Curtis Edward McCARTY, Appellant, v. The STATE of Oklahoma, Appellee.
No. F-86-343.
Court of Criminal Appeals of Oklahoma.
Nov. 23, 1988.
As Corrected Dec. 30, 1988. Rehearing Denied Dec. 30, 1988.
1215
BRETT, P.J., concurs.
BUSSEY, J., concurs in result.
Michael C. Turpen, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.
OPINION
PARKS, Judge:
The appellant, Curtis Edward McCarty, was tried by jury and convicted of First Degree Malice Aforethought Murder (
This case involved the stabbing and strangulation death of eighteen-year-old Pam Willis in a residence in Southwest Oklahoma City sometime during the early morning hours of December 10, 1982. The trial was conducted almost three and one-half (3 1/2) years later, on March 17-26, 1986. Appellant was convicted primarily on the basis of circumstantial evidence, and statements he made to police and third parties. A complete statement of facts is unnecessary, however, because the record is replete with error requiring that the appellant‘s conviction be reversed and remanded for a new trial.
I.
We first address the various issues surrounding the testimony of Joyce Gilchrist, a police forensic chemist, who testified for the prosecution at trial. Appellant asserts that the State‘s tardiness in disclosing the hair evidence and forensic report resulted in the defense expert being unable to adequately examine the physical evidence. We agree. The record reflects that Ms. Gilchrist began her forensic examination on December 15, 1982. She obtained additional scalp hairs from appellant on January 16, 1986. Defense counsel filed a motion for discovery and inspection on January 21, 1986, requesting all scientific and technical reports, and hair, fiber, fingerprint, and serology samples for independent evaluation by an expert to be named later. (O.R. 150) On Monday, March 10, 1986, defense counsel named John Wilson as defense expert. (O.R. 185) Ms. Gilchrist mailed the hair slides to the defense expert, John Wilson, Chief Forensic Chemist at the Regional Crime Laboratory in Kansas City, Missouri, on Friday, March 14, 1986. Mr. Wilson received the slides and forensic report at mid-day on March 17, 1986, the day the trial began. As requested, the slides were mailed back to Gilchrist on March 18, 1986.
While we do not condone defense counsel‘s delay in not naming an independent expert until Monday, March 10, 1986, we find that Ms. Gilchrist‘s delay and neglect in not completing her forensic examination and report until Friday, March 14, 1986, for a trial which was scheduled for and began on Monday, March 17, 1986, was inexcusable, since she began her forensic examination in December of 1982. Moreover, the State was given notice on January 21, 1986, that appellant had requested samples of physical evidence to be provided to an independent expert. (O.R. 150) Clearly, appellant was deprived of a fair and adequate opportunity to have critical hair evidence examined by an independent forensic expert. The procrastination of both the State and the defense, while equally deplorable, cannot justify ignoring due process notions of fundamental fairness guaranteed by the
Ironically, the State not only used the tardiness of its disclosure to deny a defense expert a fair and adequate opportunity to conduct a competent independent examination, but also took advantage of its own tardiness to discredit whatever examination was made by the defense expert. Ms. Gilchrist testified that Mr. Wilson could not have made a competent forensic examination in the length of time he had
Next, in response to Assistant District Attorney Barry Albert‘s question based on her expertise and examination of the forensic evidence as to whether Ms. Gilchrist had “an opinion as to whether Mr. McCarty was physically present during the time violence was done to Miss Willis,” Gilchrist replied “he [McCarty] was in fact there.” (Tr. VI, 176-77) We find that the admission of this opinion testimony was error, because Ms. Gilchrist did not, and could not, testify that such opinion was based on facts or data “of a type reasonably relied upon by experts in the particular field” in forming such an opinion. See
Appellant argues that Ms. Gilchrist‘s opinion amounted to an expression of the appellant‘s guilt, because she “in effect told the jury that Mr. McCarty had murdered Pamela Willis.” Supp. Br. of Appellant, at 4. “Testimony in the form of an opinion ... otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.”
Whether or not Ms. Gilchrist‘s opinion constituted an improper personal expres-
Finally, appellant urges in his supplemental brief that the prosecution knowingly used misleading scientific testimony by Ms. Gilchrist to secure his conviction. In support of this assertion, appellant relies on statements attributed to District Attorney Robert Macy and Assistant District Attorney Barry Albert in an article published in the Tulsa Tribune on October 21, 1987.1 The knowing use of false or misleading evidence important to the prosecution‘s case in chief violates the due process clause of the
II.
In appellant‘s seventh assignment of error, he claims that the trial court erred in allowing Ms. Gilchrist to testify that a scalp hair consistent with appellant was
III.
In his eighth assignment of error, appellant argues, and we agree, that the trial court erred in allowing Police Officer Ron Worthum to testify concerning an extrajudicial experiment he conducted to show that appellant‘s white Volkswagen would have appeared to be blue at night under street lights. The State failed to satisfy its burden of showing that the conditions of the experiment were sufficiently similar to provide a fair comparison. See Jackson v. Fletcher, 647 F.2d 1020, 1027 (10th Cir.1980). See generally McCormick on Evidence 599-604 (E. Cleary 3d ed. 1984).
IV.
In his twelfth assignment of error, appellant cites numerous instances of prosecutorial misconduct during both stages of trial which he claims deprived him of a fair and impartial trial. First, we wish to comment on Mr. Macy‘s assertion during first stage closing argument that, “I wonder if [appellant] was grinning and laughing that night when he murdered Pam Willis.” (Tr. IX, 213) Defense counsel‘s objection was overruled. It is highly improper for a prosecutor to comment on facts not in evidence. Ward v. State, 633 P.2d 757, 758-59 (Okla. Crim.App.1981). Mr. Macy‘s comment was, in the words of Tenth Circuit Judge Seymour, criticizing Mr. Macy for similar tactics, “at best speculation and at worst fantasy.” Bowen v. Maynard, 799 F.2d 593, 612 (10th Cir.1986), cert. denied, 479 U.S. 962, 107 S.Ct. 458, 93 L.Ed.2d 404 (1986).
Second, when defense counsel objected to Mr. Macy stating his personal view that “I want justice, ladies and gentle-man, and justice is ... that [appellant] be convicted of murder one.” Mr. Macy further responded to the jury that “justice demands his conviction of murder one and it does your Honor,” “He killed that girl. He needs to pay for it.” It is improper for a prosecutor to express his personal opinion of the guilt of an accused. Lewis v. State, 569 P.2d 486, 490 (Okla.Crim.App.1977). See ABA Standards for Criminal Justice, The Prosecution Function, § 3-5.8(b) (1980). Mr. Macy‘s foregoing argument, and his succeeding statement that “[y]ou told me that you would seek truth and do justice. I am holding you to it and I want justice, I want a murder one conviction, that man sitting right there,” improperly informed the jury that it had a responsibility to convict on the basis of the prosecutor‘s personal sense of justice. See Rice v. State, 66 Okla.Crim. 434, 92 P.2d 857, 858-59 (1939). “Jurors who are chosen are there for the purpose of judging the merits of the case with equal justice to the state and to the defendant. Their duty is performed ... when after due and careful consideration they have returned a verdict of guilty or not guilty, as the law and the facts justify.” Id. 92 P.2d at 859.
Third, Mr. Macy improperly attacked the credibility of defense counsel by accusing him of “making up a story.” See
Fifth, Mr. Albert criticized the Cleveland County District Attorney‘s Office for only recommending that appellant get “five years to do” upon entry of a guilty plea to second degree rape, and that “I wish the District Attorney of Cleveland County Oklahoma was sitting here on trial with this Defendant.” (Tr. XI, 148) This comment was highly improper, as the Cleveland County District Attorney was not on trial, and the comment could only have been calculated to inflame the passions and prejudices of the jury. See Jones v. State, 660 P.2d 634, 645 (Okla.Crim.App.1983); ABA Standards for Criminal Justice, supra, § 3-5.8(c) (1980).
Sixth, Mr. Macy improperly requested sympathy for the victims, urging that “the death penalty is the appropriate punishment that should be done for the right motive, it should be done for love of the victims ... and his future victims....” (Tr. XI, 184) See Tobler v. State, 688 P.2d 350, 354 (Okla.Crim.App.1984). Many of the foregoing comments were objected to, some were not. We would emphasize that in spite of defense counsel‘s obligation to make timely and specific objections to improper arguments, the trial judge has an affirmative obligation “to ensure that final argument to the jury is kept within proper, accepted bounds.” ABA Standards for Criminal Justice, supra, § 3-5.8(e) (1980). In any event, we are compelled to conclude that the combined effect of the improper prosecutorial comments “was so prejudicial as to adversely affect the fundamental fairness and impartiality of the proceedings.” Freeman v. State, 681 P.2d 84, 85 (Okla.Crim.App.1984).
V.
The evidence against appellant cannot fairly be termed overwhelming, and we cannot conclude that the multitude of errors was harmless beyond a reasonable doubt. The jury itself experienced some difficulty in reaching a verdict of guilty, as evidenced by the fact that the jury deliberated ten (10) hours and thirty-four (34) minutes without reaching a verdict, and was divided ten to two, when the trial court gave a so-called Allen instruction. Shortly thereafter, the jury convicted appellant. (Tr. X, 3-4). This Court will not stand idly by “wring[ing] its hands” expressing nothing more than “a ritualistic verbal spanking” and an “attitude of helpless piety” in denouncing the deplorable conduct of prosecutors such as we have found in this case. See Darden v. Wainwright, 477 U.S. 168, 205-206, 106 S.Ct. 2464, 2485, 91 L.Ed.2d 144 (1986) (Blackmun, J., joined by Brennan, J., Marshall, J., and Stevens, J., dissenting). The unprofessional conduct of the prosecutors during closing arguments “should make conscientious prosecutors cringe.” Id. at 189, 106 S.Ct. at 2476. Oklahoma prosecutors would do well to heed the wise words recited by Justice Douglas in his dissenting opinion in Donnelly v. DeChristoforo, 416 U.S. 637, 648-49, 94 S.Ct. 1868, 1874, 40 L.Ed.2d 431 (1974):
The function of the prosecutor under the Federal Constitution is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial. As stated by [Justice Sutherland writing for] the Court in Berger v. Unit-ed States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1934):
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the two-fold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor—indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”
We have here a state case, not a federal one; and the prosecutor is a state official. But we deal with an aspect of a fair trial which is implicit in the Due Process Clause of the
As was so aptly stated by Judge Bussey under similar circumstances, “the appellant‘s right to a fair trial was the victim of an overzealous prosecutor. The record is replete with error committed during both stages of the trial, which when considered in a cumulative fashion, necessitates that the conviction be reversed and remanded for a new trial.” Brewer v. State, 650 P.2d 54, 57 (Okla.Crim.App.1982).
Accordingly, on the basis of the foregoing, the judgment and sentence is REVERSED and REMANDED for a NEW TRIAL consistent with the views expressed herein.
BRETT, P.J., specially concurs.
BUSSEY, J., dissents.
BRETT, Presiding Judge specially concurring.
I specially concur in this decision for the reason the testimony of Forensic Serologist Gilchrist gave concerning appellant‘s presence at the scene of the crime was error. She was not there and she exceeded her professional role when she answered the prosecutor‘s question, as discussed in Part I and Part II in the majority opinion. I am also disturbed by the manner in which the hair samples were provided appellant‘s expert, John Wilson. Denial of due process is a constitutional deprivation and must not go unnoticed.
I agree also that the prosecutors went far afield in their arguments to the jury. Prosecutors should limit their arguments to the facts provided the jury and should not offer their own opinion concerning guilt of the accused.
In his dissent, Judge Bussey states that the opinion of Gilchrist, concerning appellant‘s presence at the scene of the crime, falls within
Testimony by Experts
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.
In the subcommittee notes the following dissertation is found:
Most of the literature assumes that experts testify in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts.
In that respect, I believe Gilchrist exceeded her professional bounds. The ultimate fact for the jury to determine was whether or not appellant was present at the scene of the crime and whether or not he committed the crime. If we continue to allow such personal opinion testimony to be espoused by experts, we may find a requirement imposed upon the courts to provide additional expert assistance to defendants at
Therefore, I specially concur in this decision.
BUSSEY, Judge, dissenting:
I must respectfully dissent. While conceding that both defense counsel and the State were dilatory in failing to supply evidence and reports to appellant‘s expert, I find the present situation similar to that in Walker v. State, 723 P.2d 273 (Okla.Crim.App.1986) cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600. There, the defense psychiatrist received medical records two days before the trial. Since the doctor had nearly a week to review the records before testifying, we found that the trial court properly overruled defendant‘s motion for continuance.
In the present case, Wilson had nine days before testifying to analyze the forensic report prepared by Gilchrist. Although he was unable to adequately examine all physical evidence, he did examine some of it. He testified that he took no exception to any of the findings contained in Gilchrist‘s report. I would find that Wilson had sufficient time to review the forensic report. Based on this and the procrastination of both parties, I would find that appellant was not denied due process.
The opinion testimony of Joyce Gilchrist presented a question of fact for the jury to weigh against her testimony on cross-examination and the testimony of appellant‘s expert. In Smith v. State, 737 P.2d 1206, 1212 (Okla.Crim.App.1987), we addressed a similar question. There, we held that because of his knowledge, skill, and experience in forensic medicine, a witness was properly qualified to testify as an expert, over a defense objection. On the basis of the color and general appearance of hairs, he suspected that they came from the victim. We found that opinion to be proper, and further noted that even laymen may express opinions rationally based on their perceptions. There was no error in Smith; neither is there any in this case, where no objection was raised.
The statement of the Southwestern Association of Forensic Scientists provides no basis to reject Gilchrist‘s opinion. It specifically states, “There is, and should be, no official position of the Association as to what constitutes approved opinion testimony, so long as the expert does not make factual misrepresentations.” There was no factual misrepresentation in this case. Gilchrist expressed her opinion, based upon her knowledge, experience, and expertise, that appellant had been present when the murder was committed. Her testimony was properly admitted under
With respect to the hair imbedded in one of the wounds of the victim, the inventory for State‘s Exhibit No. 4 listed a hair taken from a wound, but it did not specify which wound. Since the hair came from one of the wounds and all wounds were stab wounds, as determined by the autopsy report, the State‘s theory that appellant was present at the time of the murder could have been postulated on any one of the wounds. Although it was error to permit Gilchrist to testify concerning which wound the hair came from, a fact outside her personal knowledge, the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
In regard to the prosecutor‘s arguments, I note that some of them were based on appellant‘s conduct at trial, some of them responded to arguments advanced by defense counsel, and many others were not preserved for review by a timely objection. While I do not condone the arguments of the prosecutors in the present case, in light of the totality of the evidence presented at trial, I do not find the statements to be so egregious as to require reversal. See Brewer v. State, 718 P.2d 354 (Okla.Crim.App.1986).
As I can find no errors in the trial warranting reversal, I must dissent.