*1 MOSS, Appellant, Lisa Rae Oklahoma, Appellee.
STATE of F-91-347.
No. Appeals of Oklahoma. of Criminal
Court 22, 1994.
Dec. *4 Peterson, Atty.,
William N. Dist. Chris Wewoka, Ross, Atty., Asst. Dist. for the State, at trial. Ada, Ward, Jr.,
W.B. for defendant at trial. Sutton, Isaacs, A. B. Garvin Wendell Okla- City, appellant, appeal. homa for on Gen., Loving, Atty. Brimer Susan Jennifer Miller, Gen., Atty. City, B. Asst. Oklahoma appellee, appeal. OPINION JOHNSON, Presiding Judge: Vice Moss, Appellant, charged by Rae Lisa Information in the District of Seminole Court County, No. with the Case CRF-90-33 Degree crimes of for First Mur- Solicitation § 21 O.S.Supp.1989, 701.16 der violation (Counts II), Conspiracy I and Commit Degree of 21 First Murder violation O.S. III) (Count 1981, § First O.S.Supp.1989, of 21 Murder violation 701.7(A) (Count IV). jury § A trial was held Melson, R. Dis- before Honorable Gordon Chauncey testimony at trial was upon Cravens’ Judge. II was dismissed triet Count conveyed Agent Larsh. essentially verdict. he motion for directed what counsel’s defense the re- him re- Appellant guilty of solicited jury found He testified at punishment maining garding “getting three counts and set rid of’ the deceased (10) years imprison- imprisonment, paid ten him as an initial life $500.00 $25,000.00 imprison- willing fine and life telling ment and a that she was payment, respectively. $20,000 The trial parole, $15,000 ment without dollars pay between accordingly. From this judge sentenced policy for someone to from a life insurance Sentence, per- Appellant has Judgement and “get rid of’ the deceased. appeal. fected this Agent interviewed Subsequently, Larsh Appel- he testified that Appellant. At FACTS phys- that the deceased had been lant related 17, 1990, 5:00 January approximately at On ically on some occasions. She denied abusive p.m., Hunter Mixon and Officer o’clock Chief having anything to do with the deceased’s Mackey City of Po- Tommy Seminole interview, Appel- after Later death. telephone call Department, a lice received taped recorded conversa- lant learned of Appellant reporting burglary from Cravens, Ap- and Mr. tions between herself arrival, Upon Mixon heard home. Chief Mr. that she had asked pellant admitted *5 Appellant hysterical lady He found scream. help “get to her rid of’ the de- Craven’s telephone. Mixon holding the As Chief and that she had ceased. She also admitted residence, Ap- of the Appellant escorted out anyone Marquis Mr. if he knew who asked a kept repeating, “He’s back there.” pellant “get Appellant the deceased. would rid of’ officers, Major Dex- Meanwhile two other days prior the or to related that four five Herdlitchka, had Davis and Lieutenant tor murder, spoken with her she had deceased’s Mackey responded to the call. Officer also brother, Wright, “getting about rid Richard Lanny Mike Moss’ Lt. Herdlitchka found and time, Mr. At that she told of’ the deceased. of the body lying in the southeast bedroom gun and his Wright about the deceased’s residence, pulled out where drawers were murder, day Mr. daily routine. The after the everywhere. The papers were thrown and it. that he had taken care of Wright told her of the residence were undis- other rooms Appellant Agent asked to wear Larsh pro- arrived and paramedics The turbed. Appellant speak Wright. Mr. tape and dead. This was con- nounced Mr. Moss infor- by Agent informed Larsh was Davis, George who arrived firmed Dr. might further incriminate obtained mation body shortly Subsequently, the thereafter. tape. agreed to wear the Appellant her. of the Chief Medical was sent to the Office Later, pled guilty to First Wright Richard by Dr. it was determined Examiner where Conspiracy to Commit Degree Murder and had two Larry Balding that the deceased was Appellant Murder.1 First to the head. The wound gunshot wounds Wright. Mr. co-conspirator with charged as a the long range to the left back of inflicted at wound inflicted first. The other head was Wright’s law common At Richard range just inflicted at short below wife,. that on Patty Loftis-Wright, testified ear. left approximately 12:30 day murder at Wright’s and Mr. week, p.m., Appellant came to her Agent Larsh re- K.P. Later that Wright Appellant and Mr. went home. anonymous' phone call that a ceived for about 30-45 room and talked might informa- another Chauncey have some Cravens left, Wright Mr. Agent minutes. After regarding the deceased’s death. tion upset. When Mrs. and became nervous Mr. Cravens. After Larsh interviewed wrong, Mr. Wright inquired as to what was interview, Agent Larsh had Mr. Cravens him to Appellant wanted Wright related that Appellant. tape his conversations with record Certiorari, C-91-566 on in Case No. nied this Court Wright’s Writ of 1. Mr. Petition for denying Ap- August his appealing trial court’s order guilty pleas, plication was de- withdraw his ly apprise he must be day. the defendant of what get Mr. Later rid of Moss Additionally, the Wright put gloves cap prepared his to meet at trial. day, Mr. on further whether a him off close to the trial court must determine drop her to and asked the Information would ex- vicinity home. She did and conviction under of the deceased’s Later, possibility pose her asked defendant sub- Wright Mr. called left. Doyle’s Quick Stop. being put jeopardy pick up sequently second her to at See Davis car, got into time Shortly Wright after Mr. her for the same offense. 80-81, up. Wright got pages we stated that this must Appellant drove Mr. out of where practical rath- Wright’s ear into car. be determined on basis of Mrs. Wright’s and that hair arrived residence er than considerations cars at the technical Both later. avoided. splitting five minutes When be approximately if Wright asked Mr. he had Mrs. judice, the Information did the case sub it, gun, he handed which she hid done her apprise Appellant of what she had to be the water bed.2 under Further, prepared meet. a conviction un- subject later der the Information would not error, Ap first proposition In her litigation to further under the pellant I of the asserts Count Informa Thus, pre- same offense. the Information charging Solicitation for Murder in the tion the Davis guide- sented was sufficient under fatally Degree was defective for omit First proposition lines. merit. is without ting the essential element of “intent that the be relies on murder committed.”3 Next, Appellant that the trial asserts (1981), which instructs that OUJI-CR denying court its discretion her abused of Solicitation to Commit First the elements continuance, filed motion which was (2) (1) soliciting; are anoth Degree Murder September days prior three to trial. (3) er; to kill a human an act of murder in for said motion was that trial basis *6 (4) degree; intent first with the that the the practitioner, having attorney, a solo received (5) committed; be and the elements murder Hearing transcript Preliminary the of the on degree of murder. first 1990, August 8, (thirty-three days prior to in The crime of Solicitation for Murder the 10, 1990)4, September the for trial set did forth, in Degree part, is set Title 21 First prepare not have sufficient time to her de 701.16, O.S.1981, § as follows: fense. any person or It shall be unlawful for minutes, According to the trial court a person per- agent of that to solicit another hearing on the on the was had motion same persons the of a son or to cause death recording of date. Both sides waived the the being by human the act of murder the minutes, hearing. According to the the mo- O.S., by degree as is Title 21 first defined However, trial tion denied. court was 701.7. Section any informa- ordered the State disclose tion, including sufficiency of an Information the address it had witness The test for State, Additionally, Davis v. Chauncey the trial by this Cravens. was stated Court (Okl.Cr.1990). Davis provide court ordered the State to defense Under the “copy any Agent Rogers *7 put Wright not on the 9:00 to Ms. stand until pre adequate opportunity had an to counsel morning give Appellant’s the in order to next Further, pare trial. counsel for opportunity to Ms. counsel interview transcript vigorously preliminary used the to Wright. agreed Appellant’s counsel to Appel cross-examine the State’s witnesses. arrangement and neither for made a motion prejudice lant has failed to show or a withdrawal of readiness continuance his coun would cause Court to find that Thus, any alleged trial. error was waived. inadequate for trial. prepare sel had time to no the trial We find abuse of discretion in Finally, Appellant argues the that judge’s of the denial continuance. produce to Agent State’s failure Larsh’s Appel sub-proposition, In her second 12, 1990, September handwritten notes until surprise by of unfair the complains lant State day prejudicial the of was error. third Patty Loftis-Wright as a wit when it called addressing Appellant’s As we noted second Appellant argues trial. that ness at error, assignment produce of her motion to comply to 22 O.S.1981 State failed with exculpatory until evidence was not made § 303. began hearing days three trial and the before 19, 1990, on the was not The trial motion transcribed. April reveals that on The record specifically court’s minute order address the granted court motion to the trial the State’s However, notes of Dr. Jeske and not Wright Ms. as a the handwritten endorse witness. hearing Larsh. complains Agent failed to notes of Since the Appellant the State II, transcribed, provisions not we will as comply guess with the of Article not hazard a failing provide Agent § to the names to whether not Larsh’s were or notes State Appellant also asserts hearing. Under
considered at the motion circumstances, proving voluntariness .we will review failed its burden such dubious (1) only. the OSBI failed to record the error because: for fundamental (2) interview; Appel to have the OSBI failed or review a narra lant write out a statement Agent We have reviewed notes (3) accuracy; and there is tive statement for they are not evidence Larsh and find that judge that the trial considered exculpate Appellant. no evidence to which would tend rendering its Agent Larsh’s notes in decision. during the unre are those taken Said notes (See agree court that it would with the trial We Appellant. Appel interview corded error.) preferable to have a recorded or have been The assignment of *8 analysis to in- Applying this Court’s The multiple trials for the same offense. to case, an in the trial court held camera stant applied usually when “same evidence test” is Appellant’s hearing to determine whether accused are involved and the a series acts voluntarily made. It is not statements were single in a charged with several counts disputed Appellant was advised her that This Court has reserved information. rights Agent before Larsh inter- Miranda provides the right elect the' test which agreed to talk to the Appellant her. viewed justice. Sayler necessary tool to further receiving rights. her Agent after Miranda (Okl.Cr.1988). State, 890, 761 P.2d 893 any by denying in- Appellant started out clearly in The this case were The trial convictions in her husband’s death. volvement parties. they different re- as involved Appellant and after our different questioned court prove these proof was needed to hearing, hold Different the in camera we that view of Thus, jeopardy no double voluntary. there was crimes. were free statements (However, disposition of Thus, see our not on violation. ruling will be disturbed below.) the solicitation conviction appeal.
517 Appellant We note that cites opinion Supreme the Commis- Justice Exum’s for the Jury sion Comment to Furr, Oklahoma Court of North in Carolina State v. 292 Uniform (OUJI-CR) 711, Instmctions-Criminal 448 193, (1977), N.C. 235 S.E.2d 199 cert. (1981) support position in N.C., of her that a defen- denied, Furr v. 98 S.Ct. 434 U.S. conspiracy dant cannot be convicted of both 281., relying 54 L.Ed.2d on W. LaFave Appellant Sayler solicitation. cites in Scott, Law, § A. Criminal 58 at 419 support position of her that said (1972): offenses were “mere means” to the same ultimate case, [i]n usual solicitation it is the objective. Appellant’s position may have solicitor’s intention that the criminal result conspiracy merit if the solicitation and in- directly brought person be about he person. case, they volved the same In this solicited; is, it is his intention that the not, therefore, proposition do of error crime be committed and that the other fails. principal commit it a in degree, as the first error, assignment
In her fifth .as where A asks B to kill Ap C. it pellant First, arguments. requested makes two would seem sufficient that A she B presents question impression get of first in involved to kill scheme C argument any way Solicitation of First which would establish B’s com- Murder, 701.16, O.S.Supp.1987, § plicity not killing in the were that to occur. applicable where one solicits another to soli Thus it be person would criminal for one cit another degree to commit first murder. solicit another to in turn solicit a third Thus, since Oklahoma gener does not have a party, join to solicit conspira- another to statute, Appellant’s al solicitation alleged so cy, or to solicit another to aid and abet the licitation of Mr. Cravens solicit another to commission of a crime. degree commit first murder would not consti Oklahoma, procures one who another to tute a Appel crime under law.5 Oklahoma accessory commit murder is an before the that, best, argues lant taking credibility “at O.S.1981, 172; fact § to the murder. 21 choices most favorable to the the evi O.S.1981, Thus, § Appellant whether dence paid tends to show that Ms. Moss solicited Cravens to commit the murder him- someope ‘get Cravens to solicit else to $500 self or to find another to commit the murder
rid of the deceased.” consequence; is of no either act ais crime point We are unable to ascertain the § under 701.16. observation that Oklahoma has argues also general event, no solicitation statute. prove State did not that she had intent purpose
we believe the and intent of Section that the murder be committed. This Court 701.16 to be and so construe the section jury’s will not interfere with the verdict cover solicitation of another to find a “hit ample competent where there is otherwise, man.” If evidence we were to hold all one (or more) guilt the record to establish place would have to of the ac do is a third person in cused. Ross v. escape judgment; the chain and presented this does not make sense. The heart light appellant, crime is the solicitation. most favorable to the Here solicitation, question, without was sufficient made the but to show that had the same, the death would not have intent to kill her occurred. husband. Mr. Cravens (1) Accordingly, in a appellant try case where the testified asked *9 (2) murderer; argument, persuasive made the same we find to a find that told O.S.Supp.1989, § 5. 21 701.16 reads as follows: The elements for solicitation for murder in the (1) (2) another; (3) degree soliciting; person agent It first are shall be unlawful for or person person per- by that to solicit another or kill a to human an act of murder in the first being by (4) sons to cause the death of a human degree; with the intent that the murder be degree the act of murder in the first committed; (5) as defined and the elements of murder in O.S., by Title 21 .. Section 701.7. degree. the first jury OUJI-CR 447 and the instructions set forth, as follows:
518
(Ms. Wright)
Appellant, she
$60,000.00
policy ard
life insurance
a
about
testimony
$15,000 $20,000
co-conspirator whose
must
was a
willing
pay
or
she was
to
(3)
sufficiently
is
be
corroborated.
murder her husband
for someone to
Wright’s
pay
in
assertion. Ms.
testi-
some-
correct
this
Appellant gave him $500.00
In
Thus,
sufficiently
the
argument mony was
corroborated.
this
to kill her husband.
one
case,
testimony
Wright’s
was suf-
instant
Ms.
without merit.
is
respects,
in
ficiently corroborated
several
ac
that the
Appellant asserts next
proposition without merit.
and thus this
is
by Mr. Cra
payment
ceptance of the $500
State,
v.
519
State,
1237,
agree
regard-
(Okl.Cr.1982),
we
that the
While
statements
652 P.2d
1240
ing Appellant forging
signa-
the deceased’s
where we held that a defendant waived his
concerning
ture on a loan and the statement
right
appeal
ground
to assert error on
on the
Appellant
destroying
how
was
the deceased
specific objection
that the
was not made at
financially
improper, Appellant
were
has
alleged
time
same
as the
error
re-
as
preju-
2104(A)(1).
failed to show how these
Here,
statements
quired by
Appel-
Section
diced her case. The trial court sustained the
right
lant has waived her
appeal
to assert on
objection.
that counsel should have asserted Section
Further,
2403 or the Burks notice.
because
Appellant
complained
also
against
was substan-
concerning
statement
the deceased’s intent
tial, Appellant’s argument regarding ineffec-
get
improper hearsay
a divorce was
tive assistance of counsel is without merit.
prove
motive.
cites Common
668,
Washington,
Strickland v.
466 U.S.
Stonehouse,
270,
Pa.Super.
wealth v.
358
517
688,
2052, 2064-65,
104 S.Ct.
We note that that trial. have Larsh testified confessed ject We to the instructions get of the she asked her brother rid consistently a ob held that defendant must Additionally, about re she told him supply a written deceased. ject to instructions and daily the routine and where he if he not with deceased’s quested instruction is satisfied gun. kept his Prior to the of the admission of the court. Russell the instructions question, in a bench conference the statement In bar, admissibility. place took its Appellant’s specifically determine ease at counsel (Okl.Cr. 536, 538 objections Laske v. were to the See that there no stated 1985). ruled: The trial court propo find no merit in this instructions. We sition. objection overruled and the court is the preponderance finds a of evidence Next, plain er claims conspiracy Rich- that the existed between when the trial court failed ror occurred defendant, Moss, Wright and the Lisa ard sponte as a matter of law that sua instruct possibly Patty Loftis-Wright. Fur- and Patty-Loftis Wright accomplice an was ther, the declarant and the defendant testimony required whose corroboration. being the of- against whom declaration First, agree trial we do that the court should conspiracy, fered were members of the jury a law have as matter of instructed Wright is Richard and Lisa Moss. accomplice, an but the Wright that Ms. was I And the statement that understand do did not in such funda failure to so result in of in be introduced was made the course require mental error as to reversal. See So, conspiracy. you furtherance (Okl.Cr. Allen v. P.2d may purpose. call the witness for 1974). ease, jury In was instructed or not Mrs. to determine whether agree trial court that the state- We with the Further, in accomplice. they were was Appellant complains of ment was admissible accomplice of an 2801(4)(b)(5). structed as to definition § under 12 The trial O.S.1981 that the could not be convicted defendant guidelines court followed the laid out testimony accomplice of an unless the properly admitted the co- Court Laske testimony corroborated other evi was conspirator’s statement. adequate to dence. These instructions were error, assignment her twelfth applicable Finally, guide jury in the law. her constitu Ms. Moss claims she was denied corroboration, including there was abundant right present to a fair trial and to tional confession. own by subsequent change in Oklahoma defense Specifically, argues proposition, appellant given tenth law. she her presented, she is occurred when the trial court evidence of domestic abuse states error expert hearsay present of the de testi admitted the statements entitled to Syndrome”. argues mony following that the testi on the “Battered Woman’s ceased. She evi mony Patty Loftis-Wright improper Appellate points out that “such was counsel may negating heai’say have been admit dence have been critical should not kill, jury assessing aiding or intent to ted: credibility rehabilitating the of Ms. Moss and Wright] told me that —he [Richard A: He beliefs, perception, her behavior and and/or upset and I asked was nervous and proposi mitigation punishment.” I wrong him and he me what was told tion- is without merit. him I And I told didn’t need know. I him and wanted to know what loved Throughout maintained wrong. he me that Lisa wanted And told crimes professed her innocence away get of Mike or do someone to rid such, expert charged. As evidence of testi- with Mike. Syndrome mony on the Battered Woman’s you Q. [By did he Ross] Mr. And tell negate intent to kill would have been that done? when she wanted Accordingly, with her defense. inconsistent no reversal is warranted. Today. A.
521 assignment of er specifically her thirteenth the trial Court instructed the ror, Appellant jury: contends that the errors com trial, during
mitted considered in a cumula The court rulings has made in the conduct fashion, tive that her necessitate convictions of the trial and the admission of evidence. or, be reversed and remanded for a new trial doing In so I expressed have not in- nor alternatively, her sentences be modified. any way weight timidated or credit Appellant complains of various errors made given any to be testimony evidence or ad- First, throughout argues trial. she that the during mitted nor have I indicat- prosecutor highly uncharged elicited miscon any way ed in the conclusions to be Naples duct evidence from Rita to the effect by you reached in this case. Appellant that had altered the deceased’s We find no error. However, complained checkbook. the error of was cured the court’s admonishment of Appellant argues prose also that the State, jury. See Arnold v. 803 P.2d improperly cutor commented on the truth or (Okl.Cr.1990). 1149 falsity testimony. Appellant of her failed to Appellant the al continues object any complained of the comments of. leged prose error was not cured because the Thus, any error that does not rise to the level during cutor commented the evidence his Johnson, of fundamental error is waived. closing argument. Appellant failed supra. consistently This Court has held: Thus, object. any alleged error has been right argument contemplates The a lib- waived absent fundamental error. Johnson eral speech, range freedom of and the We find discussion, argumentation illustration and Additionally, Appellant no error. has failed is wide. Both the accused and the State alleged prejudiced to show how the error has right freely have a discuss the evidence consistently his case. This Court has held: respective viewpoints from their and draw injury ... it is the caused the error arising inferences and deductions from the reverse, may lead this Court to Only argument by evidence. when appellant the burden is on to establish the prosecutor grossly improper and unwar- rights fact that his substantial to a fair ranted, rights, and affects the accused’s prejudiced by trial were the commission of upon improper will a reversal be based the error. argument. Arnold, at Id. 803 P.2d 1150. (Okl.Cr. Miller v. 751 P.2d 739 asserts next that the trial 1988). case, In the instant the comments judge’s comment that “there is not sufficient complained by Appellant grossly were not evidence to constitute solicitation for murder improper and unwarranted so as to have regard Marquis respect with to Mr. but with Hence, Appellant’s rights. affected no rever charges jury of the other can sal or modification is warranted. they consider it for think it whatever Appellant complains of error jury impression worth” left the with the following testimony Chauncey Cravens: judge the trial believed evidence was sufficient for conviction. relies Q. by “get What did she mean rid (Okl. upon Reeves v. him”? Cr.1979), where this Court held that it was guess IA. she meant murder. jury reversible error to mislead as to the role clearly objected. objection as trier of facts. This case is distin counsel The Reeves, guishable jury trial court and the from where the was sustained admonished Thus, present disregard any al- stated that “sufficient evidence was the statement. respect remaining charges.” leged ed with to the error was cured the trial court’s Arnold, case, merely jury. In this the trial court told the admonishment to the See jury that several the evidence was insufficient to P.2d Court notes later, support charge responses Mr. of solicitation for murder Cravens testified addition, respect Marquis. try to find a mur- to Mr. wanted Thus, Accordingly, Judgments and Sentences find no we derer to kill the deceased. are AFFIRMED. error. argues that Finally, Appellant LUMPKIN, P.J., and LANE admitting the medical
tidal court erred in *13 STRUBHAR, JJ., concur. autopsy report. This Court has examiner’s that, of an au clearly the admission stated CHAPEL, J., part/dissents in in concurs error, consti report, although does not topsy part. v. 699 Cooks tute reversible error. CHAPEL, concurring Judge, in not report did 653 P.2d part: in part/dissenting case, are the facts change the outcome of thus, clear; without merit. argument this affirming I in the solicitation for concur degree degree first murder and first murder urges Lastly, Appellant I convictions and sentences. Conspiracy to conviction for both Commit conspiracy conviction and would reverse the Degree Mur and First First Murder jeopardy as of the double sentence violative jeopardy. Appellant re der violates double U.S. clauses of State and Constitutions. prior quests our Court to reconsider Huckaby v. P.2d holdings, in 804 as (Okl.Cr.1990),
447, where we stated: 450 Lamm, 696
Citing c. ex rel. Stohler State (Okl.Cr.1985), Harjo opinion
P.2d 1038 the “same evidence”
explains that under Blockburger in v. United
test established 180,
States, 299, L.Ed. 52 S.Ct. 284 U.S. (1932), conspiracy conviction both Lynn THOMAS, Petitioner, Derrell vio- does not commit murder and murder jeopardy protection because late double element contains at least one each Oklahoma, Respondent. The STATE of not. other does No. PC-94-534. its Appellant urges Court to reconsider holding Appeals the facts of this case “at least under Court of Criminal Oklahoma. not'partici- that Ms. Moss did indicate Dec. 1994. pate any way actual murder of Huckaby, deceased whereas alleged hitman drove the defendant provided murder site and
to and from the Appellant appar- weapons.”
him with loaded Huckaby, part of
ently failed read clearly stat-
where we stated that Oklahoma accessory fact as before the
utes deal with O.S.1981, § pursuant principal, as follows:
which reads persons
All concerned the commission
crime, felony it or misdemean- whether be
or, directly they commit and whether offense, constituting abet or aid or
act commission, though present, are not
in its
principals. be-
Additionally, that the liabilities we held princi- the fact and
tween accessories before distinguishable. 22
pals longer O.S. are no
1981, § must counsel a of notes analysis, the Information contain charged and has on interview with Dr. of the offense correct- Jeske.” elements fully, wilfully, knowingly feloniously charged Conspiracy solicit was with and 2. Mrs. also Degree LANNYMIKE CHAUNCYW. CRAVENSto kill Murder First Murder. In to Commit and THE exchange testimony, an act of MURDER IN FIRST her the First MOSS for manner, following charge pled guilty in the to-wit: was and she DEGREE dismissed Murder say judge RAE MOSS offered Conspiracy charge, the trial That is LISA with money kill W. CRAVENS her CHAUNCY set sentence. MOSS, husband, MIKE when she met LANNY pertinent Seminole, 3. stated in Count I of Information in the Store in with him Homeland part, Oklahoma; as follows: say, part September, is to the latter That October, 1989, 1989, after the Pre- 4.Said counsel was retained part trial and first Defendant, MOSS, Hearing. liminary did unlaw- LISA RAE said (1) (2) days her trial all appeal, Appellant argues addresses for State witnesses two On to com- prior not have sufficient time explained: counsel did to trial. As the trial court (2) trial; investigation unfair plete for his probably think that was [I] defendant Patty calling Loftis- surprise the State might on notice some deal made be (3) witness; Wright as additional Patty Loftis-Wright any time and prejudiced by fail- Appellant was the State’s defendant, might testify, that I she exculpatory prior to produce ure to think, probably was aware that the State trial. to use that testimony would like in lieu so has motion for This Court held that a circumstances, I it all the don’t think is discre- continuance addressed to the sound surprise or a surprise was a so-called judge, tion the trial and will not be dis- would call her ... the State appar- an abuse of turbed unless discretion Myers held in v. Court 654 P.2d ent. McFarland v. 648 P.2d (Okl.Cr.1982), that if a defense counsel 1249-50 surprised such an endorsement sub-proposition, Appellant In her first as preparation, needs more time for should he attorney because her trial was not serts that ready trial withdraw his announcement of for copy preliminary hearing tran given a post- motion for and file a continuance or 8, 1990, attorney script August was until ponement setting forth the reasons for sur- adequately prepare unable to for trial. any prise pro- other evidence he could appointed that counsel record reveals was testimony. duce to such he rebut Where preliminary hearing. at the On fails to do so error is Id. at waived. 12, 1990, Appellant private July retained August 1990, Appellant’s On counsel. ease when Wright the instant Ms. given copy preliminary counsel was testify, Appellant timely called to made a 10, 1990, transcript. hearing September On objection. discussing the after Thus, Appellant’s trial commenced. counsel court, Appellant’s the trial coun- matter with prepare had two months to for trial and one agreed postponement to the sel of Ms. preliminary transcript. review the month to testimony Wright’s until after given he was (Okl.Cr. Vowell Wright. Upon chance to interview Ms. 1986), was no this Court found that there condition, trial court directed the State discretion abuse in where the defendant’s
Notes
notes lant’s third However, no signed reason was statement. begin clearly denying that she why Appellant’s to statement was offered as anything to do with her husband’s death. had and no bad faith Officer not recorded part latter of the in towards the In Larsh been Moore v. terview, has shown. asking Mr. admits to Cra (Okl.Cr.1988), deceased, this Court to kill the find someone vens to stated: Marquis anyone if he knew who asking Mr. “get of’ the and then would rid deceased duty no create evidence There is to concerning her brother kill speaking later corroborative, though tape, video would proposition is without ing the deceased. This merely have cumulative the wit- been merit. testimony. ness’ assignment merit. is without error, assignment her third Appellant claims that reversible error oc assignment error, In her fourth Agent the trial court admitted curred when Appellant contends that her conviction for Appellant chal into evidence. Larsh’s notes conspiracy commit solicitation both lenges the voluntariness statements. jeopardy. degree murder violated double first (Okl.Cr. Turner solicit was tried and convicted' for 1990), test for volun- this Court held Chauncey ing September, W. Cravens it is of a is whether tariness confession kill her husband. She was also product of a free will and unconstrained conspiring with Richard Lee convicted for making the one who is confession. choice degree. commit the first murder To whether the maker’s will was determine totality voluntary, the court must look employed This Court has both of the circumstances. When admissibili transaction test” and the “same the “same challenged, or ty of a statement confession a con test” to determine whether to show the burden is on the State protection against double viction violates voluntary. confession was jeopardy. “same transaction test” is subjected usually applied when the accused