Alfrеd Brian MITCHELL, Appellant v. STATE of Oklahoma, Appellee
No. D-2002-1427
Court of Criminal Appeals of Oklahoma
May 30, 2006
2006 OK CR 20 | 136 P.3d 671
Richard Wintory, Joellyn McCormick, Assistant District Attorneys, Oklahoma County District Attorneys Office, Oklahoma City, OK, attorneys for the State at trial.
Andrea Diglio Miller, Assistant Public Defender, Oklahoma County Public Defenders Office, Oklahoma City, OK, attorney for appellant on appeal.
W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer J. Dickson, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.
OPINION
CHAPEL, Presiding Judge.
¶ 1 In 1992, Alfred Brian Mitchell, Appellant, was tried by a jury and convicted of First-Degree Malice Aforethought Murder, in violation of
¶ 2 Mitchell appealed to this Court, and we affirmed his convictions and his sentences.3 This Court denied Mitchells petition for rehearing, and the United States Supreme Court denied his petition for certiorari.4 Mitchell then sought post-conviction relief in this Court, which was denied.5 And the Supreme Court again denied Mitchells petition for certiorari.6
¶ 3 Mitchell then pursued federal habeas corpus relief in the United States District Court for the Western District of Oklahoma.7 The federal district court, the Honorable Ralph G. Thompson, found that the State
¶ 4 Mitchell appealed to the United States Court of Appeals for the Tenth Circuit. The Tenth Circuit upheld Mitchells first-degree murder conviction, but vacated his death sentence and ordered a new capital sentencing proceeding.13 The Tenth Circuit concluded that if Mitchells jury had not been presented the false and misleading evidence relating to the rape and sodomy charges—along with the improper prosecutorial argument—there was a reasonable probability that Mitchell would not have been sentenced to death.14
¶ 5 Pursuant to
¶ 6 The facts of this case were summarized in this Courts opinion on direct appeal, which is incorporated herein by reference.17 Briefly stated, on January 7, 1991, Alfred Brian Mitchell found Elaine Scott alone at the Pilot Recreation Center in Oklahoma City.18 The evidence presented at the resentencing established that Mitchell first attacked Scott near the Centers library, where
ANALYSIS
¶ 7 Mitchells first three propositions of error all relate to the aggravating circumstance that his murder of Elaine Scott was “committed for the purpose of avoiding or preventing a lawful arrest or prosecution,” i.e., the “avoid arrest aggravator.”21 This Court has repeatedly held that this aggravating circumstance has two components. First, the State must establish that the defendant committed some “predicate crime,” separate from the murder.22 Second, the State must establish that the defendant killed the victim with the motive or intent of avoiding arrest or prosecution for this separate predicate crime.23 We have recognized that the defendants intent in this regard can be inferred from circumstantial evidence.24
¶ 8 In most cases in which the avoid arrest aggravator is found by the jury, the “predicate crime” is also charged as a separate crime and results in a separate conviction. Such cases typically involve first-degree malice murder convictions, with separate convictions for robbery,25 burglary,26 rape,27 kid-
¶ 9 In either of these typical scenarios, a jury (or trial court) will have found the defendant guilty, beyond a reasonable doubt, of the crime alleged as the avoid-arrest “predicate crime” before the capital stage even commences. In other cases the predicate crime relied upon is not separately charged or specifically found by a jury during the first stage, but the evidence that such a separate crime occurred—and what the separate crime relied upon is—is not in doubt.31
¶ 10 The context of Mitchells capital resentencing, however, was very different from these typical scenarios. In Mitchells original trial, he was convicted of rape (and also sodomy), which then served as the predicate crime to support the avoid arrest aggravator in the second stage of his trial.32 Mitchells rape and sodomy convictions have been vacated, however, and the State has chosen not to reprosecute him for these crimes—and
¶ 11 In Proposition I, Mitchell challenges the argument that the State was allowed to make in support of the avoid arrest aggravator, particularly the claim that he either “raped” Scott or committed some non-specific “sexual assault” against her. He also challenges the adequacy of the jury instructions regarding this aggravator, under the specific circumstances of his trial, and in light of the Supreme Courts decision in Ring v. Arizona34 and subsequent cases.
¶ 12 We begin by addressing Mitchells claim that the State should not have been allowed to argue or rely upon “rape” as the predicate crime for the avoid arrest aggravator in his case. As noted, the State chose not to reprosecute Mitchell for rape or sodomy after the federal district court vacated those convictions.35 After the Tenth Circuit vacat-
¶ 13 During a lengthy pre-trial hearing on Mitchells motions, defense counsel argued that because the State had not appealed the vacating of the rape and sodomy convictions and had chosen not to reprosecute those charges, the State should not be allowed to argue that Mitchell had, in fact, raped Elaine Scott or to use such a rape as the predicate crime for the avoid arrest aggravator.38 Mitchells counsel acknowledged that the State would be allowed to present the physical evidence that suggested a possible sexual crime—in particular, the fact that Scott was found nude, that Mitchells semen was found in combings of her pubic hair, and that she had certain bruising. Yet defense counsel insisted, relying primarily upon Cummings v. State,39 that the State should not be allowed
¶ 14 The State maintained that it should be allowed to argue that a rape occurred and to rely on such rape as a possible predicate crime: “[T]he evidence is going to be that the defendant killed her as a result of a rape or a sexual assault.”41 Although the prosecutor purported to accept the federal courts Brady-based habeas rulings, and acknowledged that the vaginal swabs taken from the victim did not contain Mitchells DNA, he mocked the implication in the federal opinions that the evidence did not support a rape charge: “[T]he absence of trauma to the vagina was understood apparently as being evidence that a rape had not occurred. This court knows from your experience as a trial lawyer and now a judge that that is an utterly meaningless fact.”42 The State attempted to distinguish Cummings and maintained that it should be allowed to argue that a rape occurred, which could serve as the basis for the avoid arrest aggravator.
¶ 15 The trial court accepted the States argument, overruled Mitchells motions, and ruled that the State could argue that a rape occurred and that Mitchell murdered Scott to avoid being arrested or prosecuted for that rape. The court found that it would be “ludicrous” to allow the State to present the physical evidence of some kind of sexual assault, but then limit the States ability to “argue any reasonable inference that you
¶ 16 During the resentencing the State repeatedly invoked its theory that Mitchell raped Scott and then murdered her to avoid being prosecuted for that rape.44 The prosecutor referred to this rape theory of the case multiple times during voir dire,45 began his opening statement with it,46 and then invoked it again during closing argument.47
¶ 17 In Cummings v. State,48 the State relied upon two crimes as the predicate crime for the avoid arrest aggravator, for the defendants murder of Melissa Moody: (1) the defendants rape of Melissa, and (2) his murder of her mother.49 We concluded that neither of these crimes could be used as the predicate crime for the aggravator in that case. This Court wrote:
We find merit to Appellants argument that evidence of the dismissed [child abuse/rape] charge should not have been used to support [the avoid arrest] aggravating cir-
cumstance. The trial court found as a matter of law that Appellant was not guilty of the crime of child abuse as charged and accordingly, the alleged acts that the State relied upon to support this charge should not be used to support this aggravating circumstance. Similarly, because this Court found ... that the evidence was insufficient to support Appellants conviction for killing Judy Mayo, it follows that the evidence must also be insufficient to support a finding that Appellant killed Melissa Moody to avoid arrest or prosecution for this crime.50
We concluded that under those circumstances, the States evidence was insufficient to support the avoid arrest aggravator.51
¶ 18 Cummings compels us to conclude that the trial court erred in allowing the State to argue “rape” as the avoid-arrest predicate crime in the current case. The Cummings holding that the murder of Judy Mayo could not be used as a predicate crime for the avoid arrest aggravator is particularly significant.52 Unlike the rape of Melissa Moody—about which there was no physical evidence and no certainty that the crime had actually occurred—there could be no doubt that Judy Mayo was violently killed.53 This Court overturned the defendants conviction for Judys murder based entirely upon Oklahomas requirement that accomplice testimony be independently corroborated, rather than a “garden variety” finding of insufficient evidence.54 Consequently, the holding that Judys murder could not serve as thе avoid-arrest “predicate crime” for Melissas murder provides strong support for this Courts current conclusion.55 We hold that when the States evidence is (or would be) inadequate to support a conviction for a particular crime, such crime also cannot serve as the predicate crime for the avoid arrest aggravator.56
¶ 19 The State emphasizes in its brief that the grants of habeas relief in this case were premised upon violations of Brady v. Maryland.57 Hence, the State argues that there has been no formal court finding (as there was in Cummings) that the (legitimate) evidence in this case is legally insufficient to establish that Mitchell raped Elaine Scott.58
The resentencing trial court needed to resolve this issue, in order to rule upon Mitchells motions and his numerous objections to the States references to “rape” and its reliance upon rape as the avoid-arrest predicate crime. Yet the trial court declined to make this finding, and ruled, based only upon a “preponderance” standard, that the States evidence was legally sufficient to allow it to argue that Mitchell raped Scott and that he killed her to avoid being arrested or prosecuted for that rape.59
¶ 20 This Court concludes, upon reviewing the remaining evidence in this case, that the States evidence could not support a conviction for rape, because there is simply no evidence of penetration,60 which is a required element of this crime.61 This is an evidentiary determination, of the kind courts are regularly called upon to make, and which the trial court was called upon to make. This Court does not know, in fact, whether or not Alfred Brian Mitchell raped Elaine Scott. It is entirely possible that he did. It is also entirely possible, and consistent with the evidence, that Mitchell did everything in his power to rape Scott, but that he simply could not overcome her desperate and powerful resistance, in order to “succeed” in actually raping her.62
¶ 21 While Mitchells moral culpability may well be the same whether or not he was able to complete the intended rape, his legal culpability is not. The State simply does not have the evidence to establish the crime of rape.63 Hence, under Cummings, the State should not have been allowed to argue that Mitchell killed Scott in order to avoid arrest or prosecution for raping her, i.e., rape could not serve as the predicate crime for this aggravator. And the trial court abused its discretion in overruling Mitchells motion in limine and in allowing the State to rely upon rape as a possible predicate crime for the avoid arrest aggravator.64
¶ 22 Within Proposition I, Mitchell also asserts that the State should have been required to allege a specific, statutorily-established crime as the avoid-arrest predicate crime, rather than simply allege a “sexual assault.”65 In addition, Mitchell asserts that the State should have been required to establish each of the elements of the avoid-arrest predicate crime “beyond a reasonable doubt,” in the same manner as if the predicate crime
¶ 23 The separate opinion in this сase, authored by Judge Lumpkin and joined by Judge Taylor, correctly observes that the defendants motivation for killing is the focus of the avoid arrest aggravator.68 The separate opinion goes too far, however, when it asserts that this aggravator “must be viewed through the eyes of the defendant,”69 such that all that is required to satisfy the aggravator is that the defendant commit acts that the defendant “believes“/“thinks” could lead to his arrest or prosecution.70 Although this approach may have some initial intuitive appeal, it is contrary to the language of the avoid arrest aggravator and the precedents of this Court.
¶ 24 The statutory language of the aggravator requires that the defendant murder the
¶ 25 As summarized earlier, the presence of a “predicate crime” has long been recognized by this Court as one of the two requirements of the avoid arrest aggravating circumstance.73 The approach advocated by todays separate opinion would effectively eliminate this requirement, since it would require only an examination of the defendants motivation. Despite the challenges presented by the current case, the separate opinion provides neither authority nor a compelling argument to cause this Court to depart from our consistent caselaw requiring a “predicate crime” that is “separate from the murder.”74
¶ 26 In Proposition II, Mitchell challenges the fact that the trial court allowed the State to argue that he killed Scott in order to avoid arrest or prosecution for stealing her purse and her car, even though the State did not give any pre-trial notice that it would rely on these crimes to help support the avoid arrest aggravator. In fact, the State did not even bring up Mitchells convictions for armed robbery and larceny of an automobile—or the possibility of relying on either of them as the avoid arrest predicate crime—until after the defense had presented all of its evidence and rested.75
¶ 27 The State acknowledged that it had given no notice of its intent to rely upon these crimes to support the avoid arrest aggravator, but argued that Mitchell had adequate notice of the convictions and the underlying facts, and that unless Mitchell could
¶ 28 Oklahoma law requires that the State provide notice of the evidence that it intends to rely upon to support the aggravating circumstances alleged: “Only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.”77 This Court has recognized that although the State is not required to give a detailed description of all the evidence that will be offered in the second stage, the States notice must allow the defendant the opportunity to present a defense to or an explanation of the evidence offered in support of the aggravating circumstances.78 The State argues that Mitchell had notice that the State was seeking to establish the avoid arrest aggravator and that Mitchell knew about the evidence supporting the rob-
¶ 29 Hence the States notice of its intent to rely upon the armed robbery and larceny convictions to support the avoid arrest aggravator was entirely inadequate, and the trial court abused its discretion in allowing the State to do so over defense objection. It violated due process to allow the State to rely upon these crimes, and thereby substantially expand its avoid arrest theory, after Mitchell had already finished cross-examining the States witnesses and presenting his own case. Furthermore, in the context of Mitchells trial, where there was already so much uncertainty surrounding what the State was relying upon as the “predicate crime,” Mitchell was certainly prejudiced by this error.
¶ 30 This Court notes that the actual evidence that Mitchell killed Scott to avoid being arrested or prosecuted for stealing her purse or her car is minimal, at best. Although there was some evidence presented during the resentencing regarding the robbery of Scotts purse, this evidence was not focused upon or substantially developed; hence its significance as a motivating factor for the murder is nebulous. Regarding the theft of Scotts car, this Court is unaware of any evidence suggesting that this theft occurred prior to the murder or that it played any motivating role in the murder at all. If either of these crimes is to be used as a predicate crime for the avoid arrest aggravator at any further resentencing, Mitchell must be provided notice of the States intention to do so and of the factual evidence upon which the State will rely.
¶ 31 We note that certain language in the opinion from the Tenth Circuit Court of Appeals suggests that courts expectation that Mitchells resentencing would be free of any evidence suggesting that Mitchell committed a sexual crime against Scott.81 We do not share this perspective. This Court recognizes and deplores the serious Brady violations and related misconduct committed by the State in connection with Mitchells original trial. Nevertheless, the States actions in pursuing this case have done nothing to diminish or absolve the horrifying abuse and murder that Elainе Scott endured at the hands of Alfred Brian Mitchell.
¶ 33 In Proposition III, Mitchell challenges the sufficiency of the evidence presented during his resentencing to support the jurys finding of the avoid arrest aggravator. In evaluating such a sufficiency challenge, we view the evidence in the light most favorable to the State, to determine whether any rational trier of fact could have found the aggravator beyond a reasonable doubt.83 This Court has already addressed the sufficiency of the evidence to support the States use of rape as a predicate crime (finding the evidence insufficient) and also addressed the potential evidentiary basis for relying upon crimes such as attempted rape or armed robbery as the predicate crime.
¶ 34 Yet Mitchell makes a further claim in Proposition III, based upon our decision in Williams v. State.84 Mitchell claims that regardless of what type of sex crime he may have committed against Scott, this crime was not truly “separate” from the murder.
Hence he argues that the avoid arrest aggravator must be vacated and that it cannot be established in this case. In Williams, this Court struck down the avoid arrest aggravator, based upon our prior decision in Barnett v. State,85 finding that the murder of the female victim in Williams was not sufficiently “separate” from the attempted rape alleged as the predicate crime.
The facts in the present case fit the pattern of Barnett. The only evidence presented of the attempted rape was Appellants statement to his psychiatrist that he intended to rape Hand, but when he pulled out the knife she tried to get away and screamed for her roommate. He further said he stabbed her one time intending only to silence her. Under this evidence, the attempted rape was not separate and distinct from the murder itself, but rather was part of a continuing transaction which culminated in the death of the victim.86
Thus the attempted rape could not be used as the predicate crime for the avoid arrest aggravator in that case; and the aggravator had to be struck down.87
¶ 35 The current case is distinguishable from Williams.88 The evidence of an attempted rape in Mitchells case is more substantial and also more separable from the actual murder. The victim in Williams was fully clothed, and the evidence in that case suggests that the defendants plan to rape her was abandoned almost immediately after the encounter began—when the victim screamed for her roommate and attempted to escape.89 In Mitchells case, the condition of Scotts nude body, including the finding of Mitchells semen in her pubic hair, strongly suggests that this defendants plan had pro-
¶ 36 Although the issue is a close one, we conclude that the evidence in the current case could be sufficient to establish that the crime of attempted rape (or other comparable sex crime) was sufficiently separate and distinct from Scotts murder, so as to allow the State to pursue the avoid arrest aggravator in a further resentencing. In addition, the evidence in this case established that Scott knew who Mitchell was and that Mitchell made no attempt to disguise or hide his appearance at the time he attacked Scott. Hence Mitchell would have known that Scott could identify him if she survived, which we have previously recognized as a factor in establishing the avoid arrest aggravator.91
¶ 37 For the reasons stated in Propositions I and II, the avoid arrest aggravating circumstance found by the jury in Mitchells resentencing must be struck down. As explained herein, however, the State shall not be precluded from re-pursuing this aggravator in any future resentencing, so long as it abides by the limitations and restrictions articulated by this Court in doing so.
¶ 38 In Proposition IV, Mitchell challenges the trial courts removal of six prospective jurors based upon their reservations about the death penalty, arguing that it was not adequately established that these jurors would not follow the law.92 Each of these prospective jurors was removed sua sponte by the court, over defense objection and without allowing defense counsel any opportunity to attempt to rehabilitate them through further voir dire questioning. Mitchell argues that these removals violated Witherspoon v. Illinois.93 Mitchell also argues that the trial court abused its discretion, by denying him a chance to further question the six excused jurors.
¶ 39 This Court has repeatedly recognized that the standard for capital juror acceptability in Oklahoma is whether, in a case where the law and facts make a defendant eligible for the death penalty, each juror will be willing to consider each of the three authorized punishments: the death penalty, life
¶ 40 Prospective Juror M.M. was the first juror to be questioned by the trial court regarding willingness to consider all three possible punishments for first-degree murder. This questioning was as follows:
THE COURT: ... Mr. [M.M.], can you consider all of the legal punishments, death, imprisonment for life without parole, or imprisonment for life, and impose the one warranted by the law and by the evidence?
PROSPECTIVE JUROR M.M.: Third one.
THE COURT: The third one what?
PROSPECTIVE JUROR M.M.: Imprisonment for life, the third one.
THE COURT: Okay. And maybe, Mr. [M.M.], Ive not explained myself very well. Let me explain again.
There are three possible punishments in this case. The state is seeking the death penalty, but there are three possible legal punishments: Death, life without the possibility of parole, and life with the possibility of parole. Okay? What I want to know—and each of you jurors I want you to be thinking about as I talk to Mr. [M.M.]
about it—is whether you can give honest, thoughtful consideration to all three possible punishments and impose the one that you believe is warranted by the law and by the evidence. And when I say consideration, Im not paying lip service to it. Its kind of like I hate Brussels sprouts and I will never ever, ever eat them. Okay? But when I go down the cafeteria line and I look at Brussels sprouts, I might look at them and go, no, and then I go on. Some people think thats considering them. Thats not what Im talking about here. Because I know in my heart of hearts that I will never eat Brussels sprouts. Okay? Its a more simplistic explanation, but thats what I want every one of you to think about.97 Will you give honest, thoughtful consideration to all three punishments and impose the one that you believe is warranted by the law and the evidence?
Can you do that Mr. [M.M.]?
PROSPECTIVE JUROR M.M.: Yes.
THE COURT: You can consider all three punishments?
PROSPECTIVE JUROR M.M.: No. Life without.
THE COURT: Can you consider all three punishments, death, life without the possibility of parole, or life imprisonment?
PROSPECTIVE JUROR M.M.: Yes.
THE COURT: Mr. [M.M.], Im not sure if were not communicating, Im not—you say yes and then you say no. Do you have a problem?
PROSPECTIVE JUROR M.M.: No, I dont have a problem.
THE COURT: Okay. You can consider all three punishments?
PROSPECTIVE JUROR M.M.: No, just the second one.
THE COURT: Okay. You can consider life without parole or life?
PROSPECTIVE JUROR M.M.: Yes.
THE COURT: Can you consider the death penalty?
PROSPECTIVE JUROR M.M.: No.
THE COURT: Okay. Are there any circumstances that you can envision where you could consider the death penalty?
PROSPECTIVE JUROR M.M.: No.
THE COURT: All right. Mr. [M.M.], Im going to excuse you for cause....
¶ 41 Defense counsel immediately approached the bench and requested an opportunity to voir dire this juror, noting that M.M. twice stated that he could consider all three punishments and also gave inconsistent answers. The trial court responded: “He did originally give inconsistent answers. I, frankly, dont know if he didnt understand my question or didnt much want to talk to me. He had probably one of the worst attitudes of any juror Ive seen in here....” The court ruled, however, that because M.M. stated that he would not consider the death penalty and that he would not change his mind about it, further voir dire was not required.98 Defense counsel continued to press for further voir dire, suggesting that M.M. may not have understood the questioning, but the court denied these requests and struck M.M. over defense objection.99
142 When Prospective Juror T.P. was asked whether she could consider all three punishments, the following exchange occurred:
PROSPECTIVE JUROR T.P.: It would be hard for me to choose the death penalty. I could do everything up to that, and I would do that. I have seen situations where I felt like it was warranted, but was so glad I wasn‘t making that decision.
THE COURT: Okay. And I would expect that it will be a difficult decision for everybody as to whatever decision they ultimately make. The question that I have for you, ma‘am, is can you give honest, thoughtful consideration in the manner that I have described, not just pay lip service to it, but honest, thoughtful consideration to that punishment, as well as the other two punishments, and impose the sentence of death if you believed it was appropriate?
PROSPECTIVE JUROR T.P.: I don‘t think I could.
THE COURT: You could not do that?
PROSPECTIVE JUROR T.P.: I don‘t think so.
THE COURT: Okay. And you have said you could - I think you said to me earlier, I can envision where that would be appropriate but I‘m glad I didn‘t have to decide that. Can you envision any set of circumstances where you, along with other jurors, would impose a sentence of death?
PROSPECTIVE JUROR T.P.: Yes, I can.
THE COURT: Okay. Is your decision about the death penalty - let me ask you this: So you‘re saying you can envision a scenario where it would be.
PROSPECTIVE JUROR T.P.: I can presume him innocent.
THE COURT: Sure.
PROSPECTIVE JUROR T.P.: And decide, yes, he was guilty of, and be in a jury room where everybody felt like he should be put to death and I could agree on that.
THE COURT: Okay. And can you do that in this case?
PROSPECTIVE JUROR T.P.: Yes.
THE COURT: Okay. Then I misunderstood you before. I‘m sorry.
PROSPECTIVE JUROR T.P.: Do you have to want to do it?
THE COURT: No. What you have to - what you have to be able to do is to truly - I mean, what you have to be able to do right now is tell me, I honestly believe in all fairness that I can consider all three punishments and I can imрose death if I believe it‘s appropriate, I can impose life without the possibility of parole if I believe it‘s appropriate ..., and I can impose life if I believe that‘s the appropriate sentence. Can you fairly [sic] and tell me those three things? You can do that?
PROSPECTIVE JUROR T.P.: Yes.
THE COURT: Okay. You feel confident of that?
PROSPECTIVE JUROR T.P.: No, I don‘t.
THE COURT: Okay.
PROSPECTIVE JUROR T.P.: I‘m sorry. I‘m sorry.
THE COURT: That‘s okay. I‘ll come back to you. I want you to think about it a little more. Okay?
143 After questioning other jurors, the trial court returned to Prospective Juror T.P. This time their exchange was as follows:
THE COURT: I‘ve given you a little bit of time to think about it. Can you consider all three of the legal punishments, death, life without the possibility of parole, and life, and impose the one that you believe is warranted by the law and the evidence?
PROSPECTIVE JUROR T.P.: Your Honor, I appreciate the time. I‘ve always been against the death penalty and do not feel like I can consider that.
THE COURT: Okay. Let me ask you this: Are you saying that if under the evidence, facts, and circumstances of this case the law would permit you to consider a sentence of death that your reservations about the penalty of death are so strong that regardless of the law, the facts, and circumstances of the case you would not impose the punishment of death?100
PROSPECTIVE JUROR T.P.: That‘s right, I wouldn‘t.
THE COURT: Okay. And would you change your mind or are you unequivocal?
PROSPECTIVE JUROR T.P.: I‘m unequivocal.
The trial court then struck T.P. for cause, over defense objection, and refused to allow defense counsel any opportunity to question her.101
144 Prospective Jurors M.M. and T.P. certainly fit the standard of giving equivocal answers regarding their willingness to consider the death penalty.102 The transcript reflects that the trial court had difficulty determining the eligibility of these jurors to serve. Yet the trial court failed to ask M.M. the appropriate clarifying question, under our uniform jury instructions, about his willingness to consider the death penalty despite his objection to it.103 Because the last-recorded answers of both M.M. and T.P. indicated that they were not able to consider the death penalty, this Court cannot conclude that the trial court erred when it struck them for cause. However, because these jurors had also indicated (more than once) that they could, in fact, consider the death penalty, we conclude that the trial court abused its discretion in not allowing defense counsel an opportunity to further question them.104
145 This Court is particularly concerned by the inconsistent approach that the trial court adopted toward jurors who indicated a predisposition toward a particular penalty. On each of the six occasions when the trial court encountered a juror with reservations about the death penalty, the court alone questioned the juror, and then struck him or her without even waiting for a request from the State. The court also denied Mitchell any opportunity to voir dire these six jurors, despite the strenuous objections of his coun
146 During defense counsel‘s voir dire, Prospective Juror S.O. repeatedly stated that he believed that the death penalty was the only appropriate penalty for someone who takes the life of another person.105 When defense counsel asked that S.O. be struck for cause, the trial court - though not challenging counsel‘s characterization of S.O. as “unequivocal” - announced, “I‘m just going to ask him a couple questions,” in order to be “certain.”106 When the court later encoun107tered another juror еxpressing a parallel view, the court seemed to struggle to avoid striking the juror, despite his clear intent to consider only the death penalty.107 Furthermore, when two other jurors indicated that they would not be able to consider a life sentence (with parole),108 after hearing that Mitchell‘s case involved allegations of rape/sexual assault, the trial court labored mightily to persuade the jurors that they should not exclude themselves too hastily, since the facts of the case were not yet established.109
147 The voir dire questioning in Mitchell‘s case, in which the only issue before the jury
148 This Court finds that the trial court‘s willingness to allow almost totally unconstrained questioning/argument from the State during voir dire made the court‘s refusal to allow any attempt by Mitchell to rehabilitate the challenged jurors even more unfair. The treatment of the two parties during voir dire was far from even-handed, and this Court will consider this disparity in its determination of how to remedy the other errors found herein.
149 In Proposition V, Mitchell challenges various references to rape and sexual assault made by the prosecutor during voir
150 In Proposition VI, Mitchell challenges the admission into evidence of numerous graphic photographs of the victim‘s body, both at the crime scene and in connection with the autopsy, as well as a videotape of the crime scene showing the body. Defense counsel vigorously objected to the photographs - both to individual photographs and to the overall impact of so many disturbing pictures - arguing that they were cumulative and that their probative content was substantially outweighed by their prejudicial effect. Mitchell also vigorously objected to the crime scene videotape, arguing that it was cumulative to all of the other evidence and unduly prejudicial.
151 Among the numerous crime scene photographs admitted into evidence, twenty-two different pictures show all or a portion of the victim‘s body.111 In addition, fourteen different autopsy photographs were admitted, further highlighting the victim‘s injuries.112 The crime scene and autopsy photographs were introduced into evidence and published to the jury during the testimony of Lieutenant Vance Allen. These same photographs were then used and displayed extensively a second time, during the “crime scene reconstruction” testimony of Tom Bevel.113 The prosecutor acknowledged at trial that only a few of these photographs were admitted during Mitchell‘s original trial.114
152 During Bevel‘s testimony the jury was also shown a silent videotape of the crime scene, which repeatedly panned over the victim‘s body and even showed significant insect activity on and around the body.115 In addition, and prior to the testimony of both Allen and Bevel, the medical examiner (Dr. Larry Balding) testified in great detail about the nature and extent of Scott‘s injuries; and his diagrams of these injuries were admitted into evidence.
153 This Court is very troubled by the extent of graphic and potentially inflammatory evidence that was provided to Mitchell‘s resentencing jury, which went so far beyond the evidence used in his original capital trial. Although a substantial portion of this evidence was certainly admissible, particularly insofar as it was relevant to the “heinous, atrocious, or cruel” and “continuing threat” aggravating circumstances, we find that the trial court abused its discretion by failing to properly constrain the State in its presentation of this evidence, much of which was cumulative.116 We further find that the trial court‘s failure to do so supports our determination, in Proposition XVI, that Mitchell‘s death sentence must be overturned. Although we decline to determine precisely which exhibits should have been excluded, we trust that any further proceed
154 In Proposition VII, Mitchell raises seven different challenges to evidentiary rulings made by the trial court. We take up these issues in turn. First, Mitchell notes that the trial court allowed the State to read into the record the testimony of two witnesses, Velma Kibbey and Andre Wilson, without first making a determination that these witnesses were unavailable.117 The State notes that Mitchell did not object on this basis, waiving all but plain error. Mitchell did object, however, that the evidence was irrelevant - a point that the State now apparently concedes.118 This Court agrees that the testimony of these witnesses was irrelevant to the issues at stake in the resentencing, since it related only to the question of whether Mitchell killed Scott. Nevertheless, we find no plain error in the court‘s failure to rule on the availability of these witnesses and no prejudice from the unnecessary presentation of their testimony.119
155 Second, Mitchell challenges the trial court‘s refusal to allow him to present mitigating evidence, in the form of two letters, a poem, and a birthday card, all sent by Mitchell to his younger brother, Michael Postoak.120 In his transcribed testimony, Postoak described his close relationship with his older brother, even though Mitchell had been imprisoned, which included receiving letters, birthday cards and phone calls from Mitchell.121 Although the State raised no objection to Postoak‘s recorded testimony, it raised a hearsay objection to the admission of the actual written materials, which the trial court sustained.122
156 We addressed the admissibility of similar letters from a capital defendant in Medlock v. State.123 We concluded that under Lockett v. Ohio124 and Eddings v. Oklahoma,125 such letters “are relevant mitigating evidence that should have been admitted.”126 The State offers no response to the authori
157 The letters from Mitchell to his younger brother suggest a positive, nurtur
158 Third, Mitchell challenges the testimony of Detective John Maddox, in which Maddox summarized Mitchell‘s own testimony from the original trial. Mitchell raised no objection to this testimony during the resentencing; nor does he assert that Maddox‘s summary was inaccurate. We find no plain error.
159 Fourth, Mitchell challenges the admission into evidence of State‘s Exhibit 227, a timeline prepared by Tom Bevel, which summarizes Bevel‘s testimony about the “probable sequence of events” in the Scott homicide. Mitchell argues that the timeline should not have been admitted as a regular exhibit. The State characterized the timeline as “a demonstrative aid to the jury to help them with Captain Bevel‘s testimony.” Yet the court admitted it as a regular exhibit. Mitchell failed to object on the basis now raised, relying instead on his broader objection to Bevel‘s testimony.129 Nevertheless, we find plain error, based on the State‘s own (accurate) characterization of the exhibit as a “demonstrative aid.”130
160 Fifth, Mitchell argues that the trial court should not have compelled defense expert witness, Dr. Manuel Saint Martin, to talk to prosecutors about statements made to him by Mitchell.131 Prior to trial the State was given Dr. Saint Martin‘s report, indicating his opinion that, for a number of reasons (including a near-death medical experience), Mitchell was now “accepting responsibility” for his crime against Scott. The State maintained that it was entitled to probe the basis of this expert opinion, including finding out what Mitchell said about the murder of Scott during both interviews. The trial court agreed and, over strong defense objection, ordered Dr. Saint Martin to meet with prosecutors and answer their questions about what Mitchell told him.132
161 This Court finds that in the specific factual circumstances of this case, the trial court‘s ruling was correct. Mitchell chose to present the testimony of Dr. Saint Martin, as an appropriate part of his mitigating evidence that he was now accepting responsibility for what he had done to Scott. In so doing, Mitchell waived his Fifth Amendment protection against the compelled production of this information, as well as any attorney-client protection that would have attached to this specific information. Mitchell cannot have it both ways, and the trial court was correct in ordering Dr. Saint Martin to reveal the factual basis of his expert opinion. The cases cited by Mitchell are inapposite.133
162 Sixth, Mitchell argues that the trial court erred in allowing the State to question witness Tom Bevel, over objection, using hypothetical questions based upon in
¶ 63 Seventh, Mitchell challenges the trial court‘s decision allowing the State to present the testimony of Dr. Herman Jones, in order to rebut Mitchell‘s claim that he no longer poses a continuing threat to society. This Court notes that the resentencing jury rejected the “continuing threat” aggravator. Hence any error in allowing this rebuttal testimony has been rendered moot.137
¶ 64 In Proposition VIII, Mitchell challenges the “crime scene reconstruction” testimony of the State‘s expert witness, Tom Bevel. Mitchell acknowledges that this Court has approved the admissibility of blood spatter analysis (also known as bloodstain pattern analysis) and recognized Bevel as an expert in this field.138 He argues, however, that the discipline of “crime scene reconstruction” has not been similarly approved or defined, nor have we previously determined Bevel‘s expertise in this area. Hence he argues that the trial court erred in failing to conduct a Daubert hearing regarding Bevel‘s testimony.139 Mitchell further argues that even if crime scene reconstruction is a legitimate discipline and appropriate for expert opinion, Bevel‘s testimony went beyond the permissible boundaries of expert opinion in this field, and that the trial court failed to fulfill its role as gatekeeper regarding Bevel‘s expert testimony.
¶ 65 Although our cases have sometimes referred to “crime scene reconstruction,” this Court has not defined the parameters of crime scene reconstruction as a discipline appropriate for expert testimony.140 Using the term loosely, crime scene reconstruction is largely the province of the jury, since it is the jury‘s role, as the finder of fact, to collectively “reconstruct” what happened at the time a crime was (or was not) committed, and thereby determine the defendant‘s accountability therefore.141 It is the role of the jury to take all of the varying types of evidence put before it and, by looking at the totality of this evidence, determine what actually oc-
¶ 66 On the other hand, “crime scene reconstruction,” using the term more narrowly, can involve various specific fields of expertise, such as fingerprint analysis, bloodstain pattern analysis, DNA analysis, etc.143 And this Court recognizes that a person could develop expertise in the discipline of bringing together such fields of expertise - whether they be scientific, technical, or experience-based - to reach broader conclusions than the individual fields permit.144 Furthermore, an ability to synthesize these different types of evidence, particularly evidence of a type unfamiliar to most jurors, could indeed assist the jury in its factfinding role. Hence expert “crime scene reconstruction” testimony may be admissible to “assist the trier of fact to understand the evidence or to determine a fact in issue.”145
¶ 67 Nevertheless, as we emphasized in Romano v. State,146 the nature and extent of this testimony must be carefully limited, so that the testimony does not usurp the jury‘s fact-finding role: “While expert witnesses can suggest the inferences which jurors should draw from the application of specialized knowledge to the facts, opinion testimony which merely tells a jury what result to reach is inadmissible.”147 It is the trial court‘s essential role to serve as the initial gatekeeper regarding the propriety of expert opinion.148 Yet once it is established that expert testimony in a particular field is admissible and that a witness is an expert in that field, opposing counsel also plays a critical role in ensuring that the specific testimony given remains within appropriate parameters and that the limitations of the expert‘s testimony are brought before the jury.149
¶ 68 In the current case, Bevel‘s crime scene reconstruction testimony was used to help establish the various events involved in Mitchell‘s attack upon Scott and the most likely sequence of those events.150
¶ 69 In Proposition IX, Mitchell raises the following six challenges regarding the victim impact evidence admitted in his case: (1) victim impact evidence was admitted prior to the State proving the existence of an aggravating circumstance; (2) other family members of the victim were allowed to testify after David Scott testified as the “family representative“; (3) the presentation of victim impact evidence throughout the State‘s resentencing case was improper, unfair, and undermined the reliability of the proceeding; (4) victim impact evidence serves as an unconstitutional “super-aggravator“; (5) the victim impact evidence given was improper, as it focused solely on the emotional impact of the victim‘s death; and (6) the uniform instruction regarding victim impact evidence is unconstitutional, because it refers to the “loss to society.” We take up these arguments in turn.
¶ 70 First, we conclude that the State adequately established at least one aggravating circumstance prior to the presentation of victim impact testimony.156 The first witness at Mitchell‘s resentencing was Maria Bustos, who testified about Mitchell raping her when she was 11 years old and he was 15 years old. The second witness was Michael Harjochee, who testified that he knew Mitchell from living in the neighborhood and Elaine Scott from her work at the Pilot Center, and that Mitchell made a sexual comment about Scott to him. Before David Scott was presented as the State‘s third witness - and first victim impact witness - the trial court ruled that the State had adequately established the continuing threat aggravator, in order to allow presentation of victim impact evidence.157 Mitchell fails to establish either error or prejudice in this regard.158
¶ 71 Second, we take up Mitchell‘s claim about allowing victim impact testimony in addition to that of a family representative. Three victim impact witnesses testified at
¶ 72 David Scott‘s testimony recounted memories of events and adventures with his sister. He described some of her activities as a college student at the University of Oklahoma, including playing in the marching band, and how he had planned to share a home with her when he entered college there. He also testified about how his life had been affected by her death and the impact of her absence from the family. He concluded by describing the effect of his sister‘s death upon their parents.161 When the State later offered the testimony of Bruce and Ann Scott, Mitchell re-raised his objection that these witnesses should not be allowed to testify, since David Scott had already testified as the family representative. The trial court overruled the objection.162
¶ 73 In Lott v. State,163 this Court recently addressed the language of
¶ 74 Thus the trial court erred in allowing David Scott to testify as the representative for the Scott family, and then also allowing Bruce and Ann Scott to testify separately. While each of these three persons was otherwise eligible to testify, about the impact of Elaine Scott‘s death on their individual lives, it was error to allow the testimony of other family members after David Scott testified as the family‘s designee. The impact of this error will be addressed within Proposition XVI.
¶ 76 Fourth, we find no need to reconsider our established jurisprudence that victim impact evidence does not serve as an improper “super-aggravator.”168
¶ 77 Fifth, Mitchell argues that the victim impact testimony given in his case was improper, as it focused almost entirely on the emotional aspects of the victim‘s loss, including describing her childhood. We have repeatedly noted the constitutional risk of focusing too much on such evidence.169 Upon reviewing David Scott‘s testimony, we find that, standing alone, it did not violate due process or render Mitchell‘s sentencing unfair or unreliable. We have already concluded that Bruce and Ann Scott should not have been allowed to testify, since David Scott testified as the family‘s designee. We note that Ann Scott‘s testimony was more emotional than that of Bruce Scott.170 We will consider the impact of this improperly admitted testimony in Proposition XVI.
¶ 78 And finally, we find no error in the victim impact jury instruction used in Mitchell‘s case. This instruction was promulgated by this Court in Cargle.171 Mitchell challenges the portion of the instruction describing victim impact evidence as “intended to remind you as the sentencer that just as the defendant should be considered as an individual, so too the victim is an individual whose death may represent a unique loss to society and the family.” This language arises directly from the Supreme Court‘s decision in Payne v. Tennessee.172 Mitchell argues that the reference to “loss to society” is improper under Oklahoma law, which limits victim impact evidence to the effect of the victim‘s death on “immediate family members.”173
¶ 79 As discussed earlier, Oklahoma law does strictly limit who can present victim impact evidence, i.e., the victim or members of the victim‘s immediate family or a representative of the victim or the family.174 Oklahoma law also constrains the content of such testimony, through our statutes and our caselaw interpreting these statutes and relevant U.S. Supreme Court decisions. Yet nothing within this governing authority pro-
¶ 80 While such evidence must be carefully evaluated under our existing standards, victim impact evidence suggesting that a particular victim was a uniquely valuable member of his or her community and our society is not per se inadmissible in a capital sentencing proceeding. Furthermore, we conclude that the single reference to the “loss to society” within our uniform jury instruction is constitutional and is also appropriate under Oklahoma law. Hence this portion of Mitchell‘s victim impact claim is rejected.
¶ 81 In Proposition X, Mitchell argues that under Ring v. Arizona,178 his jury should have been instructed that it could only im-
pose the death penalty if it found that the aggravating circumstance(s) in his case outweighed the mitigating circumstances “beyond a reasonable doubt.”179 Mitchell argues that under
¶ 82 In Proposition XI, Mitchell challenges the refusal of the trial judge, the Honorable Susan P. Caswell, to recuse from his case.182 On January 24, 2002, defense counsel made an in camera oral request that Judge Caswell recuse. At a subsequent hearing, on February 4, 2002, Judge Caswell informed the parties that she had investigated her personal involvement in Mitchell‘s original trial and found that she had no contact with the handling of that case. On the other hand, Judge Caswell acknowledged that she was “friends with Judy Busch” and that they had attended parties in each other‘s homes. She also disclosed that she had attended the wedding of Judy Busch‘s daughter to the victim‘s brother.183 Judge Caswell noted that she did not
¶ 83 On February 19, 2002, defense counsel filed a motion seeking Judge Caswell‘s recusal from Mitchell‘s resentencing.184 A hearing was held on the motion on March 6, 2002. During this hearing Judge Caswell again emphasized (after even further investigation) that she had no involvement “whatsoever” with Mitchell‘s original prosecution. She noted that the sex crimes division had not handled the case and that this Court had allowed her to preside over other criminal cases, despite her campaign literature.185 She also downplayed the extent of her “acquaintanceship” with Judy Busch, noting that they did not go to lunch or call each other regularly.186 Judge Caswell concluded that none of the reasons cited by Mitchell required her recusal, and that she would not recuse.
¶ 84 Although Mitchell now challenges Judge Caswell‘s failure to recuse, he did not challenge this failure at the proper time or in the proper manner. Rule 15 of the Rules for District Courts of Oklahoma
establishes the procedure for pursuing a disqualification motion.187 Under Rule 15, a party whose motion to disqualify a judge is denied can request a “re-hearing” on this motion with the chief judge of the county in which the case is pending.188 If the chief judge of the county likewise denies the moving party‘s request to disqualify the assigned judge, the moving party (in a criminal case) can pursue a mandamus action in this Court to have the assigned judge disqualified.189
¶ 85 Mitchell did not seek a rehearing with the chief judge of Oklahoma County; nor did he pursue the matter in this Court via a mandamus action. In fact, the record in this case reveals that, on March 15, 2002, at a status conference hearing, Mitchell‘s counsel informed Judge Caswell that they had decided to “abandon” their recusal motion. Although the briefs of both parties to this case fail to address (or even note) Mitchell‘s decision not to pursue his disqualification claim under Rule 15, this Court cannot ignore this choice.
¶ 86 The required method for challenging the refusal of a trial judge to disqualify is well established in this State, as is the effect of failing to follow this protocol.190 In Welch
¶ 87 We note, however, that while a defendant can waive his right to preclude a disqualified judge from hearing his case, that defendant does not thereby waive the right to have his trial conducted in a fair and impartial manner. Whether or not a defendant can or does establish before trial that a particular judge is so likely to be biased against him or her that the judge should recuse or be disqualified, the defendant is always entitled to a trial that is, in fact, fairly conducted.194 As we noted in Fitzgerald v. State,195 “The Oklahoma Constitution guarantees a defendant a right to a fair, impartial trial not tainted by the personal bias or prejudice of the trial court.”196 Hence whether or not Judge Caswell should have
recused when she was asked to do so, she was obligated to conduct Mitchell‘s resentencing in a fair and imрartial manner.197
¶ 88 Within his claim challenging Judge Caswell‘s refusal to disqualify, Mitchell lists various examples of “bias” in the trial court‘s handling of his resentencing. The cited examples all overlap with other substantive claims raised on appeal, which are addressed separately within the relevant propositions.198 Mitchell does not, however, raise a separate claim of trial court bias, beyond the waived recusal issue. This Court notes that the record in this case contains significant and disturbing evidence of bias on the part of the trial court.199 We address the significance of this evidence in our fashioning of relief in this case.
¶ 89 In Proposition XII, Mitchell challenges two references to his original death sentence, which occurred during the State‘s cross-examination of Dr. Manuel Saint Martin.200 Mitchell alleges that the references were deliberate prosecutorial misconduct and that they rendered his death sentence unreliable.
¶ 90 During direct examination Dr. Saint Martin contrasted the extent to which Mitchell accepted responsibility for the murder of Scott during a 1997 interview (when Mitchell blamed everything on “C-Ray“) with his acceptance of responsibility during an interview conducted in 2002 (in which Mitchell admit
¶ 91 Within further questioning about the 1997 interview, however, the following occurred:
PROSECUTOR: And he made a point of telling you, I‘m not going to be able to give up C-Ray because of my fear on behalf of my family?
DR. SAINT MARTIN: Yes.
PROSECUTOR: So he wants to make himself look good, I‘m willing to take the heat, stay on death row -
At this point, even before an objection was raised, the prosecutor stopped his questioning, asked to approach, and acknowledged that he had improperly referred to Mitchell‘s prior death sentence.201 Defense counsel moved for a mistrial, arguing that an admonishment was inadequate to “unring that bill,” and that the reference to Mitchell‘s previous death sentence would diminish the jury‘s sense of responsibility regarding its sentencing decision.
¶ 92 The trial court agreed that the reference to “stay[ing] on death row” was improper and potentially necessitated a mistrial. Although the court described the reference as “certainly inadvertent,” the court asked the parties to further research (overnight) whether a mistrial was necessary and admonished the jury to “disregard the last remark of counsel.” Later - after the State completed its extensive cross-examination, defense counsel conducted redirect examination, and the State began recross-examination - Dr. Saint Martin himself referred to Mitchell‘s time on death row.202 Once again, defense counsel‘s motion for a mistrial was denied (to be further addressed the next day), and the jury was admonished to “disregard the last remark of the witness.”
¶ 93 An extensive mistrial hearing was conducted the next morning, before any further testimony. At the conclusion of this hearing, the trial court ruled that although the references to Mitchell‘s former death sentence were improper, it did not violate due process or the Eighth Amendment to allow Mitchell‘s resentencing trial to continue.
¶ 94 Upon reviewing the entirety of the prosecutor‘s questioning of Dr. Saint Martin, this Court finds no clear error in the trial court‘s determination that the references to Mitchell‘s prior death sentence were not the result of prosecutorial misconduct. The record supports the court‘s finding that these references were neither purposefully made nor deliberately elicited by the State. Furthermore, this Court notes that the references were indirect, and that many jurors might be unaware that a person can only be “on death row,” if he or she has already been sentenced to death.203 The jury instructions
¶ 95 In Proposition XIII, Mitchell raises twelve separate allegations of prosecutorial misconduct during his resentencing. Some of his allegations are not supported by the record in this case.205 Some of these claims are not adequately developed, and others were not properly preserved at trial.206 In addition, some of the challenged prosecutorial actions or remarks have already been addressed.207 Although our review of the record in this case reveals a substantial amount of what can fairly be described as “prosecutorial misconduct” of one sort or another, we conclude that only one of the specific claims raised by Mitchell on appeal merits separate discussion herein.208
¶ 96 Mitchell asserts that during his resentencing the prosecutor engaged in highly prejudicial and unprofessional conduct, including pointing and yelling directly at the defendant. Although such claims are difficult to fully evaluate on appeal - as we have only transcripts and not videotapes of what occurred - we are troubled by both the documented behavior of the prosecutor and the trial court‘s response to that behavior.
¶ 97 The challenged conduct apparently began during voir dire. During a bench conference on another objection, defense counsel noted that she objected to the prosecutor‘s behavior toward Mitchell, in particular, pointing at him and speaking angrily to him.209 The trial court responded: “You show me some law, you show me some law that says you cannot point at a defendant.” Defense counsel then argued: “It‘s prejudicial and it allows him by conduct to be asserting his personal opinion about how he feels about our client.” Without addressing this argument or the propriety of the prosecutor‘s behavior, the trial court summarily overruled the objection and allowed the prosecutor to continue.
¶ 98 During his final closing argument, the prosecutor again directly confronted the defendant, as he encouraged the jurors to send Mitchell a message by their verdict.210 At a bench conference, defense counsel asserted:
Your Honor, I object. I would like the record to reflect that Mr. Wintory has walked over to counsel table and is pointing at our client and he‘s talking directly to our client, and I believe that‘s inappropriate. It is akin to, by conduct, him expressing his personal opinion, he‘s showing his dislike for our client. It‘s prejudicial. It‘s more prejudicial than probative. It‘s violative of due process. It‘s not fair.
The trial court responded: “It‘s his closing argument. It‘s overruled.”211
¶ 99 The prosecutor then continued with his argument about what the jury could say to Mitchell through its verdict, and apparently continued to yell and point directly at Mitchell as he did so.
PROSECUTOR: So what you all can do together is right to him, right to him, you‘rе guilty of murder, you killed her in a way that was especially heinous, atrocious, and cruel. She consciously suffered. She suffered from when you attacked her near the chair, while she ran down the hallway, while she ran for the phone, while she slammed the door, she suffered when you grabbed her and ripped the phone from her hands, she suffered when you stripped her clothes from her, she suffered when you stripped her earring from her, she suffered when you forced her on the floor, she suffered when you sexually assaulted her, she suffered after you -
DEFENSE COUNSEL: Your Honor, I object.
THE COURT: Overruled.
¶ 100 Even the plain paper pages by which this Court obtains its limited view of this scene cannot fully silence or obscure the emotional crescendo with which this proceeding concluded. Neither the prosecutor nor the trial court questioned defense counsel‘s assertions that the prosecutor was standing immediately in front of the defendant, yelling and pointing at him, as he addressed him directly. And this Court has little doubt that these theatrics continued, perhaps increasing in intensity, each time the trial court refused to limit or prevent them. Despite the bench conferences, the jury could not have missed the fact that defense counsel was objecting to the confrontational and disrespectful way the prosecutor was addressing the defendant, or the fact that the trial court was adamantly allowing, if not condoning, this behavior.
¶ 101 We conclude that the manner in which the prosecutor presented his closing argument - yelling and pointing at the defendant as he addressed him directly - was high
¶ 102 Perhaps even more disturbing than the behavior of the prosecutor is the trial court‘s repeated refusal to in any way constrain or condemn this behavior. The trial court‘s stance was, essentially, that the court would allow the State to do as it willed unless defense counsel could produce a case, on the spot, specifically forbidding the challenged action.218 This is not the proper role for a trial court judge. Trial judges are responsible for protecting and upholding the honor, dignity, and integrity of the proceedings held before them.219 They are not pow-
¶ 103 This Court finds that the prоsecutor in this case committed serious and potentially prejudicial misconduct. Although the specific impact of such conduct is difficult to gauge, we evaluate the significance of this misconduct within our discussion of Mitchell‘s cumulative error claim in Proposition XVI. We further find that the trial court‘s repeated refusal to condemn or ameliorate this misconduct suggests a disturbing lack of even-handedness that, though not properly raised as an independent claim of judicial bias, can be considered as we determine the appropriate remedy for the numerous other errors in this case.
¶ 104 In Proposition XIV, Mitchell argues that the “heinous, atrocious, or cruel” aggravating circumstance is “unconstitutionally vague and applied in an overbroad manner.” We have repeatedly rejected the claim that this aggravator, as narrowed by this Court, is unconstitutionally vague.221 In addition, we have recently addressed the argument that this aggravator is “overbroad as applied” and explained that an aggravating cir-
cumstance does not become “overbroad” based upon the manner it is applied to particular cases.222
¶ 105 Mitchell further argues that certain evidence was improperly admitted during his trial, namely, certain aspects of Tom Bevel‘s testimony (as discussed in Proposition VII) and at least some of the photographs and the crime scene video (discussed in Proposition VI). Mitchell asserts that absent the improperly admitted evidence, there is insufficient evidence to support the “heinous, atrocious, or cruel” aggravator. We have already addressed the propriety of the challenged evidence. We conclude that even without any of the improperly admitted evidence, there can be no doubt that the properly admitted evidence was more than sufficient to support the “heinous, atrocious, or cruel” aggravator in this case. We further find that even if Mitchell‘s jury had not been presented with any of the improperly admitted or cumulative evidence, there is not a reasonable probability that his jury would have failed to find that this aggravator applied. The evidence supporting the “heinous, atrocious, or cruel” aggravator in this case is simply compelling.223
¶ 106 In Proposition XV, Mitchell asks this Court to reconsider its prior rulings on eight different issues, noting that he is raising these claims in order to preserve them for the purpose of further review in any subsequent proceedings. We note, however, that some of the claims raised are not actually relevant to Mitchell‘s case.224 Regarding the
¶ 107 Finally, in Proposition XVI, Mitchell asserts that even if none of his individual claims merits relief, the cumulative effect of the errors committed during his resentencing necessitates that his death sentence be either reversed or modified. This Court has repeatedly recognized that when there are multiple errors or irregularities during a trial, reversal will be required if the “cumulative effect” was to deny the defendant a fair trial.225 This same analysis applies to Mitchell‘s resentencing.
¶ 108 This Court has found serious error in numerous aspects of Mitchell‘s resentencing. We have found that the trial court abused its discretion in allowing the State to argue that Mitchell killed Scott in order to avoid arrest or prosecution for “raping” her - and that “rape” cannot serve as the predicate crime for the avoid arrest aggravating circumstance in this case. In addition, we have found that thе State‘s notice of its intent to rely upon armed robbery and larceny as predicate crimes was entirely inadequate, and that the trial court abused its discretion in allowing the State to do so over defense objection. Hence we have concluded that the avoid arrest aggravating circumstance must be struck down in the current case.226
¶ 109 Even beyond this aggravating circumstance, this Court has concluded that the trial court abused its discretion in denying defense counsel any opportunity to question prospective jurors who expressed reservations about the death penalty - particularly in light of the inconsistent approach taken by the court regarding jurors who expressed reservations about the “life” sentencing options. We have found that the court abused its discretion by failing to constrain the extent of graphic photograph and videotape evidence presented to the jury. We have found that the trial court violated Mitchell‘s constitutional right to present mitigating character evidence, when it excluded letters and other written materials sent by Mitchell to his younger brother. And we have concluded that the court erred in allowing the victim‘s brother to testify as the “representative” of the victim‘s family, and then also allowing both of the victim‘s parents to testify as additional victim impact witnesses. In addition, this Court has found that the resentencing prosecutor committed serious prosecutorial misconduct, particularly during his final closing argument, and that the trial court erred in failing to prevent or ameliorate this misconduct.227
¶ 110 In light of all these errors and irregularities, this Court concludes that it must reverse Mitchell‘s death sentence. Furthermore, in light of the pervasive extent of these errors and irregularities, as well as the evidence suggesting significant trial court bias in the handling of Mitchell‘s resentencing, we decline to reweigh the remaining valid aggravator in this case with the mitigating evidence that is in the record. Although a capital jury certainly could choose to sentence Mitchell to death even after a properly conducted resentencing, and even after receiving the mitigating character evidence that was improperly excluded in this one, we cannot say with adequate certainty that it would. And we find that an actual jury, not this Court, should make this call.228
¶ 112 In Proposition XVII, Mitchell argues that his death sentence should be vacated, as part of this Court‘s mandatory sentence review. The overturning of Mitchell‘s death sentence by this Court renders this proposition moot.
DECISION
¶ 113 For the reasons discussed in this opinion, the death sentence of Alfred Brian Mitchell is REVERSED, and this case is REMANDED to the District Court, where it shall be REASSIGNED to a new judge for RESENTENCING. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18 App. (2005), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
C. JOHNSON and LEWIS, JJ.: concur.
LUMPKIN, V.P.J., S. TAYLOR, S.J. (sitting by designation in lieu of A. JOHNSON, J.): concur in results.
A. JOHNSON, J.: recuse.
LUMPKIN, Vice-Presiding Judge:
Concur in Results.
¶ 1 I concur in the decision to remand this case for resentencing. However, I cannot join in the attempt to limit the application of the “avoid arrest or prosecution” aggravating circumstance and to turn the capital sentencing stage of this case into a mini-trial on the existence of this aggravator. The opinion has wrongly focused on whether the defendant‘s actions immediately prior to and leading up to the murder constitute a statutorily defined crime for which evidence sufficient to support a criminal conviction must be presented. Such a scenario is covered under another aggravator, that of “prior violent felony.” See
In his video-taped statement Cleary attributed two critical statements to Chandler. These statements are, “If someone sees us we have to pop ‘em“, and, immediately before the shooting, “She seen us, she seen us.” These statements show Cleary was aware of the need to eliminate any witnesses. Applying the facts to the standard of proof, we find Cleary murdered the only witness to a burglary he had just committed.
1997 OK CR 35, ¶ 71, 942 P.2d at 751 (emphasis added)
¶ 3 Also, in Lott v. State, 2004 OK CR 27, 98 P.3d 318, we stated:
In the present case, the evidence showed Appellant subdued and raped both victims. While Appellant and the victims did not know one another, there is no indication Appellant attempted to hide his identity during the rape. That the victims could have identified their assailant if left alive is sufficient to support the conclusion that the victims were killed in order to prevent their identification of Appellant and his subsequent arrest and prosecution.
2004 OK CR 27, ¶ 117, 98 P.3d at 348 (emphasis added, internal citations omitted).
¶ 4 In the present case, Appellant had been released from the Rader juvenile detention center less than 3 weeks when he met Scott at the Pilot Recreation Center. He had been held at the juvenile detention center for the rape of an 11 year old. Appellant committed a sexual assault against Scott. Appellant knew that if she reported the sexual assault to the police and identified him as the perpetrator, he was going back to jail. In Appellant‘s mind, the only way to prevent this was to kill Scott. The “avoid arrest” aggravator must be viewed through the eyes of the defendant at the time of the murder to determine the defendant‘s reason for the killing. To do more, is to not only disregard the language of the aggravator, but to obviate it.
¶ 5 While this Court has required the commission of a “predicate crime” in order to prove the aggravator, we have not required a criminal conviction for the predicate crime or proof of evidence beyond a reasonable doubt to support a conviction. Rather, the term “рredicate crime” reflects that in most cases, the defendant has committed acts which could be prosecuted separate and apart from the murder.
¶ 6 The present case has an admittedly unusual set of circumstances involving the “predicate crime” used to support the “avoid arrest” aggravator. The opinion states that Cummings compels us to conclude trial court error in allowing the State to argue Appellant killed the victim in order to prevent his arrest or prosecution for having raped her. I agree that the forensic evidence now shows that a completed rape was not committed. Therefore, the State should not have been allowed to argue the aggravator was based upon the crime of rape. However, that does not mean that Appellant‘s assault upon the victim prior to her murder is insufficient to support the aggravator.
¶ 7 Cummings is factually distinguishable from the present case.2 In Cummings, there was no evidence of the commission of any crimes other than those dismissed by the court. But, in reality, for this aggravator all
¶ 8 While forensics have caused us to rule out a completed rape, the evidence still indicates some type of sexual assault did occur. The majority opinion in this case makes much of the fact that “sexual assault” is not a specific statutorily enumerated offense. I agree that it is not a statutory offense, but rather a term which refers to and is generally understood to designate a class or category of sex-related crimes. However, I would extend the meaning of the term to a category of sex-related crimes not amounting to first degree rape.
¶ 9 In the present case, the evidence shows the commission of one of the following sex-related crimes: attempted rape pursuant to
¶ 10 Further, as the focus of the “avoid arrest” aggravator is not the legal outcome of the defendant‘s predicate criminal act - that Appellant‘s acts leading to Scott‘s murder were originally labeled first degree rape, a conclusion subsequently proven by forensic evidence to be incorrect, - does not prevent the use of evidence of those acts from being used to support the “avoid arrest” aggravator. “Aggravating circumstances are not separate penalties or offenses, but are ‘standards to guide the making of [the] choice between the alternative verdicts of death and life imprisonment.’ ” Poland v. Arizona, 476 U.S. 147, 156, 106 S.Ct. 1749, 1755, 90 L.Ed.2d 123 (1986). To require the jury to make specific findings on the “predicate crime” and its elements would be contrary to the capital jurisprudence established by the United States Supreme Court and this Court. See Brown v. State, 2003 OK CR 7, 67 P.3d 917.
¶ 11 Upon resentencing, I find the State may ask the jury to find the existence of the “avoid arrest” aggravator by alleging and presenting evidence that Appellant killed the victim in order to prevent her from identifying and if necessary testifying against him for the commission of a sexual assault. In addition, I find the aggravator could also be supported by evidence of the armed robbery and potentially the larceny of an automobile, based on evidence that might be available.
¶ 12 Further, I do not find that because the jury did not find the existence of the “continuing threat” aggravator, the jury has effectively acquitted Appellant of that aggravator and it cannot be alleged in any future resentencing cases.
¶ 13 Initially, this conclusion is consistent with our holding in Salazar v. State, 1996 OK CR 25, 919 P.2d 1120. Although the sentencing jury in that case did not find the existence of two of the aggravating circumstances alleged, the jury did find Appellant should receive the death penalty. On appeal, this Court found evidence in the record to
¶ 14 Sattazahn v. Pennsylvania, 537 U.S. 101, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), is further authority for this principle even though it is distinguishable from the facts in this case. In Sattazahn the jury deadlocked on punishment and state law provided that in such a circumstance, a life sentence was mandatory. The plurality holding of Sattazahn found the jury‘s inability to reach a decision in the penalty phase of a capital trial resulting in the imposition of a statutorily mandated life sentence did not bar the prosecution from seeking the death penalty again on retrial. 537 U.S. at 112-13, 123 S.Ct. at 740. The Supreme Court found that because the jury had deadlocked on sentencing, the appellant could not show he had been “acquitted.”
¶ 15 While the jury in the present case did not find the existence of the particular aggravator, we do not have a unanimous finding that the aggravator did not exist at all. Some jurors may have found the aggravator while others did not. We simply do not know from the record. However, we do know the jury recommended Appellant be sentenced to death. Under these circumstances, Appellant has not shown that he has been “acquitted.” This application of the law is consistent with our recent decision in Hogan v. State, 2006 OK CR 19, ¶¶ 52-59, 139 P.3d 907.
¶ 16 Regarding the allegations of prosecutorial misconduct, I agree that prosecutors should not express personal opinions regarding the evidence or the defendant‘s guilt, and that they should act in a respectful and professional manner. However, I am concerned that in its attempt to set boundaries for argument, the Court has done nothing more than seek to stymie the art of advocacy. The jury is clearly instructed on the distinction between evidence and argument, and the weight to be given each. The trial judge has a continuing duty and responsibility to supervise and control the conduct of counsel in the courtroom and to assure absolute professionalism at all times. This Court‘s repeatеd attempts to constrain argument are contrary to our well established rule allowing for liberal freedom of speech in closing argument. Under this type of trial micro-management great advocates such as William Jennings Bryant and Clarence Darrow would not have been able to utilize their oratory skills in an Oklahoma court.
¶ 17 In Proposition XV, I find Appellant has waived appellate review as he has not provided any argument or authority as to why this Court should reconsider it prior rulings on eight different issues. See Rule 3.5C, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). See also Romano v. State, 1995 OK CR 74, ¶ 65, 909 P.2d 92, 117.
¶ 18 I am authorized to state that Judge Steven Taylor joins in this separate vote and writing.
Notes
OUJI-CR 4-75 (emphasis added). Hence although Oklahoma juries are already required to find, beyond a reasonable doubt, that there was “another crime” separate from the murder (i.e., the predicate crime), our uniform instructions do not require that the jury be told the elements of that other crime or that each of these elements must also be proven beyond a reasonable doubt.The State has alleged that “the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” This aggravating circumstance is not established unless the State has proved beyond a reasonable doubt that:
First, there was another crime separate and distinct from the murder; and
Second, the defendant committed the murder with the intent to avoid being arrested or prosecuted for that other crime.
The State asserts in its brief: “Although to prove the aggravating circumstance of murder to avoid arrest, the State must prove a crime separate and distinct from the murder, the State is not required to prove each element of that crime, as it is not the crime for which the defendant is being sentenced.” While it may make sense to a non-lawyer to talk about proving a “crime” without proving each element of that crime, such talk does not make sense in the legal context, particularly on appellate review. In Oklahoma, all crimes are statutorily established and defined. See
I recognize that this Courts post-conviction opinion in Brown v. State, 2003 OK CR 7, 67 P.3d 917, declined to find that Ring requires this conclusion. Yet the context of that decision must be looked at carefully. In Brown, this Court reversed the defendants original jury conviction for armed robbery, in order to avoid a double jeopardy problem in affirming his felony murder conviction based upon that same robbery. There was no doubt about the sufficiency of the evidence underlying the jurys finding of armed robbery, which also served as the predicate crime for the avoid arrest aggravator. Id. at ¶ 18, 67 P.3d at 919. Hence we concluded that it would be “frivolous” to find that Ring required that the same jury that had found Brown guilty of armed robbery in the first stage should have been required to again specifically find, as part of its avoid-arrest aggravator analysis, that he had committed that same armed robbery. Id.
Mitchells claim is far from frivolous. In his case it is entirely unclear what exact predicate crime the State was relying upon, whether that predicate crime was supported by sufficient evidence, what predicate crime the jury had in mind when it found the avoid arrest aggravator, whether that predicate crime was supported by sufficient evidence, or whether the “predicate crime” relied upon was even a crime at all. Thus Mitchells resentencing reveals that, in some cases, a specific jury finding regarding the predicate crime is necessary in order to comport with due process and the Eighth Amendment. I would overturn Brown to the extent that it fails to recognize the necessity of this kind of jury fact-finding, in cases such as the current one.
I would find that in cases where the crime (or crimes) relied upon as the avoid-arrest predicate crime is not found by the jury during the guilt stage and in cases where more than one crime is alleged to constitute the predicate crime, the jury should be required to specifically designate the predicate crime(s) upon which its finding of the аvoid arrest aggravator is based. Although the State could rely upon more than one predicate crime, the jury should be required to unanimously agree on at least one particular predicate crime, for which there is sufficient evidence to establish it beyond a reasonable doubt. I would also require that the State provide notice of the specific predicate crime(s) upon which it intends to rely, within its notice regarding aggravating evidence. See
Id. at ¶ 8.[U]nder the statutory language of this aggravator, a defendant need only to have committed acts at the time which caused him/her to believe could have led to his/her arrest or prosecution. A defendant is not required to be vested with the knowledge of a lawyer and be able to outline the elements of a crime before the aggravator is applicable, only that he/she has committed an act that he/she thinks may cause him/her to be arrested or prosecuted. That is sufficient evidence to satisfy this aggravator.
Mitchell, 262 F.3d at 1065. In fact, the Tenth Circuit opinion appears to accept at face value Mitchells story that he “merely” masturbated and then ejaculated on Scotts bloodied and battered nude body. See id. at 1063 (referring to what sentence jury would have given “had it known Mr. Mitchell did not rape or sodomize the victim“); id. at 1063-65. This Court strongly disagrees with the Tenth Circuits apparent expectation that Mitchells resentencing should have been somehow sanitized of any suggestion that he committed a sexual crime against Scott, or any argument that he killed her in order to avoid being arrested or prosecuted for such a crime.Sexual assault charges are by their nature highly inflammatory and prejudicial.... [T]here is a qualitative difference in terms of culpability between a defendant who rapes and sodomizes a victim and then kills her to silence her, and a defendant who kills in a fit of rage. Had the rape and sodomy charges not been before the jury, the state would have been unable to infuse the murder with prior sexual abuse or to argue that Mr. Mitchell killed the victim in a premeditated plan to avoid arrest and prosecution. All of the highly charged arguments that we have recited would not have been presented to the jury. Both the guilt and sentencing stages would necessarily have had an entirely different focus and character.
We note that the current version of our uniform instruction reflects this appropriate emphasis on a jurors willingness to “consider” imposition of the death penalty (or other penalty to which the juror objects), rather than the jurors willingness to assert that there exist some facts or circumstances under which he or she would actually “impose” the death penalty (or other penalty to which the juror objects). See OUJI-CR 2d (Supp.2005) 1-5, Question 12, Alternate 2 (for prospective juror with reservations about death penalty) (“If you found beyond a reasonable doubt that the defendant was guilty of murder in the first degree and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the penalty of death so strong that regardless of the law, the facts and circumstances of the case, you would not consider the imposition of the penalty of death?“) (emphasis added). The prior version of this uniform instruction, which was used in Mitchells resentencing, is quoted infra in note 100.
The trial court then struck B.W. for cause, without objection from either side.THE COURT: Okay. There are three possible punishments in this case, death, imprisonment for life without parole, or imprisonment for life. Can you consider, Mr. [B.W.], all three of these punishments and impose the one that you believe is warranted by the law and the evidence?
PROSPECTIVE JUROR B.W.: No.
THE COURT: Okay. Which - what is your problem?
PROSPECTIVE JUROR B.W.: I believe if you take someone‘s life, then your life should be taken.
THE COURT: Okay. So are you telling me that you could not consider a sentence of life?
PROSPECTIVE JUROR B.W.: I could not consider being on parole or sentenced to life in jail, I could not consider those two.
THE COURT: Okay. The only punishment that you would consider is death, is that what you‘re saying to me?
PROSPECTIVE JUROR B.W.: Yes, yes.
THE COURT: Okay. And are you telling me that under the evidence that you heard in this case and the law that I give you, that you could not consider a sentence of life or life without the possibility of parole, that your reservations about those two punishments are so strong that you could not consider giving them?
PROSPECTIVE JUROR B.W.: Yes.
At this point - and without any equivocation by the juror - the trial court offered the State an opportunity to further question E.M. The prosecutor‘s attempt to rehabilitate E.M. covers an additional eight transcript pages - in which he suggests that perhaps the State will not be able to prove any sexual assault after all - leaving the juror thoroughly confused. Nevertheless, after defense counsel gave her a break from questioning to further ponder the issue, E.M. steadfastly maintained that she would not consider sentencing Mitchell to life imprisonment - that she would “never consider that” - and was ultimately struck for cause, without objection from the State.PROSPECTIVE JUROR E.M.: I know that I answered that I would consider all three.
THE COURT: Yes, ma‘am.
PROSPECTIVE JUROR E.M.: But in hearing so much of what has happened and what‘s gone on, there‘s no way that I could consider life with the possibility of parole on what I‘ve heard.
DEFENSE COUNSEL: Okay.
THE COURT: Ms. E.M., let me ask you just a couple of questions. I can tell that you‘re a little bit upset about this, and that‘s okay. But let‘s just talk about this for a minute. Okay? You haven‘t heard any evidence yet. And -
PROSPECTIVE JUROR E.M.: No, but just the circumstances of what the murder was, the brutality of it. I have a daughter. I can relate to that. And there‘s no way that I would let a murderer that has raped and killed someone have the possibility of parole. I wouldn‘t necessarily say death or - I could go with death and I could go with life imprisonment, but I cannot go with life with the possibility of parole. I thought I could, but I can‘t consider that.
THE COURT: Okay. I‘m trying to think of how to frame my question. Just give me a second. Let me think. The things that you have mentioned are factors that you will ultimately be able to consider if there is evidence produced in court as to determine punishment. All right?
PROSPECTIVE JUROR E.M.: Uh-huh
THE COURT: But those have yet to come into evidence before you. Are you following me? I recognize what the lawyers have said and what they have discussed here, but ultimately it may be your decision, that based on certain factors that you hear in the evidence, I believe - I suspect it will be everybody, I believe this is appropriate punishment. All right? But at this point in time, you have not heard that in the form of evidence.
PROSPECTIVE JUROR E.M.: Okay. THE COURT: What you have to be able to do at this point is without knowing what the evidence is going to be, other than he‘s guilty of murder, okay, and we know that that‘s been defined for you as the intentional taking of a human life, is can you consider all of those punishments? What you have referred to, and this is what concerns me and this is the difficulty that we sometimes face in talking about these issues, so more specifically, is that some of these things that you have discussed are things that might factor into your ultimate decision as to what you believe the appropriate punishment is. But you‘ve not yet heard the evidence. So it might be fair for you to ultimately reach that conclusion, that based on this evidence that I have heard, I believe these things to have occurred, and following all of the court‘s instructions on that, this is the conclusion that I reach, these are the proper punishments. What we have to know now is can you look at all three punishments for the crime of Murder in the First Degree and ultimately decide what is appropriate based on what you hear in this courtroom?
PROSPECTIVE JUROR E.M.: I can‘t look at life with parole.
THE COURT: Despite the fact that you have not heard that - heard that evidence now.
PROSPECTIVE JUROR E.M.: That‘s correct.
THE COURT: Okay.
On the third day of voir dire, when Prospective Juror J.W. indicated that he could not consider life imprisonment with the possibility of parole, a parallel exchange began with him:
After about another transcript page of the trial court attempting to rehabilitate J.W., the lead prosecutor, apparently sensing the futility of this effort, interrupted: “Your Honor, we have been through this exhaustively with Ms. [E.M.] and with witnesses in front of him - or jurors in front of him. He‘s heard this explained. If we‘re getting this much equivocation, I don‘t believe this is a juror who could be fair.” The court then excused J.W.THE COURT: Are you telling me that under any set of facts or circumstances that you could give - not give life with the possibility of parole for Murder in the First Degree?
PROSPECTIVE JUROR J.W.: Not in the sense he took somebody‘s life. Not knowing the facts, when I don‘t have them, but since he took somebody‘s life and rape involved.
THE COURT: We‘re not talking about that. Number one, that‘s not been established by any evidence. Okay? What I need to know now before you know any of the facts of this case, and this is the danger that we talked about yesterday of the lawyers talking about a possible sexual assault - they‘ve got to prove it. You may decide they didn‘t prove it. ...
Court‘s Exhibit 2 is a poem, dated January 28, 1996, titled “Dream Maker.” Postoak testified that he asked Mitchell to write him a poem, and this was the one he sent. Court‘s Exhibit 3 is another letter, dated March 3, 1999. It reads:Michael,
Well, little bro I really don‘t know what to tell you about what‘s going on around there. You‘re being strong and that‘s what matters right now.
You should use what you see to make you more motivated about where you want to go in life. You see the bad side of life, now aspire to be better than all of them and to know what you don‘t want to be in life. You are doing a great job with your grades, you keep it up, okay? I‘m proud of you boy always have been and always will be. Keep your eyes on your dreams and goals [?] and don‘t let anybody get you down. It‘s probably just jealousy, that you‘re going to do what none of them have done. You just ignore those idiots and do your thing. You watch out for those younger kids and do what you can to help them make it, always remember that momma would be very proud of you.
Michael are you still going to church? If you are pray that God helps you to be strong and for the rest of them pray God changes their hearts for the better. Because through Him all things are possible, if you only believe. Ask your pastor to pray with you about this and have faith that He will protect you and the other kids and He will bring the others to their knees before Him. You have all the answers you‘ll ever need in Him, you only have to ask of Him what you will.
Mike, you keep doing what you know is right and you‘ll never be in the wrong.
I‘m proud that you are my little brother and you‘re turning into a good man. I wish I could have been there to watch your transformation. You be good and keep doing what you‘re doing. Love you boy.
Your Brother,
Alfred B.
Court‘s Exhibit 4 is an undated birthday card. The card reads: “May God‘s blessings be extra sweet ... to make your special day complete! Happy Birthday.” The handwritten note reads: “Michael, Happy Birthday. I love you little brother. Your Bro, Alfred B.” The dates on Exhibits 2 and 3 reveal that they were written while Mitchell was on death row, after this Court affirmed his convictions and death sentence, before any federal habeas relief had been granted.Michael,
What‘s going on dude? nothing much down here, I‘m just chillin’ as always. I thought I‘d drop you a line to see what‘s going on with and to wish you a Happy Birthday.
I couldn‘t get a card and my lawyer was on vacation so I couldn‘t have her send you one, but all the same I love you boy and didn‘t want you thinking I forgot your Birthday. I hope it‘s a good one.
Well, since you don‘t write anymore I don‘t know how you‘re doing that much anymore. I hope you‘re staying out of trouble and remember I‘m always here if you need to vibe [?] or something, alright?
You take care and keep it real always with the Almighty. Alright? I love you and miss you lil brotha.
Your brotha,
Alfred B.
My family has been in disarray ever since my sister‘s death. My mother and father, still even 11 years later, still talk about it as though it happened yesterday. I remember asking my father what he wanted for Christmas the year after my sister was killed. His answer was, “What I want you can‘t give me. I want my daughter back.”
That hurt me in ways I cannot describe. I asked him the same question three years ago and got the same response. The answer hurt just as bad. I have watched my parents slip in and out of hopelessness and watched their health slip from them.
It should be noted that Mitchell has never challenged the propriety of these three persons testifying individually, since they are each members of the victim‘s immediate family.I don‘t think there is anything in the statute that limits it to only one person. I mean, certainly there comes a point in time when it might be limited, but under the - in this case we have a brother, a father, and a mother are the only planned victim impact witnesses.
And since we‘re up here, I object ... to him pointing at our client and then you overruled my objection and he took two steps further towards our client and pointed at him again, and he had anger in his voice, and we object to that kind of behavior. We don‘t think it‘s appropriate.
The trial court then told the prosecutor that he could proceed, and he did.212 The prosePROSECUTOR: She suffered after you sexually assaulted her. You can tell him this with your verdict, that she suffered when you took the golf club to her, she suffered when you took your fist to her, she suffered when you rolled her over and you stuck the compass in her neck one, two, three, four, five, six times, she suffered when you broke the golf club over her head, she suffered while she laid there pleading and screaming and crying.
DEFENSE COUNSEL: Your Honor, may I approach?
THE COURT: No. Your objection is overruled.
DEFENSE COUNSEL: I need to make a record.
THE COURT: This is closing argument.
DEFENSE COUNSEL: I need to make a record.
THE COURT: Approach.
(The following was said at the bench:)
THE COURT: Counsel, what you‘re doing is interrupting the flow. I have ruled on this objection three times.
DEFENSE COUNSEL: I would like the record to reflect he is yelling and pointing at our client.
THE COURT: This is closing argument. I know of no cases that you cannot point at a defendant, nor do I know of no cases that you cannot raise your voice. This is closing argument. Your objection is overruled.
DEFENSE COUNSEL: Move for a mistrial.
THE COURT: Overruled.