPKIN, Judge.

T1 Ronald Clinton Lott was by jury tried and convicted of two counts of (21 Degree O.S8.Supp.1985, First Murder 701.7), CF-87-968, § Case No. in the District County. jury Court of Oklahoma The found aggravating the existence of two circum- 1992, approximately during Robert 15 In count and recommended in each stances appeal period, Miller was excluded Miller's for each count. of death punishment in the the source of semen as accordingly. From this Fowler/Cutler trial court sentenced testing testing. DNA through cases DNA per Appellant has sentence judgment and subsequently implicated as the appeal.1 fected this Appellant was of the semen. While source p.m., September 10:80 T2 after Sometime crimes, for the incarcerated Marshall/Hoster in 1986, attacked 2, Fowler was Anna Laura malice charged with two counts of he was home, Mrs. Fowl- murdered. raped and her alternative aforethought murder or alone. As a years and lived old er was 83 felony for the murders degree murder first attack, suffered Mrs. Fowler result Mrs. Fowler and Mrs. Cutler. of face, legs, arms and on her contusions severe died from fractures. She multiple rib and PRE-TRIAL ISSUES asphyxiation. error, assignment first his trial court erred Appellant contends the across the street Cutler lived 13 Zelma charges upon based refusing to dismiss the years was 98 Fowler. Mrs. Cutler from Mrs. rights to a the denial of his constitutional early During the morn- alone. old and lived Amendment to speedy trial under the Sixth 1987, 11, January Mrs. Cutler ing hours and Article States Constitution the United attacked, murdered her raped and was II, §§ 6 and 20 of Oklahoma's Constitution.2 contu- suffered severe home. Mrs. Cutler a result of the legs and sions on her arms {7 reviewing a claim of the When frac- multiple rib attack. She also suffered right speedy a of the constitutional denial asphyxiation. from Mrs. Cutler died tures. trial, balancing apply the four factors we Supreme by the United States established {4 arrested, charged, Miller was Robert Wingo, in Barker v. Court rapes and ultimately convicted and (1972):(1) 2182,2192, 33 L.Ed.2d 92 S.Ct. Fowler and Mrs. Cutler. murders of Mrs. (2) delay; delay; reason for the length of the arrest, Mar- Subsequent Miller's Grace (3) right, his and assertion of the defendant's raped in her home on attacked and shall was (4) These are prejudice to the defendant. 22, was at- Eleanor Hoster March 1987. factors, with but are balanced not absolute 7,May home on raped in her tacked and making a relevant cireumstances other Marshall and Mrs. Hoster Both Mrs. 1987. Rainey v. determination. See lived alone. With elderly ladies who were 65, ¶ 3, 755 P.2d 90. OK CR and Mrs. exception that Mrs. Marshall clearly weigh all four factors claims being raped, not killed after Hoster were right has been speedy trial favor and that his between striking were similarities there denied. unquestionably Appellant was four women. attacks on the delay, Appel- length Regarding T8 arrested, ultimately plead charged, and March charged on originally lant rapes against Mrs. committing the guilty to information, with the com- by amended and Mrs. Hoster. Marshall by impartial public an speedy trial and Appellant's Error was filed in this 1. Petition in July Appellant's county crime shall have been brief in which the Court on 2002. September 2003. The State's brief 6 of the Oklahoma filed Section committed....". January case was submitted 2004. The importance filed of this Constitution reinforces reply January to the Court right by stating, courts of "The constitutional argument January 2004. Oral brief was filed every person, open to justice the State shall be 8, 2004. was held June remedy ev- afforded for speedy and certain injury person, proper- wrong every ery provision speedy of the Sixth Amend- 2. The trial justice right be shall or ty, reputation; prosecutions, provides, "In all criminal ment sale, denial, delay, prej- without administered speedy enjoy right a accused shall speedy a does not have udice." Oklahoma trial, impartial jury public of the State and an specific period time for sets forth act which commit- shall have been district where the crime brought But see Uniform to trial. a matter to be Similarly, the Oklahoma Section ted. ...". 0.$.1991, Act, § 1347. Extradition Criminal all criminal states, ""In pros- Constitution part, right have the the accused shall ecutions 328

mission of the 110 murders. On We next consider the second Fowler/Cutler 30, 1996, January charges factor, those were dis delay. reason Barker v. by missed with the intent to refile State Wingo speaks of a "valid reason" for the time, Appellant at a At that However, later date. was delay. speaks "ap our statute rapes. incarcerated for the propriateness delay," Marshall/Hoster of the cause of the Appellant argues the ten months between the spoke while the former "good statute 5 filing original charges and dismissal of the All phrases essentially cause." of these have in considering length should be counted meaning require reviewing same delay In factor. United States v. Mac delay court to ascertain causing what is Donald, 1, 8, 456 U.S. 102 S.Ct. and then to ask if the cause is reasonable. (1982), 71 696 L.Ed.2d the United States Id. Supreme charges Court held that "once are Wingo Barker v. recognized that the see- dismissed, speedy guarantee trial is no depends ond factor on the cireumstances of longer applicable." Appellant's reliance on delay weighs heavily the case. Deliberate Carolina, 213, Klopfer v. North against government. reasons, Neutral (1967) 988, misplaced. S.Ct. 18 L.Ed.2d is courts, negligence like weigh or crowded prosecutor In Klopfer, the was able to sus favor, slightly in a defendant's for "ulti pend proceedings indefinitely; charges responsibility mate for such cireumstances Id., 214, were not dismissed. at 87 S.Ct. at government must rest with the rather than 989. In the was with Wingo, the defendant." Barker v. time, separate incarcerated for a crime at the 531, 407 U.S. at 92 S.Ct. at 2192. aAnd process therefore no due violation occurred. reason, witness, "valid missing such as a MacDonald, 8, See at U.S. 102 S.Ct. at justify appropriate delay." should serve to 1502. Id. Charges against Appellant T9 for the Ellis, 18, 147-48, 2003 OK CR 76 P.3d at by murders were refiled a Fowler/Cutler (footnote omitted). Felony Third Amended Information on 19, 3, began March 1997. The trial Appellant's December T11 case was set for trial to length delay 22, 2001. Therefore the begin May 2000. This date was strick- approximately years and 10 request months.3 This en at the of the defense in order to sufficient, delay was a substantial and is un produce allow sup- evidence in law, der our case a port necessitate review of of a Speedy Motion to Dismiss for Trial. the other three factors. See Ellis v. A hearing was held on motion on 18, ¶ 30, 1131, P.3d 1186.4 26, May 2000. On June the trial begun 812.1(A), 3. An 0.S.Supp.1999, earlier trial was provides § October 5. 22 per- trial, requested 2001. In the middle of part, the State any person charged tinent "[If with a a continuance when the medical re- examiner jail by solely crime and held in reason thereof is possession vealed he had evidence in his that had brought (1) not to trial within one after year requested never been tested. The State the con- arrest, the court shall set the case for immediate LabCorp newly tinuance so could test discov- act, provided review as Section of this requested ered evidence. The defense a mistrial. right speedy determine if the of the accused to a agreed The State to the mistrial if the defense being protected." provision trial is This agree stipulate would to a continuance and enacted in 1999 and became effective on Novem- stipulate custody. to the chain of The mistrial However, basically ber 1999. it is an amend- granted and the trial for De- rescheduled ment to sections 811 and which have been right cember 2001. waived his ato the law since but were when the repealed speedy trial as to the December trial date. new version was enacted. Ellis, § O.$.Supp.1999, we cited to 22 0.$.1991, in 1999. repealed provid- ed, 812.1, prosecuted public "[If defendant § for a Legislature which indicates our consid- offense, postponed upon whose trial has any delay beyond one-year not been require special ers application, brought review to trial at the the District Court. We next further noted term of court in which the indictment or infor- § that even under statute, former 812, we filed, generally regarded have mation inter- is triable after it is twelve-month court must period val speedy threshold of time in the order to be dismissed, unless prosecution inquiry. good cause is shown." speedy being protected". trial is 2003 OK to and issued to dismiss the motion court denied 76 P.3d at 1189. CR Fact and Conclusions Findings of a detailed Appendix. Law. See regard, trial court found 1 15 In this the Findings Fact and Conclu- its scheduling con- delayed due to the case was Law, found several the trial court sions The trial flicts of both court and counsel. also stated delay. The court for the reasons Judge that docket of Owens court found the solely to delay not attributable the was that have tried a case was such that he could not hearing began 8 preliminary the State. during month magnitude this the four time It refiled. charges had been months after completion of encompassing the final period it dates until on six different was continued hearing transcript and the preliminary the The trial completed March 1998. trial court noted of his retirement. The date during the course that at no time court found any pre- Judge chose not to hear that Owens objec- an hearing the defense raise did he would not be trial motions this case as hearing. lengthy nature of the tion to the trial, court presiding judge at The trial the record, voluminous our review of Under request during trial no defense for found At the conclu- dispute that claim. we cannot Judge pending before Ow- time the case was requested im- hearing, Appellant sion of the ens. hearing receipt preliminary mediate expense. The record transcripts public at (8) 812.2(A)(2)(g) require 1 16 Section months, six delay approximately a reflects delay oc to look at whether the court September transcript final filed with the other cases "the court has curred because defense court found that The trial 1998. persons for incar pending for trial that are transcript request completed for a counsel's question, and the prior to the case cerated at presented the evidence was reasonable as time to com court does not have sufficient to hearing was relevant preliminary case within the time mence the trial of the rulings. pre-trial court's court, trial," for and "the limitation fixed Brief, {13 Appellant Supplemental In a state, accused, attorney for the ac or the finding that this challenges the trial court's proceeding to trial due incapable cused is prelimi- preparation of delay was due to the and it is unreason to illness or other reason transcripts. Appellant asserts nary hearing not reassign case." While we do able to requested a continuance trial counsel never Judge whether Owens know from the record if transcripts. Even on the lack of based trial that were pending for had other cases on this request a continuance counsel did not Appel longer than persons incarcerated for basis, ruling that trial court's we find the lant, finding that trial court's we do have the necessary and relevant transcripts were such he could was such that Judge Owens' docket rulings to reasonable. pre-trial be prior to his try complexity of this not a case delays appear to be these retirement. While delay argues the from case, taking postponement of the a deliberate in hearing pre-trial was due preliminary erimi- large caseload of judicial notice of the judge, assigned to the fact stead of Oklahoma nal in the District Court cases Owens, January retiring in Judge pres complex nature of the County, and the try the case. simply did not want dispute the trial court's stated, we do not ent where we relies on Ellis Judge Owens' delay pending finding that statute, clearly it is Therefore, retirement was6 manage or her responsibility to judge's favor. weigh delay right does way that ensures docket such Judge by plained told the bailiff passed and was Appellant argues case was four anything case on the Judge did not intend to do assigned without Owens Owens times while retiring The record knowledge, ap- in 1999. because he Appellant's or defense counsel's allegations, al- support Appellant's in his does not pearance states or consent. proving difficulty though recognize we appeared, he would that each time counsel brief fact, Appellant's are claims If in passed such claims. been that the case had be informed judge with the able to meet Appel- true that he was not Judge with him. Owens would not meet judge party did a third and informed finally counsel com- defense lant contends that February ultimately 1 17 In the case was reas- unsuccessful and caused further However, However, signed Judge Bragg. delay she short- eight "by months. ly token, thereafter recused herself from the case. recognize same we a mandamus action Judge assigned The case was Black on interlocutory appeal not the same as an 1999, 1, pre-trial hearings March were remedy sought, part, and the at in least However, it would another Ellis, commenced. be protect speedy to trial endeavors." 18, ¶ 56, 1140,citing years 76 P.3d at two and seven months before trial begin. would The trial court found this was Hawk, 302, United States v. Loud U.S. (three 316, 656, change in defense counsel 106 S.Ct. due to the 88 L.Ed.2d 640 attorneys Indigent from the Oklahoma De- (1986)(finding delay attributable to defen System preliminary hearing), since fense interlocutory "ordinarily appeal dant's will parties scheduling conflicts of all concerned. weigh speedy not in favor of a defendant's conflicts, scheduling As a result of the the claims.") trial three-judge panel trial court convened to [ 19 The record reflects that from the No- major resolve the conflicts and schedule date, vember 2000 trial trial was rescheduled attorneys in involving cases the (March approximately 26, 2001; three times Appellant's case was set for trial on case. 2001). 10, 2001; September and October Appellant March 2000. While criticizes delays These were the result of additional convening three-judge panel, the of this he testing. Appellant argues delay forensic this does not offer an alternative solution to re- part "concerted effort on the solving scheduling conflicts the between State and the trial court to allow the State to court find trial and counsel. We the court investigate strengthening continue to responsibly convening panel acted the (sic) contrary, its To case". the record expedite order to resolve the conflicts and by reflects an effort the trial court to ensure Appellant's case. parties necessary had all evidence before 27, 2000, begin 1 18 Trial did not on March proceeding to trial. delayed requests but due to for continu- delays The record reflects that certain ance from the State additional time for from the November 2000 trial date to Octo- analysis, postponement forensic of sched- began ber 2001 when the first trial were the testing by LabCorp uled so the defense could failing timely result of comply the State to expert present during testing, an have Discovery with the Code. The trial courts are Appellant's Motion to Dismiss for lack of a empowered appropriate to order relief Speedy denying Trial. In its order the mo- comply discovery for the failure to with a dismiss, tion to trial court stated 2002(E)(2). 0.8.8upp.1996, § order. 22 Al- State and the court could have tried the case though the continuances resulted in further May request or June but at the delay, trial court did not abuse its discre- defense, proceedings stayed pend- were in granting gave tion the continuances as it ing resolution of the motion. The motion to investigate the defense time to evidence re- 2, 2000, dismiss was denied June and trial cently turned over the State. 18, 2000, was rescheduled to November considering availability the recent of the new extraordinary allow to seek relief analysis mitochondrial of DNA evidence dur- 3, 2000, July with this Court. On ing pendency proceedings, appealed Court from the District continuances for testing additional forensic denying Court's order his motion to dismiss prudent. were reasonable and speedy August for lack of trial. On jurisdiction this Court declined and dis- 1 21 In March an issue arose as to the appeal. Gilchrist, missed the This Joyee mandamus action involvement forensic weigh Appellant's does not favor City as it was chemist with the Oklahoma Police De- caseload, pending managing not ment, judges intend to act on the case his retire- their who find it im- responsibility retirement, it was defense counsel's possible complete a case before request reassignment of the case to a different reassign possi- should seek to the case as soon as judge. There is no evidence of such this case. ble. However, part properly we also note that as hearing parties to inform the that due in the case. witness potential partment trial, Appellant's trial another would of trial jury for the start selecting a Prior to September proceed on 2001. an in- trial court held on March objected speedy grounds. The court matter. It was re- hearing on the camera caseload, heavy to its noted that due ongoing internal was an there vealed try it could the case would be Octo- earliest department of Ms. police within the review ber indicated to The defense work. Gilchrist's ineffective an- it would be the court that 1[ agree finding the trial court's 24 We with that time without nouncing ready for trial at solely delay in this case was not matter; information on the Gilchrist further attributable to the State. however, not want a continu- defense did defense, ac and the court can all be held As a speedy trial claim. upon the ance based However, delays in this case. countable for alternative, a moved for the defense third record, majority delays the of the on the of the case. at dismissal good ecauseand not deliberate were for process by party. either tempts to slow the to the motion 122 The trial court denied case, Considering complexity the of this the dismiss, jury waiting to be select- and with a availability new mito discovery of the of the ed, it had to choose the defense informed analysis during evidence chondrial of DNA trial or continu- going forward with between majori proceedings, the pendency the of the counsel giving After defense ing the case. necessary ty delays to further were coun- Appellant, with defense time to consult justice Appellant that and ensure the ends upon the need for that based sel announced impartial trial received a fair and See lead to investigation that could additional 150, ¶ 7, 651 v. 1982 OK CR McDuffie evidence, was re- a continuance exculpatory P.2d However, did not want the defense quested. factor, third assertion of The 125 As for the speedy to a trial. relinquish its claim to accused, makes argued right by the incarceration the objected to the continuance State custody. See speedy trial the demand for one assert a Appellant could not McDuf- 150, ¶ 8, P.2d at 1056. fie, 1982 OK CR The request a continuance. State claim and an affirmative Additionally, Appellant made minimal involve- had argued Ms. Gilchrist at nine speedy trial on least request for a was not the sole tester in this case and ment Ellis, argued also the The State we noted of the evidence. occasions. As different 18, ¶ 45, 76 at "the P.3d prior time 2003 OK CR aware for some defense had been speedy of his trial assertion defendant's involve- trial of Ms. Gilehrist's to the start of then, strong evidentiary controversy right, is entitled sur- case and the ment the determining whether the defendant weight rounding her work. right" (quoting Bark being deprived of the is victims in the Noting presence of the 2192-98). 581-82, er, at 92 S.Ct. 407 U.S. at trial, po- waiting the start of courtroom favor. weighs The third factor the courtroom jurors waiting outside tential final consideration fourth and 126 Our dire, an- the State's for the start of voir upon any, if worked the concerns prejudice, trial, court's ready for nouncement of In delays in this case. Appellant from day, ability try case that own Ellis, this Court stated: necessity of a misgivings about court's matter, correctly noted that Unit parties Both upon the Gilchrist continuance based that an Supreme Court has held ed counsel he States trial court informed defense request prejudice is a for a to choosebetween would have affirmative demonstration denial of to a claim of prerequisite not a speedy and exercise of continuance prejudice that speedy trial and right if Appellant The court informed claim. to the defense continuance, to detriment is not limited he would have requested the he Arizona, 414 accused. Moore speedy trial claim. to waive the 38 LEd.2d 94 S.Ct. U.S. jury trial was chose the continuance (1973). Nevertheless, one of prejudice is Au- 2001. On September rescheduled considered, and that must be the factors court convened gust the trial Wingo types: op outlined three Barker v. was to the benefit of both the State and the anxiety pressive pretrial subjected defense to have the incarceration; evidence to the accused; impair type analysis. and concern of latest and most accurate factors, testing very easily Of these ment of the defense. Such could have been Supreme exculpatory considers Appel- Court third the therefore benefited inability serious "because the of a lant. fact that proved most favor- results adequately prepare defendant his case able to the State and not not system." grounds upon skews the fairness of the entire which finding to base a Wingo, prejudice. distinguishable Barker v. U.S. at This S.Ct case is from 2193; U.S.], Ellis, Doggett delays [v. at but see in that the in Ellis were based 661-65, 2695-96, at at S.Ct. [120 upon against the State's search for evidence (Thomas, dissenting) (noting L.Ed.2d 520] defendant. all of the suggestion preventing preju gathered, Barker's evidence had been no new evidence objec sought. merely dice to the defense is a It question fundamental speedy "plainly analyzing tive of the trial clause is in the most accurate by holdings dictum" and contradicted of method We find possible. not cases). prejudiced delays other as his defense was impaired. hindered or 76 P.3d at 1140-1141. Appellant argues 29 Appellant argues prejudice delay T27 further the in is evident only going not to trial in gone charging because had his case but him trial as mandat- 0.8.1991, significant by § created ed in difficulties for the defense effect at the time obtaining mitigation in of setting, locating the first trial the records and State's evidence mitigating Appellant would witnesses. by have consisted of DNA asserts that years with fourteen only. having passed Brian Wraxall Wraxall testified at trial between trial, the first homicide analysis that his of and he was Ap- the evidence showed unable important pellant's juvenile obtain DNA was evidence such as consistent with all nine records, records, hospital samples markers in the best and contact with taken from the family crime friends and that seenes and was sufficient for him would have been helpful identify determining to a in Appellant punish- as the source of the se- Initially, ment. men. we do not This was the evidence review this claim the State had at prejudice upon of preliminary hearing. Appellant lapse based asserts he fourteen years, Appellant challenged would did not credibility have Wraxall's even become a suspect years expertise and until after impeach- based on six the commission extensive . Further, of the first murder. Appellant ment material available to the defense. has However, case, any failed to delays prejudice. due to the in demonstrate the the His argument in regard fully is set forth testimony State was able to from Megan above. Without LabCorp development Clement of further who the testified argument, sperm that a this Court vaginal fraction of a is unable to review swab taken the from Mrs. profile Fowler was tested and a in claim. 13 different areas of obtained. DNA Ms. 80 As for preju- Barker's other factors of Clement testified that the random match dice, oppressive pretrial incarceration and probability Appellant was the donor of anxiety accused, and concern of Appel- the sperm the vaginal found in the swab was 1 in argument. However, lant makes no we note quadrillion. trial, 15.7 At Wraxall offered no by Appellant discharged had the probabilities, such statistical and the defense year two 25 sentences received the Mar- did impeach him because Ms. Clement's cases and was incarcerated sole- shall/Hoster testimony damaging. was more ly on charges the Appel- this case. While delays

1 28 prevent in the trial did not prejudice lant suffered some as a result of Appellant challenging expertise from the deprivation liberty, of his this is not credibility any experts conducting tip sufficient to in Appellant's the scales fa- analysis. DNA weighs science of vor. The fourth factor in the State's DNA testing rapidly progressing is and it favor. try separately him for each offense. An the first and summary, we find objection joinder of to the offenses was filed weigh Appel- factors speedy

third by the defense on October 2000. On delay favor, but reasons lant's argu- November the trial court heard careful con- After prejudice favor State. ment denied the motion to sever. sideration, was not de- Appellant find we Therefore, properly pre- the issue has been rights speedy trial under prived of his appellate served for review. constitutions, upon based and state federal reasons for the finding of reasonable per is 134 Joinder offenses significant prejudice, delay, the absence of 0.8.2001, pursuant § This mitted 488. egregious deprivation of less-than and the multiple may provides section offenses liberty. ... combined for trial "if the offenses be joined single could have been in a indictment $32 asserts further or information." This Court has allowed violated prosecution failure to dismiss his joinder separately punishable offenses al ©.8.1991, O0.8.Supp.1999, $ and 22 legedly sepa committed the accused if the argues that §§ 812.1 and 812.2. rate offenses "rise out of one criminal act or he charges refiled March when were transaction, part or are of a series of criminal term of brought to trial "at the next was not (Glass acts or transactions." 0.8.1991, § pursuant court" "Further, 65, ¶ 8, OK CR 701 P.2d However, as at the time.7 statute effect respect with to a series of eriminal acts or notes, prosecution need not be transactions, 'joinder proper of offenses "good cause" in such a case when dismissed joined where the counts so refer to the same delay. As discussed has been shown for the occurring relatively type of offenses over above, including complexities of this time, period approximately short analysis, assigned use of DNA location, proof transac same as to each retirement, plus extraor judge's pending overlaps tion so as to evidence a common hearing provided dinarily long preliminary State, plan'" Cummings scheme or v. delay the case good cause for the sufficient 45, ¶ 15, OK CR 968 P.2d cert. Therefore, past "next term of court." denied, 119 S.Ct. in prosecution the failure to dismiss (1999). Glass, also 1985 OK L.Ed.2d See statutory was not a violation. fall of 1998 ¶65, 8, at CR 701 P.2d 768. Further, any violation of the 1999 enactment admits that the first of the Appellant §§ harmless under the 812.1 and 812.2 was four factors discussed in and Cum- Glass State, Simpson case. facts of this See established, charges stem- mings was as the 40, ¶ 34, 876 P.2d 701-02. 1994 OK CR offense, degree rape ming from the first first Accordingly, assignment this of error is den in degree first murder and the alterna- ied.8 murder, felony were identical to the tive $33 assignment Appellant of er offense. charges In his second from the second states, ror, likely that trial court erred also "It is less clear but still Appellant contends the in charges requirements proximity time and refusing in the two murder to sever rights argues also he was denied his phrase court" as used in 22 8. 7. The "term of 0.$.1991, throughout arbitrary imposition § our 812 and elsewhere to be free from the laws, O.S.1991, 32.1, 55, Amendment, §§ 663- state fe. 12 Eighth penalty death under the statutory provisions refers to set- 701.10, 0.$.1991, O.S.Supp.1985, § and 21 periods during year ting specific forth time 701.13(C). Appellant § contends the State relied jury in courts of which trials could be conducted stage in violation of first evidence obtained on 95, 96.1, 96.2, §§ this State. See 20 O.S. rights to a federal and state constitutional provisions repealed been 141-161. These have support alleged aggravating speedy trial 1969). result, (variously As a 1968 and However, this Court has found circumstances. conducted, court the dates in which may stage the first evidence was not unconstitutional- held, but is trials is not restricted statute ly with- claim is obtained. Therefore the District Courts. within the discretion of out merit. Therefore, phrase "term of court" does meaning today's judicial system have the same as it once did. denying court the motion to sever. See Gil sup- The record also satisfied." space were son, 14, ¶ 49, at 2000 OK CR 8 P.3d 905. grudging admission of the ports Appellant's assignment is denied. space require- This of error time and satisfaction second and third factors as the ments listed FIRST STAGE ISSUES Mrs. Fowler and Mrs. consideration. for from each oth- across the street Cutler lived contends the trial T38 time within a four month er and were killed admitting court erred in evidence of the sex period. ual on Mrs. Marshall and Mrs. Host- assaults prior case law from er. relies on the fourth Appellant does not concede 1 36 where we have stated that "simi Court factor, each transaction proof as to more, crimes, larity is insuf between without a common scheme overlaps so as to evidence permit evidence of ficient admission" of disagree. plan, established. We or other crimes. See Hall v. elderly against crimes were committed Both ¶64, 5, 615P.2d alone. Both victims had ladies who lived ¶ trial, 89 Prior to the State filed a Notice them, family who visited but other friends or Intent to Use Evidence Other Crimes routines, rarely left they set wise had Support. alleged The State to other houses in their homes. In contrast Brief homi similarities between Fowler/Cutler neighborhood, the victims' homes and assaults were cides and the noticeably of. In Marshall/Hoster yards well taken care were determining as an aid in the identi "relevant case, entry into the house was made each Also, ty of the assailant. the evidence is darkness, night late at under cover of either being part admissible as of a common scheme Entry very early morning. in each or plan highly it since demonstrates dis through a rear door to case was a break-in operation." tinct method of cited State case, In each cuts had been residence. similarities between the Fowler/Cutler Both victims made in the rear screen door. Af crimes and the crimes. beaten, Marshall/Hoster raped, and their asphyxiated were hearing argument, ter the trial found the rag found near each beds. A knotted other crimes evidence to be relevant and rapes appeared body. In each admissible. purpose the break-ins as primary be the nothing were not ransacked and the houses T40 The basic law is well estab from the homes. each of value was taken trial, put lished-when one is one is to be instance, Appellant had a relative who lived all-by convicted-if at evidence which nearby. This evidence is sufficient to find guilty charged; shows one of the offense and overlapped proof of each offense so as to proof guilty that one is of other offenses not plan, evidence a common scheme or connected with that for which is one on joinder of the offenses for therefore allow for State, must be excluded. Burks v. 1979 OK State, 14, 2000 trial. v. OK CR See Gilson 10, ¶ 2, 771, 772, CR 594 P.2d overruled in denied, ¶ 48, 888, 904-905, cert. 582 8 P.3d State, part grounds, on other Jones v. 1989 962, 1496, 121 149 L.Ed.2d 381 U.S. S.Ct. 7, 772 922. also Hall v. OK CR P.2d See (2001). State, also Pack v. 1991 OK CR See State, 33, 38, ¶ 21, 1985 P.2d OK CR 698 37. ¶ 109, 8, 280, 819 P.2d However, evidence of other crimes is admis has to show 37 failed it of sible where tends establish absence accident, any joinder. plan, prejudice resulting from the mistake or common scheme or motive, intent, opportunity, preparation, Evidence of either offense would have been pursuant admissible a trial of the other Burks, knowledge identity. 1979 OK CR 2404(B) 0.$8.1991, 10, ¶ 2, admissible, § 12 as evidence of other 594 P.2d at 772. To be intent, motive, wrongs probative crimes or or of prove evidence other crimes must be State, Myers disputed charged, plan. common scheme or v. of a issue of the crime See 25, ¶¶ 19-24, 1021, 2000 OK CR 17 P.3d there must be a visible connection between denied, 1029-30, 900, 122 crime(s) crimes, cert. 534 U.S. S.Ct. of the other (2001). 228, Accordingly, 151 LEd.2d 163 necessary support must be the State's crime(s) proof, proof we find no abuse of discretion the trial burden of of the other homes; convincing, probative through a rear door in all four a back must be clear prej outweigh the in three of the the evidence must door window was broken value of homes; and the trial court must udice to the accused two of the victims were awake when limiting final in contemporaneous and they issue into their homes was broken were State, 8, v. bedrooms; structions. Welch forced to their all four victims denied, ¶ 8, 2 raped vaginally cert. were while their bed- P.3d (2000). 148 L.Ed.2d S.Ct. rooms; two of four victims were also anally raped; raped all four victims were $41 crimes evidence When other night early morning; at either late prejudicial it denies a defendant his is so head, all four victims were beaten about the only charged, offense right to be tried for the arms; vagi- face and all four victims suffered relevancy suggests its minimal or where bleeding; rag nal tears and a knotted being offered to possibility the evidence is victims; found on the beds three of the a of acting conformity with a defendant show pillow was over the faces of three of placed character, the evidence should be his true assault; during victims none here, Where, claim suppressed. Id. as occupied by four residences victims were properly preserved, the State must show nothing any significant ransacked and val- appeal that admission of this evidence did homes; any ue taken from all four justice miscarriage or con not result eight within an month assaults occurred time violation of a constitu stitute substantial period with the crimes occur- Fowler/Cutler statutory right. at 2 P.3d tional or Id. ring apart four months and the Mar- at 366. occurring crimes two months shall/Hoster 142 This Court has allowed evidence all four victims lived within three apart; acts to be admitted of other crimes or bad other; Appellant with miles each lived 2404(B) exception § "plan" under mother or sister near the Fowler/Cutler operation methods of were so dis where the homes at the time of their murders and he a visible connec tinctive as to demonstrate near the Mar- lived with his brother ¶ 12, at 2 P.3d tion between the crimes. Id. homes the time of their as- shall/Hoster at State, Aylor v. 1987 OK at 366-67. See also saults. 598; 190, ¶ 5, v. CR 742 P.2d Driskell State, 22, ¶ 23, 659 P.2d CR just OK contends there were State, 117, ¶ 5, 349; CR Driver OK many differences as there were similarities 634 P.2d 762-68. Distinctive methods among those dif- between the crimes. Chief operation prove are also the iden relevant fact that two of the victims ferences is the tity perpetrator of the crime. Appel- killed. were left alive while two were ¶ Eberhartv. 1986OK CR P.2d argues lant that at the time these four crimes 1374,1379-80. occurred, rapes numerous instances of elderly being home invasions of women were there is a substantial asserts the reported the media. similarity the Mar- degree between enough unusual crimes this case were not and the assaults Fowler/Cutler shall/Hoster point signature to a of one individual a visible homicides. The similarities show perpetrator. disagree. We The similarities a com- connection sufficient to characterize greater than those in Hall this case are far probative scheme and to be on the issue mon State, 64, T6, v. 1980 CR 615 P.2d at OK Briefly identity perpetrator. sum- (similarities upon by Appellant 1022 relied marized, these similarities include: all four place in an automo- rape limited to each took age females over the of 71 victims were white bile, age all three victims were under alone; all four victims lived on the who lived consent, rape was committed in lots; and each south of the street and on corner side Further, County). the similarities be- Tulsa was cut on the porch the back sereen door victims; homicides and the tween the the breaker homes three Fowler/Cutler show a method of electricity was assaults box for the to the residence Marshall/Hoster operation as to demonstrate off in homes of three of the four so distinctive shut In victims; gained between the crimes. entry to the residence was visible connection 336 assaults, trial, Appellant charged with two counts involving this Court was sexual

crimes aforethought latitude rule for the adopted greater degree of first malice murder has Myers, 2000 OK other crimes. admission of of Mrs. Fowler and Mrs. for the deaths ¶¶ 21-24, at 1030. also alternative, 17 P.3d See CR charged In he was Cutler. Driskell, P.2d at 349.9 659 felony by aiding with two counts of murder Miller, Jr., abetting Robert Lee who uphold further the trial T45 We degree burglary the commission first probative value of ruling that the court's (O.R. degree rape victims. first killed the assaults out evidence of the Marshall/Hoster 734-785). theory throughout The State's impact. Mayes v. weighed prejudicial See its proceedings was that committed 44, ¶ 77, State, 887 P.2d 1994 OK CR rapes, and that either killed 1309-10, denied, cert. 115 U.S. the victims himself or he aided and abetted (1995). 1260, 131 L.Ed.2d 140 The S.Ct. killing Lom- Miller victims. Unlike necessary support evidence was bert, Appellant given plenty of notice prejudicial proof despite its State's burden concerning the alternative State's theories Finding properly ad nature. guilt. mitted, proposition is denied. aiding abetting in- £49 JURY INSTRUCTIONS FIRST STAGE by structions were warranted the evidence. assignment In his fourth of er evidence included the results of State's ror, Appellant contends the trial court erred testing showing Appellant DNA was the do- by aiding instructing the and abet seenes, at nor the semen found the crime only ting. plain review error as no We and that Miller had been excluded as the objection was raised to the instruction. presented semen donor. The State also evi- State, 11, ¶ 49, 4 CR P.3d Bland OK showing Appellant pled guilty dence had denied, cert. U.S. committing rapes very two other under simi- (2001). 832,148L.Ed.2d 714 S.Ct. charges lar circumstances as the on trial. { contention, support In of his During the cross-examination of several of on Lambert v. relies witnesses, the State's the defense established Lambert, 888 P.2d 494. the defendant that Miller had made certain statements aforethought charged with malice mur about the crimes which were Fowler/Cutler gave trial court der. The instructions on general public, not known to the and that felony appellant argued murder. The he was statements, part upon based those Miller given theory in sufficient notice of this previously committing had been convicted of information, and this reversed on Court During homicides. re-di- Fowler/Cutler ¶¶ 45-48, this basis. 1994 OK CR examinations, rect the State elicited testimo- P.2d at 504. The situation in the ny possible it in- there were two very case is different. truders into the homes of Mrs. Fowler and Felony possible T48 In a Fourth Amended Infor- Mrs. Cutler and that it was that one mation, year approximately filed one before intruder killed the victims while the other offenses committed him than it is in admit- Driskell, Even before this Court Myers, ting evidence of similar offenses when a defen- P.2d at v. State, 349 cited to Rhine 1958 Ok CR (Okl.Cr.1958) charged dant is with the commission of non- 110, ¶ 20, 336 P.2d 913 and stated: ... sexual crimes. 'That evidence of the commission of other sim- prior rape atiempt 'But where the or is com- may given plan ilar crimes be to show the remarkably mitted under circumstances simi- design part on the of the defendant to commit charged lar to the the evidence is one admissi- judicially recog- often been such crimes has plan ble to show a or scheme to commit 'design' implies plan nized. The word fashion, though prior crime in that even formed in the mind. That an individual who rape attempt person or was committed on a commits to commit abnormal sex attempts prosecutrix. other than the In such cases the likely 'plan' offenses is have such mental prior evidence that defendant committed the recognition finds in the fact that when a defen- prove charged offense tends to that he committed the dant is with the sexual commission of charged.' admitting offense offense the law is more liberal in proof guilt of his evidence of similar sexual 659 P.2d at 349.

3387 State, Appellant Additionally, during its case-in- 51 relies on Jackson v. watched. 37, ¶ 15, 398-399, 41 chief, 2001 OK CR P.3d introduced evidence con the defense prior prosecution in the cerning Miller's position where this Court reiterated its that Accordingly, the trial cases. Fowler/Cutier guilt a concession of does not amount giving not abuse its discretion court did counsel, per ineffective assistance of se. The aiding abetting in the instructions stated, complete guilt Court "a concessionof State, v. structions. See Cannon 1995 OK strategic is a serious only decision that must 45, ¶ 25, 904 P.2d 99. See also CR consulting be made after with the client and ¶ 78, 63, Slaughter v. 950 receiving after acqui the client's consent or 9., denied, n. cert. 525 P.2d U.S. 125, 41 escence." Id. at P.3d at 400. This (1998). 199,142L.Ed.2d 163 119S.Ct. placed appellant Court the burden on the show that he was not consulted and that he argues T50 further de agree acquiesce did not to or in the conces fense counsel was ineffective as counsel ad strategy. sion Id. guilt felony charge as to the murder mitted without that 80 L.Ed.2d 674 lows the test ton, land's counsel set come the cient; able conduct falls within the wide deficient CR 11, ¶ 112, 4 P.3d at 730. Under Strick professional trial counsel's two-part performance. strong presumption ^[2] forth in that he was test, (1984). assistance ineffective assistance consent. This Strickland performance 104 S.Ct. Unless the See appellant prejudiced by range Bland, by showing: that counsel's 2052, 2064, must of reason was defi Court Washing appellant 2000 OK over fol ^[1] which upon motions ter the State's evidence at context, showed that ceded. The defense was well aware from scene. The defense filed numerous early on that when Fowler/Cutler conclusively placed Appellant Under years ago challenging it is clear that all the scientific evidence relied the State had DNA evidence to convict facts crimes-hair that evidence. To coun- arguments guilt trial, Robert was not con- present are read in the defense and blood Miller of pre-trial at the analysis-had proven since been unreliable. showings, makes both "it cannot be said that questioned Defense counsel whether DNA the conviction ... resulted from a breakdown analysis way might go not also of hair adversary process that renders Strickland, analysis light result unreliable." at and blood of future U.S. advances testing. argued 104 S.Ct. at 2064. must dem in forensic Counsel also representation onstrate that counsel's prove Appellant's guilt all had to the State prevailing professional under unreasonable relying DNA and that on DNA was like challenged norms and that action could gambling relying probabilities. on mere strategy. sound trial Id. not be considered urged Defense not to let the counsel 688-89, at 104 S.Ct. at 2065. The burden experts State's decide the case for them. rests with to show that there is a presented showing The defense also that, any probability reasonable but for un Miller's involvement in the Fowler/Cutler counsel, professional errors the result of knowledge only crimes and his of details that proceeding would have A been different. someone at the crime seenes would probability probability reasonable is a suffi argued counsel have known. Defense cient to undermine confidence the out closing argument the evidence showed Id., come. at at 2070. U.S. S.Ct. crimes, Miller wasn't a mere observer to the When a claim of ineffectiveness of counsel perpetrator but the actual of the crimes. disposed ground can be of on the of lack of challenged also Defense counsel prejudice, that course should be followed. guilt alternative and ar- State's theories at at Id. S.Ct. 2069. This Court has gued the State could not assert Miller issue is whether counsel exercised stated the Defense skill, was and was not the killer. counsel judgment diligence of a reason jail argued was in for the that while Miller ably competent attorney light defense crimes, Bland, rape other victims did performance. his overall 2000 OK Fowler/Cutler ¶11, 112, 4 P.3d at 731. CR that when not die. Defense counsel stated 338 A review of the sulted in reversible error. jury they had no evidence told State were not re killer, ways record shows these instructions "that cuts both

Miller was by defense quested what the defense nor were they have no evidence also because objections of these then stat- raised to absence None." Counsel Ronald Lott was. Therefore, only review ed, you're going to do instructions. we know what "I don't Bland, 11, ¶ 49, 4 DNA, they prov- 2000 CR plain worst have error. OK but at with that rapist ..." at 719. Lott was the P.3d that Ronald en argued merely counsel further Defense State, Phillips v. 1999 OK CR 156 included as a donor of Miller was not because denied, 121 P.2d cert. 989 scene, that not at the did the semen found (2000) L.Ed.2d 56 we stated: S.Ct. 148 rapist a and a killer. that he was not mean uniform stated in Flores the This Court merely argued it showed Miller did Counsel they unless jury instructions shall be used ejaculate at the seene. Counsel conclud- not P.2d accurately not state the law. 896 do by asserting the closing argument ed "However, uni deviation from the at 560. not the that Miller was proven had not State auto require does not form instructions killer, of that reasonable doubt and because Id. This Court reviews matic reversal." guilt existed. as to whether the instructions to determine 1[ record, state light counsel's 54 In fairly accurately at issue instruction [Appel "they proven have that at worst ment applicable law. Id. "Even when states the rapist" was not a concession of was the lant] committed, not re error is reversal is was an guilt charged crimes. This to the in quired error results a mis unless such defense counsel's isolated comment within justice a substan carriage of or constitutes page closing argument. approximately statutory tial violation of a constitutional or conciliatory re Any perceived aspect 0.$S.1991,§ 8001.1. right." See also Id.. Appellant. prejudicial mark was not language from of the uniform Deviation in not been Claiming had constitutes technical error instructions completely have de volved at all would given which is harmless if the instructions credibility jury stroyed before counsel's accurately applicable fairly and state the guilt. light strong in evidence of See State, P.2d law. v. Smallwood ¶ 60, State, P.2d Woodv. OK CR (Okl.Cr.1988). record, appears that From the it 15-16. 57,11 P.2d at 1037-1088. minimizing Appellant's role the erimes the best light the DNA evidence was Appellant argues the court should have possible gain acquittal an on the method jury instructed the as follows: coun charges. Accordingly, we do not find (mur- person may convicted of No be performance under the cireum- sel's deficient de- der/manslaughter the first/second assignment of error is denied. stances. This gree) unless both the fact of the death eighth assignment of er 1155 In his person allegedly killed and the fact ror, the trial court erred Appellant asserts death was caused the con- his/her jury failing give three uniform instructions person of another are established as duct which, according to the Notes on Use section beyond independent facts and a reasonable following instruction the Oklahoma each doubt. (OUJI-CR), are Jury Instructions Uniform (OUJI-CR (2d) 914). in a homicide case. The required given to be in Notes on to this 1) 158 The Use are: the ne challenged three instructions provide given that it is to be a struction cessity in homicide cases for corroboration 2) (OUJI-CR (2d) 9-14); "in case; the definition of every In homicide case. homicide (2d) (OUJI-CR 4-65); necessity for cor structing the on the of" the commission 3) only in required cases where of "sexual intercourse" roboration the definition (OUJI-CR (2d) 4-122). given properly admitted ex Appellant argues defendant has trajudicial confession. See Fontenot give instructions the failure to each of these ¶ 32, P.2d n. 15. proof re- lowered burden of the State's

339 Further, jury given degree rape, the was the fol- sion of first which T59 is defined as lowing in No. 4: person Instruction sexual intercourse with a defendant, spouse of the where force or vio- may convicted of murder in person No be used, degree burglary lence is or first which degree unless has

the first State breaking entering is defined as the of a proved beyond a reasonable doubt each dwelling of another in which a human is These elements are: element crime. present, with the intent to commit a crime. First, human; of the death 701.7(B), 1111(A), §§ Supp.1998, See 0.8. Second, unlawful; the death was 0.8.1991, 1114, 0.8.1991, § $ Third, by death caused was the defen- dant; Finally, Appellant complains Fourth, the death was caused with malice give following about in failure aforethought. struction:

(0.R.1208)(OUJI-CR 4-61). pen- Sexual intercourse is the actual vagina/anus by penis. etration of the T60 This instruction and re- Any penetration, slight, sexual however is quested jury instruction both inform the complete rape. sufficient crime prove beyond must a reasonable doubt State the death of a human and that the defendant (OUJI-CR (2d)4-122). Therefore, caused that death. as the instruc- Appellant argues pro- T64 the failure to jury given tion to the addresses the same jury vide the with the above instruction ere- principle of law as that included the omit- jury ated a reasonable likelihood that instruction, prejudice ted we find no as a understanding failed to have a common result of the omitted instruction. meaning they of the element and that next asserts the trial applied the instructions to the facts an jury court should have instructed the as fol unconstitutional manner. offers lows: support argument. no for this person A is in the commission of [forcible T65 In Johnston rape/[first-degree burglary] when he/she 20-21, 673 P.2d the trial ¶¶ (performing inseparable an act which is an specifically jury court did not instruct part of/(performing an act which is neces- penetration required was for the crime sary in complete order the course of rape to occur. This Court held that as constituting)/(fleeing conduct from the im- penetration proven by ample was uncontra- of) rape/[first-de- mediate seene a[forcible rape dicted evidenceand the court defined gree burglary). intercourse, including sexual a term common (OUJI-CR (2d)4-65). understood, ly explicit pen an definition necessity. etration was not an absolute Id. 1 62 on The Notes Use this instruction provide given every it should be Ap- T In the evidence of prosecution degree felony-murder. for first vaginal pellant's DNA was found inside the 7, (OUJI-CR (2d) 4-64), In Instruction No. elderly vault victim. was of each Penetration jury given was of first elements clearly proven. degree rape first degree felony-murder. The elements of the including in Instruction No. 7 as defined underlying degree rape offenses of first intercourse, which under the cireum- sexual degree burglary first are in this included case, required of this no further defi- stances instruction as well as the State's burden of nition. beyond proving each element a reasonable Accordingly, doubt. this instruction not define we find that even While does of", requested by Ap- adequate- the term "in the commission it of the instructions absence in- ly person may pellant appeal, properly sets forth the law that no be felony-murder convicted unless the death structed on the applicable law of the case. error, person proven Finding plain assignment and that death was no caused the defendant while in the commis- error is denied. FIRST TO BOTH told her she RELATING that Mrs. Cutler

ISSUES Akins stated Fowler, and that STAGES OF AND SECOND friends with Mrs. had been murder, Mrs. Cutler was TRIAL Fowler's after Mrs. next. The ree- that she would be concerned assignment fifth In his counsel did not that defense ord reflects and error, argues that irrelevant Akins, Disney nor did Mrs. or Ms. question of victim Zel evidence prejudicial character objections any to the witnesses' counsel raise Appel improperly admitted. ma Cutler was Therefore, testimony. Appellant's review we was introduced for argues this evidence lant only. Romano v. complaint plain for error sympathy than to invoke no other reason ¶ CR74, 18, 909 P.2d 1995 OK all jury. incorporated from the As the State denied, 855, 117 S.Ct. cert U.S. into the second stage evidence of the first (1996). L.Ed.2d 96 improper charac Appellant asserts the stage, fair him a fair trial and a ter evidence denied if is admissible it 171 This evidence sentencing. relevant, probative not sub- and its value is living stantially outweighed by prejudicial immediate its effect. had no T69 Mrs. Cutler 0.8.1981, 2401,2402, §§ and 2408. Rele- trial; there- family at the time of issues, testimony course, vancy, depends on the presented the fore the State Disney, long proven a time friend. Mrs. must be at trial. One of the Carol Sue which severability taken of the Disney testified that Mrs. Cutler had issues at trial was the Disney's when she was murders of charges against care of mother Mrs. infant, Disney support that Mrs. had fre- and Mrs. In an Mrs. Fowler Cutler. while was quented Mrs. Cutler's home trial, she joinder charges single in a of the Disney argued said that in later two growing up. Mrs. the similarities State plan by did years still visited Mrs. Cutler and crimes showed a common scheme or she Disney rape elderly testified that women errands for her. Mrs. and murder alone, drive, case, did not In Fowler's fam- Mrs. Cutler lived who lived alone. Mrs. rarely home. said Mrs. Cutler left her She elderly ily that was members testified she slowly very and had a cane she would moved In Mrs. Cutler's and lived alone. day. Disney help testimony her walk the end of of Mrs. and Ms. Akins use Disney that had a to show provided testified Mrs. Cutler that evidence which tended Mrs. routine, daily and went to bed soon after murder set the cireumstances of Mrs. Cutler's got it dark. She said Mrs. Cutler would to those of Mrs. Fowler as to were so similar light combining leave a bathroom on when she went warrant the two offenses for one very was cautious bed. She said Mrs. Cutler trial. people her door and would not

when came to supported T72 the evidence if open the door more than a crack it was proving guilt. Dis- burden of Mrs. State's stranger. Disney explained that at Mrs. ney's testimony concerning Mrs. Cutler's night Mrs. Cutler would not answer the door routines, phys- with personal when combined Disney that after Mrs. at all. Mrs. testified ical evidence recovered from the seene murder, told her she Fowler's Mrs. Cutler murder, probative establishing that was afraid, going was and that she knew she forcefully en- Mrs. Cutler's home had been to be next. tered, likely during night more than the late 70 The also introduced the testimo- State early morning hours or hours while she Akins, Mary postal employee ny of service asleep, physically incapable that she was who delivered mail to Mrs. Cutler. Ms. fighting against her assailant. The back on Mrs. Akins testified she checked Cutler Ap- probative showing that part program" in which the of a "carrier alert who pellant preyed on defenseless women elderly, handicapped letter carriers check on put up much to him. could not resistance people or invalid on their route. Ms. Akins testimony to the with Mrs. addition testified she would visit Cutler above, Disney day Mrs. also testified every for a and then occa- described few minutes generous hospitality sionally lunch with Ms. Mrs. Cutler's towards stop and have her. friends, taught Disney's testing she Mrs. chil sic how were not During reliable. paper seraps presentation case-in-chief, dren to make birds out of of the State's it paper, that she had the "the sweetest was discovered that there was forensic evi- person." smile" and was a "real sweet We custody dence had never left the relevance to find no issue confers medical examiner's office consequently However, any prejudice this evidence. flow analyzed by had not been Gilchrist or under- minimal, ing from this so as to evidence is gone testing. sought DNA The State a con- beyond render its admission harmless a rea tinuance in order to have the evidence ana- State, v. sonable doubt. Hawkins 1994 OK lyzed. objection, a Over defense the trial 83, ¶ 13, 586, 593, denied, CR 891 P.2d cert. granted court the continuance and ordered 480, 116 516 U.S. S.Ct. 133 L.Ed.2d 408 all materials and test results to be turned (1995). over to the defense. {74 Further, Appellant asserts that later, 177 Approximately one week Akinsg' Disney's testimony

Mrs. Ms. con State informed the court testing was cerning Mrs. Cutler's that statement she complete and the inculpatory. results were improperly would be killed next was admit ready State announced it proceed 0.98.1991, 28088) hearsay. § ted Title 12 with argued the trial. The defense the case provides exception an for the admission discovery should be dismissed due to .statements, hearsay which reflect victim's notice violations. The trial court overruled However, state of mind. such statements the motion. Defense counsel next asked the generally only have been found admissible suppressed. evidence be The trial court they when show the victim's state of mind request. overruled Finally, the defense supply toward the defendant or to the motive requested a request mistrial. This was also State, killing. for v. Welch 2000 OK CR overruled. The trial court noted a concern ¶ 28, 370; State, Washington P.3d at v. about the notice issue and indicated it would 22, ¶ 36, 960, 973; 1999 OK CR 989 P.2d entertain a motion for a continuance. De- State, 28, ¶ 23, Cannon v. 1998 OK CR argued fense counsel that a continuance 838, 847; State, P.2d Duvall v. 1991 OK CR would not be beneficial. After further dis- 64, ¶ 6, 621, 626, denied, 825 P.2d cert. concerning trial, resuming cussions de- U.S. 118 S.Ct 121 LEd.2d 161 argued fense counsel the defense was so (1992). Here, Mrs. Cutler did not know Ap— prejudiced by the they new evidence that pellant actually nor had he threatened her. intended to during remain silent the remain- Therefore, her statement does not fall under stage der of the State's first case and then exception, the state of mind and the state demur to the evidence. Defense counsel ex- ment should not have been admitted into plained to the court that its entire defense However, evidence. this error is harmless as Joyee had been that Gilchrist had contami- beyond we find a reasonable doubt that nated the evidence this case therefore that error did not contribute to the verdict or relied, upon not be for a con- could Welch, sentence. See 2000 OK CR argued viction. if Counsel that the State was Accordingly, assignment P.3d at 370. this permitted present jury to the results of error is denied. testing DNA conducted someone other Cilehrist, than testing and that that showed error, assignment €75 In his sixth rapist, only way was the Appellant asserts the trial court's failure to Appellant's save life would be to not alienate grant a mistrial in the first trial unless the argued further. Counsel that could stipulated custody defense to the chain of only by standing during be done moot the second trial forced him to sacrifice consti stage, remainder of first demur to the first statutory tutional rights exchange for evidence, stage present and then a full de- right a defense. stage. fense in second T76 The record reflects that Joyce taken, defense in the first trial that parties Gil- T78 After a recess was reconvened, christ had presence jury, contaminated the forensic evi- out of the dence and following therefore her results of the foren- and made the record. Defense v. on Simmons Unit 1 82 relies he had discussed announced counsel 377, 393-94, States, 88 S.Ct. ed possibility of State the State

with (1968) where Su 19 L.Ed.2d to, objecting in, at least not concurring it "intolerable that mistrial, preme come to an stated "if we could Court motion to be right witnesses should have stipulations as to one constitutional agreement on trial." also to call in a new to assert another." See they have surrendered would ¶ 14, the State further indicated counsel Williams Defense Simmons, stipulation Appel concern- prepared proposed Unlike had P.2d 377-378. custody forensic evi- rights. ing the chain of forced to choose between lant was not dence, prepared to the defense was is de Accordingly, assignment of error Defense counsel stipulation. to the agree nied. however, agreement to the their noted assignment of In his seventh preclude the defense stipulation would error, expert opinion Appellant contends the themselves to tes- calling the witnesses from M.D., that testimony Rodgers, Dr. Janet tify. orally im had been sodomized Mrs. Cutler agreed stipulation prosecutor the T 79 The jury. province the of the properly invaded testimony of cus- regarding chain to the

was during objection was raised no defense While truth of the matters includ- tody, not the testimony, shows a Rodgers' Dr. the record prosecutor agreed stipulation. in The ed the Request Hear Defense's for prove right the to retained the defense ing to the Admission Certain State's Prior stipula- in anything contained the disprove testimony of Dr. challenged the Evidence Further, agreed with prosecutor the tion. hearing argument, the trial Rodgers. After why to prior argument as defense counsel's request and found Dr. overruled the court trial not receive a fair before Appellant could testimony Rodgers' admissible. granted the sitting jury. The trial court the ۤ84 expert Rodgers as an Dr. testified mistrial and reset the motion for in the area of sexual assault and witness 3, 2001. December Rodgers Dr. assault examinations. sexual argues that under this ree- 1 80 materials from the stated she had reviewed grant ord, it would the trial court indicated cases, au- including crime seene and victims' only if a mistrial the defense his motion for reports, re- topsy photographs, autopsy agreed to the State's conditions. testing. Rodgers testified of DNA Dr. sults forced to argues he was therefore further opinion, Mrs. had been that in her Cutler right pres- process his due to choose between orally raped sodomized. She stated her right to have the State a defense and his ent sodomy the oral was based conclusion about beyond doubt. prove its case reasonable discovery pillow at the scene upon the disagree. We blood, semen, that contained Mrs. Cutler's print. shape in the of a mouth nothing in that and a stain the record 181 There Rodgers prosecutor inquired of Dr. how mistrial was The granting the of the indicates agreement to the upon based the defense's such a conclusion when she could reach did from Mrs. Cutler's mouth reflects de- swabs taken conditions. The record State's Rodg- presence sperm. Dr. he not show the sought a mistrial because fense counsel explained sperm that all of the Mrs. change theory of defense ers did not want to the may mouth have been transferred strategie agreement was Cutler's mid-trial A mouth was pillow or that the swab of her concerning presen- the reached between counsel correctly. Rodgers Dr. fur- performed in the event of a new not tation of the evidence forming opinion her ther testified that trial. trial court did not mandate the rape the result of non-consensual merely approved agree- the stipulation, but Further, sex, physical of the looked at evidence counsel. she ment reached between Rodg- Dr. injuries by Mrs. Cutler. give up any suffered record did not shows right present a defense as the defense of bruises Mrs. ers stated question they made her whether any Cutler's mouth right retained the to call witness chose, despite orally sodomized. stipulation. victim had also been Rodgers photograph Dr. when she later learned pillow testified of the was admitted into semen, Therefore, containing pillow jury the blood evidence. could make its own opined shape it all fit with the conclusion determination of print. she sodomy that oral had occurred. Finally, Appellant argues the In v. Romano evidence was highly preju inadmissible and pro- T 909 P.2d at we addressed stage dicial sodomy second as "oral

priety opinion evidence on ultimate issues rape addition to charged forcible makes the and stated: significantly crime aggravated more and like Opinion gen- evidence on ultimate issues is ly jury's influenced impose decision to 0.8.1991, erally § admissible 2704. Rodgers' death." Dr. testimony proper However, the "otherwise admissible" lan- expert opinion. sodomy the oral guage $of must be read context part gestae of the res of the offense. 0.8.1991, 2403, 2701, §§ with 12 Contrary Appellant's argument, it is not expert suggest While witnesses can type of aggravating evidence that results jurors which inferences should draw from arbitrary capricious imposition application specialized knowledge penalty the death Eighth that the Amend facts, opinion testimony merely which Tennessee, Payne ment forbids. See tells a what result to reach is inadmis- U.S. 111 S.Ct. 115 L.Ed.2d (citations omitted) sible. and footnotes (1991). light aggravating evi Rodgers T86 In the Dr. dence, sodomy evidence of the oral did not testimony improper opinion was not testimo- Accordingly, determine the sentence. ny on an ultimate issue since it did not tell assignment of error is denied. Rodgers' the what result to reach. Dr. testimony upon was based her examination of 190 In assignment his ninth of investigation from materials the into the error, Appellant complains expert opin that rape/homicide coupled specialized with her testimony Investigator ion of Gerald McKen- training. Rodgers say At no time did Dr. Appellant na that committed the murders raped that had or killed Mrs. Cut- order improper avoid arrest was it ler; rather, inju- she Mrs. Cutler's testified province jury, invaded the was non ries rape were consistent with forcible based scientific, prejudicial pro and was more than upon specialized knowledge her of sexual as- objection testimony bative. As no to the proper opinion saults. As this was testimo- trial, only plain raised at we review error. ny, no error occurred in its admission. Romano, 74, ¶ 18, 1995 CR OK 909 P.2d at argues

187 further Dr. Rodgers' testimony contrary to the evi trial, During stage 4 91 the first Gerald dence as pillow the fluid or secretions on the McKenna, Investigator Sex Crimes for the Further, were not saliva but blood. ar he City Department, Oklahoma Police testified gues there was no evidence that Mrs. Cut during years that the police 23 he had been a ler's mouth had A Rodg bled. review of Dr. officer, assigned he had been to the sex testimony ers' shows she used the terms years, crimes unit for 12 and to the homicide "secretions," fluid," "bodily and "blood"inter year. unit for over one He testified to hav- changeably describing when the stain on the ing taught attended and numerous courses pillow. She also stated that she did not and schools in the field of sex crimes investi- testing know the results of the DNA on the gation, having and to won 2 meritorious ser- pillow, but did know it contained blood and investigations. vice awards for sex crimes semen. Officer Goforth testified that when he investigated McKenna also stated he had responded to the scene at Mrs. Cutler's rapes interrogated hundreds of hundreds home, he observed blood around her mouth. potential rape suspects. He said he had

1 challenges descrip- many also testified times both state and federal print pillow tion of the on expert as mouth court as an witness the field sex shaped calling "speculation investigations. it at best." A crime issue, qualified as an a witness mine a fact Further, to the testified McKenna T92 skill, experience, train by knowledge, com- rapists expert serial and habits of patterns surroundings testify an pared the cireumstances may in the form of ing or education Cutler, Fowler, up Mrs. has Mrs. otherwise." This Court opinion Mrs. rapes of McKenna also testi admissibility expert opinion Hoster. and Mrs. Marshall held sexually homicides. related knowledge" as mony concerning "specialized testified about types, falling into them as knowledge." Torres v. He described to "scientific opposed ¶¶ 63-64, "sexually P.2d motivated." "rape/murder" 1998 OK.CR cert. denied, "rape/murder" 21-22, 119 S.Ct. said McKenna (Daubert (1999) crime and the primary rape is the type, 142 L.Ed.2d factors as secondary. One of the evidence). murder is to non-scientific applicable secondary elimina- is why murder is asked was then a witness. MceKenna tion of qualification of opinion as to whether had an whether he testify expert is a matter person to as an type the first were of crimes Fowler/Cutler the sound discretion which rests with sexually homicide. related type or second court, will not and that decision be they were he believed McKenna testified appeal absent an abuse of disturbed type, "rape/murder" because type, the first 78, ¶ 19, Slaughter, CR 1997 OK discretion. a witness. to eliminate the need An of discretion" P.2d at 848. "abuse stage beginning of the second "clearly 93 At erroneous con has been defined as request trial, granted the court State's clearly judgment, one that clusion and stage first incorporate all of the pre logic and effect of the facts against stage. During the second into the second against applica support of and sented prosecutor ar- closing argument, stage tion." Id. Appellant mur- showed gued the evidence edu- In the McKenna's them in order to eliminate the victims dered training in the field of sex crime cation and prosecutor him. The against as witnesses special- investigation demonstrated sufficient supported aggrava- argued this evidence qualify testify him to as an knowledge to ized were the murders ting cireumstance testimony cer- expert on the His subject, prosecu- lawful arrest or to avoid committed jury understanding why tainly the in assisted tion. rape were killed while some of the victims {94 argues the appeal, Appellant Now on no abuse of were left alive. We find others testimony was not sci subject of McKenna's qualifying in court's discretion the entific, specialized as or otherwise technical expert. as an McKenna Phar by v. Merrell Dow required Daubert maceuticals, Inc., 579, 113 S.Ct. 509 U.S. Further, testimony that T98 McKenna's (1993). Further, Ap 125 L.Ed.2d "rape/mur- fit into the the crimes in this case opinion that who pellant McKenna's asserts sexually category of related homicides der" in victims did so order killed the ever apparent for the elimina- need because the was outside bounds eliminate witnesses of witnesses was relevant evidence tion knowledge. specialized of his testimony was well with- killer's intent. specialized in the bounds of McKenna's Co., Ltd. v. Car 1 95 In Kumho Tire testimony did not invade 187, 147-148, knowledge. The michael, 119 S.Ct. 526 U.S. jury improperly or touch (1999), province of the 1167, 1174, the the L.Ed.2d 288 Su did it ultimate issue in the case nor on an stated expanded Daubert and preme Court jury aggravating cir- the to find the direct testimony subject expert's opinion an the of Rather, of "avoid arrest." cumstance only "scientific" evi need not be limited opinion testimo- testimony proper expert was dence, may specialized but include "other years investiga- ny upon of 0.8.2001, based McKenna's § knowledge". sexually homi- analysis of related tion and scientific, technical or other provides, "[ilf Romano, CR OK of cides. See knowledge will assist the trier specialized at 110. 909P.2d evidence or to deter- fact to understand the peatedly T do we find the substan- 99 Nor evidence reviewed by statements made Miller prejudicial tially probative. more than opinion McKenna his asked as to wheth- testimony only McKenna's was not the evi- er person making or not those state- support dence offered the "avoid arrest" ments would have been at the scene of the Further, despite aggravator. guilty ver- type questioning crime. This continued against Appellant, question returned dict re-direct examination. McKenna testified of Robert Miller's involvement in the crimes opinion that the case a rape/murder still an issue in the case and was ad- done to silence a witness was consistent with closing arguments dressed of both the the conclusion that Miller's statements indi- prosecution finally, and the defense. And cated he was at the seene or had jury the trial court instructed the that it was way learning some other what give expert free to evidence whatever However, was thinking. Appellant does not weight proper. and eredit it deemed Accord- cite, record, nor do we find that ingly, expert opinion we find McKenna's tes- McKenna testified that upon based Miller's timony not determinative of the death statements, begged the victim's for their lives reasons, sentence. For all of these as- orally and were sodomized. signment of error is denied. $108 Any error McKenna's testi assignment 1100 In a related of er mony concerning Miller's statements has ror, eleven, proposition number ar counsel, been waived as defense and not the gues prosecutor injected facts not State, opened up the issue of Miller's state through questioning Inspec fact, ments with McKenna.10 In the State Specifically, Appellant tor McKenna. com objected to questioning during cross-ex plains through questioning amination for the reason that McKenna had McKenna, put the State Robert Miller's not read all of Miller's statements. The trial prove statements before the in order to objection court permitted overruled the the homicides were committed for the questioning. repeatedly This Court has purpose avoiding prosecution, arrest or appellant held that an permitted will not be begged and to show that the victims for their profit by alleged an error that he or his orally lives and were sodomized. by counsel the first instance open invited testimony concerning asserts McKenna's Mil ing subject by conduct, his or her own hearsay ler's statements was inadmissible and counsel for the may profit defendant influenced stage the first verdict. He by whatever error was occasioned argues alleged impacted error the second incompetent admission of such evidence. stage, when combined with other second Murphy 24, ¶¶ 30-31, errors; stage deprived it him a reliable 876, 882-882, denied, 47 P.3d cert. sentencing stage. (2003); 128 S.Ct. 155 L.Ed.2d 678 Initially, 101 we note that our review is State, 54, ¶ 10, Welch v. 1998 OK CR 968 plain only for challenged error as none of the 1231, 1240; denied, P.2d cert. 528 U.S. testimony was contemporaneous met with de (1999); Staggs 120 S.Ct. 145 L.Ed.2d 70 State, objections. Simpson fense v. 1994 OK State, 88, ¶ 9, v. 1986 OK CR 719 P.2d ¶40, 19, CR 876 P.2d 698. Inspector 11102 McKenna first testified to

Robert Miller's Appellant involvement the case on asserts the cross-examination. argued Defense counsel cross- support State evidence extensively examined McKenna aggravator on state- "avoid arrest" as direct evidence by despite ments made Miller Appellant McKenna's intent. directs us acknowledgement following argument he never interviewed during the State's stage closing. second "Robert Miller. Rob Miller and was not aware of the substance of ert Shupe. Miller his interview with David Miller's statements. Defense counsel re- 10. As the defense initiated and invited McKen- (2004) 124 S.Ct. 158 LEd.2d is not statements, testimony concerning na's Miller's implicated. -- --, Washington, we find U.S. Crawford father, aunt, her on her Why Fowler's death did Mrs. I don't know. kill her?

Why did he uncles. and her Seared was seared. her? He he kill him." Re- to tell on going what? She presentation of the During the only, find none. we plain error viewing for evidence, Fowler's son impact Mrs. victim "[ support that in shows The record Mary Harold Fowler and daughter, and arrest", the State of "avoid aggravator Houston, having Ms. Templin, testified. expert opin- McKenna's Inspector presented by family representative designated the been were committed the murders ion that Fowler, and final victim was the third Harold testified his McKenna witnesses. eliminate prepared Reading from a impact witness. any upon statements not opinion was based statement, how her Houston described Ms. Miller, years his by but on Robert made family, by greatly loved grandmother was sexually related hundreds of investigating on a family visited her in the that someone Miller's state- McKenna testified homicides. basis, was a com that her kitchen daily opinion. The simply corroborated ment family congregate. place for the fortable closing argu- during comments prosecutor's grandmoth to her Houston also testified Ms. on the evidence did based ment were gardening. sewing She er's abilities sentencing pro- of a fair deprive Appellant impact" grandmoth her "great described the Bland, 11, 1105, 4 CR ceeding. 2000 OK See siblings. father and his loss had on her er's at 729. P.3d by testimony concluded her Ms. Houston appro opinion that

stating personal her STAGE ISSUES SECOND was death. No defense priate punishment during objections raised Ms. Houston's were $106 assignment of er In his tenth only plain for testimony we review therefore ror, court erred contends the trial Murphy v. error. testimony impact admitting the victim ¶ 42, at 884.12 47 P.3d was the Cynthia Houston. Ms. Houston Fowler. granddaughter Mrs. is con impact evidence 1109 Victim testimony was inadmissible argues her unduly "it stitutionally acceptable unless is so 1) testimony con following reasons: the trial funda prejudicial it renders impact irrelevant evidence about tained Tennesses, mentally Payne v. unfair...." family death on non-immediate of the victim's 2597, 2608, 111 S.Ct. 2) members; family desig- as a she testified (1991). Cargle, 909 P.2d L.Ed.2d already testi family members had nee when 827-28, length at at this Court addressed 3) preju fied; testimony highly by the as addressed impact victim dicial. statutes. Supreme our state Court had numerous occa trial, objected that time we have Since Prior to statutory guidelines that sions to revisit testimony on the same Ms. Houston's impact victim and use of Cargle11 In a control the content appeal. grounds now raised However, chal trial, Appellant's second stage evidence. during the second hearing testimony has not lenge Ms. Houston's qualify that Ms. Houston did not court ruled by this Court specifically addressed of the victim's been the statute as a member under chal The resolution of this testify desig previous if cases. family could immediate but necessary to lenge whether it is The trial determines family representative. nated as a testimony. objections to the his other testimony the effects of review limited her to court 15, CR State, v. 1999 OK conclusive. See Short Cargle v. 1995 OK CR 909 P.2d State, 11. denied, 1081, 1102-03, ¶ 65, 528 P.2d cert. 980 117 S.Ct. 136 denied, cert. (1996), granted corpus L.Ed.2d 54 habeas L.Ed.2d 683 S.Ct U.S. grounds, Cargle a new trial on other remanded (1999). appel properly preserve the issue for To (2003). Mullin, v. 317 F.3d 1196 objection at time must raised the review, late an testimony given. to Id. failure the admissibility ruling on the 12. The trial court's testimony at the time it object Houston's to Ms. impact a rul- evidence was similar to the victim all but error. offered, waives plain limine, advisory only ing and not on a motion impact ' 110 evidence Victim is set forth T111 usually The victim is the 0.9$.2001, 984, §§ 984.1.13 The manner in person testify to to the best effects of a crime impact pre which victim evidence is to be perpetrated against or him her. In a homi sented and used at is set forth in cide case when the victim speak, cannot fami provides § in pertinent 984.1. This section ly usually position members are in the best victim, part, "each or members of the imme give to impact However, victim evidence. if family person desig diate of each victim or family members choose not to take the wit by by family victim or nated the members of any ness stand or for reason are unable to victim, may present the a written victim im testify, they may designate person another pact appear personally statement or at the speak for purpose them. The behind a fami proceeding. sentence ...." (emphasis add ly designee give family is to a voice to mem ed). language persons This limits the who testify bers unable to in court. It was not may give impact victim evidence to three provide intended to an 1) opportunity 2) for those victim; types people: the members of 8) family family; the members not person victim's immediate or a listed the statute and by designated the victim or the victim's persons fami other give interested victim im ly. listing disjunctive in the per the pact testimony. may give impact sons who victim evidence {112 Applying statutory the language to Legislature's indicates intent to make present as Mrs. Fowler's son and categories these three impact of victim wit daughter mutually nesses testified as exclusive. This members her imme restrictive may give view of who impact victim family, testimo diate necessary it was not to have a ny is placed consistent with the limitations family designee representative or testify.14 impact by victim Legislature Therefore, it was error to allow Ms. Houston by this Cargle, Court. See testify family designee.15 as a ("victim 77, ¶ 75, 909 P.2d at impact However, T 113 having reviewed her evidence is testi provide intended to a quick glimpse mony, nothing of a victim's we find "improperly characteristics and which survivors.") effect the victim's death on weighted the scales" in the trial.16 Ms. 0.$.2001, provides (2002), § pertinent part: 13. S.Ct. 151 L.Ed.2d 716 this Court 0.$.8upp.1992, § cited 22 984.1 and stated that impact 1. "Victim statements" means infor- Legislature provided any family had financial, mation about emotional, psycho- appear personally member who wished to [to logical, physical effects of a violent crime give victim evidence] shall have the abso impact on each victim and members of their immedi- right lute to do so. This statement was in re family, person designated by ate or the victim sponse appellant's argument to the by family or members of the victim and in- adopt limiting Court should a rule the number of cludes information about victim, circum- impact victim witnesses to one. This Court re surrounding stances crime, the manner adopt finding statutory fused to such a rule no perpetrated, which the crime was and the vic- setting authorization for such limits on the num sentence; opinion tim's of a recommended regard, ruling ber of witnesses. In that family" 2. ''Members of the immediate means present case is not intended to be a limitation spouse, adoption, a child birth or impact of the number of victim witnesses. As victim; stepchild, parent, sibling or a of each long properly qualifies aas witness under the added). (emphasis evidence, give impact statute to victim the num 0.$.2001, 984.1(A) § provides: ber of witnesses will hear is left to the A. victim, Each or members of the immediate sound discretion of the trial court. family person designated by of each victim or victim, by family the victim or members of the granddaughter as a Ms. Houston a written victim statement may present impact statutory does not fall under definition of appear personally proceed- or at the sentence family permitted give impact immediate victim ing orally. the statements Provid- evidence. This Court has not extended the statu ed, however, any aif victim or member of the tory persons definition to include related to vic family person designated by immediate ways designated by tims in other than those by family victim or members of a victim wishes Legislature. 2003 OK Hanson CR appear personally, person such shall have ¶ 28, 72 P.3d 40. added). right (emphasis the absolute to do so. In State, Williams v. 2001 OK CR 22 9, ¶ 66, 16. See 501 U.S. at 822, 111 S.Ct. at 2606- Payne, P.3d 702, 719, denied, cert. 534 1092, 07; U.S. 122 348 nation, view the evidence should this Court and did not testimony was brief Houston's to the State. light most favorable the aspects of the victim's emotional Hain

focus on the ¶ 62, P.2d at 1146. at 919 cumulative to were portions death. Certain and aunt. testimony her father present the evi Y117 In the in- Further, jury properly was T114 raped and Appellant subdued showed dence (2d) 9-45 structed, to OUJI-CR pursuant vice- Appellant and the victims. While both Appellant impact evidence. the use of victim another, there is no one not know did tims killing two raping convicted had been hide his attempted to Appellant indication homes. in their women elderly, defenseless rape. That the victims identity during the circumstances aggravating Evidence if left their assailant have identified could aggra- overwhelming and evidence was conclusion support is sufficient alive clearly outweighs the vating cireumstances pre in order to were killed the victims Reviewing the entire evidence. mitigation and his Appellant their identification vent of Ms. record, say admission cannot we prosecution. See subsequent arrest to be testimony caused the verdict Houston's ¶ 43, State, 15, 12 2000 OK CR Wackerly v. re- emotional an unreasonable the result of denied, 1028, 14-15, 121 1, 532 U.S. cert. P.3d error, plain no Accordingly, we find sponse. Mollett, (2001); 1976, L.Ed.2d 768 149 S.Ct. 49, 939 of error is denied. assignment and this 13, 28, P.2d 1. at 939 1997 OK CR ¶ assignment of T115 In his twelfth State, v. 1993 Citing Barnett 1118 sup error, challenges the evidence 226, 26, Appellant further P.2d CR 853 OK were finding that the murders porting the predi separate not a rape contends avoiding lawful purpose of committed for the likely vic "it ... arguing, crime is cate finding support To prosecution. or arrest rape Appellant tried during the tims died cireumstance State aggravating them, than com rather to subdue in order to the defendant killed prove must killing the victim be rapes and pleting the Williams, 2001 prosecution. or avoid arrest they In would not tell." fore he left so that 723; ¶ 83, 9, 22 at Mollett P.3d OK CR Barnett, found the "assault this Court 28, ¶ 49, State, P.2d 989 1997 OK CR separate and distinct from battery 859, denied, 1079, 139 522 118 S.Ct. cert. U.S. itself, of a part rather was murder but (1998).17 L.Ed.2d continuing which culminated transaction 26, 1998 OK CR of the victim." the death intent is defendant's 1116 The ¶ 30, P.2d at 233-34. from proof can be inferred to this critical {119 case Williams, 183, in the The evidence at evidence. cireumstantial were not the result Furthermore, the victims' deaths be shows there must at 723. P.3d murder, died as a result crime, rape. Both victims separate from the predicate at both crime asphyxiation. The evidence arrest seeks to avoid for which the defendant on the vic- numerous bruises sufficiency of scenes revealed Id. prosecution. When indicating they had been bound arms circumstance tims' aggravating an the evidence of victims suf- both the hands. appeal, proper test is challenged on concedes fractured ribs any competent evidence fered whether there having perpetrator with the aggra was consistent charge that the support the State's However, State, the existence of sat on the victim. existed. Hain v. vating cireumstance 1146, ¶ 62, 1130, condition, 919 P.2d at scenes their both pillows, and demied, Appellant sat on 117S.Ct. supports. the inference cert. U.S. Abshier, (1996). rape 2001 victims after also completion L.Ed.2d 517 See ¶¶ 156-157, cert. Reviewing this evidence 28 P.3d OK CR them. smothered denied, a ra- light S.Ct. favorable to most beyond a rea- (2002). have found tional could making this determi- L.Ed.2d Cir.2003). (10th 348 F.3d 902 corpus granted remanded for and case 17. habeas Mullin, grounds, resentencing Mollett v. on other plight the of the victim to advantages rapes the sonable doubt the were distinct of a murders, separate from prison. crimes the and that live defendant Appellant argues Appellant prosecutor's killed the victims in order to avoid remarks were calculated to persuade jury prosecution. impose lawful arrest or death on grounds Appellant would have a luxuri $120 In assignment his fourteenth prison ous life in given if a life sentence. error, Appellant Ring contends that v. Additionally, Appellant prosecu asserts the Arizona, 2428, S.Ct. implied, tor evidence, based on facts not in (2002) L.Ed.2d 556 aggra mandates that the only Appellant reason good was a vating alleged capital circumstances in a inmate was because he stood the chance of prosecution charged must be in an informa getting out of day. some prison proven preliminary tion and at hearing. This 1124 Officer Ledford testified he had argument previously rejected has been Appellant known years for 2-8 Appel- while ¶¶ State, 14-16, Primeaux 2004 OK CR lant had been an inmate in the Oklahoma 88 P.3d where Ring this Court found County Jail. Officer Ledford Appellant stated appellant not as broad as the argued. Ring was housed in an pod" jail. "honor at the any does not contain language requiring Ledford testified he had Appel- contact with provide state courts to capital defendants month, lant at least once whenever he preliminary with a hearing alleged aggra regular conducted his "shake down" of cells. vating circumstances. Ledford said he any personal had never had 0.98.2001,§ T121 Title 701.10 does not or business conflicts Appellant with so that require any type pre-trial hearing regard Appellant had to be sent to a segregation ing validity aggravating State's pod, any nor had he seen violent tendencies circumstances; provisions its are satisfied if Appellant. redirect, from On defense coun- in aggravation is made known to the sel asked the quickly witness how an inmate State, prior defendant to trial. Newsted v. discharged a parole. sentence of life without ¶¶ 10-11, 1986 OK CR 720 P.2d 738- reeross-examination, 4 125 prosecu- On denied, cert. 4749U.S. 107 S.Ct. tion asked the witness to describe the differ- (1986). 98 L.Ed.2d 599 county jail ences in the peniten- the state 122 In Appellant con- tiary. Specifically, prosecutor asked cedes he was informed of aggravating if Ledford he remembered testi- pursuant cireumstances in his case to state mony given May at a speedy trial hear- Ring law. change procedure does not ing regarding the differences between the Oklahoma. Primeauzx v. jail county penitentiary regards and the 88 P.3d at 896. As has opportunities exercise, regular his contact any failed to show conflict between our state visits, family participation programs rulings law and from the United States Su- learn prosecutor a skill. The asked Ledford Court, preme request his for a sentenc- new if he testifying remembered ing proceeding is Accordingly, denied. serving inmates pa- sentences of life without assignment of error is denied. got large portion role out of their cells for a day weapons. and had access to It assignment his thirteenth was not until the conclusion of Ledford's error, Appellant contends he was denied a testimony objected that defense counsel sentencing by prosecutorial fair misconduct. grounds moved for a mistrial on the of im- Appellant directs us to the eross-examination proper questioning by prosecutor by Ledford, of defense witness Jason Detention "going intent to raise societal alarm into County Officer at the Appel Oklahoma Jail. things discharging about sentences." The tri- argues lant that in questioning of Officer al objection. court overruled the Ledford, prosecutor presented his own testimony concerning advantages Appel Initially, plain 1 126 our review is for error lant if would receive only. afforded him a This Court remains committed to the life sentence. general asserts this tactic is timely objection rule that a must be prohibited akin to the practice comparing preserve any made on the alleged record to 350 truly non-violent but Short, not Appellant was 1999 OK review. appellate for

error timely merely knew what get placement 1108. A ¶ 65, P.2d at it took to 15, 980 CR prosecutor's The prison to the at the walls. alleged error outside of objection brings leading questions. an provides were questions court and to Ledford tention 2611(D) 0.8.2001, § at trial. Id. that However, the error states 12 to correct opportunity during close of the wit cross- questions at the objection leading Appellant's the use of timely. testimony ordinarily permissible. was not See nesses' is examination ¶ 13, 114, State, 667 1983 OK CR Frederick v. of eross-exami- extent 1127 The 988,992. P.2d the trial the discretion rests nation only where is warranted reversal court and pro- comparison to Appellant's €130 resulting in of discretion an abuse there is plight comparing the argument of hibited State, Parker v. to the defendant. prejudice advantages of a defendant victim to 984, 980, ¶ 13, cert. 19, P.2d 917 CR 1996OK not The State did applicable. not prison is 777, 1096, 136 denied, 117 S.Ct. 519 U.S. not be argue Appellant should mention rule, (1997). any general As a 721 L.Ed.2d victims prison while the to life sentenced subject of cross examina proper is a matter not the record does were dead. testimony given responsive to tion which prosecutor's claim the support Appellant's material or or which is on direct examination jury persuade to calculated remarks were tends to eluci and which thereto relevant Appel- that grounds impose on the to death tes date, or rebut modify, explain, contradict if prison life in a luxurious lant have would Smith by the witness. timony given in chief ques- prosecutor's The sentence. given a life 864, 17, ¶ 14, State, 695 P.2d 1985OK CR v. in contradict were relevant tions to Ledford up a field of opens a defendant 868. When he non- ing Appellant's evidence examination, may not he inquiry on direct alleged "con- supporting violent and subsequent cross-examination complain of tinuing aggravator. threat" Ashinsky 1989 v. subject. the same ¶ 201, 15, 59, 780P.2d CROK State, 1997 Relying on Le v. 1131 shows that of the record A review denied, 535, cert. 947 P.2d OK CR Ledford, the testimony of Officer prior to the 141 LEd.2d 118 S.Ct. U.S. testimony from Charles presented defense (1998) conten argues that State's Harris, for the Oklahoma Tag Supervisor to live tion, it is unfair at RBD Connors Industries Correctional dead, super- creates a victims are since the Facility. Mr. Harris stated Correctional every death case. applicable aggravator facility tag in the for him Appellantworked mitigat that no amount This Court found penitentiary. Mr. in the incarcerated while argument, such an ing can counter evidence prac policies and to the Harris also testified may even jury agrees they not if an in that allowed penitentiary tices at the Id. at mitigating consider evidence. facility. specifi tag He at the mate to work in Le found that The at 554-555. Court P.2d performance and cally testified error, were prosecutor's arguments while the he facility. Harris said tag demeanor at the jury failed had not shown appellant any violent behavior never had witnessed in his mitigating evidence to consider testimony, and Officer This Appellant. from jury fact the failed by the case as evidenced testimony, put examination Ledford's direct aggravating cir charged find one of in while and conduct Appellant's character Id. cumstances. thus enabled the carcerated at issue subject during cross to cover this same State $132 Appellant has In the State, 1994 OK examination. See Walker conduct prosecutor's to show failed 314-315, 66, ¶ 42, cert. CR 887 P.2d miti- to consider the jury to fail caused the denied, 116 S.Ct. jury appropriately gating evidence. (1995). L.Ed.2d 108 mitigating evidence as to the instructed consider- any way precluded from was not introduce T129 The State was entitled fact, mitigating evidence. any all ing by showing that evidence of bad character jury rejected "continuing ag- threat" see if it contains "sufficient evidence to show gravator. this Court clear convincing strong there is a possibility trial counsel was Accordingly, prosecutor's 1 133 we find the failing ineffective for identify utilize or impose not conduct did cause the complained-of evidence." Rule supported by sentence the evidence. See 3.11(B)B)(b)G). Short, See Bland, OK CR P.3d at 728. 'I at P.2d error, Finding plain assignment no this of error denied. is 1136 In order to meet the "clear and convincing" above, standard set forth

INEFFECTIVE ASSISTANCE Appellant present must this Court with evi OF COUNSEL CLAIM dence, speculation, guesses second requirement innuendo. This setting of forth assignment 1134 In his fifteenth of evidence does not requests include for more error, Appellant contends he was denied the develop time to investigate and information by effective assistance of counsel counsel's that readily during available trial prepa present any failure to regarding evidence provisions 3.11, ration. Under the of Rule an Appellant's background in stage the second appellant is procedure afforded a to have Appellant of trial. asserts that abundant included in the appeal record for review on counsel, information was to available defense evidence which by was known trial counsel investigate but counsel did not the informa but not used or evidence which was available sufficiently presentable tion to it make to the but not discovered counsel. It is not a jury. Appellant argues much information ex procedure post-trial for discovery. With background isted about his that could have mind, these standards Appel we review culpability reduced his moral and humanize Application lant's Evidentiary for Hearing on jury. him Appellant to the asserts this claim Sixth Amendment Grounds. exclusively of error is almost based on facts (187 - record; appellate outside of the Appellant therefore his repeats first argument an fully claim of error is Applica Proposition raised in his raised in appellate IV of his brief, Evidentiary tion an on Sixth Amend defense counsel was ineffective for for concurrently ment Claims filed ap admitting guilt with his felony as to the murder charge Appellant's without pellate In consent.18 brief. claim, support Appellant of his offers his own 3.11(B)(8)(b), 1 185 Rule Rules the Court of affidavit, sworn application attached to the 0.8.2001, Appeals, Criminal Ch. of A, Exhibit wherein he states that his attor App. appellant allows an request to an evi- neys never discussed with him their intention dentiary hearing alleged appeal when it is guilt, to concede surprised his that he was that trial counsel failing was ineffective for they guilt, when conceded his and that he did "utilize available evidence which could have not want them to guilt. concede his during been made available the course of trial. ...". Onee an application has been Appellant's affidavit is inconsistent properly along submitted supporting with af- with the record. Proposition As discussed in fidavits, IV, application Court reviews the the record does not reflect that counsel entirely 18. The factual basis for opportunity this claim is responding denies the State the of Therefore, appellate within the record. it should allegation, gives impression but also of an argued appellate have been raised and in the attempt page to violate the limits set for briefs in allegations brief. of ineffective as- Particularly, 9.3(A), capital cases. See Rule Rules the Okla- of sistance of trial counsel are to be raised within homa Court Criminal 22, Ch.18, Title Appeals, of brief, appellate supported by legal citation to contrast, (2001). App. hearing a Rule 3.11 authority parts appellate and record. The appellate reserved for issues outside of the rec- appellate failure to raise in an brief an issue 3.11, See Rule ord. Rules the Oklahoma Court appellate within the record waives its consider- 22, Ch.18, (2001). Appeals, App. Criminal Title 3.5(A)(5) (C)(6), ation. See Rule and Rules future, fully sup- In the the failure to raise and Appeals, Oklahoma Court Criminal Title port by authority in the brief in those issues (2001). chief Ch.18, See also Neill v. State, 943 App. appellate contained (Okl.Cr.1997). within the record will consti- P.2d The failure to raise appellate an only issue within the appeal. record not tute waiver of those issues on Appel- argument, support of his 143 In one has taken Appellant guilt. conceded appellate coun- the affidavit presents it into a lant turned of context out comment by Dr. History report prepared sel; allegation, a Social guilt. concession Ed.D., psychologist, Russell, licensed are not sufficient affidavit Jeanne supporting his (Appel- convincing counsel appellate request by clear at to show pre- C); Assessment a Risk Exhibit lant's counsel was strong possibility there is request at the Russell by Dr. Jeanne pared ineffective. I); a (Appellant's Exhibit of trial counsel {139 trial counsel contends next the Oklahoma memo from an internal copy of in- failing adequately ineffective (OIDS) mitigation System Indigent Defense mitigating evidence. vestigate and co-counsel received stating that investigation competently failed argues trial counsel He from about information more availability of meaning and him of the advise counsel family, lead childhood asserts mitigating evidence. information, use the additional not to and decided with him to consult failure counsels' trial they at the had evidence go with what of his but to offer evidence not his consent obtain D); and affidavits Exhibit (Appellant's not time stage was second background in Alfred, capital Conaway Paula strategy, rath- and but Sid trial from of deliberate product County investigate Public fully attorneys in the Tulsa failure to of defense the result er it Office, pertinent part, stating mitigation. Defender's attorneys in capital Okla- of practice B, {140 Exhibit Gretchen Appellant's health/sociology ex- mental to retain a homa counsel, in her admits Mosley, appellate jurors the present to the prepare and pert to investigation mitigation that a affidavit sworn E (Appellant's Exhibits background client's She for trial. preparation conducted was F). and interview investigation included states herself) (which and his did Appellant she ing establishing of support his burden 1 144 To childhood, regarding family members the re- failings were not counsels trial abuse, significant history, family substance strategy, Appellant trial reasonable sult of events, psychological relationships and life (Appellant's own affidavit presents his Exhib- circum- and life development, social and A) never discussed stating that counsel it surrounding time of and events stances investigating strategy not of him their with Mosley intelli- also states Ms. the crimes. regarding his back- mitigation presenting done, testing was psychological genee memo an internal copy a of OIDS ground; by neuropsychologist a as an evaluation well Appellant's after by trial counsel prepared was A Assessment damage. Risk for brain impeach not to concerning the decision trial Dr. psychologist, by licensed conducted also (Appellant's Brian witness Wraxall state's Russell, Ed.D. Jeanne internal G); copy of an OIDS and a Exhibit {141 of this Mosley that none states Ms. mitigation investi- (apparently from memo jury. She presented to was information counsel) change suggesting gator to lead why trial counsel she asked that when states attorney an African-American counsel any Appel- evidence presented not he had upon certain County based from Oklzhoma responded, background, trial counsel lant's family (Appellant's Appellant's concerns " way put it on.' they had 'no "that H). Exhibit miti- argues that Appellant now great deal provided a Appellant has T 145 put trial have investigation should gation accom- Application and back- Appellant's in his on notice of information counsel However, has we find he panying affidavits. mitigating fac- significant be a ground would to war- forth sufficient therefore, failed to set trial, trial counsel tor at affidavits evidentiary hearing. The an expert rant appropriate an have retained should a substantial by Appellant show Ap- submitted history Appellant. conduct a social in this conducted investigation was mitigation least should at trial counsel pellant asserts with Report However, finds fault Appellant the Risk Assessment presented case. have further conduct a failure to counsels' trial by Russell. prepared Dr. Jeanne investigation. Appellant interactions", asserts counsel deviant "by a lack of em- requested "expert should have pathy, guilt forensic men- or remorse". She also stated explain tal health assistance to impor- psychopathy was defined "behaviorally in impulsivity Appellant's experiences terms of tance of to his devel- seeking". sensation opment and commission of the erimes" and Also included in the Assessment Results presented jury the form of a were Dr. Russell's statements Indeed, History Report. Social Oral Ar- Personality Factors. She stated there was "no psychotic gument, appellate evidence of argued counsel thinking or other infor- mation History contained the Social symptoms major related to a illness". mental only information that could have Instead, "test results indicated saved Appellant's life and that trial counsel had an self-centered or may absorbed and have diffi- culty in delaying gratification". She said his obligation put that information before the jury. below, For the reasons discussed we "behavior agreeable vacillated from to aceu- find has failed to show satory clear type and this of behavior keeps often convincing evidence that trial counsels edge others on knowing never if he will react failure to History Report a Social obliging an or resentful manner". She to the evidentiary stated, warrants an also "many legal of his difficulties hearing. likely product were most of these attrib- coupled utes with a chronic substance abuse part mitigation 1146 As investiga- problem. Results suggest further he has tion, a Report Risk pre- Assessment developed internal controls and as a result I, pared. Appellant's In Exhibit Dr. Russell controlled, functions best in a structured en- Appellant stated that was referred de- prison vironment such aas until such control fense counsel for evaluation potential of his developed." risk of future violent behavior. Dr. Russell upon stated her assessment was based inter- 148 As Aggression for the History por- staff, Appellant, jail views with and tion of report, Dr. Russell Appel- noted OIDS Investigator Leedy; and review of prior tran- lant's two convictions for rapes violent against elderly stated, seripts preliminary from hearings in Appel- women. She "he of- convictions; prior lant's records from the insights fered few into motive behind victim Department Institutions, Social and Reha- selection". Dr. Russell also stated that a (DISRS) review of DOC records "revealed 11 miscon- bilitative Department Services and (DOC), of Corrections and results of year intelli- ducts over a period time none of genee psychological and tests. physical which included aggression." assessment, T147 In her Dr. Russell set T Summary 149 In the section of Re- forth the Appellant's reasons for port, incarcera- Dr. stated that Russell an evaluation of tion, family education, history, his potential substance risk to others was conducted for the history, psychiatric history, abuse purpose assessing medical continuing threat. She history, relationships, employment, and crim- stated risk was community assessed both for history. inal Additionally, prison assessment and settings. Dr. Ap- Russell noted contains Dr. Appel- Russell's observations on pellant had been incarcerated for 14 of his 41 lant's behavior and mental status. She stat- years. Appellant She reported said drinking "guarded ed he is responses his inter- daily alcohol on years a since basis he was 15 of old. He marijuana questions", also some use of view symptoms but shows "no reported major mental disorder such as hallucina- but denied use of drugs. other Dr. Russell tions or delusions". Also included in the Appellant's concluded that risk to others Risk Assessment are Assessment community Results high should be considered Appellant's aggression history. and controls, In the he lacks internal has access to alco- Assessment portion hol, Results report, aggression and his acts of always have Dr. Russell high stated scored for community occurred and involved el- presence of psychopathy, which derly she ex- women. Dr. also concluded Russell plained was interpersonally Appellant's "characterized prison risk to others in a by grandiose, egocentric, manipulative, setting should be considered low based expand system. failing to prison ineffective for counsel the structure part on history of a social investigation to include stated, incarceration "since also She access Appellant. defendant's minimizes part most potential vic- weapons and aleohol, drugs, {152 Next, presentation turn to the we signifi- aggression tims, future risk for pre- counsel Defense mitigation evidence. se- in a more placed when cantly decreases stage: during second five witnesses sented setting". cure Harris, Supervisor for the Okla- Tag Charles counsel, appellate request of At the T150 at RBD Con- Industries homa Correctional History a Social conducted also Dr. Russell Facility, Led- and Jason nors Correctional C, Dr. Exhibit Appellant's Appellant. Williams, Officers Terry Detention ford and History is to a Social explained that Russell these County Each of Jail. at the Oklahoma psychological impact of both assess Appellant's conduct testified witnesses offense. on sociological factors testified Harris incarcerated. while behavior As- from the Risk differs it also stated She tag in the good worker Appellant was previously as Social performed sessment he position where has risen to a facility and factors to better historical History looks at overseeing operation. Harris assisted the risk assess- while understand behavior dependable, Appellant as Harris described the envi- the interaction of "focuses ment to him sent back if were and said assessing traits personality ronment problem have no facility; he would tag in the aggression." for future probability saw said he never him. Harris working with show, reports comparison of A T151 any aggressive or violent Appellant exhibit the same sources exception, for one that but both testi- and Williams Ledford behavior. one upon for information. were relied any be- they violent had not seen fied that family members "interviews with exception, any problems with or had havior friends", on the as a resource is listed in the Oklahoma incarcerated while he was As the Risk History Report but not Social County Jail. Consequently, Appellant's Report. sessment forth history childhood is set family and Tingle, Harriett presented was 153 Also History. Howev in the Social greater detail Tingle testified she Ms. Appellant's niece. family members were er, and Appellant as younger Appellant than only eight years was mitigation investi part of the as interviewed to big a brother more like and that he was presumably aware was gation, trial counsel detailing In addition to an uncle. her than by family members. provided information stated Appellant, she experiences with prior forth Further, many conclusions set incarcerated, she Appellant was that while as the same History Report are the Social Tingle testi- with him. Ms. stayed in contact Rep Risk Assessment forth those set Appellant matter what sentence that no fied pur the different recognizing While ort.19 received, family continue and his would she History and the Risk poses the Social behind witness final defense support him. The to Assessment, reports in this case the two Fowler, Fowler's son. Mr. Mrs. was Jim information. much of the same contained against the death generally testified Fowler Therefore, consider the information when we penalty. investigation mitigation gathered from the [ to limit the counsel's decision 154 Trial counsel, Appellant we find known to trial and witnesses to the above mitigating evidence convincing by and to show clear has failed trial strate- been reasonable appears to have strong possibility trial is a evidence there part. Assessment, Appellant's Both controls on of internal Dr. Russell stated Risk In the any exter- the absence of present reports in a favorable conclude that in Appellant "tries to himself controls, may a combination light be due to Oklahoma Children's which either nal In the Social of self-awareness." denial and lack Appellant as a delin- was admitted Center where History Appellant "employs denial and she states system, prison combined quent the adult child or pain." psychological repression to deal with controls, Ap- personal lack of internal with the History and Social the Risk Assessment Both drinking, daily use engages pattern pellant in a early long-lasting of alco- use note the onset activity. drugs and criminal by Appellant. reports the lack also note hol Both him; nancy with family gy. Presenting testify lived in a small witnesses who would Appellant being productive member of only home with five rooms running and no prison society water; was consistent with informa- parent's his separation when he was tion contained the Risk Assessment young and accompanying mother, his his aggression Appellant the risk of future from young siblings, his to live in city where significantly decreased when he his mother "worked all the time in an effort in a prison secure environment. family take care of the eventually him 'kick{ed] out of the house for getting in Tingle €155 only Ms. was the trouble'"; Appellant's placement in the Okla- family although member who testified she homa Children's delinquent Center as a child accompanied stated she had been to trial 16; when he was psychological testing girlfriend, an uncle grandmother and his her which reported Appellant "anxiously mother), {Appellant's an aunt and a cousin. troubled, lonely socially apprehensive There is no indication in the record or in most of the time" and that "he often turns to Appellant's Application Evidentiary for aleohol fulfill a number of otherwise diffi- Hearing why testify those relatives did not cult to psychological achieve functions". at trial. 158 Dr. Therefore, part Russell stated in the Social it comes down to counsel's History provide was to background Appellant's failure to evidence of life history understanding why Appellant and the surrounding circumstances eventually ag- gressed against older women such a vio- History. the crimes as contained in the Social way. lent and abusive Looking at She concluded that Report both the Risk Assessment although positive he had a History relationship with Report and the Social it was reason mother, his her decision to leave strategy put able trial his father too much of history life jury. country before the and move from city For single "the every devastating most event presents, witness the defense the State life." Dr. Russell also noted a opportunity relationship has the to cross-examine. While Appellant had with a woman named argues presenting Donna evidence of apparently gave Burton. Burton history explanation his life and an birth to a of his daughter during relationship their light although conduct in psychological of his and so paternity development question. cial the child was in would have enabled the After relationship person monster, to see him a between Burton and and not as a ended, pro- continued to opposite the evidence could impact have the vide for the child. Dr. jury. Russell noted Both the Risk Assessment and relationship ended in History 1984 or about Social contain information unflatter time the rapes first of the ing Appellant. to occurred. Dr. Presenting detailed evi relationship Russell claimed the dence with Burton concerning impact the behavioral of Appellant's history provided life of having no external insight additional Appel- into how lant may dealt with abandonment or internal and have (except controls when incarcerat ed) catalyst aggression. been the for his combined with chronic substance abuse reasonably "could mitigating be viewed as to contrast, By 1 159 information in the Social person aggravating one and to another." History which could be described as not miti- 24, ¶ 54, Murphy, 2002 OK CR 47 P.3d at gating includes Dr. Russell's statement that 886. Appellant very had a different view of the 1157 Information contained in the Social way "glamoriz[ed]" he was raised and his History arguably which could be early years, description seen as relationship his of his mitigating descriptions "close", evidence consisted of with his reported father as his mem- Appellant's "unloving" ory father as "a lapse concerning city his move to the disciplinarian" strict regularly who with Appellant's descrip- his mother and that "whipped" spent salary his early children and tions of his life was inconsistent with on feeding his own needs instead of his fami- family that of other members and DISRS ly; Appellant youngest that was the of 10 History Appellant's records. The Social lists preg- children and his mother had a prior difficult seven convictions from two different at sufficiently responsible to work himself to sell mari- conspiracy from ranging states other tags and to oversee making license robbery with rape and degree juana to first trial facility. find tag in We inmates pris- has been and that firearms stage second limit choice to counsel's in the Social included Also on since was a showing Appellant that evidence to concerning Appellant's History is information society he prison productive member which could be abuse alcohol and substance him, excluding while family who loved had non-mitigating or mitigating in either seen Appellant's damaging evidence potentially admittedly brief, incom- This is a light. espe development, social psychological and History, which the Social synopsis of plete aggression history of cially light of his was inef- counsel argues defense women, was reasonable elderly towards failing present. to fective range profession within the strategy well the information Having reviewed fact, counsel judgment. al reasonable History, presentation find we the Social to if the door ineffective have been would helpful to not have been would evidence Report and damaging Risk Assessment counter have been might even Appellant and opened had been therein evidence contained fact, Dr. Russell had been If in productive. exploit it to able to the State had been testify to the to stand put on the witness History in this advantage. The Social their Risk Assess History, topic of the Social edge" the Su the "double case contained and conclusions information and the ment justify has found sufficient preme Court information relevant have been therein would Kemp, Burger v. investigations. limited See cross-examina address on for the State 97 L.Ed.2d S.Ct. scenario, jury cer would In that tion. (1987). justify a it find sufficient We Appellant was heard that tainly have presentation of evidence. limited abuser, drug he was self alcohol chronic in this case consist- counsel 162 Defense absorbed, guilt and remorse empathy, lacked attorneys known to well a team of four ed of mood warning wide exhibited and without experienced both this Court to be with his interaction affected swings which capital cases. prosecution and defense have heard might also others. contents of the Social Having reviewed or explained not be conduct could Appellant's appellate response to History, trial counsel's major mental illness to a excused due pre- History was not counsel that Social evidence thinking, there was no psychotic as way put it there was "no sented because from either condition. suffered he saying the evidence interpreted can on" be reports has received misconduct jury, "safely" presented to the not be could Al past years. while incarcerated at all. The put be not that it couldn't physi incidents included though none of the decision, strategic a reasoned record shows ag they did include verbal aggression, cal thorough investiga- reasonably after a made staff.20 gression toward History tion, be- the Social not to cross- taking the risk that 1 161 Instead floodgates to opened have cause it would "negative" in- could reveal such examination Even Appellant. very harmful would harm formation in the Social contained with the evidence death, less than for a sentence chances aggravation History, evidence the State's "positive" ev- on more chose to focus counsel case, mitigating while the great in this This ev- Appellant's prison. life in of idence was much weaker. in- Appellant was that while idence showed argued at counsel Appellate 1163 aggressive, he was not violent carcerated negative information argument that proved oral good worker and had that he was a reports, Appellant across as a much comes two Having compared the Risk Assessment 20. person Risk Assess- in the more violent History, finding the infor- meaner much of the Social History. We note in the Social reports ment than to be simi- in the two mation contained lar, expert way witnesses to caution distinction as opportunity that when to note we take this by intention- attempt the courts paint to deceive entirety, reports not to two their read in rele- leaving that could be ally out information Appellant. picture While much different jury's consideration. vant to a differing purposes behind the recognizing the

357 Appellant already about affidavits, before the nying we find he has failed to show in that he had been clear and convincing evidence a strong committing convicted of possibility that defense counsel was ineffec- admittedly Appellate horrific crimes. coun argued sel trial counsel had an obli tive failing for investigate further gation present psycho additional facts and utilize complained-of evidence. We de- logical explain Appellant's factors to conduct. grant cline Appellant's application for an contrary, To the counsel does not have an evidentiary hearing on sixth amendment obligation any to introduce and all evidence grounds. might conceivably be mitigat considered ing hope in the might outweigh it ACCUMULATIONOF ERROR CLAIM aggravating evidence and save the defen In 1167 his assignment sixteenth dant's life. obligation Counsel's is to use error, Appellant contends the aggregate professional judgment reasonable making impact of the errors in this case warrants decisions concerning the defendant's case.21 reversal of his convictions and at very say 1164 This is not to that counsel least modification of his death sentence. is to make all of the decisions the case. This Court repeatedly has held that a cumu As I my special stated in concurrence to argument lative error has no merit when this 24, Grant v. 2004 OK CR 95 P.3d Court fails to any sustain of the other errors (Lumpkin, concur), (com special J. it is the by Appellant. Bland, raised case, petent) lawyer's. While, client's not the 4 P.38dat 734. Having found no errors counsel has responsibility advise, in warranting modification, reversal or we find form, client, and consult with the the defen relief is not upon warranted a cumulative right dant has the be involved in the decision argument. error assignment This of error is process that will affect his or her life. denied. Id., citing California, Faretta 422 U.S. In (1975). seventeenth S.Ct. and final L.Ed.2d 562 assignment error, asks this " present there is no indi Court to reconsider error raised in other trial, cation that during Appellant disagreed cases, but denied. Specifically, Appellant re with counsel's presenta decision to limit the fers following us to the argument previously mitigating Further, tion of evidence. 1) raised and denied: unconstitutionality of record question reflects no Appellant's as to 2) penalty; death unconstitutionality of "es competency for trial. The record shows that pecially heinous aggrava atrocious or cruel" counsel's decision strategic was a choice 3) circumstance; ting unconstitutionality made after a thorough investigation 4) "continuing aggravator; threat" unconsti within the exercise of professional reasonable tutionality of "avoid lawful aggrava arrest" judgment. Accordingly, presentation we find 5) ting circumstance; and unconstitutionality History the Social would not signifi have of victim impact evidence. pro cantly jury's influenced appraisal" "the vides no accompanying argument but states Appellant's culpability. moral Wiggins v. Cf. the issues specifically are raised purposes Smith, 2527,2544, 539 U.S. 123S.Ct. preservation in the event this Court de (2003) L.Ed.2d 471 quoting Tay Williams v. parts precedent during from Appellant's ap lor, 120 S.Ct. peal process. (2000). L.Ed.2d 389 Accordingly, having thoroughly re- 1169 We find has not viewed Application accompa- properly preserved appellate these issues for obligation counsel does not have an 127, 935 P.2d 366, 376, we have not extended get a waiver from the defendant on the deci- the need for a waiver to a case where some sion not to mitigating certain evidence. mitigation Therefore, evidence is offered. con- While this Court has competent held that when a claim, trary Appellant's to counsel was not obli- completely forego defendant pres- intends to the gated to obtain a written waiver from any mitigating entation of during evidence sec- concerning presentation the decision to limit of stage, ond knowing counsel must obtain a waiver background stage. in second to that effect, Wallace v. State, 1997 OK 18, CR 358 (2) factor, the evi- whether 8.5(A)(5), arbitrary the Okla and Rules Rule

review. of ag- finding of the jury's 22, supports the dence Appeals, Title Criminal homa Court of 21 enumerated as gravating cireamstances (2008) appellate an brief requires Ch.18, App. Turning to the second 0.9$.2001, § 701.12. containing the conten argument, "an to state mandate, jury found the this portion of all forth which sets appellant, tions (2) aggrava- of two existence count the each by citations error, supported assignment 1) espe- the murder ting cireumstances: the parts of authorities, and statutes the to 2) cruel; atrocious, heinous, and or cially de previously listing Appellant's record." purpose for the was committed murder where those to cases citation claims nied 21 prosecution. arrest or avoiding lawful as to denied, argument without were claims 701.12(4)(5). previously have 0.9.2001, § We claim to of that applicability was suffi- evidence opinion, the in this found the issue for preserve case, is insufficient arrest" "avoid lawful support cient consistent has This Court appellate review. aggravator. allegations of not review will ly that we held in the rec supported are neither that error finding that support a 1172 To Armstrong v. authority. by legal or ord atrocious, heinous, especially the murder 593, ¶ 24, P.2d 811 State, CR 1991 OK death was proof that requires or cruel State, CR 1985OK 599; v. Wolfenbarger physical by torture or serious preceded denied, 114,116, cert. 710P.2d ¶ 80, 989 CR 38 Phillips, 1999 OK abuse. (1986). As we 544 L.Ed.2d 91 106S.Ct. This includes evidence at 1039. P.2d State, OK CR 1972 Templer v. stated great physical of either infliction shows the P.2d 667: 494 cruelty. Af Id. mental anguish or extreme the defen- to refer also like ... should we determination, atti making the above ter State, Okl.Cr., P.2d to Bell v. dant pitiless nature and the of the killer tude (1962), we stated: wherein Id. considered. can also be the crime of this court practice 'It has never been {173 present case in the arguments inclusion permit instances, Appel- separate that in two shows reference, we do by cases former elderly an woman attacked unexpectedly lant There herein. recognize such propose to Fowler's in Mrs. home. The evidence in her and research mischief end to the is no part, on her showed some resistance case if appellate courts on imposed would be The evidence capitulation. eventual her permitted.' practice were physically were that both victims showed ¶ 22, P.2d at 671. 1972OK CR rapes and as during the assault abused {170 has waived Accordingly, Appellant have been injuries that would result suffered Fred But see the issues. appellate review great surely suffered painful. Each victim ¶¶ 173-174, CR 2001OK erick by suffocated as she were anguish mental (wherein declined this Court P.3d covering pillow bearing down on decided previously list of issues find whether her face. position appellant's adversely to by the Court unprovoked manner Considering T re appellate issues properly preserved case; the con- killings appel view, relief on basis denied Court victims, physical- suffering both scious authority controlling or any lant failed to cite the killer emotionally; attitude of ly for this Court any reason other demonstrate upon vice- attacks by Appellant's evidenced any of position its or alter to reconsider them- adequately defend could not tims who issues). Accordingly, this as foregoing selves, find, construing the evidence we is denied. signment of error state, to the favorable light most heinous, atrocious jury's finding of the REVIEW SENTENCE MANDATORY by sufficient supported aggravator was cruel 1171 Pursuant evidence. (1) whether 701.13(C), determine § we must sup- aggravators Having found the under imposed the sentence of death evidence, turn to the we ported sufficient any other prejudice or passion, influence of mitigating Appellant presented evidence. mitigation niece, jailers witnesses his two dant's Motion to Dismiss for Lack Speedy Jail, County from the Oklahoma and a deten- Trial having The Court previously heard tion officer from Department of Corree- evidence on this May matter on 2000. tions. These witnesses testified that Appel- The State of appears by Oklahoma Richard adapted lant has well to incarceration and Wintory, and the appears by defendant his years has past demonstrated over the attorney Craig Corgan. D. The Court here- incarcerated, he is not threat while he has a by finds as follows:

family him, who loves Appel- and cares for lant has taken advantage of educational and May 22, 2000, 1. On defendant's trial for opportunities incarcerated, vocational while the murder of Anna Fowler and Zelma pod housed an honor at the Cutler was begin scheduled to before this Jail, County Oklahoma and has Court. trial date was stricken at the worked while penitentiary incarcerated request of the defendant in order for the county jail. Appellant presented also produce defendant support evidence in Fowler, testimony of Jim Mrs. Fowler's of his Motion to Dismiss. son, generally who testified 2. The Court and the penalty. should not receive State could the death have This tried this in May case (6) or June of 2000 but evidence was summarized into six factors jury and submitted to request for their defendant, consider- pro- at evidence, mitigating ation as any as well as ceedings stayed were to allow the defen- jury other might cireumstances the find ex- litigate dant to speedy trial issue. isting or mitigating. 3. The defendant a speedy wants Upon our review of the record and appeal and an thereby objected to this weighing careful aggravating cireum- setting Court the case for trial Monday, evidence, stances and the mitigating we find June 5 of 2000. the sentence of death factually to be substan- May 26, 2000, 4. On this Court heard appropriate tiated and as to both I Counts presented and II. the defendant The record jury rejected shows the alleged State. The aggravating matter was cireumstance continued to 2, 2000, "continuing threat." Under June pending ruling record be- of this Court, fore say this we cannot Court. by passion, prejudice, any influenced other Fowler, 88) 5. Anna (approximately age arbitrary contrary 0.8.2001, factor to 21 was found dead her home in Oklahoma 701.18(C), § finding that the aggravating City on September Cutler, 1986. Zelma outweighed cireumstances mitigating evi- 90) {(approximately age was found dead Accordingly, dence. finding no error war- her home across the street from Mrs. ranting modification, reversal or the JUDG- January Fowler's residence on MENTS and Degree SENTENCES for First Evidence of semen found at both crime Murder are AFFIRMED and the APPLI- scenes the victim's bodies indicated CATION FOR EVIDENTIARY HEARING both victims raped being had been before ON SIXTH AMENDMENT CLAIMS IS murdered. DENIED. ("defen- defendant, 6. The Ronald Lott JOHNSON, LILE, P.J. and V.P.J.: dant"), charged rapes with the and mur-

concur. ders of both Anna Fowler and Zelma Cut- J.;: CHAPEL, STRUBHAR, J. concur ler. in result. May co-defendant, 7. On Miller, Jr., Robert Lee was convicted of Appendix 1 177 rapes and murders of Mrs. Fowler and Findings of Fact and Conclusion of Law time, Mrs. Cutler. At the same defendant day Now on this yet 2nd of June Ronald Lott had not been identified as up matter comes ruling perpetrator. on the Defen- hearing tran- initiated testing preliminary ceipt of the DNA Subsequent 8. for public expense. Counsel seripts at Jr., Miller, him as exonerated Lee Robert that he the record stated on defendant samples the semen source being the prepare transcripts in order to wanted the Fowler and of Mrs. bodies found inside (See filed. Prelimi- motions to be certain inculpat- time at the same Mrs. Cutler 1998, 20, Transeript March nary Hearing serving already was who Lott Ronald ed 105-106.) advised Judge Humble Pg. elderly two other rape of for time fol- procedure to be proper counsel of ("the rapes"). females transcript. The case to obtain the lowed Appeals re- of Criminal 9. The Court Judge before pre-trial for was then set Robert the case on remanded versed and 1,May on 1998. Owens Charles DNA Miller, of the new as a result Jr. Lee at the conclusion Despite being told 17. evidence. so, to do de- hearing how preliminary Ronald charges on filed 10. The State request the tran- not counsel did fense 10, 1995, subsequently Lott on March 15, July 1998. seripts until 30, January charges on dismissed 1, pre-trial was May 1998 the 18. On investigation. further pending parties to Au- by agreement of continued against charges refiled 11. The State 26, preliminary for the 1998 to allow gust case in 1997 while in this Lott Ronald completed. defen- transcripts While be being by the De- held still was defendant tran- asserts such current counsel dant's the 1987 of Corrections partment rulings not vital to the Court's seripts were rapes. motions, this Court on the defendant's 1997, 9, defendant September attorney at the time 12. On that defendant's finds hearing believing case was prudent preliminary Lott's was reasonable 3, the evi- would have considered 1997. the Court on November set hearing to be preliminary at offered dence 8, preliminary 1997 the November 13. On proceedings. to the Court's relevant pre- Further evidence hearing began. pre-trial following August 19. On the course over sented 27, 1998 to October hearing was continued dates: hearing preliminary allow for the again 18, 1997 December The final completed. transcripts to be 19, 1997 December hearing preliminary from the transcript 30, 1998 January filed with Court completed and 13, February 21, 1998. September Clerk on 20, 1998 March 27, pre-trial 20. On October nature of complicated 14. Based on and then to November continued of wit- the number as well as this case Judge Charles Ow- February 1999 as preliminary called the nesses Judge retiring from the bench. ens was until March not concluded hearing was pre-trial mo- not to hear the chose Owens during the However, time at no 1998. presiding not be the he would tions since hearing did the defendant course of the trial. Judge of lengthy nature objection to the an raise defendant record that the There is no 21. hearing. this case was a trial date while requested discharged Judge his sentence Charles Owens. pending before Defendant 15. during February 1998 rapes in testimo- Sherry Mighton's for the 22. Based Judge Charles proceedings on the finds ny, this Court hearing preliminary that he could present case. was such docket Owens magnitude be- a case of this have tried at the conclusion 16. On March his retirement 1998 and October tween Judge the Honorable of the State's January of 1999. over the defendant Humble bound Charles parties, February 1999 both hearing, On 28. conclusion for trial. At the defendant, appeared before including the re- immediate requested Lott defendant Judge Bragg Susan who had taken over two weeks from March 2000 to April Judge Judge Charles Owens docket. Bragg parties informed both that she could 10, 2000, 29. On March judge three preside not over this case because she had panel 22, continued May the case to because of docket scheduling conflicts of worked on it employed while as an Assis- tant Attorney. attorneys District The the case was then for both the State and the re-assigned undersigned to the defendant. judge and Black, pre-trial 1, 30. Judges Caswell, was set for March 1999. Gray and met major and scheduled cases involving the 1, 1999, 24. On March pre-trial lawyers. same The matter was resched- 18, continued to March 1999 and then to 27, uled for March 2000. 31, March 1999. One of the continuances only 31. objections The two to continu- Robertson, was due to Joe counsel for the by ance filed the defendant were in re- defendant, not appearing for the motion sponse to the State's second motion for hearing. 16, continuance February dated 2000 and 81, 25. On March parties ap- both objection scheduling continuance peared before this ap- Court. The State 27, to March 2000. peared by Wintory Richard Greg Mas- 82. § Article 6 of the Constitution re- burn and appeared the Defendant by his quires justice be administered without attorney Joe Robertson. Although this delay any and forbids delays unreasonable Court independent has no recollection of by the State. ruling on pre-trial the defendant's motions requested 33. The two delays by caused date, on paperwork said by held State this case were not unreason- language State indicated the ruling able, but in fact were pru- reasonable and this Court would regarding have made said dent by actions taken State order to motions. provide possible exculpatory evidence to 26. To this date three attorneys different the defense. from the Indigent Sys- Oklahoma Defense Any delay 34. in this case is a result of represented tem have. the defendant since diligence due part on the of the State and preliminary hearing began. These at- get the defense to the information they torneys Lyman, are Silas Joe Robertson try need to this case and the evi- Craig Corgan. dence of the case. 27. The only requested State has two 35. All of the cases cited the defen- continuances in this case. The first contin- support dant of his motion to dismiss September uance on request- easily distinguishable are from the facts in ed to allow the sample State to submit hair the case at bar. (Mitochondri- type new testing DNA Bliss, Specifically, 36. in Pickle v. al Testing) previously not available to ei- (1966), P.2d 69 the Court found that party. ther Such evidence results could be delay was due to part laches on the inculpatory either exeulpatory in nature State. There is no evidence of laches on necessary therefore evidence to be part State this case. presented at trial. The trial was resched- Oklahoma, 37. In v. Green 713 P.2d 1032 begin uled to on March 2000. (1985), all of the time frames that are 28. The requested by second continuance pre-accusation involved are ap and do not the State February ply was on right speedy to the after trial. being by LabCorp. notified inability of its Graham, 38. Trusty State ex. rel. procure sufficient DNA result for the 525 P.2d there was samples hair sent to them in October of a showing prejudice to the defense and 1999. samples Additional hair were then prosecution any legal did not show LabCorp. sent to February 2000. On delay. cause for the In the instant case February 2000, the Court moved the there has been no showing prejudice request of the at the November has shown State the defendant Defendant. delay. for the cause (0.R.539-544) original). (emphasis forms of cites three defendant delays in this a result prejudice as 1) contact being to have able not

case: he family he did while with

visits Department of custody in the 2)

Correction; having the benefit Davis because of Janice

cross-examination 3) deceased; has been the State is now

she con- since the it's case strengthen able to CIV APP 68 2004 OK hearing due to preliminary clusion Appellant, WARD, Ray A. Plaintiff/ technology. advances to the defen- prejudice no is 40. There rights with regards Oklahoma, to his visitation ex rel. DE dant The STATE that his admits family. The defendant PUBLIC SAFE PARTMENT OF during him to se family had not been Defendant/Appellee. TY, custody of the in the year

last he 100,542. No. of Corrections. Department to the defen- prejudice no 41. There is of Janice from the death resulting dant Oklahoma, Appeals of Court of Civil delay Davis, by any attributable caused Division No. 3. prior to was deceased Ms. Davis

the State. Aug.6,2004. perpe- aas being identified the defendant case; Ms. Davis therefore in this trator For Publication Motion day or at testify on the not available Aug. Granted discovery of subsequent to the any time in this case. involvement the defendant's the defen- prejudice to is no

42. There testing of forensic though the

dant even proved favor- case in the testing could have Such to the State.

able it exeul- had been defendant

benefited in nature.

patory evi- testing of forensic pre-trial

43. The discovery of anew and on the

dence based prevents testing procedure

more accurate appeal testing during necessity of such is war- whether a new

to determine

ranted. consists of trial dockets

44. This Court's felony cases and over

fourteen murder to schedule it difficult

cases that make months magnitude within five of this

case a trial date. requesting

of the defendant ruling of the

IT THEREFORE IS Motion the Defendant's

court Trial Speedy for Lack of

Dismiss hereby reset trial is

overruled and the

Case Details

Case Name: Lott v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 9, 2004

Citation: 98 P.3d 318

Docket Number: D-2002-88

Court Abbreviation: Okla. Crim. App.