Newsted v. StateNewsted v. State
Lead Opinion
OPINION
Norman Lee Newsted, the appellant herein, was charged, tried, and convicted in the District Court of Osage County, Case No. CRF-84-26, for the offense of Murder in the First Degree. His punishment was assessed by the jury at death. Judgment and sentence was imposed by the District Court in accordance with the jury’s verdict.
On the evening of February 20, 1984, the appellant arrived at Tulsa International airport. He hailed a taxi cab driven by Larry Donnell Buckley, and asked to be driven to an address appellant apparently believed was his sister’s. When they were unable to locate the address, Mr. Buckley stopped at a gas station to ask directions. Appellant purchased a pack of cigarettes and a beer. Although appellant paid for his purchases, a cashier saw no money in appellant’s billfold when he pulled it out. Appellant and Mr. Buckley next stopped at Calvary Temple of God church to again ask directions. Appellant asked to use the telephone and made a call. Witnesses at the church saw appellant leave the building, and saw the taxi cab driver under an awning at the church. Soon thereafter they heard two loud noises. The appellant’s sister soon arrived at the church to pick up her brother. His pants were wet and he explained that the cab driver had pulled a knife and attempted to rob him. He said he shot the taxi cab driver. When they arrived at her house, appellant’s sister left with her children and later called police.
The next morning a pastor at the church discovered the taxi cab partially submerged in a creek near the church parking lot. Mr. Buckley was found in the cab, dead from two gunshot wounds to the back of the head.
Based on their investigation and information that appellant was wanted by Utah authorities in connection with a mass murder there, police located appellant at his sister’s house and arrested him. Appellant told police that he shot Mr. Buckley only
THE GUILT STAGE OF TRIAL
I.
In his second assignment of error, the appellant alleges that the trial court erred in failing to instruct the jury that it was required to unanimously find that the appellant committed murder in the first degree either with malice aforethought or while committing robbery with a dangerous weapon. The record regarding this issue reflects that an Information was filed in this case alleging that the appellant did “with premeditated design and malice afor-thought ... or in the alternative ... while ... committing the crime of robbery with a dangerous weapon, although without a premeditated design to effect death” kill Mr. Buckley. This method of alleging alternative legal theories for the same offense is permitted by
This question was settled by our opinion in James v. State,
The due process clause of the Constitution demands that each element of a crime be proven. Mullaney v. Wilbur,421 U.S. 684 ,95 S.Ct. 1881 ,44 L.Ed.2d 508 (1975); In Re Winship,397 U.S. 358 ,90 S.Ct. 1068 ,25 L.Ed.2d 368 (1970). However, all of the elements of this crime were proven. The State established a prima facie case of murder in the first degree by proving, first, that the homicide occurred during an armed robbery, and, therefore, fell within felony murder; and second, that the appellant had committed the homicide with premeditation. No violation of due process occurred.
A unanimous verdict is guaranteed by this State’s Constitution.Okla. Const., art. 2, § 19 . In 1961, this Court construed that right to mean that a verdict of guilt on a charge of two distinct acts of rape had to reflect a unanimous finding of guilt based upon one specific act or on both acts, but not on either one or the other act. See Cody v. State,361 P.2d 307 (Okl.Cr.1961).
However, the question now before this Court is one of first impression. Unlike Cody, there are not two separate offenses, but like Cody there is no indication of the jury’s findings in determining guilt. The issue for resolution is whether the Cody rule applies to the case at hand where there are two alternative theories upon which to base the conviction for first degree murder, each of which was alleged and proven.
Other jurisdictions have encountered this problem, often in reviewing convictions based upon alternative theories of premeditated murder and felony murder. In Connecticut v. Edwards,163 Conn. 527 ,316 A.2d 387 (1972), the defendant was indicted conjunctively with premeditated and felony murder in the first degree, based upon an underlying robbery. The jury was then charged disjunctively, as was the jury in the case before this Court. The conviction was affirmed because there was but a single crime charged and the alternatives went to the factual basis of the crime, not the crime itself.
*738 In People v. Taggart,621 P.2d 1375 (Colo.1981), the Colorado court held that the defendant was not denied a unanimous verdict by merit of the fact that the general verdict did not specify which alternative was the cause of the crime. And, in State v. Hazelett,8 Or.App. 44 ,492 P.2d 501 (1972), the Oregon Court upheld a jury instruction that the verdict must be unanimous as to the guilt or innocence of murder in the first degree but that they need not reach a unanimous decision on its foundation in either felony murder or premeditated murder. See also State v. Wilson,220 Kan. 341 ,552 P.2d 931 (1976); and Wells v. Commonwealth, Ky.,561 S.W.2d 85 at 88 (1978).
Having examined these decisions, and having found that the State did prove both premeditation and felony-based murder, this Court finds that the failure of the jury to indicate the basis of their finding of guilt was not error.
Id. at 865-66. We find that our holding in James v. State, is dispositive of this issue. Accordingly, this assignment of error is without merit.
II.
Next, appellant claims the trial court unduely restricted his opening statement to the jury by sustaining objections made by the prosecutor. The purpose of the opening statement is to advise the jury what evidence will be presented, and to prepare them for it. Carson v. State,
THE SENTENCING STAGE OF TRIAL
We now turn to those assignments of error challenging the death sentence. In support of the death penalty, the State alleged, and the jury found, two aggravating circumstances, to-wit: (1) that the appellant was previously convicted of a felony involving the use or threat of violence to the person; and, (2) the existence of a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society.
III.
Appellant’s first and fourth assignments of error deal with similar issues regarding notice. We therefore combine our discussion of them.
In his first assignment of error, appellant contends that he was entitled to a preliminary hearing on the allegations contained in the Bill of Particulars filed by the State. The Bill of Particulars announced the State’s intention to seek the death penalty, and listed those aggravating circumstances enumerated in
We first note that
Appellant contends in his fourth assignment of error that no disclosure was made by the State of the evidence it intended to use in support of the aggravating circumstance that appellant constituted a continuing threat to society. In a related argument, appellant asserts that the Bill of Particulars was not timely filed.
The facts surrounding this issue reveal that on May 16, 1984, the State filed its Bill of Particulars. The Bill announced the State’s intention to prove the two aggravating circumstances previously mentioned. In support of its claim that the appellant had suffered prior convictions involving the use or threat of violence to the person, the Bill listed, in detail, those convictions upon which the State was relying. Regarding the claim of future dangerousness, the Bill simply recited “[t]hat from past behavior of the defendant” the aggravating circumstance would be proven. On June 18, 1984, the State filed a “Notice of State’s Intention to Introduce Evidence of Other Crimes,” the so-called “Burks notice.”
We agree with appellant that the Bill of Particulars contained insufficient notice of the evidence intended in support of the allegation of future dangerousness. We have previously held that “[t]he purpose of the [notice] requirement in
However, an error, constitutional or statutory, which does not result in prejudice to the defense will not result in reversal of a conviction.
Finally, we reject appellant’s contention that the Bill of Particulars was not timely filed. In this ease, the appellant was informed more than a month before trial of the aggravating circumstances the State intended to prove and the proof supporting the first aggravating circumstance. Evidence of the second aggravating circumstance was made known to appellant ten days before trial. We hold that in this context the Bill of Particulars was timely filed. Cf. Jones v. State,
IV.
In his sixth assignment of error, the appellant asserts that the instructions offered in the punishment phase did not provide particularized guidance to the jury’s consideration of mitigating evidence. We disagree. We held in Brogie v. State,
V.
Appellant also contends the trial court erred in failing to instruct the jury that, if they were unable to reach a unanimous verdict as to punishment within a reasonable time, they would be dismissed, and the judge would enter a sentence of life imprisonment. We previously rejected this same argument in Brogie v. State,
MANDATORY SENTENCE REVIEW
VI.
Finally, pursuant to
1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
2. Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in this act; and
3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar eases, considering both the crime and the defendant.
A.
We have carefully examined the record for any indication that the sentence of death was imposed under the influence of passion or prejudice. Both the trial judge’s report and the record disclose that the jury was instructed to avoid any influence of passion, prejudice or other arbitrary factor when imposing sentence. Report of Trial Judge at 5. Furthermore, the trial judge
B.
We also find that the evidence was adequate to support both aggravating circumstances. Regarding the claim that appellant had sustained prior convictions for felonies involving the use or threat of violence to the person, the State produced evidence that appellant had been convicted of a robbery and kidnapping in Nevada. Also admitted were preliminary hearing transcripts revealing the violent circumstances surrounding those crimes. The allegation of future dangerousness was supported by evidence that appellant participated in a robbery which resulted in the brutal death of three people. The aggravating circumstances were adequately proven.
C.
We have compared the sentence imposed herein with those previous cases either affirmed
Accordingly, for the foregoing reasons, the judgment and sentence of the trial court is AFFIRMED.
Notes
. Burks v. State,
. Although the Legislature has revised this statute somewhat in 1985 Okla. Sess. Laws, Ch. 265, codified at
. Ross v. State,
. Parker v. State,
Concurrence Opinion
specially concurring.
I agree that the judgment and sentence in this case should be affirmed. However, I am of the opinion that a proportionality review of death sentences is unnecessary. Such was our holding in Foster v. State,
Concurrence Opinion
specially concurring.
I concur that the judgment and sentence in this case should be affirmed, but I agree with the special concurrence of Judge Bus-sey, that the proportionality review of death sentences is now unnecessary.
IT IS SO ORDERED.