Lead Opinion
OPINION
Appellant Kenneth Wayne Paxton was tried by jury and convicted of Murder in the First Degree (21 O.S.1981, § 701.7) (Count I); Shooting with Intent to Kill (21 O.S.1981, § 652) (Count II); Discharging a Firearm with Intent to Kill (21 O.S.1981, § 652) (Count III); and Possession of a Loaded Firearm, After Former Conviction of a Felony (21 O.S.1981, § 1283) (Count TV), Case No. CRF-89-765, in the District Court of Oklahoma County. The jury found the existence of three (3) aggravating circumstances and recommended punishment of death for the murder conviction and life imprisonment for Count II;' twenty (20) years imprisonment in Count III; and ten (10) years imprisonment on Count IV. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal.
Appellant was found guilty of killing Donna Kay Neal, discharging a firearm with the intent to kill her sister, Linda Neal, and shooting with the intent to kill Edward Peters. The facts surrounding these crimes will be discussed below.
FIRST STAGE TRIAL ISSUES
In his first assignment of error, Appellant challenges the sufficiency of the evidence to support the convictions for malice aforethought murder and shooting with intent to kill. In support of his argument, he relies on his testimony at trial and post-trial affidavits challenging the credibility of Linda Neal and Edward Peters.
The test for reviewing the sufficiency of the evidence is well known: whether, after
In conducting our appellate review, affidavits filed after trial and not heard by the jury will not be considered. We will not allow a defendant a second attempt to test the credibility of the witnesses. Pierce v. State,
Here, the evidence showed that the decedent, Linda Neal and Edward Peters had been at Peters’ home smoking cocaine during the early morning hours of February 5, 1989. The decedent had left the house to borrow money from Appellant for more cocaine. Appellant, armed with a .357 snub-nosed revolver, followed the decedent to Peters’ home. Appellant had previously made hostile remarks to Peters about the decedent, and warned the decedent to stay away from Peters and from using cocaine. After returning to Peters’ home with the money obtained from Appellant, the decedent acted nervous and repeatedly looked out the window. She saw Appellant’s car drive up the street and thought that Appellant was coming after her. Appellant drove around the block at least once before parking his car down the street and walking to Peters’ front door. The decedent was unarmed as she answered the door and admitted the Appellant into the house. Appellant stepped inside the house, struck the decedent in the face and fatally shot her in the head.
“Malice” has been defined as the “deliberate intention unlawfully to take away the life of a human being”. 21 O.S.1981, § 701.-7(A). Sufficient premeditation to murder can be formed in a mere instant. Carter v. State,
The evidence also clearly showed that Appellant had the intent to kill while shooting at Edward Peters. After shooting the decedent, Appellant turned the gun on Peters. Firing twice at Peters, Appellant chased him from the kitchen to the bathroom. There, Appellant forced open the door, pointed the gun at Peters’ head and fired once, striking Peters in the neck. While Appellant offered a theory of self defense, the jury chose to believe the evidence as set forth by the State. It is not the province of this Court to second guess the trier of fact. Yell v. State,
In his second and third assignments of error, Appellant challenges the jury instructions. He argues that the trial court erred in refusing to give his requested instruction on second degree depraved mind murder and in giving an inaccurate instruction on flight. The determination of which instructions shall be given to the jury is a matter within the discretion of the trial court. Absent an abuse of that discretion, this Court will not interfere with the trial court’s judgment, if the instructions as a whole accurately state the applicable law. Pham v. State,
In a murder prosecution, the trial court is to instruct on every degree of homicide which the evidence tends to prove. Tarter v. State,
The evidence also did not warrant giving an instruction on flight, according to Appellant’s next allegation. He argues that his actions were not consistent with departing the scene with a guilty conscience. In the alternative, he argues that if a jury instruction was warranted, the one given was improper.
Evidence of a defendant’s flight has long been held admissible as tending to show consciousness of guilt. Wills v. State,
The defendant has offered evidence explaining his acts. You must consider the claim of the defendant in determining if flight occurred.
Appellant directs our attention to a notation in OUJI-CR 806 that this provision must be given where a defendant has introduced evidence explaining his acts. See Wilson v. State,
In the present case, Appellant testified that he returned to the scene of the
In his fourth and fifth assignments of error, Appellant alleges that the State withheld certain exculpatory evidence in violation of Brady v. Maryland,
The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.
Here, Appellant made a general discovery request for all information which would “negate the guilt of the accused”. A crime report filed by the Oklahoma City Police Department concerning an altercation between the decedent and another woman approximately ten (10) months before the decedent’s murder was not included. Appellant argues on appeal that the crime report was material to his defense of self-defense as it showed that the decedent was not only capable of violence, but did in fact commit an act of violence as an aggressor.
The record reveals the State gave Appellant a complete copy of its file on the case. The State argues that the file did not contain the police report because it did know of its existence. Under the general discovery request in this ease, the State had no duty to investigate the character and history of the victim in the absence of any indication that such an inquiry was necessary. Regardless of any good faith on the part of the State, a Brady violation can still be found under appropriate circumstances. However, a prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial. United States v. Agurs,
Evidence that the decedent may have had a violent nature was introduced at trial through Appellant’s own testimony that in the altercation in which the decedent was killed, she was the aggressor, kicking Appellant and attacking him with a knife. When this is considered together with evidence pre
Appellant also asserts that the discovery order was violated by the State’s failure to disclose the statements and reports of a paramedic who attended to the decedent at the scene of the murder. The record reflects that the report in question was a “patient care” form used by the witness to refresh his memory prior to testifying. The trial court found no Brady violation but provided defense counsel with a copy of the report pursuant to 12 O.S.1981, § 2612
We agree with the trial court’s finding. The paramedic testified, using the report to refresh his memory, that he arrived at the scene of the murder to find a knife in the decedent’s left hand. This testimony was merely cumulative to that of the police officers at the scene. Therefore, the State’s failure to provide the defense with the paramedic’s report before trial did not create a reasonable probability that the outcome of the trial would have been different if the report had been disclosed. See Van White v. State,
Further, we find that Appellant cannot now complain that he was prejudiced in any way by the court’s ruling as he was ultimately given a copy of the report and time to review it prior to continuing with his cross-examination of the witness. This is true especially in light of the fact Appellant did not specifically request discovery of this type of evidence and the State is not required to be clairvoyant regarding Appellant’s theory of defense.
In his sixth allegation of error, Appellant contends the trial court erred in failing to grant his motion for a continuance to rebut testimony of State’s witness Elenor Eoby. Ms. Koby, the decedent’s sister, testified in rebuttal that the decedent had a reputation in the community as a peaceful law abiding person and that she had never seen her sister commit an act of violence. The granting or denying of a motion for continuance is within the discretion of the trial court. Pankmtz v. State,
SENTENCING STAGE ISSUES
During the second stage of trial, the State sought to prove three (3) aggravating circumstances; 1) that the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. To prove the third aggravator, the State introduced evidence of the 1979 murder of Appellant’s wife, Gloria Paxton. Appellant was charged with committing the murder but the charges were ultimately dismissed at the request of the State.
Evidence of the murder was introduced at trial through the hearsay testimony of Pam
A well recognized exception to the hearsay rule, the “excited utterance”, is a statement “relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event.” 12 O.S.1981, § 2803(2). (emphasis added). The critical question under this exception is whether the statement by the de-clarant was spoken under the extreme stress of a startling event so that there was not time to fabricate. Johnson v. State,
Evidence introduced by the State showed that the then three (3) year old Pam Paxton followed Appellant as he took a shotgun from the back seat of his car into the house, up the stairs and shot his wife as she lay in bed. Police, paramedics and family members of both the victim and the Appellant soon appeared on the scene. Pam was taken to the home of Appellant’s sister for a short time until she was picked up by the victim’s sister, Lavern Dunn Smith. Mrs. Smith testified that Pam was upset and crying uncontrollably. Attempting to calm her down, Mrs. Smith asked Pam why she was crying so and why she was so upset. Pam told her that “my daddy shot my mama”. Mrs. Smith stated that since the child was so upset, she did not question her' further.
We have no trouble finding that the shooting of her mother by her father was a startling event to Pam Paxton, and that her statement to Mrs. Smith certainly related to that startling event. The only question is whether the statement was made while Pam was under the stress of excitement caused by the startling event. The statement was made in the late afternoon, several hours after the morning shooting. During that interim time period, Pam was in the company of several adults concerned about the shooting, although no one could remember anything about Pam’s conduct until she was picked up by Mrs. Smith. Despite the lapse in time, we find that Pam Paxton’s uncontrollable crying supports a finding that Pam was still upset that afternoon. Further, in light of the absence of any evidence of statements made by Pam prior to her comment to Mrs. Smith and the fact that Pam was not questioned about the shooting until two (2) days after the exeited utterance, we find her statement spontaneously volunteered. The spontaneity of this statement and the absence of evidence indicating any incentive for her to falsely report what she saw give rise to its trustworthiness. The fact that she may have been around adults who may or may not have been talking about the shooting goes to the weight and credibility of the statement, not its admissibility. Therefore, we find the statement was properly admitted as an excited utterance.
In admitting the statement into evidence, the trial court relied in part on Newbury v. State,
In his eighth assignment of error, Appellant contends that evidence of the unadjudi-cated murder of Gloria Paxton should not have been introduced during the second stage of trial. He relies upon Johnson v. Mississippi,
In Johnson v. Mississippi, the United States Supreme Court held that a death sentence based in part on a vacated prior conviction could not stand. At trial, the State had introduced the defendant’s prior conviction for assault with intent to commit rape as the sole evidence supporting the aggravating circumstance of “prior violent felony conviction”. However, the prior conviction had been reversed some fifteen (15) years earlier. The Supreme Court stated that as a result of the reversal, the prior conviction was no longer relevant to the sentencing decision. Therefore, the death sentence could not be upheld, even under a reweighing of the evidence, as the jury had been allowed to consider evidence which was materially inaccurate.
In Bromley, a murder charge, which had been dismissed ten (10) years previously for lack of speedy trial, was admitted during the sentencing stage of trial. This Court found the admission of such evidence to be a violation of the defendant’s constitutional right to a speedy trial. This Court found that since the defect in the prior conviction was the denial of the right to a speedy trial, the defendant in effect suffered anew from the deprivation of that constitutional right. Further, admission of the evidence was held to violate 21 O.S.1981, § 701.10, which prohibits admission of evidence secured in violation of the federal or state constitutions.
Neither a vacated conviction nor the denial of a constitutional right is at issue in the present case. The prior homicide charge against Appellant was dismissed for lack of evidence. Therefore, it falls into the category of unadjudicated crimes. While this Court has repeatedly upheld the admission of evidence of unadjudieated crimes in the sentencing stage of a capital case, see Johnson v. State,
Generally, evidence of other crimes is not admissible in a criminal trial unless it meets the exceptions set forth in 12 O.S.1981, § 2404(B). Burks v. State,
In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and*1322 severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another_
428 U.S. at 272-273 ,96 S.Ct. at 2956-2957 ,49 L.Ed.2d at 939 .
In Johnson, this Court relied on Jurek but also found persuasive language from the Model Penal Code. Section 210.6 of the Model Penal Code provides in part:
In the proceeding, [sentencing] evidence may be presented as to any matter that the Court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition and any of the aggravating or mitigating circumstances enumerated in ... this Section. Any such evidence, not legally privileged, which the Court deems to have probative force, may be received, regardless of its admissibility under the exclusionary rules of evidence, provided that the defendant’s counsel is accorded a fair opportunity to rebut such evidence. The prosecuting attorney and the defendant or his attorney shall be permitted to present argument for or against sentence of death.
In Johnson, we held that it was not necessary for there to be a final conviction for an unrelated criminal offense to be admissible in the sentencing stage. “Prior criminal activity is relevant to the jury determination on the aggravating circumstance [whether] the defendant would constitute a continuing threat to society. It is ‘essential that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.’ ”
Today we reaffirm our position that unad-judicated offenses may be introduced during the second stage of a capital trial to support the aggravating circumstance of continuing threat. Prediction of future criminal conduct, although difficult, is an essential element in many of the decisions made in the criminal justice system. Jurek,
That this evidence of prior bad acts might be prejudicial to the defendant is no reason to exclude it from the jury’s consideration. It is the nature of the criminal trial that the State presents evidence prejudicial to the defendant. Under our state death penalty scheme, the defendant is afforded due process rights of notice and opportunity to be heard, in that he receives notice not only of the aggravating circumstance alleged against him, but also of the evidence to be used to support those aggravates. The defendant then has the opportunity to prepare to meet and rebut this evidence at trial.
The admission of unadjudieated offenses during the sentencing stage of a capital trial is distinguishable from the admission of evidence in the sentencing stage of a non-capital case where the State seeks to enhance punishment for habitual offenders. The Legislature has promulgated procedures whereby one found guilty of a non-capital felony offense may be more severely punished because of his previous convictions. See 21 O.S.1981, § 51. Enhancement of punishment is limited to cases where the State has proven that the defendant has previous final convictions. Prior bad acts not resulting in criminal convictions may not be presented to or considered by the jury when the State seeks to enhance punishment pursuant to this statute.
By contrast, in the second stage of a capital ease, the jury is to determine whether
By enacting 21 O.S.1981, § 701.10 et seq., our Legislature has provided a'principled method for distinguishing the cases in which the death penalty is warranted and those cases in which it is not. See Gregg v. Georgia,
The order from the district court dismissing the prior murder charge against Appellant stated the charge was dismissed “to best meet the ends of justice ... Defendant cleared by polygraph test.” After the trial court’s denial of Appellant’s request to inform the jury of the polygraph test, the parties stipulated and the jury was informed the prior charge had been dismissed at the request of the State. In his ninth assignment of error Appellant argues that the trial court erred in excluding any reference to the polygraph test. We find no error in the court’s ruling as it is well settled that the results of a polygraph test are not admissible for any purpose. Birdsong v. State,
Appellant directs our attention to Rock v. Arkansas,
In the present ease, Appellant sought to introduce a copy of the order dismissing the prior charge. The court’s ruling prohibiting the admission of this evidence did not prevent Appellant from presenting other evidence concerning the dismissal of the prior charge, such as the testimony of the polygraph examiner or any of the attorneys involved in the dismissal. Appellant had the opportunity to present substantive evidence to rebut the State’s evidence of the prior murder charge, but chose not to do so. Further, as the jury was clearly informed that the prior murder charge had been dismissed, we find the trial court did not err in excluding any reference to the polygraph.
In his tenth assignment of error, Appellant alleges that the trial court failed to abide by the guidelines of Brewer v. State,
Evidence presented in the instant case to support the aggravator of “prior violent felony conviction” consisted in part of a 1964 manslaughter conviction. The State introduced the judgment and sentence as well as the testimony of two (2) people present at the homicide. Appellant was not given the opportunity to stipulate to the underlying facts of the prior manslaughter conviction. This facial violation of Brewer was not error in this ease as the evidence of the underlying facts of that manslaughter conviction were also presented to support the aggravating circumstance of “continuing threat”. (See Bill of Particulars, O.R. 78). In addressing a similar situation in Smith v. State,
Preventing the jury from hearing evidence relevant to a determination of the continuing threat circumstance would render meaningless the need to “channel the sen-tencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance,’ and that ‘make rationally reviewable the process for imposing the sentence of death.’ ” Godfrey v. Georgia,446 U.S. 420 , 428,100 S.Ct. 1759 , 1765,64 L.Ed.2d 398 (1980) (footnotes omitted). Without relevant evidence to consider, any attempt to channel the sentencer’s discretion would be futile. As long as the evidence is relevant to finding or refuting the continuing threat circumstance, it should be admitted.
Further, using evidence of the prior manslaughter conviction to support two (2) ag-
Appellant contends in his eleventh assignment of error that the trial court erred in admitting into evidence a photograph of the body of Gloria Paxton at the time of her murder. Appellant argues that the photo had no probative value as there was no dispute concerning the cause of death. For photographs to be admissible, their content must be relevant and their probative value must substantially outweigh their prejudicial effect. Smith v. State,
Appellant farther challenges the constitutionality of two of the aggravating circumstances, “continuing threat” and “great risk of death to more than one person”. The “continuing threat” aggravating circumstance has been analyzed and upheld by this Court as specific, not vague, and readily understandable. Boyd v. State,
In his fifteenth assignment of error, Appellant asserts that several second stage instructions precluded the jury from properly considering mitigating evidence and thereby prevented meaningful review of the death sentence imposed. Initially, Appellant objects to the giving of Instruction No. 6.
This same argument was addressed and rejected by this Court in Pickens v. State,
Appellant also argues that Instruction No. 7
The idea that the jury may decline to impose the death penalty even if aggravating circumstances are not outweighed by mitigating circumstances is subsumed within an instruction that if the jury finds one or more aggravating circumstances they may consider imposing the death penalty, i.e. that they could, but did not have to, impose the death penalty, (emphasis in original)
Instruction No. 8 draws the next objection as Appellant finds error in its direction to the jury that “the law does not require you to reduce to writing the mitigating circumstances you find, if any.” (O.R. 280). He argues that requiring the jury to reduce to writing the aggravating circumstances found, but not the mitigating, prevents meaningful appellate review. Even though Oklahoma is a reweighing state, the jury is not statutorily required to memorialize in writing the mitigating circumstances found. 21 O.S.1981, § 701.11. That this function is not required of the jury does not prevent effective appellate review. Under 21 O.S.1981, § 701.13, this Court has the responsibility to review the entire record to determine whether the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor. The absence of a list of mitigating evidence found by the jury has in no way hampered this review.
Further, Appellant lodges an objection to Instruction No. 12, claiming it precluded the jury from considering any mitigating evidence in the first stage. He specifically objects to the following language:
In arriving at your determination as to what sentence is appropriate under the law, you are authorized to consider only the evidence received in open court presented by the state and the defendant during the sentencing phase of this proceeding. (O.R. 284).
This same argument was considered and rejected by this Court in Boyd v. State,
If you unanimously find that one or more of the aggravating circumstances existed beyond a reasonable doubt, unless you also unanimously find that any such aggravating circumstance or circumstances outweigh the finding of one or more mitigating circumstances, the death penalty shall not be imposed. (O.R. 279)
In Johnson v. State,731 P.2d 993 (Okl.Cr.1987) we held that the burden of proof analysis not strictly applicable to the weighing process. Quoting to Daniels v. State,453 N.E.2d 160 (Ind.1983), we stated that while the State must prove beyond a reasonable doubt the existence of at least one of the enumerated aggravating circumstances, the determination of the weight to be accorded the aggravating and mitigating circumstances is not a fact which must be proved beyond a reasonable doubt. Instead it is a balancing process, (cite omitted).
Specific standards for balancing aggravating and mitigating circumstances are not constitutionally required. Zant v. Stephens,
INEFFECTIVE ASSISTANCE OF COUNSEL
In his twelfth assignment of error, Appellant contends that he received ineffective assistance of counsel during both stages of trial. It is well established that an accused has a fundamental right to the reasonably effective assistance of counsel, regardless of whether counsel is appointed or retained. U.S. Const, amend. VI, XIV; Okla. Const, art. II, § 20. The standard for evaluating whether an accused received effective assistance of counsel was set forth in Strickland v. Washington,
In hearing a claim of ineffectiveness of counsel, the reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland,
The fact that a defense attorney could have done more investigation before presenting a case to the jury does not alone establish ineffective assistance of counsel. See Williamson v. State,
Given the finite resources of time and money that face a defense attorney, it simply is not realistic to expect counsel to investigate substantially all plausible lines of defense. A reasonably competent attorney often must rely on his own experience and judgment, without the benefit of a substantial investigation, when deciding whether or not to forego a particular line of defense without substantial investigation so long as the decision was reasonable under the circumstances.
Gates v. Zant,
In the present case, Appellant has not shown he suffered any prejudice by counsel’s conduct. Appellant was still able to adequately present a defense of self-defense. In light of the other evidence presented at trial, Appellant has failed to show how the result of the trial would have been different if the evidence of the victim’s prior altercation had been introduced at trial.
Appellant next directs our attention to a litany of alleged omissions occurring during the first stage of trial, including counsel’s failure to object to the flight instruction, the failure to object to more of the prosecution’s closing argument, and that counsel should have affirmatively pointed out that cocaine abusers may exhibit violent behavior. As previously stated in this opinion, the failure to instruct the jury that it must consider Appellant’s explanation for his leaving the scene in determining if flight occurred was error. Counsel’s failure to object to this omission was likewise error. However, Appellant has failed to show he was prejudiced by counsel’s omission or that the result of the trial would have been different if counsel had entered an objection to the instruction. The decision concerning which instructions to give to a jury is within the trial court’s discretion, not that of defense counsel. Here, the instructions as a whole properly informed the jury as to the weight and consideration to be given the Appellant’s testimony and that guilt was to be determined based upon all of the evidence presented at trial.
Appellant also claims trial counsel was ineffective for failing to present rebuttal evidence that cocaine users often exhibit aggressive behavior while under the influence of the drug. In assessing an Appellant’s claim of ineffective assistance of counsel, the reviewing court must judge the reasonableness of counsel’s conduct on the facts of the case at hand and evaluate the conduct from counsel’s perspective at the time, (emphasis added). Strickland,
Here, the jury was fully informed as to the use of cocaine by the parties and their resulting conduct. Counsel thoroughly cross-examined both Linda Neil and Edward Peters concerning the decedent’s use of cocaine and her ensuing conduct during the hours preceding her murder. He also inquired as to their use of cocaine at that time and any influence it may have had upon their perceptions at the time and their subsequent
Further, the decision when and if to object to comments in the prosecution’s closing argument is a matter of trial strategy. Fisher v. State,
Appellant contends that during the second stage of trial, counsel was ineffective for failing to recognize that the case relied upon by the court for its ruling on Pam Paxton’s excited utterance had been overruled and for failing to object to the court’s failure to follow the mandates of Brewer v. State. Counsel’s failure to object to the court’s reliance on Newbury v. State in admitting Pam Pax-ton’s hearsay statement into evidence did not prejudice the defense. Any ignorance of the new case did not affect the outcome of the court’s ruling as the legal principles discussed in Newbury were not overturned and were still valid principles of law at the time of Appellant’s trial. Further, as the underlying facts of the prior manslaughter conviction were properly admissible to prove the aggra-vator of continuing threat, counsel’s failure to point out any potential Brewer problems was not indicative of ineffective assistance.
Trial counsel was a seasoned lawyer, well versed in the criminal law, who zealously represented Appellant’s interests. He presented eight (8) witness on behalf of Appellant during the second stage of trial. He filed numerous motions attempting to limit the State’s evidence during the second stage of trial. Appellant has failed to show that absent defense counsel’s conduct during the sentencing stage, the jury would have concluded that the balance of aggravating and mitigating circumstances did not warrant death. Boyd,
PROSECUTORIAL MISCONDUCT
Appellant further alleges that comments made by the prosecution during the closing arguments of both stages of trial denied his constitutional right to a fair trial. Appellant asserts that the prosecutor improperly influenced the outcome of the trial by intentionally seeking to relieve the jurors of personal responsibility for imposing the death sentence, by commenting on the sentence imposed for the prior manslaughter conviction, by commenting on the failure of the defense to call witnesses during the first and second stage of trial to rebut the State’s evidence, by injecting his personal opinion and attacking Appellant in an attempt to inflame the passion and prejudice of the jury, and by arguing facts not in evidence. Alleged errors of prosecutorial misconduct should not, on an individual basis, serve as cause for reversal. Abbott v. State,
Only the first alleged misstatement drew a contemporaneous objection from the defense. Contrary to Appellant’s argument, we do not read the prosecutor’s comment as an expression of personal opinion on the appropriateness of the death sentence and an attempt to lessen the jury’s responsibility for the death sentence by
The remaining comments were not met with an objection, therefore, we will review only for fundamental error. Harvell v. State,
Further, we find no fundamental error in comments made during both the first and second stages of trial that Appellant failed to call certain witnesses to testify in his behalf. This Court has held that where a person might be a material witness on a defendant’s behalf and the accused neither places him on the stand nor accounts for his absence, failure to produce him as a witness is a legitimate matter for comment during the State’s argument. Trice v. State,
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.Supp.1987, § 701.13(C), we must determine (1) whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor, and (2) whether the evidence supports the jury’s finding of an aggravating circumstance as enumerated in 21 O.S.1981, § 701.12. The jury found the existence of three (3) aggravating circumstances; 1) that the defendant was previously convict ed of a felony involving the use or threat of violence to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.. The first aggravating circumstances was supported by a judgment and sentence for a 1965 first degree manslaughter conviction.
The second aggravator found, that the defendant knowingly created a great risk of death to more than one person, was supported by Appellant’s use of deadly force upon his three (3) victims. Appellant shot three (3) people at close range inside a small frame house and pursued both Linda Neal and Edward Peters in an attempt to further harm them. See Stoujfer v. State,
In evaluating the third aggravating circumstance found, whether there is a proba
Here, the State presented evidence that in 1964 while at a card game Appellant shot and Mlled an unarmed man. Witnesses at the game testified that the victim, who had in no way provoked Appellant, was shot with a pistol at close range. Evidence was also presented that in 1979 Appellant shot and killed his wife as his young daughter watched. We find this evidence of prior acts of violence, together with his killing of Donna Kay Neal, sufficient to support the jury’s finding of the continuing threat aggravating circumstance.
Mitigating evidence was presented by Appellant in the form of eight (8) witnesses who testified to the following: that Appellant is sixty-one (61) years old; that he is the sole support of this thirteen (13) year old daughter, helps to support his seven (7) year old daughter and his ninety-seven (97) year old mother; Appellant has family and friends that love and care for him; that Appellant expects to receive a life sentence; that Appellant was an active and respected member of a local labor union. This evidence was summarized into six (6) factors and submitted to the jury for their consideration as mitigating evidence.
Upon our review of the record and careful weighing of the aggravating circumstances and the mitigating evidence, we find the sentence of death to be factually substantiated and appropriate. Under the record before this Court, we cannot say the jury was influenced by passion, prejudice, or any other arbitrary factor contrary to 21 O.S.Supp. 1987, § 701.13(C), in finding that the aggravating circumstances outweighed the mitigating evidence. Accordingly, finding no error warranting reversal or modification, the judgment and sentences for First Degree Murder, Shooting with Intent to Kill, Discharging a Firearm with Intent to Kill and Possession of a Loaded Firearm, After Former Conviction of a Felony (21 O.S.1981, § 1283) are AFFIRMED.
Notes
. Instruction No. 31 provided as follows:
Evidence has been introduced of the defendant’s departure shortly after the alleged crime was committed. You must first determine whether this action by the defendant constituted flight.
The term "flight” as it is used in this instruction, means more than departure or concealment. To be in flight, a defendant must have departed with a consciousness of guilt in order to avoid arrest.
To find that the defendant was in flight you must find beyond a reasonable doubt that:
FIRST— The defendant departed or concealed himself;
SECOND— With a consciousness of guilt;
THIRD— In order to avoid arrest for the crime with which he is charged.
If, after a consideration of all the evidence on this issue, you find beyond a reasonable doubt that the defendant was in flight, then this flight is a circumstance which you may consider with all the other evidence in the case in determining the question of the defendant’s guilt or innocence. However, if you have a reasonable doubt that defendant was in flight, then the fact of any departure or concealment is not a circumstance for you to consider. (O.R. 264).
. Title 21 O.S. § 2612, provides that a court shall allow an adverse party to have any writing relied upon by a witness to refresh his memory before testifying or while testifying.
. In its most recent term of court, the Supreme Court ruled in Daubert v. Merrell Dow Pharmaceuticals, - U.S. -,
. Instruction No. 6 read in part:
Mitigating circumstances are those which, in fairness and mercy, may be considered as extenuating or reducing the degree of moral culpability or blame. The determination of what are mitigating circumstances is for you as jurors to resolve under the facts and circumstances of this case. (O.R. 278)
. Instruction No. 7 read as follows:
Concurrence Opinion
concurring in result.
I concur in the results reached by the majority. However, I disagree with the majority when it sustains the aggravating circumstance of the existence of a probability that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. I do so because of the evidence of the death of Appellant’s former wife and the treatment of the incident by the prosecutor.
During the second stage, evidence was introduced that Appellant’s former wife, Gloria, died as the result of a gun shot wound in 1979. Charges of murder were filed against the appellant and later dismissed. The couple’s three year old daughter, Pam, was in the house when the incident occurred. However, she claimed that she had blocked the trauma from her mind, and therefore, she could not testify as to how her mother was killed. To overcome this difficulty, the State sponsored the testimony of an aunt, Laverne Smith, that some hours after the death of Gloria she picked the child up and took her to the aunt’s house. Pam was very upset and when asked what was bothering her she replied that her daddy had shot her mother. This was the only evidence that Appellant caused the death of Gloria.
In the present case, Pam remained at the scene of her mother’s death for some time, including at least a part of the time that the investigation of the death was being conducted. She was exposed to the presence of and the conversations of many adults including the police. Pam was then picked up by Zuemae Dunlap, Appellant’s sister and taken to her home where she remained with Dunlap’s daughter until she was picked up by Smith. It is significant that there is a void in testimony as to the emotional state of Pam until she was picked up by Smith. In Stanberry v. State,
The trustworthiness of a statement should be analyzed by evaluating the facts corroborating the veracity of the statement, the circumstances in which the de-clarant made the statement, and the incentive he or she had to speak truthfully or falsely; and careful consideration should be given to factors bearing on the reliability of the reporting of the hearsay by the witness. (Citation omitted.)
When I apply this standard to the current facts I believe that the child’s exposure to outside influences between the death of her mother and the making of the statement deprive the statement of the degree of trustworthiness necessary for it to qualify under the excited utterance rule.
I am also troubled by comments concerning the death of the former wife made by the prosecutor in closing arguments. The appellant attempted to introduce a copy of the motion to dismiss the former case filed by the State and the order of the court allowing the dismissal. The State gave as its reason for dismissal: “TO BEST MEET THE ENDS OF JUSTICE ... DEFENDANT CLEARED BY POLYGRAPH TEST”. This offer was rejected by the trial judge because he decided that the reference to the polygraph test made the instrument inadmissible. During closing argument the prosecutor stated:
Andy Coats didn’t dismiss that case. The Assistant District Attorney did named Robert Mildfelt dismissed it. We have no way of knowing whether Mr. Coats even knew about it or not. And there could be a lot of reasons as to why it wasn’t — one of them may have been the fact that Pam Paxton wouldn’t talk about it and she was the only eyewitness that witnessed it and who knows. We don’t know why it was dismissed. (Transcript p. 1392.)
With this statement the prosecutor introduced unsubstantiated speculation that was contra to the record of the other case and hinted that because the jury did not know why the case was dismissed the appellant was guilty of murder for his former wife’s death. I find this unacceptable.
Since I find that this aggravating circumstance should not be sustained I feel that I must follow the standards set forth in Castro v. State,
Dissenting Opinion
dissenting:
I would like to take this opportunity to note my opinion that the Oklahoma “Flight
However, the crux of my dissent is from the majority’s determination that the use of unadjudicated offenses at the sentencing stage of capital trials is constitutionally permissible. I would join the eight states which currently prohibit the use of this evidence,
In this ease, the State presented evidence at Paxton’s sentencing stage that Paxton allegedly murdered his wife in 1979. The evidence consisted of a charge which had been dropped
Oklahoma allows unlimited use of this evidence at the sentencing stage of capital trials. Woodruff v. State,
In this ease, Paxton was found guilty of killing Donna Kay Neal, discharging a firearm with the intent to kill her sister, and shooting with the intent to kill Edward Peters. Paxton was then provided with a sentencing stage to determine the appropriate punishment for the murder of Donna Kay Neal. However, whether Paxton was sentenced to death for the murder for which he was convicted or for the 1979 murder is impossible to determine. It is possible that his jury did not think death the appropriate punishment for Neal’s murder, but appropriate for the 1979 murder which was witnessed by a five year old child whom they believed was frightened into not testifying. The jury may have effectively sentenced this man to die for a crime for which he was neither tried nor convicted. Such a result violates due process, as one may not be punished for a crime without due process of law. It also violates the prohibition against cruel and unusual punishment, as the death sentence may not be imposed in an arbitrary manner.
I agree with the Supreme Court of Washington’s decision in State v. Bartholomew,
Furthermore, the Court declined to hold the liberal standard of admissibility regarding mitigating factors should be expanded to aggravating factors, noting the admissibility of aggravating factors is limited by federal and state constitutional considerations. Id. at 1084. One such consideration is unfair prejudice to the defendant. “[Ejvidence prejudicial to the defendant must not be admitted at the sentencing phase.” Id., citing Gregg, supra,
I find the reasoning in the authorities listed above persuasive and would prohibit evidence of unadjudicated offenses at sentencing in capital trials. Though less preferable, an alternative to a complete ban would be to place restrictions on the use of unadjudicated offenses at sentencing.
Such restrictions would be preferable to Oklahoma’s present position allowing unlimited use of unadjudicated offenses at sentencing. However, the best result would be to prohibit use of such evidence altogether. It is unfathomable to me that only prior convictions can be used in non-capital sentencing procedures,
As Texas’ prohibition against the use of unadjudicated offenses in noncapital cases suggests, the use of such evidence at sentencing is at tension with the fundamental principle that a person not be punished for a crime that the state has not shown he committed. In the context of capital sentencing, this tension becomes irreconcilable. This Court has repeatedly stressed*1336 that because the death penalty is qualitatively different from any other criminal punishment, “there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” (citations omitted). In my view, imposition of the death penalty in reliance on mere allegations of criminal behavior fails to comport with the constitutional requirement of reliability.
Williams v. Lynaugh, supra,
. First, the instruction "serves no real purpose, as it is a particularization of the general charge on circumstantial evidence, and as the state is free to use circumstantial evidence of flight to argue the defendant's guilt.” Cameron v. State,
. The eight states are Alabama, Florida, Indiana, Maryland, Ohio, Pennsylvania, Tennessee, and Washington. Steven P. Smith, Unreliable and Prejudicial: The Use of Extraneous Unadjudicated Offenses in the Penalty Phase of Capital Trials, 93 Colum.L.Rev. 1249 (1993) [hereinafter Smith],
. The ten states are Arkansas, California, Delaware, Georgia, Illinois, Louisiana, Nebraska, Nevada, South Carolina, and Utah. Smith, supra note 2, at 1271. “While it is true that a two-thirds majority of states (16) considering the issue have rejected a per se bar on the introduction of this type of evidence, it is also true that more than two-thirds of the states (18) have deemed unrestricted use of the evidence unacceptable." Id. at 1267 (emphasis in original).
. To compound the prejudice, the prosecutor told the jury that the reason the charge was dropped was because the only eyewitness, Pam Paxton (Appellant and the deceased's five year old daughter), “wouldn't talk about it.” In fact, the reason the charge was dropped was because Paxton was cleared by a polygraph test. However, because the results of such tests are not admissible, the jury never knew this and instead was led to believe Paxton escaped justice because his young daughter was afraid to testify. This affirmative misrepresentation by the prosecutor was nothing less than prosecutorial misconduct which took away from the fairness and reliability due Paxton in the sentencing stage of his capital trial. Furthermore, I am not convinced it was not error to refuse to allow Paxton to explain why the charges were dropped, as this restricted his constitutional right to put on relevant mitigating evidence. Lockett v. Ohio,
. Art. II § 9; U.S. Const, amend. VIII. The cruel and unusual clause is offended because this evidence injects arbitrariness into the sentencing proceedings in violation of Furman v. Georgia,
. Art. II, § 7; U.S. Const, amend. XIV § 1.
. The Court stated that even if it erred in holding the Federal Constitution was violated by the admission of this evidence, the Washington State Constitution’s corollary due process and cruel punishment provisions were nevertheless offended. "The federal constitution only provides minimum protection of individual rights. Accordingly, it is well established that decisions from the federal courts ’do not limit the right of state courts to accord ... greater rights.’ ” Id. (citations omitted).
.For other states which also prohibit use of this evidence, See State v. Bobo,
. The citations which follow were recorded in Smith, supra note 2, at 1271-1277.
. 21 O.S.1981 § 51.