Mollett v. State

Lloyd MOLLETT, Appellant, Edward Oklahoma, Appellee.

STATE

No. F-95-214. Appeals

Court Criminal Oklahoma.

April 1997.

Rehearing Denied June

This rape case arises out and mur- Sedjati Sugeng. Sugeng der Sri Sri at Forty both lived North Apartments during the summer and fall time, During two became (cid:127) acquainted they somewhat both owned dogs Rottweiler and would sometimes talk to dogs. each other as walked the Ms. Sugeng from Indonesia and had moved Stillwater order attend Oklahoma University. State 22, 1993, evening On the of October Su- friends, geng Harjono and two of her Latina Soesanto, Erfin met at a local restaurant approximately p.m. 6:00 eating After din- ner, the went to trio the Carmike Cinema to Finding that they see movie. had missed movie, they plans the start of the made to a Sugeng Harjono see later show. drove and approximately at p.m. Soesanto home 8:00 approximately p.m., Harjono At 9:50 and Mattox, Indigent Debbie Oklahoma De- Sugeng’s apartment Soesanto went to after fense, Perrine, Norman, Robert G. for Defen- repeated attempts Sugeng by to reach tele- dant at trial. phone were unsuccessful. Thomas, Pauehnik, Beth Laura As- Austin Upon arriving Sugeng’s apartment at Har- Stillwater, Attorneys,

sistant District for the jono response and to Soesanto received no trial. State at pair their knocks. The heard the television apartment calling and the for entered Su- Edmondson, General, Attorney W.A. Drew quickly taking geng. Sugeng’s dog After for Humes, L. Attorney William Assistant Gen- walk, pair apartment. a the returned to the eral, City, Appellee appeal. for Oklahoma on Harjono Sugeng’s went into bathroom and Brown, Drummond, Cindy G. A. James Sugeng found face A down the bathtub. Appellate Counsel, Norman, Ap- Defense to call 911 was made while Soesanto adminis- pellant appeal. on Sugeng wearing tered CPR. a only jacket Attempts when she to was found. OPINION Sugeng by resuscitate and Soesanto ambu- JOHNSON, Judge: personnel lance were unsuccessful. Lloyd by jury Edward Mollett was tried a investigation A subsequent of the victim’s Payne County, the District Court of Case revealed, apartment among things, other two No. CRF-93-491 before the Honorable Don- living blood on the room stains floor. Near Worthington. Appellant ald L. was convict- cap those stains a blood baseball ed First Degree Aforethought Malice A subsequently which hairs were found. (Count I) Rape Murder in the First pair pink panties of torn were found near the (Count II). Degree finding After the exis- victim’s Bloodstains also bed. were found tence of two aggravating circumstances —the bed, near on Sugeng’s bed and near the heinous, “especially murder was atrocious or corner. cruel”; and the murder was committed prosecution lawful cap avoid arrest in the baseball found victim’s —the punishment set apartment Appellant, at death for the later murder and traced to who (75) seventy-five years imprisonment cap for the admitted the was his. The bloodstains in rape. The court living trial sentenced room were identified as blood accordingly. appeals. now of the victim. The on the stain bed con- arrest, Ap- the searches and the suppress victim blood of the

tained both the derived therefrom. Appellant’s semen was also pellant’s semen. taken vaginal on the swabs later detected purpose of a warrant “The medical examiner. judicial a officer assess allow neutral probable cause to police have whether Larry Balding, deputy a medical exam- Dr. Steag a search.” make an arrest or conduct body iner, the victim’s found examined U.S., 212, 101 ald v. S.Ct. cheek, bruises on her under contusions and Although an 68 L.Ed.2d lips. Balding also chin inner Dr. her search warrant both arrest warrant and a a contusion on the victim’s chest and noted determination, probable a cause involve injuries bruising hips. Both these on Steag differ. of the two warrants interest weight bearing on

were consistent with down aId, 212-13, 1648. 451 U.S. at 101 S.Ct. at just body. areas of the A laceration those may upon a An arrest warrant be issued vagina and a laceration outside victim’s showing probable cause exists to believe hymen vagina the area inside subject has commit that the warrant Balding discovered. Dr. testified were also 213, 101 an offense. Id. S.Ct. at ted injuries vaginal area to the were Thus, protect an the warrant serves to indi trauma. consistent with blunt force Id. seizure. vidual from unreasonable Injuries hand, may consistent with defensive wounds warrant search On the other hands, upon on victim’s wrists and showing probable were found cause issued addition, object on the victim’s legitimate forearms. marks that a search is believe throat, Id. This de conjunction petechial particular place. hemor- with located safeguards had stran- an individual’s inter rhaging, indicated victim been termination posses Lastly, privacy in the of his home and gled. the victim was found face down est unjustified by against an intrusion law lungs and trachea sions her bathtub and her enforcement. Id. with in a manner associated were filled fluid ulti- drowning. The medical examiner with case, the for both In the instant affidavits mately to concluded the cause of death be arrest and warrants utilized the the search drowning com- asphyxia from either or neck probable facts to cause same demonstrate pression. provided The information included existed. (1) following: Appellant that admitted the facts will be discussed in Other relevant apartment the hat found inside the victim’s propositions of error to which relate. (2) his; Appellant gave two differ- that apart- why of the hat was in the ent versions ISSUES RELATING TO (3) ment; Appellant stated he had never GUILT/INNOCENCE past entry way of the been the front door (4) apartment; that OSBI crimi- victim’s assignment his first Appellant contends in Mary Long that hair nalist determined found of that error resulted from the issuance error lying hat near on the and on wet towel of and execution search and arrest warrants. body was consistent with known victim’s 28, 1993, Judge Special On October Lois voluntarily by samples given to authorities signed Appel- an arrest warrant for Belden Appellant. to lant’s arrest and search warrants search Appellant’s apartment body and to obtain matching hair Appellant contends that one samples.1 Appellant body maintains the warrants his found on a towel near the was not by showing supported support magistrate’s proba- were not a sufficient of sufficient to probable Appellant Appellant is un- cause. further contends ble cause determination.2 significance derestimating of of the informa- he was denied effective assistance counsel provided Appellant’s in the by counsel’s failure to file a motion tion affidavits. defense Blood, samples. to issued. Our is limited the information hair saliva review presented magistrate at the time the war- testimony 2. This claim is based on Mel Kelt's were rants obtained. testimony trial. Mr. Hett’s was not available to magistrate at the time the warrants were (Okl.Cr. body. linger near hair was found the victim’s This v. 1976). Thus, physical linking Appellant hair is evidence probability fair existed that body the room which the victim’s items involved the crime would be found Moreover, presence Furthermore, of Appel- found. there. magistrate lant’s hair the victim’s bathroom is incon- provided with sufficient information con sistent with claim that he had blood, requested clude that the sali hair and beyond never been the victim’s front door. samples probative va would prose be in the gave interviewing Appellant also officer of Pyle cution the case. See explanations two different for how his hat 1390, 1391(Okl.Cr.1982).3 apartment. was found inside the victim’s Finally, Appellant contends he was denied may may While one of these factors alone effective assistance of counsel de- because cause, probable support finding not when fense suppress counsel failed to move combined, probability Appellant arrest, the searches and the ob- evidence committed the crime and that a search of his tained Appellant there from. has failed apartment may further uncover performance show that his counsel’s was defi- wrongdoing his becomes substantial. cient and that his performance prej- deficient question is not whether udiced the Washing- defense. Strickland v. information contained the affidavits was ton, 80 L.Ed.2d sufficient to convict in a court of (1984). Therefore, law, probable but whether cause existed for error fails. the issuance of the warrants. “The existence error, his second allegation of probable cause common is a sense stan by asserts he process was denied due the late requiring dard facts sufficient to warrant disclosure of critical hair evidence and the man of reasonable caution in the belief that expert overstatement testifying toas being an offense has or is committed.” Unit the reliability of hair evidence. Wicks, (10th ed States 995 F.2d further Cir.1993). maintains that hair evidence is unre- magistrate’s probable A finding of liable and should any allowed in case. given cause is to be great Gregg deference. objected Defense counsel testimony to the Upon review, Mary we find of Long, the informa one of the hair ex- State’s set perts, tion forth in the affidavits grounds report was sufficient on the that the she support magistrate’s to the findings proba of turned over to defense counsel was inaccu- ble for cause both the arrest and misleading. search rate and challenged report The regard warrants. With to the arrest war a pubic stated that hair found in the victim’s rant, vagina the above described scalp information was and a pubic hair found in the probable sufficient to establish combing cause that were not Caucasian hairs. Just be- testified, crime been Appel Long had committed and that fore defense counsel in- was lant was involved in the crime. Long See Shad that testify formed would she had ma- 345, City 350, v. Tampa, wick 407 croseopically compared U.S. 92 the hairs with the S.Ct. 32 L.Ed.2d 788 hair victim’s and determined were con- regard warrants, With to the search we find sistent. maintains this omission magistrate had a substantial basis for devastated his party defense that third concluding probable that raped cause existed. and murdered the victim. (Okl.Cr. State,

Lynch v. 909 equates P.2d 805 this omission to the circumstances 1995). person State, The residence of a McCarty arrested found in v. P.2d (Okl.Cr.1988). committing for place a crime is the natural We persuaded by are not this for concealing argument. of that evidence crime. Bol- Parr, distinguishable cites Cole 595 P.2d 1349 case is in that the information (Okl.Cr.1979) support during evidentiary of his contention be that which was to elicited showing probable hearing there was an insufficient already pre- discussed in Cole had been support compelling cause to judge by warrant him to sented to the means of the affidavits. blood, give present samples. Pyle, hair and saliva The See 645 P.2d at 1391. with the victim were consistent expert failed hairs McCarty, State’s hair incriminatory exculpatory. Con- report until neither examination and complete her appeal, on this trary Appellant’s assertions that was sched- for a trial

Friday, March his defense. did not devastate Monday, March 17. The evidence begin on uled to provided with be requested had he defendant fiber, (hair, reports and technical Long

all scientific Ms. Appellant next contends samples). serology that so fingerprint, and reliability A of hair evidence. overstated the independently evaluated his they could be Long prop record reflects Ms. of the review expert expert. The did own defense’s of hair erly the limitations testified about report hair and forensic slides receive evidence. Crawford result, As day of trial. (Okl.Cr.1992). until the first posi Long testified that deprived opportunity defendant of an individual cannot tive identification by an examined critical hair evidence have accomplished by alone. On hair evidence expert. The error was forensic independent cross-examination, agreed “you Long can by a omission compounded hair, critical further person saying identify a with a never report report. reflected the forensic The specific absolutely per to a belongs that it pubic found on the hairs that none say Long that would “[w]e son.” Ms. added with the defendant. victim consistent were with the known hairs thát it’s consistent However, expert admitted at trial State’s person.” that report include in she had failed to that to find that Appellant also asks this Court hair on the pubic found her conclusion that inherently unre- comparison evidence is hair the defen- consistent with that of victim was consistently rejected This has liable. Court dant. P.2d Salazar v. argument. case, the defense nev In the (Okl.Cr.1993); Driskell hair be submitted requested er evidence need not We expert independent examina to a defense again. this issue address Furthermore, no there is tion. third Appellant submits his evidence and re Long’s examination of the insufficient minute.4 Nor of error that evidence was port at the last were done mur support degree his for first Long convictions appear from the record Ms. does it rape. degree Appellant argues coun der first speak with defense was unavailable pres he failed to show that was prior to trial in the evidence investigators defense sel or or that clarify findings. ent at the time the crimes occurred verify order to and/or actually committed person who McCarty, information which he was Finally, unlike solely relied the crimes. Because the State incriminating nature was not withheld prove Appel evidence to report simply upon circumstantial Appellant. from indicated Appellant raped Sugeng, murdered question not Cau lant and the two hairs were that every must the evidence exclude was Indonesian. Her contends casian. The victim except guilt. Hill v. Mongoloid hypothesis reasonable of a classification. hair would be (Okl.Cr.1995). State, 155, were 898 P.2d Consequently, finding that the hairs trial, However, Appellant testified at the possibili because eliminate the not Caucasian did not argues the of review estab State standard ty hairs were hers. While it would that the State, 202, 203 Spuehler 709 P.2d had the lished helpful to the defense have been State, (Okl.Cr.1985)5 Mayes applicable. Appel is with either hairs not been consistent cert, victim, de- testimony 887 P.2d Long’s lant or the Ms. beyond apply- Long's report copy crime a reasonable doubt. When Ms. 4. counsel's Defense test, Appellant’s only trial ing dated March 1994. view was began the Court will not the this January Slate, on 1995. light the in the most favorable to evidence accept will all reasonable inferences but also Spuehler, to the standard of review 5. Pursuant credibility support jury’s to the choices that tend whether, sufficiency is of evidence claims for verdict. Williams viewing light the fa- the evidence in most after State, any rational trier of fact vorable elements of the have found the essential could nied, cheek, lips 131 on her inner under her chin. There was L.Ed.2d a contusion on her chest and injuries bruising hips, on her both being con- Mayes The at trial. defendant testified weight bearing sistent with down on those only appeal, Court that not On this concluded body. just areas of the She had laceration considered, must be the State’s evidence but vagina vagina outside her and one inside her presented by the evidence the defendant hymen. injuries near the area must also be taken into consideration when vaginal area were consistent with blunt determining whether sufficient evidence was addition, injuries force trauma. In consis- presented to convict. The defendant tent with defensive wounds on were found Mayes not claim to at did be hands, the victim’s wrists and forearms. but, instead, time of murder asserted somebody “I wasn’t else did it” de there — Appellant’s cap baseball found if fense. The Court rationalized that Appellant’s living room. semen was found on story defendant’s was true there was no need vaginal victim, from swabs taken and a test, applying and the defendant on the stain victim’s bed contained both the should be If the exonerated. defendant’s Appellant’s victim’s blood semen. Hairs story was false then the circumstantial evi Appellant’s consistent with also were found dence was not consistent with innocence and Finally, Appellant at crime scene. excluding every could be viewed reason forthright than less with law enforcement hypothesis Mayes, guilt. able other than concerning officials his contact with the vic- at P.2d initially tim before her death. past stated that he had never been the front However, Hill, entry way apartment. door of the victim’s employed hypothe this Court the reasonable test on sis when the State relied circumstan The above described evidence is more than prove though tial its evidence to case even support Appellant’s rape sufficient to the defendant had In taken the stand. murder convictions. The nature of violent (Okl.Cr. McCarty v. the sexual encounter vic- combined with the 1995), similarly employed Court the rea subsequent tim’s murder would allow a hypothesis sonable test when the evi State’s to find that did not have consensu- dence was circumstantial and the defendant al intercourse with the victim and that he police had made statements and third killed with aforethought.7 malice Thus, parties. appears it unless de testimony fendant’s includes actual direct ev error, fourth his crime,6 hypothe idence of reasonable Appellant submits the trial court erred when applied sis test should when the State’s permitted it the State to introduce Latina solely ease circumstantial. Harjono’s preliminary hearing testimony at testimony. As the State’s case of cir trial in lieu prior consisted of live Before testimony may cumstantial evidence and testi be admitted into evidence the mony evidence, court, direct the reasonable with the discretion of the trial hypothesis applied satisfy standard should be in this requirements: must two threshold standard, “(1) Applying unavailability ease. we find [t]he there actual of the witness despite good was sufficient diligent convict faith and efforts charged. trial; of the crimes presence The victim was found of secure the witness at and, (2) by rape shortly transcript friends after and murder of the witness’ testi mony occurred. in reliability The victim was face down a bears sufficient indicia raped satisfactory bathtub. She had been and then ei to afford the trier of fact a basis strangled evaluating prior ther or drowned. She bruises for truth of had testimo- points design 6. "Direct evidence is that which immedi 7. "A to effect death is inferred from the issue, which, ately question to the at and if be killing, fact of unless the a circumstances raise lieved, proves the existence the fact in issue design whether reasonable doubt such existed.” presumption Mayes, without 887 O.S.1991, inference § 21 added). (emphasis at P.2d 1301 10 Since preliminary hearing. Ms. her at (quoting ine 904 P.2d at 128

ny.” McCarty, (Okl.Cr testify to Harjono was the first witness called State, 271 Smith hearing, Appellant contends .1976)).. preliminary instant case at submits satisfy not have the benefit of either thresh counsel did failed to defense that the State during testimony to use requirement. old other witnesses’ cross-examination. upon Simpson v. Relying (Okl.Cr.1989) Holmes v. 712-13 assertion, P.2d Contrary Appellant’s we find (Okl.Cr.1972), 830, 832-33 opportunity to cross- ample Appellant had State failed to first contends the Furthermore, Harjono. Harjo- examine Ms. Harjono’s Ms. diligence to secure use due given under circum testimony was no’s disagree. In both presence at trial. We closely approximated those of which stances Holmes, expended no Simpson and State testimony was made typical a trial. Her at attendance to secure the witnesses’ effort truth-inducing courtroom in a under oath and subpoena. beyond issuance a trial State, 882 P.2d atmosphere. Howell v. See is the case here. — not Such denied, (Okl.Cr.1994), cert. —, 131 L.Ed.2d 858 115 S.Ct. Harjono OHahoma U.S. was a senior at Ms. (1995). Appellant has failed to demonstrate Information University at the time the State it discretion when the trial court abused its originally trial was scheduled filed. The 20, 1994, hearing Harjono permitted Harjono’s preliminary and Ms. Ms. for June testimony to into This appear on that date.8 be read subpoenaed When evidence. subsequently rescheduled for of error fails. trial was 9, 1995, January issued new sub- the State assign in his fifth claims that the State

poenas. It was this time per law enforcement Harjono county. ment of error Ms. had left discovered adequately preserve Thereafter, Payne County failed from the sonnel deputies attempted Appellant submits law prosecutor examine evidence. and the Sheriffs Office ineptness personnel’s Based and total Harjono, without success. enforcement to locate Harjono adequate an in disregard conducting had moved to for on information that Covina, California, prosecutor con- bad faith vestigation tantamount de Los in that agency exculpatory enforcement area. potentially tacted law nial of evidence. friends of Har- prosecutor Youngblood, also contacted disagree. The Arizona v. We prose- 333, 334, jono attempt locate her. The 109 S.Ct. separate two occasions (1988), advised on cutor was States the United Su L.Ed.2d Harjono Harjono gone friends preme that “unless criminal Court held had not know where she moved. part did faith on the defendant can show bad potentially preserve failure to police, may not have exhaust- Although the State a denial does not constitute useful evidence every possible locating Ms. ed avenue Hogan process of law.” See also of due Harjono,9 this fact alone does not foreclose attempts to secure finding that the State’s — denied, U.S.—, cert. diligent Harjono were and conducted Ms. (1995). Appellant has L.Ed.2d McCarty, 904 P.2d at 128. good faith. See that law enforcement failed to demonstrate Har- Appellant asserts next that Ms. faith case. acted bad hearing testimony jono’s preliminary failed to assignment of error This fails. reliability necessary to the standards of meet error, Appellant assignment of with In his sixth permit use in accordance the Sixth its admitting trial court erred process. Appellant contends the and due Amendment over de- photographs of his chest wrist Harjono’s testimony a suf Ms. lacks submits objections. photographs reliability he because fense counsel’s ficient indicia of did Appellant custody. while was adequate opportunity to were taken have an cross-exam- brief, tracking op- Appellant Harjono list several indicating 9. In his service Ms. 8. The return of 17, May should have utilized. subpoena tions he believes the State was dated 1994. received the

11 Woolverton, They were without his consent a obtained or 859 P.2d at 1116. Consequently, result, Appellant assignment a main- search warrant. As of error fails. photographs

tains the were taken violation ISSUES RELATING TO SENTENCING of his Fourth and Fourteenth Amendment STAGE rights. During deliberations, sentencing stage the Appellant custody was taken into on Octo- jury sent out a note which if asked life 28, 1993, pursuant ber to an arrest warrant. parole without given, was “any was there transported He was then to Stillwater Medi- possibility of leaving pris- Mr. Mollett’s ever hair, cal Center where blood and saliva sam- any on for reason The judge whatsoever?” ples pursuant were taken valid search jurors parole advised the of matters

warrants. The photographs contested were purview beyond were of jury or the day county jail by the next taken court to consider. In his seventh Randy Officer challenged Dickerson. The error, Appellant of contends the trial court’s photographs of Appellant’s were wrist and response improper and constituted er- chest. ror. There are two different levels on which jury Although may logically a con may Fourth be Amendment violated when possibility sider the parole or of absence obtaining physical person: evidence from (1) determining capital the sentence a murder person the seizure of the necessary to receive, defendant is to require there is no bring him into contact with government (2) judge ment for a to explain trial agents; Okla subsequent for search parole process homa a jury. Mayes, 887 and seizure the evidence. v. Woolverton P.2d at 1318. Multi-County See also McCracken v. Jury, Grand 859 P.2d (Okl.Cr.1993). (Okl.Cr.1994), 334 cert. de The first level of Fourth —nied, —, U.S. analysis S.Ct. Amendment is not violated in the (1995); McGregor L.Ed.2d 108 probable ease cause to arrest already con “[T]he had been established when cept parole sufficiently clear to enable the arrest warrant was obtained. any juror rational to understand it without analysis, to the second level of we As explaining Mayes, it further.” 887 P.2d at photographs Appellant’s find the taken of Consequently, 1318. we find no error. wrist and chest did not constitute search Appellant further submits the trial contemplated by seizure as and/or court improperly require failed to follow the Fourth or Amendment Oklahoma Constitu O.S.1991, 894, provides: § ments of which A person’s tion. wrist and chest are areas jury After the have retired delibera- readily public especial that are to the visible tion, disagreement if be there between ly a jail/prison environment. any part testimony them as to or if undoubtedly wrist and chest were visible they point desire to be on a informed processed when into the coun cause, arising law they require must ty jail Furthermore, his after arrest.10 the officer to conduct them into court. photographing of these areas did not involve court, Upon being brought their into into body personal priva intrusion or required information given must cy Appellant, probing nor it did involve of, presence or after notice the district Appellant’s private into life thoughts. attorney counsel, or defendant his Dionisio, 1, 15,

See United States after have been called. 35 L.Ed.2d 67 See Harjo also purpose 1073 The “prevent of Section 894 is to — denied, —, cert. being U.S. communications from made to the (1995); parties being present S.Ct. 131 L.Ed.2d 1007 protect without the assertion, Therefore, Contrary Appellant's State's Ex- taken. his wrist was visible for all to wearing hibit indicates that see. jumper photographs short sleeved when the were im- tionally, psychologically, physically and their Smallwood interests.” denied, — victim’s immediate pacted on members of the (Okl.Cr.1995), cert. P.2d family.” —, 136 L.Ed.2d 330 117 S.Ct. U.S. (1996). case, present the trial court’s In the case, present the victim’s sis In the knowledge imparted response no additional ter, Surjanti Sugeng, read statement Sri jury. The trial court in to the or instruction and prepared on behalf of herself that she question. jury’s refused to answer the effect sister, Kaki. She also read younger error, Therefore, if as no any, was harmless by her prepared mother. statement jury’s question was answer to the substantive and demonstrated how statements were brief Smallwood, 907 at 237-38.11 given. P.2d See emotionally psycholog and victim’s death family immediate error, ically the victim’s effected Appel- eighth

In his Cargle, 909 at 828. members. See impact evi- of victim lant submits the use Thus, impact victim evidence we find the proceeding sentencing violated dence at his presented falls within the nature below Eighth Fourteenth rights under the and his contemplated the Oklahoma evidence con- Appellant specifically Amendments. Legislature. (1) fell impact victim evidence tends: (2) statutory guidelines; the tes- outside Appellant contends next that the solely timony improperly on the emo- focused impact improperly focused victim evidence (3) crime; impact victim impact tional impact of the vic solely on the emotional unconstitutionally an functions as evidence murder, to the exclusion other fac tim’s superaggravator; vague and overbroad argues statutorily permitted. Appellant tors (4) jury instruct the trial court failed to at issue exceeded the that the statements give that were legal on the effect personal “quick glimpse” of the victim’s impact evidence. victim by this Court characteristics condoned “(V]ictim contention, disagree. impact first find evi Cargle. As to we We presented appropriate personal vic- characteristics relating the evidence to the dence O.S.Supp.1983, impact impact and the emotional tim evidence. Title of the victim provides: family § on relevant the crime the victim’s capital of Oklahoma’s sentenc consideration impact means infor- statements” “Victim juries.” ing Parker financial, emotional, psy- about the mation — denied, (Okl.Cr.1996), cert. U.S. chological, of a violent physical effects —, 777, 136 L.Ed.2d 721 victim members of their crime on each impact victim statements Although the family, person designated by immediate pos every on the instant case did touch by family members of the the victim or the victim’s death sible manner which information about the victim and includes survivors, the state may have affected the victim, surrounding the circumstances present proper information re ments did crime, crime the manner in which the uniqueness of the victim and the garding opinion of a perpetrated, and the victim’s way her death her immediate fami affected sentence. recommended ly. allegation This fails. Cargle — U.S.—, impact denied, next that victim submits rt. S.Ct. ce irrelevant, (1996), improper, operates Court con 136 L.Ed.2d 54 this nonstatutory “superaggravator” will al- impact evidence should cluded “victim capital every Con- ways be case. unique restricted to those characteristics died, such evidence sequently, Appellant has submits which define the individual who penalty narrowing function death contemporaneous prospective negates circum death, This procedures required provide. surrounding that and how are stances rejected financially, Cargle, was addressed and circumstances have emo- issue those Appellant additionally as no true communication with contends the State lion fails provide presented Court failed a sufficient record is sufficient for occurred. The record mandatory pursu its review to conduct sentence appellate review. § O.S.Supp.1991, 701.13. This conten- ant to 21

13 State, persuaded (Okl. Citing at 826. are not 909 P.2d We Barnett v. 853 P.2d 226 Cr.1993), at again Appellant revisit this issue this time. further contends the rape separate predicate was not a crime as Appellant jury contends the instruc accomplish rape the force the used to was a impact tions failed to address victim evidence significant contributing of cause the victim’s Thus, sentencing in place or its the decision. death, separate not a crime itself. We Appellant jury submits the was left to its disagree. The victim’s death was not the own, unguided discretion to factor victim im proximate rape. direct and the result of The pact equation. Appellant the evidence into Appellant evidence raped demonstrates the request or directing failed to an instruction victim then strangled and drowned her. The limiting impact the use of victim evidence. rape separate awas distinct and crime from Thus, plain he has waived all but error. the murder. Upon jury review of the instructions as a unit, Appellant fairly next submits that the we find the instructions and accu “espe Thus, prove evidence was insufficient to the rately applicable stated the law. this heinous, cially atrocious or cruel” proposition aggrava fails. error ting aggravating circumstance. This circum Appellant contends his ninth is stance limited to those eases which presented that error the State beyond a proves State reasonable doubt that support finding insufficient evidence “preceded by the murder was torture or that murder for pur was committed abuse, physical may serious which include pose avoiding prosecution. lawful arrest or great the infliction physical anguish of either support finding aggravating “To a of this State, cruelty.” Cheney or extreme mental prove circumstance the State must defen 909 P.2d appeal, On prose dant killed order to avoid arrest or the standard of is review “whether there was State, cution.” Powell v. 906 P.2d 781 any competent support evidence to — (Okl.Cr.1995), denied, —, cert. U.S. charge aggravating State’s that the circum (1996). 116 S.Ct. 134 L.Ed.2d 560 Bryson stance existed.” 876 P.2d proof defendant’s intent critical (Okl.Cr.1994), denied, to this 240, 259 cert.

can be inferred from circumstantial (1995). evidence. 115 S.Ct. L.Ed.2d (Okl.Cr. Romano 909 P.2d — Sufficient evidence in exists 1995), denied, U.S.—, cert. support finding stant case to that the vic (1996); Powell, 136 L.Ed.2d 96 physical tim suffered abuse. The serious 781;

at Cannon v. — raped victim was beaten while she was denied, —, cert. U.S. medical conscious. The examiner testified 1272, 134 116 S.Ct. L.Ed.2d 219 Fur body that the victim’s bore bruises and con thermore, crime, predicate there be a must face, chest, lips, on tusions her inner murder, separate from the for which the addition, hips. laceration was found prosecu defendant seeks to avoid arrest or which vagina profusely the victim’s bled at Romano, 119; Powell, tion. 909 P.2d at the result blunt scene force 781; Cannon, P.2d at P.2d at Although trauma. examiner medical case, say In the certainty sufficient evi with that the could lacera any vagina dence exists to exclude hy reasonable tion to the victim’s occurred while she pothesis except Appellant conscious, sup murdered the was evidence at the scene prosecution ported decedent to or avoid arrest a conclusion that such was the case. underlying rape. As A stain testified blood on the bed contained both trial, Appellant and the victim were ac blood of the victim and the semen of the such, Furthermore, quaintances. Appellant. As the victim would victim de have had wrist, easily identify hands, been able to as her fensive wounds on and fore alone, unlikely attacker. From victim ration arm. It is would al could find killed the victim have these wounds had she been sustained rape. to avoid arrest for the rendered unconscious. which those instances of death supports finding application further

The evidence physical preceded tor- are torture serious extreme mental that the victim suffered time, repeatedly with the this we have attack culminated abuse. Since ture. The brutal sufficiently Al- narrowed the class strangled in her bathtub. held that this being victim the circumstance can be medical examiner could deter- of murders to which though the State, 537, strangu- result of 896 P.2d 555 applied. she died as a See Neill v. mine whether — —, denied, may (Okl.Cr.1994), it have drowning, or he testified cert. U.S. lation (1996); 791, Long four minutes for the victim to taken over 133 L.Ed.2d 740 116 S.Ct. (Okl.Cr.1994), 167, 174 of the State, lost consciousness as result have v. P.2d cert. 883 Thus, denied, 1068, 1702, the victim’s death choke hold. 115 131 514 U.S. S.Ct. State, clearly (1995); not instantaneous. Revilla v. 877 L.Ed.2d 564 (Okl.Cr.1994), 1143, cert. de P.2d 1154-55 was sufficient demonstrate The evidence 764, nied, 1096, 130 115 S.Ct. 513 U.S. physical abuse and mental tor- both serious State, (1995); v. 661 846 L.Ed.2d allegation of error Consequently, ture. this Woodruff denied, (OkI.Cr.1993), 1124, 1146 cert. P.2d fails. 349, 934, 114 126 L.Ed.2d 313 510 U.S. S.Ct. error, allegation of In his eleventh (1993). error asserts reversible resulted jury in was sufficient- The case “physical” the word was omitted because ly regarding of the instructed the definition torture phrase from the “conscious of the phrase “especially atrocious or cru- heinous physical jury victim or abuse” serious Thus, jury’s properly el.” discretion heinous, phrase “especially instructions. The aggravating in how to construe the channeled atrocious, by cruel” was defined the trial or circumstance. Stage No. 48. court Second Instruction error, (O.R.443) Ap assignment In of The instruction was identified as his thirteenth pellant 436 submits that errors the second OUJI-CR 436. OUJI-CR defines the heinous, atrocious, of stage jury instructions denied him his phrase “especially or cru Eighth rights under and Fourteenth el” to be those crimes where the “directed process preceded by to due and a reliable victim was torture Amendments death proceeding. Appellant physical Ap sentencing first con of the victim or serious abuse.” re pellant the trial court’s instructions submits omission of the word tends that jury “physical” proof garding the manner which the lowered the standard of mitigating circum fatally weigh aggravating the instruction the State and rendered disagree. improper set forth an burden of phrase “seri stances defective. We has proof. allegation as com This same error ous abuse” used in this context is rejected by monly interpreted referring physical repeatedly been this Court. See State, (Okl.Cr.), State, 268, 959, Rogers 977 v. P.2d 278-79 v. 890 P.2d abuse. Richie 908 — — denied, 312, 133 U.S.—, (Okl.Cr.1995), denied, —, 116 S.Ct. cert. U.S. cert. (1996). 111, (1995); McGregor, 215 885 117 136 64 Fur L.Ed.2d P.2d S.Ct. L.Ed.2d State, 1186, thermore, case, 1384; v. P.2d 1206 under the facts of this there Mitchell 884 — denied, —, (Okl.Cr.1994), cert. U.S. was sufficient evidence of both conscious Thus, 95, (1995); physical 116 133 L.Ed.2d 50 Paxton mental torture abuse. S.Ct. (Okl.Cr.1993), error, State, 1309, v. 867 P.2d 1327 any, if was harmless. denied, 227, 513 U.S. 115 S.Ct. 130 cert. in his Appellant further contends twelfth State, (1994); v. 153 Trice L.Ed.2d “especially hei error that the denied, (Okl.Cr.), 510 U.S. 215 cert. nous, aggravator or cruel” is still atrocious 638, 126 114 S.Ct. L.Ed.2d being applied and reviewed Court again. We do so here unconstitutional manner. Stouffer (Okl.Cr.1987), giv- the instructions cert. next asserts P.2d denied, jury mitigating circum- regarding S.Ct. 98 en to the (1988), permissive rather this Court narrowed the stances were worded L.Ed.2d heinous, mandatory language, jury thus the interpretation “especially than limiting completely ignore mitigating eircum- aggravator by atrocious cruel” its could (2) factor, arbitrary if chose to so. We have evi- stances do whether rejected argument. repeatedly supports jury’s this same finding aggrava- dence (Okl.Cr.1995), ting LaFevers circumstances. — U.S.—, denied, rt. 116 S.Ct. ce record, Upon say review of the we cannot 820, 133 (1996); L.Ed.2d 763 Walker imposed sentence of death was 301, 322 cert. de by passion, because the was influenced —nied, —, U.S. 133 prejudice or any arbitrary factor con- other (1995); Mayes, L.Ed.2d 108 887 P.2d at 701.13(C). trary to Section The evidence 262; Paxton, 1319-20; Bryson, at 876 P.2d supports jury’s finding further of two State, 1326; 867 P.2d at Pickens v. 850 P.2d aggravating circumstances —the murder was 328, (Okl.Cr.1993), denied, 339 cert. 510 U.S. heinous, “especially atrocious or cruel” and (1994). 232 114 S.Ct. 127 L.Ed.2d to murder was committed avoid lawful again. need not this We address issue prosecution. or arrest The evidence in this trial further contends the court case clear. jury erred when it failed to instruct the that Therefore, carefully reviewing after they impose a life they could sentence even if record, we find the sentence of be death to an aggravating found that circumstance ex factually appropriate. substantiated consistently This ists. contention has been Finding warranting no error reversal or LaFevers, rejected by this Court. 897 P.2d modification, Judgment and Sentence of 557; 308-9; Neill, Rogers, at 896 P.2d at Payne County the District Court of is AF- State, 978; P.2d at Robedeaux v. 866 P.2d FIRMED. (Okl.Cr.1993), denied, 417, 435 cert. 115 S.Ct. 130 L.Ed.2d 57 CHAPEL, P.J., LUMPKIN, J., concur again.

doWe so in result. Finally, Appellant jury asserts instruc STRUBHAR, V.P.J., joins in improperly CHAPEL’s jury tions failed to inform the concurs in result. finding mitigating their circumstances not have be did to unanimous. We have also LANE, J., part/dissents part. concurs in rejected previously con addressed and this LaFevers, 309-10; tention. Scott CHAPEL, Presiding Judge, concurring State, v. 891 P.2d result: — denied, U.S.—, 784, 133 cert. affirming judgment I concur in (1996); 978; Rogers, L.Ed.2d 735 890 P.2d at However, in this case. as I have sentence (Okl.Cr. State, Stiles v. 829 P.2d before, I provide said believe we should 1992). again. We not address this issue need meaningful questions answer to from the ask, do, they they when often about CUMULATIVE ERROR REVIEW meaning parole. of life without See error, proposition In his final (Okl. Smallwood 907 P.2d asks this Court to consider cumulative Cr.1995) V.P.J., (Chapel, Specially Concur alleged grant effect errors and relief ring). I am authorized to state that Vice not, if even the individual errors do in them joins Presiding Judge RETA STRUBHAR selves, justify such action. As oc no error opinion. this require which curred would reversal or modi case, proposition fication of this of error LUMPKIN, Judge, concurring in result: is denied. Shelton agree I convictions and sepa-

sentences I should affirmed. write rately agree I do because with the stan- MANDATORY SENTENCE REVIEW dard review the Court uses here to deter- O.S.1991, In accordance with 21 sufficiency mine of the evidence. 701.13(C), (1) § we must determine whether imposed previously my the sentence of death was I under the have stated belief this passion, prejudice, any adopt influence of Spuehler-type or other Court should a unified goes great to My point opinion is this: the sufficiency of the evaluating the approach to cases, to they attempting to lengths contain differentiate cases in all whether evidence evidence, interpret kind of evidence is circumstantial what direct and both that, case; entirely which test having circumstantial decided whether contain if that evidence See should be used determine evidence. White J., (Okl.Cr.1995) (Lumpkin, specially concur- better left is sufficient. That is exercise adopted case re-urge that here because this If a unified ring). I this Court scholars. ap- why a unified prime example sufficiency presents approach examining more concise. evidence, solely clearer and proach would be on the issue it could focus whether there was should be before it: which showing opinion goes great lengths any rationale trier of sufficient evidence for why it use the should its rationale as beyond a reasonable doubt fact to conclude in this instance. hypothesis test reasonable each element of that a defendant committed agree Unfortunately, does not a crime. opinion’s categorization. with the testified in Appellant took the stand and point. minor In address- There another had met the He testified that he ing Appellant’s complaint his behalf. that search war- before, they issued, sexual- and that had been opinion victim improperly rants were past. night in The the victim ly magistrate intimate a “had sub- concludes killed, apartment. in victim’s probable he was concluding stantial basis start- They kissing, “things and when interpret started I the “substantial cause existed.” bedroom, just escalating” they went to being saying ed as language as the same basis” completely they got both undressed presented where information the affidavit sufficient lying intercourse while and had consensual probable to establish cause. Appellant the bed. said he on corner of I Accordingly, concur in result. also

ejaculated in the victim. He said he may on her the victim have been believed LANE, Judge, concurring explain this evidence to period. He offered part/dissenting part. along why was found with the his semen they After had victim’s blood on bed. affirming judgment in this I concur intercourse, man finished of Indonesian case, affirming but the sentence. dissent ap- nationality apartment. He entered the impact in this victim evidence offered knife, had peared angry at the victim and of a statement sister of the case consisted jabbed Appellant, cutting which he her gave deceased on behalf of herself and arm, drawing him on the chest and by prepared younger sister and a statement he tried calm the blood. said younger her and the mother. The mother down, doing man but was unsuccessful so. testify. Their statements are sister did not upset. victim He also noticed that the seemed authorized title section which talking to the intruder heard my only type opinion authorizes state second man. When the intruder resumed given judge at the time ment to be pushed arguing with the victim pronounced. It is not formal sentence is floor, left, believing that jury. given authorized to be to the addi if things work out he were not others could tion, youn the statements of the mother there. subject ger to cross-examina sister were not certainly See, special This is direct evidence as my tion. vote Charm rape; theory was that he the state’s prosecution rape, to avoid for that

killed her to the murder.

it be direct evidence as should version,

If the believed murder, guilty him as he

would not find no kill the

would have reason to victim and

he was not when the murder was

committed.

Case Details

Case Name: Mollett v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 30, 1997

Citation: 939 P.2d 1

Docket Number: F-95-214

Court Abbreviation: Okla. Crim. App.