*1
Karl Lee Oklahoma, Appellee.
STATE of
DNo. 1998-646. Appeals
Court of Criminal of Oklahoma.
Dec.
Rehearing Denied Jan. *5 Robertson, Higgins, R.
Joe P. William Division, Capital Sys- Trial Defense Indigent tem, Tulsa, OK, Attorneys for Defendant. Hudson, Chesley, Perry Capital W. Janet Division, Indigent Appeals Direct Defense Norman, OK, Attorneys Appel- System, for lant. Attorney, Raymond Haynes,
Gene District Hasselman, Attorney, L. Assistant District Claremore, OK, Attorneys for the State. Edmondson, Attorney General up Drew pulled W.A. and bra were and she had bruises Humes, forehead, Oklahoma, upper L. Assistant her left arm and neck. William of OK, General, City, her face and an Attorney Oklahoma Attor- She had cuts on abrasion neys Appellee. between her shoulder blades. She had bruis- for right leg. thigh es on her and left These
OPINION injuries prior were suffered to death. As- to be the phyxiation was determined cause LILE, Judge: testing sper- DNA established that death. convicted, by jury, 1 1 Karl Lee vagina Appel- matched matozoa found her (21 00.98.1991, Degree Murder in the First lant's DNA. 701.7) Rogers § in the District Court CF-96-283, County, No. before Case that he first denied had seen Post, Judge. Af- Dynda District Honorable night. finally the victim that He admitted sentencing stage, the found the ter the talking night to the victim that at her work. aggravating cireumstances: existence of four they Denny's agreed He said to meet at heinous, atrocious, coffee, especially p.m. 11:45 the murder was and he was home He cruel; previously Defendant was con- or any physical denied contact with the victim. felony involving the use threat vieted of having He later admitted to consensual sex violence; probability of a the existence night. with the vietim that the Defendant would commit criminal Sidney Byrd Ap- 15 Inmate testified that constitute a con- acts of violence that would women, pellant killing fur- admitted two society; and the tinuing threat murder (concerning Cindy ther admitted that Marza- purpose avoiding committed for the no) fucking "he was her from behind when he preventing prosecution; arrest or a lawful strangled her and she died." 0.98.1991, punishment at death. and set (5) 701.121), (4), The trial court & JURY SELECTION ISSUES Judgment and Sentence accor- entered jury's with the verdict. From this dance I, Appellant complains *6 T6 In Sentence, Myers perfect- has Judgment and improperly that the trial court refused to appeal. ed his juror, prospective Riggs, exeuse Irene Janice grounds on the that she was to unable con
FACTS
life,
punishment options:
sider all three
life
victim,
Marzano,
Cindy
Appel-
2 The
parole,
without
and death. We said in Hum
acquaintances.
lant
She left home for
phreys v.
1997
947 P.2d
OK
565,570-71:
14, 1996, bearing
work on March
no bruises
or wounds on her face or head. She drove
disqualify
pro-
"The decision whether to
Impala
her
to work for
1984 silver Chevrolet
spective juror
for cause rests in the trial
p.m.
p.m.
her 1:00
to 9:00
shift.
at
While
court's sound discretion whose decisionwill
spoke Appellant twice
work she
to
between
not be disturbed unless an abuse of discre-
p.m.
p.m.
7:00
and was overheard
8:00
Spears
tion is shown.
900 P.2d
agreeing
to meet
after work. She
481,
(Okl.Cr.),
denied,
cert.
516 U.S.
p.m.
checked out at 9:09
and was seen there-
116 S.Ct.
133 LEd.2d
Denny's
after at
restaurant where she and a
(1995);
Allen v.
(80)
thirty
man remained about
minutes.
denied,
(Ok1.Cr.19983),
cert.
511 U.S.
(1994).
S.Ct.
128L.Ed.2d 875
To
p.m., Appellant
138At
11:51
was at a con-
store,
regular
properly
venience
where he had been a
determine if the trial court
ex
customer,
cause,
juror
prospective
and remained two to
and one-
cused a
for
this
two
entirety
ju
Court will review the
half hours. He washed his truck while there
and told
at a
ror's
examination.
the clerk he had been
relative's
voir dire
Carter
(Ok1.Cr.1994),
am.,
Cindy
house. At 12:80
Marzano was
U.S.
floating
found
down in the water at the
face
(1995).
Highway Landing
navigation
chan-
Ross, at 2276. the evidenceand at 487 U.S. stated, hearings the trial court conducted to deter- further Supreme Court The trial found that mine the issue. court jury "Any impartial, was not claim that Makin the assault on Bonnie Hames was therefore, Huling, not on but on must focus intent, motive, and com- admissible to show ultimately jurors sat. None of who plan. The court noted that mon scheme however, challenged jurors, those 12 very striking the similarities the case were by petitioner, and he has never for cause probative and that the value of the evidence any im- suggested that of the was not very great outweighed prejudi- petitioner partial.... We conclude that Concerning cial effect to defendant. that the was not has failed to establish Fain, Stacey Lane the court assaults on impartial." . The court reached the same conclusions. Ross, at at S.Ct. regarding reached a different conclusion at 88.2 L.Ed.2d exelud- murder of Shawn Marie Williams and examined the entire record We have ed that evidence. The trial court considered nothing and we find to indicate on voir dire Bryan v. Smith, jurors that Mr. of the who U.S. impar- ultimately decided the were not (1997), 139 LEd.2d 299 which tial. general states the rule that a defendant is to convicted, all, by if it evidence which be guilty charged him shows crime and STAGE ISSUES FIRST not evidence of other crimes. The trial Myers claims that evidence of other acknowledged court the dictates of Title deprived crimes him of a fair "unrelated" ©.$.1991, 2404(B), which defines the limita- an trial. The State filed extensive Notice of other tions admission of evidence of crimes, Intent to offer evidence of other crimes, to wit: seeking to offer evidence that: crimes, wrongs, "Evidence of other or acts 1976, Appellant sexually 1. In June of prove is not the character of admissible kill and threatened to Bonnie assaulted person in order to show action in con- Makin Hames. however, formity may, therewith It August July In purposes, admissible for other such as sexually assaulted and threatened to motive, intent, proof opportunity, prepa- Stacey kill Fain. Lane ration, knowledge, identity plan, or ab- sence of mistake or accident." April sexually assaulted and murdered Shawn Marie The trial court found that the evidence was Williams. Appellant's relevant motive and intent kill the in this found victim case and further 1 14 claimed that The State these incidents sufficiently the crimes were similar to helped the motive for the establish murder plan. establish a commonscheme or Marzano, Cindy the victim this case. The additionally Despite prior claimed that inci- State these T16 our cases to the contrary, permissible pur dents had sufficient similarities to mur- "the enumerated *8 crimes, Cindy poses wrongs, der of Marzano to establish intent. for which other or acts may All victims were females with which he had [12 evidence admitted under O.S. 2404(B) 1991, § acquainted become and were enticed ac- ] [Oklahoma of the Evidence] vehicle, in company Whinery, him his taken to a re- Code are not H. exclusive." Leo (1994)3 Evidence, injured, mote location and or threatened with Oklahoma The literal 2404(B)-"It injury, language may, their silence. obtain of Section how- Supreme recently The United States Court reit- ¶8, 3. But v. 1982 OK CR 8, cf., Taylor Ross, 554, (there holding applying supra, exceptions erated its in P.2d are five to the 2404(B)); recently, same rule to federal trials. United States v. Mar rule of Section and more tinez-Salazar, Hopper 780- 1987 OK CR (2000). 145 LEd.2d 792 540-41. victim; acquainted the victims were ever, purposes, such for other be admissible ag automobiles; exceptions all of the victims ...."-clearly more lured into indicates assaulted; forcefully sexually Whinery, were listed in the statute. than those supra. to kill the first two vie- assailant threatened kill third. tims and did more than has stated on 117 This Court pre with the occasion that "consistent one was to 120 Another reason for admission excep ... the five enumerated vailing view Having Appellant's motive for murder. show 2404(B) Oklahoma tions Section prison following the received a stiff sentence ex not intended to be Evidence Code were assault, having investigated Hames been Anderson v. or exhaustive." clusive assault, following although he avoid- the Fain ¶44, 12, 409, 415, cert. 1999 OK CR fac- charges, presents criminal a sufficient ed - -, U.S. tual the submission of basis (2000); quoting Gideon v. L.Ed.2d 79 proof as of motive for evidence ¶11, 1338; proof in the instant case. and as of intent 16, 19, 695 Rhodes v. jury may The well have determined Cindy kill Marzano in intended to Plaster, {118 NW.2d punishment investigation State order to avoid (Iowa 1988), the allowed evidence of a Court other similar to what he endured after the assault on a woman other defendant's sexual assaults. court, examining prosecutrix.
than the The adopted "great- a € 21 Several states have 404(b) Evidence, of the Iowa Rules of Rule approach er latitude" to the admission exceptions listed in the reasoned in sex crimes cases. other crimes evidence exclusive. Id. at 228. The rule are not Davidson, 587, 613 286 Wis.2d See State that the Court stated 617 n. The Federal N.W.2d challenged is "key is 'whether the evidence expanded of Evidence have also been Rules legitimate material to some relevant and introduction, provision to include a for general propensity to issue other than a cases, of "evidence of the de- sexual assault wrongful If the evidence commit acts.... commission of another offense or fendant's test, prima litmus it facie meets this bearing ... for its offenses of sexual assault admissible, tendency withstanding its not which it is relevant." Fed. matter to the accused's bad charac- to demonstrate R.Evid. 418. ter." keeping "greater latitude" 1 22 In with this omitted). (citations consequen- A at 229 Id. introduction, the court in State v. David- fact in the Plaster case was whether tial introduction of a sexual as- son allowed the intercourse. The victim consented to sexual years girl ten on a which had occurred sault sexual abuse evidence of the other similar offense, charged also a sexual prior there was no con- the likelihood that showed just girl. as young on a There assault prior sexual con- sent. there many in the assaults as differences peculiar the same and char- duct also showed court, follow- were similarities. However in the pattern manifested acteristic behavior rule," ing "greater latitude determined made it more charged. This conduct crime motive, to show as the evidence was relevant probable that there was no consent. Davidson, plan or scheme. well as common {19 his Appellant, one of state at 620-21. 613 N.W.2d ments, sex claimed that he had consensual However, evidence are 23 Wisconsin's rules of similarities be with Marzano. sub stantially own. has present similar to our Wisconsin prior two acts and the tween the that in sexual as "long-standing principle probable that Marzano make it more *9 permit (greater a lati cases ... courts intercourse with sault did not consent to sexual " like occurrences." proof tude of as to other Further, striking Appellant. there are simi (citations Davidson, 615 omit pro 613 N.W.2d at which are larities between the assaults admission, ted). However, the other motive, intent, before and common scheme bative certain conform to Appellant crimes evidence must plan. In all three instances or 1030 (1) July Appellant "you the such as: whether evidence is of 1996 told her that
rules purpose, proper dispose very easily" a Wis.Stat. in introduced for could of women either Rocky (rule) 904.04(2) 00.98.1991, the soft sand east Texas or at Point § as Title 12 [same (2) 2404(b) (located ]; § whether the evidence is rele distance from short the location of (8) 904.01, rule and whether pursuant Cindy body) vant Marzano's and that the testimo- substantially is out probative the value ny constituted "other crimes evidence." weighed by danger prejudice, of unfair fact, testimony the related the crime in confusion, delay under rule 904.03. question and not to other erimes as far as the Davidson, (the at 614-15. 613 N. W.2d jury was concerned trial court had ex- cluded of the murder of Shawn today holding brings our 124 Our Marie Williams who in fact was found at O.S.1991, 12 interpretation of Title Point). Rocky The evidence was admissible 2404(B), language § in line with the clear by Appellant directly an as admission relat- exceptions that the are not exclusive. The ing to the murder of Marzano. properly trial court acted within its discre determining tion evidence of the IV, In Proposition Appellant probative Hames and Fain assaults were and complains appeal for the first time on properly admissible. The evidence was ad "statutory rights his were the violated when Fur mitted under current Oklahoma law. improper opinion testimony" state elicited ther, the evidence would be admissible under question from the medical examiner. The "greater recognized today the latitude rule" complained by prose now of was stated involving for cases sexual assaults. Doctor, "Question: Okay. cutor as follows: Appellant proce your claims during viewing, from observations safeguards Appel you dural were not followed. autopsy, investigation, able to correctly following proce any lant states that the develop any draw conclusion as to or. safeguards protect dural opinion suggest that would that this individu from unduly prejudicial admission of evidence of object raped?" Appellant al was did not (1) other the evidence of crimes: must be question testimony nor to (2) 2404; § proper purpose fered for a under Simpson followed. As we said in 690, 693, 2402; the evidence must relevant under be (3) object specificity probative "failure to to errors value of the evidence must trial, alleged giving outweigh 2403; to have occurred at thus $ prejudicial its value under (4) requested, limiting if instruction on opportunity the trial court an to cure the proper given. use of the evidence must trial, during error the course of waives that Blakely v. appellate error for review...." We are left P.2d 1158-59. plain only, then to review for error i.e. errors go "which to the foundation of the incorrectly argues right which take from a defendant a which safeguards. that he was denied these Simpson, was essential to his defense." carefully fully trial court considered all OK P.2d at 695. safeguards, by of these as shown the record and the court's trial exclusion evidence of Although by prose invited the murder of Marie Shawn Williams. The give opinion cutor to a medical toas whether trial court abuses its discretion when its deci raped, wisely declined, the victim was he clearly sion is "a erroneous conclusion and may explain Appel which well the failure of judgment; clearly against one that object lant to that followed. answers logic presented and effect of the facts things The witness stated that there were support against application." of and Ste present suggestive rape, and after thor vens Okl.Cr. cross-examination, ough the same witness We do not find an abuse of conceded, aspects "There are to the case that discretion here. can the idea that sexual intercourse complains also that was not rape." When asked defense witness, Curry, anything scientifically Patricia testified that if counsel there was
1031
other,
graphs
question
in
to have
conclusive,
way
the witness
were found
added
or the
one
stated,
"Absolutely
not."
proof
"nothing
to the state's submission of
depicted
body
..."
in an
and
the
advanced
opinion regard-
witness's medical
€ 30 The
decomposition,
algae
state of
covered with
rape occurred was that
there
ing whether
Jones,
103, 112,
and slime.
1987 OK CR
788
way; an
evidence either
was no scientific
P.2d at 528.
Appellant. When asked
helpful
answer
suggestive
rape
about observable
photographs
133 A review of the
(e.,
consent,
the victim's
he found both
complained
inof
the case reveals that neither
up
expose
upper clothing
pulled
her
decomposition,
autopsy
evidence of
nor
are
breasts;
clothing
completely
her lower
56, 57,
depicted.
exhibit
and 58 show
State's
intact;
vagina;
sperm
in her
she
was found
view,
face,
a frontal facial
the left side of the
multiple bruising
struggle,
of a
had
indicative
face, respectively.
right
and the
side of the
vaginal
injuries).
but no
area
photo depicts
Each
contusions or lacerations
fact,
In
plain
4
error here.
31 There
no
photographs.
not shown
the other
State's
was as
as to
the witness
useful
large
abrasion on the
exhibit 60 shows
State,
explains the failure to ob-
the
which
upper arm.
61
victim's left
State's exhibit
actually developed,
ject.
testimony
As the
arm,
right
including
shows the
of the
back
provisions
find no conflict with the
we
forearm, revealing
an abrasion
elbow and
0.S.1991,
2702,
Title 12
nor
Title
and a scratch.
State's exhibit 62 shows a
O.S.1991,§ 2403.
contusion and an abrasion to the left elbow.
State's exhibit 63 shows lacerations or
V,
complains
Appellant,
1 32
on the victim's back.
ex
scratches
State's
photographs
improperly
ad-
that twelve
patterned
contusion on the
hibit 64 shows
probative
their
mitted into evidence because
abdomen.
exhibit 66
left side
State's
outweighed by
prejudicial
their
value was
upper
leg
of the
left
shows a side view
jury. Appellant
on Pen
impact on the
relies
exhibit 67
reveals a contusion. State's
shows
State,
¶¶7-10,
60,
inger v.
1991 OK CR
of the
left
a contusion on the back
victim's
609, 611,
P.2d
in which this Court determined
petechiae,
hand. State's exhibit 68 shows
young boys
photographs
that the
other
one,
very large
eyeball
including a
the left
not relevant because
than the victim were
victim,
with the
which was consistent
prove
they
not tend to
an issue
did
being asphyxiation.
cause of death
State's
upon
further
relies
Presi
case.
upper
of the left
exhibit 69 shows
back
114, 17,
State,
602 P.2d
dent v.
1979 OK CR
revealing an area of contu
arm of the victim
222, 225,
photo-
where we first found that the
sion and abrasion.
relevant
graphs of the deceased were
admissible,
confusion,
say,
photographs
it
"For
to be
their
proceeded
then
"To avoid
proba
and their
it
the needless
content must be relevant
should be made clear that was
substantially
outweigh
presentation
of slides
tive value must
duplication and the
State,
prejudicial
Nguyen
effect.
v.
their
Ap-
the error."
themselves which constitute
938,
167,
upon
v.
769 P.2d
reh.
U.S.
pellant further relies
Tobler
639;
350, 355-56,
106 L.Ed.2d
Smith
S.Ct.
1984 OK CR
(Ok1.Cr.1987),
Oxendine v.
1958OK CR
P.2d
demied,
Tobler,
photographs
In
which
943.
(1987);
have been excluded "de-
we found should
L.Ed.2d 383
Oxendine
(Okl.Cr.1958).
940, 942
When the
P.2d
pictled]
gruesome work of nature under
Tobler,
photographs
is out
present."
probative value of
the extreme
conditions
In
Peninger,
1991 OK CR
811 P.2d at
Further,
shown on each. It
impossi-
would have been
611.
jury
ble for the entire
panel to view the
recognize the well
rule
"We
established
3%
by
photographs
5 inch
during the actual tes-
admissibility
photographs
ais
timony.
aid,
This reasonable demonstrative
matter within the trial court's discretion
designed
jurors
to allow all the
to see the
discretion,
an
and that absent
abuse
injuries
they
exact extent of
as
were de-
this Court will not reverse the trial court's
by
witness,
expert
entirely
scribed
State,
was
468,
ruling. Nuckols v.
690 P.2d
proper under the circumstances of
case.
(Okl.Cr.1984),
471 U.S.
(1985)."
L.Ed.2d
S.Ct.
Proposition III, Myers challenges
38 In
60, ¶9,
Peninger, 1991 OK CR
811 P.2d at
sufficiency
supporting
of the evidence
his
611.
murder
charged
conviction.
with
killing Cindy Marzano with malice afore-
photograph
134 Each
shows a different
thought
alternatively
killing
her
injury.
photographs
unduly
The
are not
during the
rape (felony
commissionof a
mur-
gruesome,
prefudicial.
photograph
nor
Each
der).
testimony concerning
confirmed the doctor's
injuries
photo-
observed
to the victim. The
State,
In Spuehler
graphs displayed
for the
the exact loca-
132, ¶7,
202, 203-204,
OK CR
709 P.2d
injuries
tion of and size and extent of the
adopting
by
the test established
Jackson v.
the doctor
had described
his oral
Virginia,
318-319,
443 U.S.
testimony,
confirming
both
and more aceu-
2788-2789,
(1979),
61 LEd.2d 560
we
rately delineating
injuries
the various
suf-
evaluating sufficiency
established the test for
by
fered
the victim.
"(whether,
of the
viewing
evidence as
after
complained
photographs
135 The
of here
light
the evidence in the
most favorable to
relevant;
clearly
they
unduly
were
were not
a rational
trier of fact could have
gruesome
prejudicial
properly
nor
and were
found the essential elements of 'the crime
admitted into evidence.
charged beyond a reasonable doubt." Credi
bility
weight
of witnesses and the
given
to be
Appellant complains
that exhibit
testimony
their
is within
prov
the exclusive
"particularly prejudicial"
68 was
in that it
jury.
ince of the
1980 OK
eye
open by
shows the victim's
held
tweezers
Renfro
Further,
607 P.2d
we
eyelid
to show the inside of her
and the
accept all reasonable inferences and credibili
portion
eyeball.
photo
outside
of her
This
ty choices
jury's
which tend to
graph
very large petechiae
shows a
which
Washington
verdict.
asphyxiation.
consistent with death
¶
176, 8,
510.4
sterile,
photograph
This
clinical
was relevant
importance
this case because of its
$40 Appellant
victim, Cindy
and the
by asphyxiation
conclusion of death
and was
Marzano,
acquaintances.
When Ms.
properly
admitted. Fairchild v.
12, 1996,
Marzano went
to work on March
¶¶
70-71,
OK CR
apparent
she had no
bruises or wounds nor
Appellant
complains
also
did ghe
during
receive
her work shift
project,
the State was allowed to
and thus
evening.
that afternoon and
She did howev
enlarge,
photographs
onto a sereen dur
er meet with
while at work and she
agreed
ing
testimony
to meet
after work. She
medical examiner.
left
p.m.
work at 9:09
Denny's
enlargement,
and was at
witness referred to each
as
4. This case
direct
Supreme
involves both
and circumstan-
long
The United States
Court has
since
test,
guilt
Spuehler
supra,
tial evidence
and the
abandoned the idea that circumstantial evidence
applies.
solely upon
Even if the case were based
is somehow less reliable than direct evidence.
apply Spuch-
circumstantial evidence we should
States,
Holland v. United
ler
hypothesis"
and not the "reasonable
test of
(1954);
127, 137-138,
with the victim and later admitted he had her, we said that the engaged claiming in with sex that it was judge every precaution trial "should Appellant gave conflicting consensual. sto use grasp within his that see the defendant is ries whether or about not the victim had ever Sidney Byrd, paraded been in his truck. in jury jury panel an inmate not in before county jail, chains or shackles." When a oc testified as to conversation violation jail, Appellant, Appellant curs, with in wherein "this Court must determine from the killing admitted the victim.5 record whether the error was harmless be Owens, yond a reasonable doubt." 1982 OK Makin-Hames, 142 Bonnie sister to a 659; Boyle CR P.2d at see ride, Appellant, of friend was offereda then 1977 OK P.2d 1026. by Appellant taken to a rural area and force- fully sexually and assaulted. 4 48 was returned to the courtroom pris- threatened her life. went to day after the lunch recess the second complaint. on as a result of the victim's sentencing stage Approxi- of his trial. Fain, Stacey Appellant's in who lived mately jurors, coming two back from lunch home, go was offered a ride to Wal-Mart passing through and the courtroom on their and instead was taken to a rural and area way room, to the saw as his sexually assaulted. life Her was also threat- being handcuffs were removed. ' by Appellant. Appellant ened was investi- gated charges but no criminal were filed. determining 149 In whether the er {44 Curry shortly Patricia testified (1) ror was harmless we examine: whether murder, Appellant after the Marzano (2) intentional; the encounter was whether
bragged easily disposed that women were against the evidence the accused was over (near Rocky at Point where victim (8) whelming; whether the accused waived found). (4) error; prejudicial whether viewing Lowery occurred the courtroom. evidence,
1 45 find We that all of the taken light most favorable to the ¶13, supports jury's verdict. trial, Judge In this Post conducted what advantage derived, derived, to this witness reliability hearing exchange testimony amounted to an in camera as for his from the State or admissibility testimony "jail- anyone acting to the of of a on behalf of the State and would investigating house informant." The officer was note for the record that he is incarcerated at this extensively concerning any Rogers County examined deals with time in the Jail. I find the testimo- ny extensively the witnesses. The witness was ex- of the witness to be credible and reliable concerning credibility proposed testimony only respect amined his will order testimony concerning Appellant's incriminating statements. statements made on the death of find, following finding: Cindy jury by The court made the "I will admitted Marzano all, given way testimony first of there has been no benefit before them from this witness." fession, pro- inadmissible in this thus was that the it is clear
150 In this
bringing
ceeding.
actions
officer's
correctional
Myers into the courtroom
handcuffed
§T55
A confession made under
had no reason to believe
He
unintentional.
immunity
promise
cannot be considered
present at that time
any jurors would be
voluntary confession.
acting
disregard
in conscious
not
and he was
admissible, a confession must be
To be
preju
out of a motive to
Myers' rights or
is,
voluntary:
not be
"free and
must
Further,
against
Myers.
the evidence
dice
by any
vio-
sort of threats or
extracted
stage of the
punishment
in the
Appellant,
lence,
by any direct or im-
nor obtained
overwhelming. Ap
was indeed
proceeding
*13
slight,
by
plied promises, however
nor
the
objection
not
timely
and did
pellant made a
any improper
exertion of
influence."
Although
oc
any
the error
error.
waive
States,
742, 754, 90
Brady v.
397 U.S.
United
courtroom,
during
it occurred
in the
curred
1468, 1471-72,
(1970),
25 LEd.2d 747
S.Ct.
in
court was not
session.
lunch break and
the
States,
532,
quoting Bram v. United
168 U.S.
§§
similar, factually, to
very
51 This case is
542-48,
188, 187, 42
18 S.Ct.
LEd.
738 P.2d
1987 OK CR
Snyder v.
also,
(1897);
Malloy
Hogan,
v.
378 U.S.
see
jailer brought
the de-
Snyder,
In
the
548.
1, 7,
1489, 1493,
viewed the event. We ... invol- ward or benefit would be deemed jury by the of a viewing members of tional untary, not be Ex and would admissible." jury not while the is handcuffed defendant Ellis, 62, ¶18, parte 1963 OK CR 388 P.2d jury error impaneled in box is harmless the 706, 709. showing that the defendant there is no where Sharp had the au- 156 Whether Sheriff thereby." Snyder, 1987 prejudice suffered immunity question thority grant is not the to ¶ 121, 6, at 550. 738P.2d OK CR promise here. The issue is whether of Appellant's claim that the trial court T52 immunity was used to obtain the confession. jurors in- prevented an examination of the result, Obviously, though this was the even seen is not volved to determine what was Sharp Appellant believe that commit- did not supported by the record. never promise ted the murder at the time of the of any jurors con- requested that be examined immunity. cerning the incident. We find error {57 Clearly, confession would not have beyond a doubt. be harmless reasonable against been admissible in a criminal trial Appellant for the murder of Chink Enders. $53 VII, Myers com Similarly, confession not admissible is rights were vio plains that his constitutional during stage capital a murder the second of testimony improper admission of lated aggravating trial as evidence of an circum- Sharp, from witness Charles Sheriff State's 6, ¶12, stance. Pickens v. Kansas, County, during the see- of Cherokee Sharp stage ond of trial. testified that confessed that he had murdered had Finding error the introduc Enders 1979. The sheriff testified Chink confession, we determine tion of this must that he obtained the confession after he prejudicial Appel was whether the error Myers immunity promised prosecution. from magni lant. This error is constitutional California, promise Chapman tude. v. 386 U.S.
«I54
first claims that the
824, 828,
immunity
prosecution for the murder
17 L.Ed.2d
710-11
from
S.Ct.
prevented
Enders
the use of the
(1967);
of Chink
Wisdom
OK CR
¶31,
384, 393;
confession,
aggravating
see also Hain v.
as evidence of an
cir-
26, ¶38,
cumstance, during
stage proceed-
the second
alternative,
1141-1142,
ings
Appel-
trial.
In the
519 U.S.
of this
(1996) (an
error,
confession,
under
159 This confession was
*14
prove
continuing threat
prison
form to rules of conduct while in the
evidence used to
the
aggravating
Along
circumstance.
with this
environment.
confession,
presented
the State also
evidence
clearly
162 The evidence
indicated that
Appellant
prior
had been convicted of a
previously
had been
convicted of
rape, had
assault with intent to
killed Shawn
felony
prior
the
violent
erime of assault with
present
subsequent
Marie Williams
rape.
In
present
Appel-
intent
the
crime,
previously
charged
and had
been
Marzano,
forcibly
raped Cindy
lant
beat and
feloniously possessing a
Even
firearm.
with
smothered,
strangled,
then either
or drowned
confession,
out
there was more than
her. The evidence further demonstrated
support
continuing
sufficient evidence to
the
past, Appellant
punished
in the
had
been
aggravating
light
In
threat
circumstance.
of
following similar
incidents. The cause of
overwhelming
support
of this
the
evidence
separate
death in this case was
from and not
cireumstance,
aggravating
we find the intro
rape. Appellant
a
of the
direct result
tried
duction of the
was harmless be
confession
body
dispose
of Marzano's
to avoid detec-
doubt,
yond a reasonable
because when
clearly supported
tion. The evidence
the
light
presented
viewed
of all the evidence
remaining aggravating cireumstances.
aggravation,
proba
there is no reasonable
mitigating
163 The
evidence is unconvine-
bility
imposition
the error contributed to the
ing
Upon reweighing
and weak.
these re-
State,
penalty.
Bryson
of
v.
the death
See
denied,
aggravating
against
maining
cireumstances
240,
(Ok1.Cr.1994),
876 P.2d
256-57
cert.
evidence,
mitigating
we find the death
the
752,
1090, 115
13 U.S.
S.Ct.
5
penalty
supported.
jury
is
Had the
consid-
(1995).
L.Ed.2d 651
cireumstances,
only
aggravating
ered
these
T60 Even if we were unable to
beyond
we find
a reasonable doubt the
above,
disregarded
finding
make the
and we
to death.
would have sentenced
continuing
aggravating
threat
circum
the
stance,
IX,
authority
reweigh
Proposition
we have the
the
164 In
remaining aggravating
against
complains
appeal
the
time on
cireumstances
for
first
aggravating
impact
improper
mitigating
evidence when an
certain victim
evidence was
Young
ly
only
impact
victim
evi
cireumstance is found to be invalid.
admitted.
153,
332,
62,
v.
992 P.2d
1998 OK CR
dence offered was the written statement of
denied,
344,
837,
100,
cert.
528 U.S.
120 S.Ct.
very
In a
brief state
the victim's husband.
(1999);
ment,
meeting
Marzano told of
his wife
1037
given
jury.
persuaded
phrase
to alter
latter
have
and we are not
We
stance
State,
Cooper
prior position. See
v.
many
our
so held on
occasions. Turrentine v.
State,
33, 167,
955,
(Ok1.Cr.1995);
1998
CR
965 P.2d
298,
OK
Malone v.
889 P.2d
315
707,
(Ok1.Cr.1994),
State,
975;
denied,
1057,
715-16
876 P.2d
cert.
525 U.S.
119
S.Ct.
(1998)
State,
624,
L.Ed.2d 562
Mollett v.
State,
therein;
and cases cited
Walker
14;
939 P.2d at
John
(OKk1l.Cr.1994),
OK CR
301,
cert. de
887 P.2d
nied,
859,
166,
36, 140,
son v.
928 P.2d
516 U.S.
S.Ct.
(1995)."
309, 318;
67,
Richie v.
L.Ed.2d 108
¶ 43,
268,278,
denied,
908 P.2d
cert.
519 U.S.
1 72
held in Workman v.
1991 OK
We
837,
111,
117 S.Ct.
186 LEd.2d 64
125, ¶¶24-25,
CR
correctly points
out that
State
there was
denied,
258,
890,
506 U.S.
113 S.Ct.
objection
given
no
to the instruction as
(1992),
L.Ed.2d 189
waived;
however we
error is
must exam-
ag-
"Appellant also asserts that
the other
Turrentine,
"plain
ine for
error."
1998 OK
by
jury,
gravating cireumstance found
¶ 67,
33,
P.2d at 975.
CR
probability
'there exists a
the defen-
176 "Plain error" is error "which
dant would commit criminal
of vio-
act[s]
goles] to the foundation of the
or which
continuing
lence that would constitute a
right
from a defendant a
which
take[s]
society,"
unconstitutionally
threat
is both
Simpson,
essential to his defense."
1994OK
unsupported
by
vague
evi-
¶40, 12,
695;
at
CR
see also Rea v.
up-
repeatedly
dence....
This
has
Court
(1909)
281,
8 Okl.Cr.
less ERROR CUMULATIVE IX) (Proposition evidence of Mark Marzano deficiency proper in trial errors, to be and find no Finally, Myers argues T performance. counsel's together, taken should result the reversal his conviction and sentence. We have of Application an For has filed effect, the case to determine the if reviewed Evidentiary Hearing on Sixth Amendment any, Myers' alleged accumulation of error. 3.11(B)(8)(b), to Rule Rules pursuant Claims find no such accumulation of errors. We Appeals, Court Criminal Oklahoma Woods 18, App. Affidavits at- Title Ch. tached thereto are offered to meet the bur- in the rule that "the den set forth above
application and affidavits must contain suffi- MANDATORY SENTENCE REVIEW information to show this Court clear cient 0.9.1991, 701.18, Title 21 re convincing strong evidence there is a quires "[wlhether this to determine Court possibility trial was ineffective." Id. counsel imposed the sentence of death under the provided 1 The are from affidavits passion, prejudice influence of or other jail Appel house witnesses incarcerated with factor; arbitrary and whether witness, Sydney Byrd. lant and the State's supports jury's judge's finding of a testimony All of the affidavits mirror the statutory aggravating circumstance." Suffi residing Ray Eugene Minnerup, an inmate finding evidence existed to cient incarceration, Myers during with his who statutory aggravating circum of the four did not talk to other testified reviewing record in stances. After the entire this inmates about case. find that the sentence of death we Myers' Byrd's impeachment testi- any arbitrary imposed because of was not mony Byrd's past history eriminal would factor, passion, prejudice. The facts of *18 Myers impact of its if had coun- lose some simply penalty of this case warranted the jail multiple house witnesses sub- tered with death. ject type impeachment, all of to the same of warranting T 94 We find no error reversal testify substantially the same as whom would Myers' sentence of death for conviction or Minnerup. certainly There is no hint of a murder, therefore, Judgment degree first "strong possibility trial counsel was ineffec- is, hereby, and of the trial court failing tive" in to call these additional cumu- Sentence AFFIRMED. inherently dangerous witnesses. lative and 1040 LUMPKIN, V.P.J., P.J., and tude" rule.
STRUBHAR,
majority
"great
The
would allow
any evidence of other
to admit
er latitude"
JOHNSON, J., concur.
assaults,
or not the evidence
whether
sexual
CHAPEL,
result.
concurs
J.:
statutory excep
any recognized
falls within
against
general prohibition
other
to the
tion
J., concurring in result:
CHAPEL,
majority recognizes
The
crime evidence.2
pro
potential
proving
majority's
the "unavoidable
in result with
I concur
T1
ma
in this evidence.3 The
pensity"
inherent
for first
Myers's conviction
to affirm
decision
so,
to realize that Okla-
disagree
jority apparently fails
doing
I
with
degree murder.
already
latitude in
grants the State
boma
analysis
resolution of the
majority's
and
crimes in sex
introducing
trial
evidence of similar
Proposition Two. The
raised
issue
expanding
Further
this
cases.4
erroneously
other erimes evi-
ual abuse
admitted
court
against
prohibition
other
exception
assaults
previous, unrelated sexual
dence
legitimate purpose.
It
twenty
no
to
crimes
serves
and intent. Ten
show motive
to
may
crime,
use
Myers
only
fon-
ensure that
the State
charged
would
years before the
(without
dled,
penetration)
attempted rape
previous sexual encounters
evidence
a defen
young
persuade a
to convict because
two
wom-
attempted oral sex with
simply has a
generally depraved or
en;
years
and one was
twelve
old
dant
one was
offenses. This is
impris-
propensity to commit sex
convicted and
thirteen.
Legislature
forbidden
not
has
precisely
incident but was
what
after
the first
oned
These
courts to allow.
second occurrence.
Oklahoma
charged after the
charges
previous crimes have no relevance
expand the
majority's attempt
13 The
an adult
Myers raped and murdered
only
exception is not
ill-con
crimes
other
erroneously
majority opinion
The
woman.
ceived,
unnecessary in
completely
it is
was admissible under
that the evidence
holds
erroneously
trial court
admitted
case. The
our current law.
However,
evidence here.
the other crimes
require
Strong
However,
rely
does not
reversal.
majority
that error
does not
Myers,. A
Instead,
convicted
evidence
cireumstantial
dispose
of this case.
current
law
uninjured
arranged to meet
so,
victim
majority well and
explicitly saying
without
work,
they
got
him
she
off
expand
after
should
its use
holds that Oklahoma
injured
was found
at a restaurant.
She
crimes cases.
seen
evidence
sex
other crimes
dead,
Myers's
vagina,
semen
her
majority
evidence would
"[The
states:
Myers admitted
four hours later.
"greater
latitude
less than
under
be admissible
suggested they
and even
involving meeting the victim
today for cases
recognized
rule"
intercourse.
Given
only
inter
had consensual
This can
sexual assaults."1
him, Myers's story
against
adoption
"greater
lati
State's
preted as an
added).
(emphasis
Op.
297, 300
at 1029
344 N.C.
476 S.E.2d
Frazier,
(court
(1996)
gives liberal allowance of similar
Davidson, 236
majority
State v.
2. The
relies on
cases);
Tobin,
v.
crimes
State
offenses
in sex
(2000),
a case con-
in a nor statutory right.6 Appeals Court of Criminal of Oklahoma. violated a constitutional or relief, require I Since this error does not can Dec. only majority overreaching conclude unnecessarily expand order other beyond exception
crimes of the bounds or case law.
statute
'I 4 I concur in also result the decision uphold death sentence. Evidence stage Myers
second showed that confessedto
a Kansas murder after the Kansas sheriff
promised immunity. agree him I with the
majority's conclusion that this confession was
inadmissible. I believe evidence
highly prejudicial. just Jurors had found
Myers guilty rape of a brutal and murder.
They improperly only told not
Myers killing per had confessed to another
son, However, got away but that he with it. also heard evidence that
probably responsible rape for the and death young
of another woman.7 I believe this
properly admitted mur another prejudicial impact
der blunted the agree,
Kansas I confession. As the error did imposition
not contribute to the of the death
sentence, I concur result. unadjudicated
5. Miller v.
7. This crime was
at the time of
Myers's
trial.
I continue to
the use of
reject
.
(1999)