Phillips v. State

environment, contrary controlling au- aforethought, prison In a structured 3. requests Additionally, thority. Petitioner likely to person Bernay is not John opinion accurately its constitute Court to correct would acts that commit society. the record. continuing reflect threat cooperated fully with Bernay has

4. John purport considered the haveWe Department City Police the Oklahoma and law. irregularities as to facts ed his involvement denied has never may irregu Although some minor there be events. these facts, basically the facts are larities employed and Bernay an 5. John purported none of the correct. society of for twen- productive member change opinion of Court irregularities years straight ty-eight affirming judgment and sentence. toas through 1995. Therefore, FIND that Peti we felony Bernay’s last conviction 6. John Rehearing To Correct For and Motion tion ago, years in the thirty nine occurred be, hereby are and the same Opinion, should year 1958. is direct The Clerk of Court DENIED. herein. strong feelings to issue the Mandate very ed Bernay has 7. John that Pamela of and sadness sorrow ¶ IT3 ORDERED. IS SO life. lost her Wolfchief AND THE 4 WITNESS OUR HANDS Wolfchief, at time her of Pamela 8. day this 7th OF THIS COURT SEAL death, alco- the influence of was under December, 1999. drugs. prescription hol and M. Reta Strubhar /s/ considering re- carefully Upon STRUBHAR, Judge Presiding M. RETA supporting aggrava- viewing Gary Lumpkin, in results L. concurs /s/ circumstances, ting mitigating this Court LUMPKIN, Presiding Judge L. Vice GARY appropriate. death is finds the sentence Charles A. Johnson /s/ Furthermore, of death we find the sentence JOHNSON, Judge A. CHARLES pas- the influence of imposed under Chapel Charles S. /s/ arbitrary sion, or other factor.9 prejudice CHAPEL, Judge S. CHARLES warranting Finding reversal no error Lile, in results concurs Steve /s/ modification, Judgment Sentence LILE, Judge STEVE AFFIRMED. Judgment and Sentence 82 The AFFIRMED. court is CR 46 1999 OK 1999 OK CR AND DENYING REHEARING

ORDER Jr., Appellant, Eugene PHILLIPS Ernest OPINION CORRECT MOTION TO OF ISSUANCE AND DIRECTING MANDATE Oklahoma, Appellee. STATE has Camp Bernay, 1 Appellant, John No. F-97-695. Rehearing and Motion For

filed his Petition this Court Opinion requesting To Correct Appeals Oklahoma. Court of Criminal questions deci- rehearing some grant because Oct. 1999. duly by the case and submitted sive by attorney record were overlooked Rehearing Dec. 1999. Denied Bernay the decision Court and affirming his 1999 OK CR for the and sentence of death

conviction Degree, malice in the First

crime of Murder Proposi- tion 12. argument in also raises this (21

Degree Aforethought Malice Murder O.S. 1991, 701.7), CRF-96-284, § Case No. in the Bryan County. District Court (2) aggravating found the existence two punish- circumstances and recommended the ment death. The trial court sentenced accordingly. judgment From this and sen- perfected appeal.1 tence has ¶2 Appellant pre- was convicted of the (17) year meditated murder of seventeen old 17,1996, July Jason McFail. On Brian Ezell Texas, parents Sherman, traveled to up pick McFail so could return with to their them home Durant and for a visit days. During evening July few hours dinner, Ezell and McFail ate visited with parents Ezell’s and went to church. The young picked up cousin, men then Ezell’s Hearn, get gas Shannon and went to for the way, they On car. saw some friends of parked Ezell’s at the Country Love’s Store. drove Ezell over to the Love’s and all three young men exited the car to visit with Davida Clark and Christina As Chambers. visited, young people they heard shouting approached obscenities as he them. “you niggers get shouted need to your asses the hell out of town” and “run nigger run.” Faulk, Indigent System, Paul Defense ¶3 Appellant approached first McFail. Norman, Minter, III, Madill, Jody James up, McFail backed asked to leave Jenkins, Thornley, Attorney, Greg District leaving him alone and said he was the area. Durant, Attorney, Assistant District Counsel Appellant pushed McFail for chest at trial. State Appellant, onto repeating Ezell’s car. still Danner, Cindy Brown Kristi L. Christo- obscenities, approached next Ezell and pher, Indigent Norman, System, Defense pushed up against him nearby Chambers’ on appeal. Counsel got up car. Ezell away and backed from Edmondson, Attorney W.A. Drew General Appellant doing and in so observed a knife in Okla., Humes, William L. Assistant Attor- Appellant’s hand. Ezell walked around the ney General, City, Oklahoma Counsel for the nearby to the apartment corner of some appeal. State on get help. to friends he When returned he Ezell, chasing saw Hearn. who OPINION mentally, Hearn as described “kind of slow” LUMPKIN, Judge: Presiding Vice at him run apartment. shouted to toward the ¶ Appellant 1 Eugene Phillips, safety Ernest Ezell escorted Hearn into Jr., by jury was tried and apartment. convicted of First 30,

1. Petition in Error filed was Appellant’s in this was filed November 1998. The case was 5, Court on 3, November 1997. brief February submitted to the Court 1999. Oral 13, July was filed 17, 1998. The State’s brief was argument August was held 1999. Appellant’s reply filed November 1998. brief

1025 scene, ¶4 PRE-TRIAL ISSUES Ezell returned When the convenience store Appellant had entered ¶ Appellant contends his tenth He light cigarette. his a for and asked for assignment of error the trial court erred in obscenities, directing reign of continued his determining was doubt as to his there no the clerks clerks. One of them at store Appellant argues competency to stand trial. to call Appellant to leave and threatened told presented “nigger to establish lover” sufficient evidence police. shouted then lunged and at clerk. competency to a doubt as his and and left the store. turned around competency court’s failure order evalua requiring tion constituted structural error re Meanwhile, approached McFail had versal of his conviction. thought had and he he been Clark said shirt, he lifted blood his stabbed. When 10 In Gilbert P.2d poured each time heart his chest — denied, (Okl.Cr.1997), cert. 103-104 U.S. collapsed laid him on He on Clark who beat. -, 207, 142 L.Ed.2d 170 119 S.Ct. conscious, un- McFail but ground. regarding a set the law defendant’s we forth only at speak. He look Clark able to could trial. competency to stand stated: We cry. Appellant left the convenience As injured store, past gravely he walked competent presumed An is to be accused ground said “that’s lying on McFail prov to stand trial and has the burden of you you right nigger”, “how like that do incompetence. ing Bryson v. good “feels don’t it.” fucking nigger” and (Okl.Cr.1994), denied, P.2d cert. police The officers on the scene first L.Ed.2d 115 S.Ct. attempted McFail conscious found (1995). makes a If defendant him, only gasp air. question he could but incompetent showing he is threshold McFail, question attempted While officers filing proper application, the of a eyes. big he breath and closed his took hearing court must to examine the hold pulse. The to find a Officers were unable application. Cargle v. thereafter, but soon ambulance arrived saving responded life McFail never 136 L.Ed.2d 54 procedures the victim of this and became hearing to be used at test horrific, senseless act of violence. ability sufficient whether the accused has store, Upon leaving the convenience lawyer and a ration with his has consult nearby In talk- Appellant headed for a bar. understanding of the al as as actual well ing he asked her what she bartender Bryson, him. proceedings against something really if do she had done would wheth 249. The determination of at then commented would bad. has been raised re er a sufficient doubt police day. himself in to the the next turn competency left garding a defendant’s 20, 1996, July day, next That judge. Id. Such determination is the trial at his brother’s home outside arrested particular and cir upon the facts based Blue, custody, Appellant Once Oklahoma. Id. The trial of each case. cumstances working in Louisiana police he had been told give controlling required to court is not days. 3 or 4 had been Durant experts, may stabbing, opinions but in the effect to He involvement denied opinion and the stating rely lay he had been with friends various of witnesses on the July evening of bars the of the defendant. court’s own observations Id., Cooper v. (20) Appellant twenty proposi- raises (Okl.Cr.1995), grounds, on other overruled proposi- appeal2. in his These tions of error Oklahoma, 348, 116 Cooper v. 517 U.S. in in which tions will be addressed the order 1373, 134L.Ed.2d 498 S.Ct. they trial. arose at (21) was twenty-one proposi- number 11 omitted. Appellant's misnumbered and 2. brief lists However, propositions were tions of error. (as Addressing the However, term “doubt” tent to stand trial. as case sanity competency along in determi through

used both moved system court nations), Reynolds this Court relied on pressed as he was team defense for (Okl.Cr.1978), quoted P.2d as concerning crime, further information Cargle in P.2d communication with him became difficult and rt. increasingly agitated. he Billing became Ms. ce (1996) 100, 136L.Ed.2d 54 and stated: hearing stated that at a approximately held earlier, Appellant It Oklahoma that one week is well-settled “seemed to do okay during hearing”. doubt referred to the statute is that during which a doubt must arise the mind of the recess in which questioned defense counsel may Appellant The trial court look to offense, court. about certain details of the source of the extremely agitated information and motive he became un- and was determining whether there is doubt which able to concentrate and focus on the matter justify sanity hearing, would a and the opinion, Appellant at her “very hand. was existence of a doubt as to defendant’s sani- psychotic” at the time. She testified that ty must arise from facts of a substantial defense counsel had discussed a defense of nature. There must exist reasons to be- murder, degree they second but felt that of insanity lieve that the defendant’s claim Appellant’s inability accurately recall facts genuine jus- delay and not simulated to prevented of the murder such a defense. tice, finding and the of the trial court will Appellant She said charges understood the appeal not be disturbed on unless a clear him, against but he that was hostile and abuse of discretion shown. belligerent towards defense counsel. She stated agreed that in March at 815. sometime it was help Appellant, medication could but O.S.1991, 1175.3, § 12 Pursuant that she had been unsuccessful in her at- Appellant filed a Motion for Determination tempts prison to contact officials make upon of Competency allegation based arrangements Appellant for to receive anti- psychotic disorder had rendered him incom- psychotic cross-examination, medication. On petent assist counsel.3 Attached to the she expert admitted she not a medical application Philip were from Dr. affidavits only give personal and could opinion her as Murphy and Dr. J.R. Smith who had exam- Appellant’s psychotic condition. She said Appellant ined in March 1997 and deter- he day was aware of what occurred the competent mined was not to stand homicide, always but he “not aware of trial because he was unable assist counsel. the whole context” and it was difficult to 11, 1997, At an April hearing Appellant’s on receive accurate information from him con- motion, stipulated it was that if the doctors cerning surrounding events the murder. testify they testify were to would consistent with their affidavits. ¶ 14 Michael Johns testified he had a de- gree nursing presented and had ten worked for also testi- years mony psychiatry in the field Billing, investigator of Karen an with and mental health. System Appel- He stated he had Indigent Oklahoma interviewed Defense (OIDS) Johns, lant registered reports Murphy and reviewed and Michael Drs. investigator nurse and Smith and and volunteer concluded that OIDS. had Billing capacity thought process Ms. testified that her serious disorder and men- investigator an tal Appel- she had visited illness. He said in an interview with lant during specific questions several times. stated She where about the okay” asked, the first few visits “he seemed crime were it was “hard to determine that his compe- defense team provide believed he was whether he refused to couldn’t” application 3. The competen- for determination of found a doubt had been raised as to cy proposition discussed in competency of error was was ordered commit- Appellant's previ- (O.R.23-24). second Hospital. such motion. had ted He to Eastern State A ously application an post-examination filed competency determination of hearing was held competency (O.R.21). September on November at which time motion, hearing (O.R.33). After a competent on the the trial court found to trial. stand time, carry he would on conversa- it was obvious he rest because certain details just everyone else. something tions and function like thinking unrelated about symp- compared said to other inmates he exhibited Cook that opined Appellant case. He (23) years twenty-three in psychotic. Mr. seen his who is had toms of someone system, working prison Appellant Department a did there was Johns stated specifically directing anti- suffer from mental illness. On cross- not order Corrections examination, not Appellant, that he testified he was aware of psychotic medication but for Appellant. for order medication for Appellant had not received such medication. witnesses, evidence, hearing 18 After the above 15 In to the above addition it had not heard a statement as an court ruled that

defense counsel offered Appel- anything Appellant convinced it that court to the effect that that officer effectively rationally belligerent not assist lant had and hostile towards could been Appellant case. counsel. The court found was able refused to discuss his counsel and distinguish wrong approached, Ap- right from and was that as trial to Counsel stated communicating belligerent capable less co- with counsel. pellant more became Finding as no doubt had been raised to com- operative. petency, Appellant’s motion was overruled. testimony presented the 16 The State witness, Cook, Manager, Fred 19 We find no error the trial court’s of one Unit ruling. Appellant un Penitentiary. tes- The evidence shows Oklahoma State Mr. Cook charges against having daily to derstood the nature of the tified contact (3) to approximately to three months him and was able assist counsel —if he so for two The typical him inmate. He chose. evidence indicates de and described as a liberately to become hostile and un Appellant had him about his case chose said told charges cooperative counsel. This is to 'with insufficient and seemed understand competency Appellant had a as to his to against him. He noted that to raise doubt trial. “they” going were to offer stand See Fox commented (“It (Okl.Cr.1974) parole is not sufficient for the

him life but that he was not without merely say counsel to that he is going to it. said that under defense take Mr. Cook client; and, Appel- Bryan County, unable to communicate with his DOC’s contract with processes mental seem to segregated be from the client’s lant was to held discussing population. only place while he is the case with general prison waver and, him; generally that his client does not understand to hold him was a cell available charge, protective custody. of a to constitute for the seriousness used those inmates finding justification for a that the defendant testimony, During Cook’s mentally incompetent. considering shouting arguing interrupted obscenities necessary question it consider the we placed in right it wasn’t for him to be “PC”. record.”). Middaugh v. entire See also forcibly After removed from (Okl.Cr.1988) 434-35 courtroom, explained inmates Cook (mere a appellant fact had been treated for perceived protective custody were as past, in the had a heart condition mental general prison population. “snitches” condition, and had a nervous condition was many times to explained he had enough a raise sufficient doubt as protective custo- Appellant that he was not especially capacity mental to stand trial — usually dy, merely being held in a he was cell testimony contrary); light of his custody protective used for inmates. Cook (Okl.Cr.1992) Siah typical of his be- Appellant’s called outburst (lack abuse, memory trau from substance “showboat”, get up mad act havior to create, se, disease, per does not ma or get he How- when he did not what wanted. trial). competence to stand lack ever, majority Cook said that was what ¶20 incompetence Appellant’s claims of prison population did. Cook described crazy”. “general, speculative which do “conveniently He ex- are assertions ability Ap- not raise doubt as plained that when was convenient could, na- “crazy” with counsel or understand the but then the consult pellant to act against proceedings attempt ture of him.” Gil- to dispel commonly the held attitudes bert, clearly Finding error, phrases. 951 P.2d at 105. The record and often heard no supports assignment finding, the trial court’s this of therefore error is denied. finding

such will be not now disturbed. This assignment of error is denied. FIRST STAGE ISSUES ¶ 24 In assignment his second er PROSECUTORIAL MISCONDUCT ror, Appellant contends the is insuf evidence DURING JURY SELECTION to support ficient his conviction for first de assignment ¶21 In his seventh of gree aforethought malice murder. While he error, Appellant argues the court erred admits State’s evidence showed inflict allowing prosecutor in to define “reason single chest, aed stab wound to the victim’s during able dire. The record doubt” voir Appellant argues these facts do not lead to during prosecutor dire the reflects that voir the conclusion that he intended victim’s juror asked a not to hold the State to Appellant argues death. the standard to be higher proof “beyond burden of such as all reviewing used in the evidence that which is “beyond doubt” or a shadow of a doubt.” evidence, is used cases of circumstantial Objections to inquiries were overruled. “simply the evidence did not exclude prosecutor jurors they further asked if every hypothesis except reasonable that Mr. forget phrase they would be able to Phillips killed MeFail Jason with malice doubt”, might “beyond have heard such all aforethought.” brief, 32). (Appellant’s pg. doubt”, “beyond any “beyond a or shadow of evidence, best, He asserts raised noth doubt”, anything “or other else than be ing suspicion more than a speculation or yond a reasonable doubt.” guilt. ¶ 22 Appellant is correct his assertion presented 25 The evidence at trial that this has stated times Court numerous consisted of both direct and circumstantial self-explanatory, reasonable doubt is evidence, therefore we sufficiency review the clarify therefore do definitions thereof not of the evidence under the standard set forth phrase, the meaning of the but to rather tend State, 202, in Spuehler v. 709 P.2d 203-204 State, jury. confuse v. Al-Mosawi (Okl.Cr.1985); “whether, reviewing after P.2d light most favorable 189 L.Ed.2d 92 prosecution, a rational trier of could fact have (1997); State, Templer v. 494 P.2d 671- found the existence the essential elements (Okl.Cr.1972). However, the comment in charged beyond the crime a reasonable comparable case is upheld one doubt.” accept This Court will all reason Court Hammon credibility able inferences and choices that (Okl.Cr.1995). Hammon, we support tend Washington the verdict. position reaffirmed our that was not error prosecutors to state that reasonable beyond any doubt does mean doubt 701.7(A) O.S.1991, § 26 Title 21 defines beyond a shadow of a doubt. Id. at 1305. aforethought malice murder: We stated that when read context such person A commits murder in the first de- “merely were attempts by comments gree unlawfully person when that and with prosecution dispel commonly held atti aforethought malice causes the death of than attempts tudes rather to define reason being. another human is that Malice de- able Id. doubt.” unlawfully liberate intention to take away Accordingly, we find the being, comment the life of a human which impermissible case an was not manifested external circumstances attempt added). capable proof, to define (emphasis reasonable doubt but an urge my colleagues I reject daily continue concurring). in this case the unsupported dichotomy relating tests to suffi- applied regardless test correct method ciency of the evidence. White v. See which it is invoked. (Okl.Cr.1995) (Lumpkin, spe- 993-95 J. trial, [i.e., a design tim. Prior to filed notice of 27 “A to effect death testimony summary of fact of witnesses and indicat- premeditation] is inferred from the present, part, ing rea the defense would evi- circumstances raise a killing, unless the Appellant’s relationship of with design dence his such existed.” sonable doubt whether State, O.S.1991, response, a § father. the State filed Motion 21 See also Hooks v. 702. (Okl.Cr.1993), 1273, prohibit testimony arguing cert. de in Limine to the 862 P.2d 1870, not to nied, 128 that such evidence was relevant the 511 U.S. pre- to Appellant’s of intent kill. In Premeditation sufficient issue L.Ed.2d hearing, argued may in an trial motion the defense that to murder be formed constitute State, instant, Appellant’s physically P.2d father had and mental- Boyd v. childhood, (Okl.Cr.1992), denied, Ap- that ly abused him since his 509 U.S. (1993), may pellant living in Louisiana when he 125 L.Ed.2d 697 or it had been S.Ct. daughter and instantaneously killing learned that his ex-wife were be formed father, living P.2d with his that he feared his being Allen v. committed. daughter just as aforethought father would abuse his he Malice Appellant, Appellant went may by and that to proved circumstantial evidence. had be (Okl.Cr. The Durant to confront his father. defense Cavazos 1989). argued during the or two three also Durant, Appellant was was days he ex- case Viewing the evidence 28 . tremely quite upset, he a bit and drank law us to “unmis- under the above leads argued suicide. The defense threatened fully in- [Appellant] conclusion takable father, rage felt for his combined Allen, consequences his acts.” tended the of illness, drinking his mental and caused obviously agitated Ap- at An victim, though pick fight he him to with the approached victim pellant the unarmed not to kill the victim. The State did intend ignoring shouting obscenities and the victim’s mitigation responded that such evidence was pleas Appellant stabbed the to be left alone. stage presented in a evidence to be second of his chest. victim on left side trial, Appellant’s and not evidence relevant to over fallen as he both walked victim at the time of the crime. The state mind and the convenience store. entered exited trial court sustained motion limine. exited, say As was heard to he you right nigger”, ¶30 do “that’s “how again like at trial The issue was raised it.” you fucking nigger” good and “feels don’t jury opening but before state- after selection Appellant’s If were more akin words additionally argued that ments. The defense not “fighting argues, as he and he did words” previous Appellant’s ruling, the court’s die, anyone he have then could intend ability testify explain why than the the victim somewhere other stabbed angry at time of the and intoxicated evi- the uncontradicted heart. stabbing severely so limited as render concerning the of the victim’s location dence testimony completely ineffectual. Appellant’s conduct toward excluding

wound argued that evidence such defense victim, stabbing, both before after opportunity to deny see would to kill the victim. clearly show he intended picture state of the entire Accordingly, we find evidence sufficient The trial time the crime. mind degree for first support the conviction previous finding upheld ruling, court its proposi- This aforethought murder. malice mitigating appropriate evidence evidence tion error is denied. penalty phase of trial. for the ¶31 third time raised a assignment of er The issue was 29 In his fourth ror, during The trial an the defense case-in-chief. he was denied contends previous ruling again its call court stood on opportunity present defense and to ruling, the evidence. With that ruled he could excluded the witnesses when the court presenting wit- angry without showing he was defense rested proof was made stabbing A offer nesses. detailed with his father at the time testimony and their concerning the witnesses not intend to kill the vic- and therefore did Appellant’s relationship relating to with his the ill will was directed victim. toward the negated to kill Duvall v. father and how intent See the victim. t. cer (1992) (“[t]he 224, 121 L.Ed.2d 161 relevance appeal, Appellant on 32 Now raises the threats, testimony showing feeling, ill presented argument same to the trial court: spouse similar conduct one toward anoth relationship his his with father was rele er in a marital homicide case has been estab proving of

vant to his lack intent to kill the by Court.”); State, lished Short v. 980 support argument, Appel victim. In of his 1081, (Okl.Cr.1999) (evidence P.2d 1097 stating lant case law the defen cites previous between altercations defendant and dant’s of mind at time of homi state the the victim found relevant to intent in defendant’s cide is relevant. See v. 84 Jackson light personal relationship). of their close 924, (1947); Phelps 931 Okl.Cr. ¶ case, In present 37 the 240, 248, 1068, there is no 64 Okl.Cr. 78 P.2d question (1938). Appellant and the victim were such, strangers to each other. As we fail to Jackson, evi- 33 In this Court found Appellant’s relationship see how abusive with “whiskey drinking” dence of the defendant’s to, Appellant his father contributed or as personal disputes with those than other argues “negates”, his intent to kill the victim. the deceased was to the relevant defendant’s fact, Appellant angry could have been. state of mind at the time of the homicide. with his father and kill still intended to However, at these inci- were victim, perceived if argues as he he he was only dents which occurred hours before the object by of derision the victim and his homicide which the “[threw] Court- found acquaintances. Appellant argue does not light on the defendant’s state of mind at the right wrong did he not know from or the shooting, part time of the form[ed] consequences of actions his at the time he up an chain leading unbroken of events Appellant’s stabbed victim. Evidence of climaxing shooting with the vic- [the past abusive was not relevant to state tim] the defendant.” Id. year mind toward the victim seventeen old Phelps, 34 In the Court found relevant tendency not did have to make more or appellant evidence that the had assaulted a probable Appellant less the fact that intend- person unrelated to victim of the homi- O.S.1991, § ed to kill the victim. See approximately cide three four hours before (relevant evidence defined as “evidence hav- However, the homicide. the reason the ing any tendency make the existence of a Court found the evidence relevant was due to fact of consequence that is to the determina- (a weapon the fact in used the assault probable tion action more or less blackjack) type weapon was the same used probable than it would be without evi- homicide, appellant and the had denied dence.”) Therefore, we find the trial court having weapon. such excluding did not abuse its discretion evidence. clearly distinguish 35 These facts Jack- Phelps present son and from the case. fully this does not Here, of the abuse suffered answer claim. We must next Appellant at the his father hands of occurred ruling consider whether the trial de court’s approximately twenty years before Appellant ability present nied his de homicide. It of an part was not “an unbro- “The fense. criminal defendant the con has leading up ken chain of events to and climax- right stitutional be heard at trial. ing” with the stabbing the victim as II, § Harjo Okla. Const. art. 20.” Further, Jackson. was there no connection 1067, de weapon in Phelps. Appel- used as nied, authority lant’s does not further his cause. (1995). L.Ed.2d 1007 See also Rock v. Ar kansas, 44, 49, 36 To the contrary, ap- evidence of an 107 S.Ct. pellant’s (1987). ill will may has been found relevant right L.Ed.2d 37 That be limited, state of may mind situations but where such limitation not arbi- his/her be Blue, was ar- v. home OMahoma. disproportionate. United States trary or outstanding upon rested an misdemeanor Scheffer, 523 U.S. ease, Eight driving suspension. under warrant for In the

140 L.Ed.2d Blue, but testifying, officers traveled home prevented not Appellant was door, upon only two at the presenting evi- knocked only prevented from he Appellant’s invitation entered and served to an issue to be that was not relevant dence placed arrest guilt warrant. under phase in the of trial. decided suspension. Appellant driving under have and described the could testified still Appellant’s di- stabbing. get asked to his wallet. At surrounding the He was events rection, A detailing officer retrieved the wallet. his abusive an only prevented from laying and not knife next to the wallet was seized. It was the trial childhood. questioned about the stab- deprived of first hand court who bing police until arrived at the station testimony of the from the defense crime Ap- rights which read his and inter- of evidence of time he was point of view. Exclusion prevent not viewed. pellant’s abusive childhood did presenting a

Appellant from defense. See ¶ 41 The nonexis existence or 309, 118 S.Ct. 1265 Scheffer, 523 U.S. at at subterfuge effecting in an arrest of tence (defendant’s significantly im- case was not matter not estab an accused is a which is by poly- the unreliable paired exclusion of by independent any but is lished one factor evidence). strategic made a graph Appellant surrounding by evidence the established the put choice not to on evidence defense. entirety. in its Alexander arrest considered Therefore, was not Appellant we find denied (Okl.Cr.1976) State, 1058, v. 556 P.2d 1060 a right his constitutional to defense. State, 1116, citing 511 P.2d 1118 Fields v. assignment of error is denied. This (Okl.Cr.1973). a Fourth Amend Whether has on an raises ment violation occurred “turns Appellant 39 two chal objective of the actions legality arrest in his assessment officer’s lenges to the of his Appellant light facts and con proposition ar of the circumstances eighth of error. time, fronting the ... not on the him at gues his arrest on a misdemeanor warrant the time the driving suspension pretext under was a officer’s actual state mind at for challenged Maryland v. gathering was taken”. subterfuge purpose for the action Macon, 463, 470-471, 105 S.Ct. and that the 472 U.S. evidence about the homicide (1985) 2778, 2783, quoting Initially, L.Ed.2d him. 86 370 was not valid as to warrant States, 128, 136-139, allegation plain v. 436 U.S. note this is reviewed for Scott United we 1717, 1722, 13, 1724, n. 5 only n. Appellant as this is the first time 98 S.Ct. error 6 v. Unit challenged legality of his A L.Ed.2d 168 See also Whren has the arrest. 1769, 1774, States, In-Custody Suppress to Accused ed 517 U.S.

Motion challenged (Supreme 98 Court only Ap 135 L.Ed.2d was filed but Statement unwilling it to position that was speak police and waiv reiterated its pellant’s consent to Moreover, challenges entertain Fourth Amendment right Appellant to counsel. er of upon actual of individ guilty charge against him at based motivations pled not officers). Lyons also 787 arraignment contesting legal ual See v. without (Okl.Cr.1989) citing Scott ity long arrest. This has held P.2d of the Court Causey, 818 F.2d timely object legality to the of United States v. that failure (5th Cir.1987) (the subjective alone prior entering plea intent an arrest ille otherwise lawful conduct charges appellate waives review of the issue. does make unconstitutional). gal Clayton rt. ce 1655, Here, no bench there is evidence the (1993); Holliday L.Ed.2d driving suspension under was warrant for Con investigation pretext for further issued as a plain sequently, we error. review issued of the murder. The warrant was valid warrant at the time day arrested the after 1995 and was a was murder, 20, 1996, us to testi- July was directs at his brother’s executed. showing mony ing officers knew about the bench officer should make immediate reason- opportunity and had the warrant serve it deny able to confirm or applicabil- efforts Appellant prior and arrest murder. ity of the warrant to the detained individual. officer, arresting Officer Tim- If, efforts, after such reasonable officer berlake, why know testified he did not reasonably good faith believes that was not served one the other warrant suspect against one is the whom the warrant prior to murder. stated officers He outstanding, protective or administrative Appellant, Appellant at the time he arrested person search incident to the arrest of that only suspect was the murder and that it not in violation of the Fourth Amendment. “logical” existing to serve the warrant at Here, Id. record contains no time. the same identity doubt as to the person of the warrant, named on the therefore there further directs us to an no need for officers to make efforts to Affidavit Probable Cause to Make a War- deny applicability confirm or war- original Arrest rantless filed record. Appellant. Accordingly, assign- rant to The affidavit states was arrested ment of error is denied. 20, 1996, approx. p.m. July 12:20 based upon probable cause as set in the affi- forth assignment his ninth of er trial, Timberlake, At davit. Officer the affi- ror, Appellant contends he was a fair denied affidavit, ant on the testified highly prejudicial the admission of upon probable upon not arrested cause but and Initially, irrelevant evidence. he chal municipal explanation the warrant. While no lenges the of photograph admission a of the affidavit, any for was offered the we find bearing tag. Appellant’s victim’s foot a toe inconsistency testimony in the affidavit and objection the photograph to was overruled. illegal. did not render the warrant The offi- Appellant argues light that in of the medical legally cers executed a valid arrest warrant. body, examiner’s identification of the the subjective Their intent alone does not make photo purpose no served to in other than illegal this otherwise lawful conduct or un- jury flame the with “chilling spectre the of constitutional. body cold, [the victim’s] lifeless laying on a ¶44 Further, it the is clear war morgue.” brief, (Appellant’s hard slab at the pretext rant not issued as for a search 63). pg. premises of the as officers at entered request. The knife was observed ¶ 47 The admissibility photo of plain during view the arrest and thus was graphs is a matter within the trial court’s State, illegally. Reynolds not seized v. See discretion and absent an abuse of that discre (contraband 628, (Okl.Cr.1978) 575 P.2d 634 tion, will this Court not reverse the plain during view seized arrest was not ruling. State, 270, court’s Patton v. 973 P.2d search). plain considered find no error We (Okl.Cr.1998). Photographs 290 are admissi in the arrest or seizure of the knife. if ble their content is relevant their probative is substantially value not out 45 Challenging for the first time weighed by prejudicial their effect. v. validity Smith appeal underlying on the of the war (Okl.Cr.1987), cert. State, 1206, 737 P.2d rant, Appellant argues no efforts were made 1210 denied, 959, 358, verify 484 U.S. person 108 S.Ct. 98 the listed in the warrant was (1987); O.S.1991, § him L.Ed.2d 383 12 and not his 2403. father. The warrant was probative The value of Eugene Phillips photographs for of mur issued Ernest at the 2, Durant, of der victims can be address Rt. Box 499 in manifested in numerous Okla ways, including showing nature, Eugene Phillips, homa. is the Ernest extent Jr., Blue, wounds, and he of establishing was arrested of and location the cor outside delicti, scene, pus City depicting Oklahoma. the directs us crime Clifford, v. corroborating Tulsa the medical 1287-88 examiner’s testi (Okl.Cr.1990) State, mony. wherein we cases held Trice 212-213 denied, identity (Okl.Cr.), where doubt as to the correct cert. subject arises, (1993). the 638, 126 the warrant the arrest- L.Ed.2d 597 ¶51 ¶48 ease, A own state In the defendant’s the hearsay. are ments not Workman the medical exam photographs corroborated P.2d identity testimony concerning the iner’s 258, 121 L.Ed.2d 189 autopsied. previously have person We 2801(4)(b)(1). O.S.1991, § See also photos not rejected argument are are When a defendant’s statements relevant location if the cause of death

relevant trial, issues the trial court at has are Pat of the wounds not contested. See Workman, Hooks, discretion admit such. ton, 862 P.2d at 978 P.2d at 290. Here, the shows a P.2d at 382. record volun every prosecution, is 1280-81. In criminal tary prior any questioning first, statement made responsibility prove, the State’s by police. Appellant fails cite authori delicti, second, corpus that the crime was ty merely proposition for his because a by of the committed the accused. Pictures truth, may be the defendant’s statement not always probative in estab murder victim are grounds excluding this is the statement. lishing corpus of the crime. Pat delicti The statement was relevant as consistent ton, 973 P.2d at by Appellant other statements made ¶49 reviewing prejudicial impact denying presence at Love’s store and has “where photographs Court said in the involvement crime. relevance probative photographs value of or slides substantially is not out evidence outweighed by prejudicial impact their on danger prejudice, weighed unfair is, jury elicit tends to issues, misleading jury, confusion judgment rather than rational an emotional delay, presentation of undue needless cumu they then should be admitted evidence, lative or unfair and harmful sur P.2d into evidence.” President v. O.S.1991, Therefore, § 2402. prise. See 12 Short, also See properly assignment This it was admitted. P.2d Oxendine v. of error denied. (Okl.Cr.1958). Applying that standard to ¶ error, assignment In 52 his twentieth of ease, photograph not one this we find was pro- he was denied due contends response. The solely elicit an to emotional right a fair when he cess and to trial was foot, photograph only the victim’s shows during to trial. forced wear stunbelt tag leg. The identifying part toe and his Shortly empanelled, before the was de- body pho- visible. The victim’s entire is not that fense counsel made record the State tograph gruesome nor is neither inflammato- forcing to wear stunbelt was ry. photograph probative was and in while the courtroom. Defense counsel outweighed by any probative value was not readily noticeable admitted the belt not prejudicial impact. Appellant failed to has objection jury, to it voiced his but prejudice, no his and we find meet burden any any way in or being referred to manner photograph. of the error the admission informing jury about The trial court it. not to indicated that should show it challenge next 50 objection. jury, denied the but otherwise admissibility to to the of a statement made State, 53 Davis 709 P.2d time of arrest. v. Officer Timberlake at the his (Okl.Cr.1985), 207, driving being placed arrest 209 this Court reiterated After under for rights, shall be tried suspension Appel his the rule that no defendant under and read warrant, he waives his cops city for a handcuffs or shackles unless lant said “all these O.S.1991, § 22 15. This somebody something.” right. also you act like I killed or See policy such a rule Appellant argues state noted the behind appeal, Now on Court hearsay lacking any stating part a criminal defendant was ment was inadmissible free appear court with use probative value. asserts the entitled faculties, mentally physically was to purpose presenting the statement his both (Okl.Cr. State, citing P.2d 501 had lied French v. 377 improper raise the inference he State, 1962), 516 P.2d failing explain overruled Peters v. police by to confess (Okl.Cr.1973) (as 1372, prior holdings 1374 the offense. 1034 try

that it error to the defen- murder is a lesser offense is reversible included of malice handcuffed). However, right this murder. dant while may engages if the be waived defendant Although Willingham was handed disruptive disrespectful

misconduct so down six the trial in months after Peters, that the trial cannot continue. 516 case, upon the law which decision that P.2d at 1374-75. degree depraved mind second murder is not a lesser included offense of malice murder ¶54 Although 15 does Section was the amendment based to the stunbelts, directly find it not address we Therefore, statutory statute. as the lan applicable physical as a restraints such upon guage which this Court relied for its Here, Appellant expressly stunbelt. did not authority was in the time effect at physical right waive to be tried free his ease, appears and trial in murder during restraints. outbursts possible post present. no ex violation is facto competency hearing, State, See Castro 749 P.2d he had acts of creat committed violence and problems ed while incarcerated in both the (1988). Secondly, 99 L.Ed.2d 446 Bryan County County Jail and Carter reject Appellant’s we invitation reconsider placed custody Jail so that he was in the of Willingham finding application it a correct Department made Corrections the law. statutory by the trial violation court harmless argues further O.S.1991, § (statutory error. See 20 3001.1 entitled to an instruction on second subject analysis). violations to harmless error degree depraved murder mind under case law which states that court is to parties agreed All the stunbelt every degree instruct on of homicide which jury. was not visible There is no prove. the evidence tends to Malone v. hampered Appellant’s evidence the belt use State, (Okl.Cr.1994); 876 P.2d Tar hands, legs arms and or that it im ter paired his mental abilities. Therefore absent A defendant entitled to an instruction on evidence, deny such find we error did every degree of homicide which is a lesser Appellant a trial or fair have a “substantial primary charge included offense of the influence” on the outcome of the trial. See supported by which is evidence. See Simpson, assignment P.2d at 702. This (Okl.Cr Rawlings v. of error is denied. .1987); Ross v. 121-22 (Okl.Cr.1986) (the give trial court should an FIRST STAGE JURY INSTRUCTIONS on only instruction a lesser included offense support where the evidence would such a ¶ 56 contends in his first Here, theory). degree depraved second assignment the trial erred error court mind murder was not a lesser included of refusing requested give his instruction^ on support fense and the evidence did not the degree second as a murder lesser included giving of an degree instruction on second State, Willingham offense. In 947 P.2d murder. 1074, (Okl.Cr.1997), denied, cert. 524 1081 ¶ 2329, U.S. 141 degree 118 S.Ct. L.Ed.2d 702 59 Murder in the second occurs (1998) degree this held that perpetrated by Court second imminently “[w]hen an act depraved dangerous murder is not a person evincing mind lesser includ to another and degree mind, ed depraved life, offense of first malice murder. regardless human al Appellant recognizes Willingham argues: though any premeditated design but without 1) application its to his case would violate the any particular effect the death of individual.” post O.S.1991, 701.8(1). § ex doctrine of the federal constitu 21 We have held that facto tion, 2) Const., I, 10; §§ U.S. Art. 9 and applicable this statute is there is where no ruling Willingham legally the in premeditated any particular incor Mil intent rect prior and this its person. Boyd, Court should return to 839 P.2d at rulings finding degree depraved argues given second mind that the fact he stabbed the knife, precluded considering once, properly that victim, only pocket a small with angry non-capital option. he with particular while was that did so father, juror have could his a reasonable Similarly, pres- the evidence the imminently danger- that acts were found his support degree ent case did not second depraved but were mind ous evinced Therefore, the rea- murder instruction. design to effect death. committed without above, we find trial court sons discussed testimony by specifically relies on omitting not err an instruction on did type of wound that the medical examiner degree mind depraved murder. This second the victim “survivable.” suffered assignment of is denied. error medi- Appellant fails to note that the assignment In his third of er such a wound cal examiner testified ror, Appellant the trial court’s failure got if the victim to a “chest attacks survivable enough.” give requested instructions on volun surgeon quickly As discussed I, degree manslaugh Proposition tary find the showed intoxication and first we evidence specific intent with the In acted ter. Jackson v. P.2d — Therefore, -, the death of the victim. effect (1999) of a support giving evidence does not L.Ed.2d 217 we 119 S.Ct. degree depraved

jury voluntary instruction on second that an on intoxi stated instruction murder, sufficient, if it were a lesser includ- mind even given pri- be “[w]hen cation should ed offense. presented is which meets ma evidence facia voluntary legal criteria for the defense of argues Appellant further he was en intoxication, .. ”. at 892. The Court degree depraved mind titled to the second further stated: theory it was his murder instruction as only enti a defendant is defense. test, clarifying apply now In we theory an on a of defense tled to instruction of this case. A defense of test facts supported by theory if the evidence voluntary requires intoxication that a de- Kinsey as a matter law. tenable fendant, first, and, second, intoxicated be (Okl.Cr.1990). If 632-33 intoxicated, utterly that his mental be so support is no the record to there evidence overcome, rendering impossi- powers are instruction, given. Coul an it should be specific to form ble for a defendant ter v. special mental element criminal intent or did,not above, the As discussed evidence Cr.2d, & 8-39 of the crime. O.U.J.I. 8-36 support instruction. giving the (1996). Finally, Appellant argues Jackson, applying this test Id. by failing jury on second present to instruct failed to found defendant Court murder, pro degree trial court failed to powers so mental were evidence option convicting vide the through intoxication that he could overcome required by non-capital him a offense specific intent Mil. not form Alabama, Beck v. a simi- case warrants This same ar eyewitnesses 65 L.Ed.2d 392 finding. Of the nine lar rejected testified, v. gument only any was raised and Valdez two made reference who State, 363, 900 378-379 might P.2d in- possibility Appellant that be 967, 516 U.S. 116 S.Ct. Brian Ezell testified on cross-ex- toxicated. (1995) 341 wherein we stated: Appel- L.Ed.2d beer on that he smelled amination if to him as v. breath and that it seemed Neither v. Alabama nor Schad lant’s Beck 624, 2491, drinMng. Appellant had On re-direct 111 115 been [501 Arizona U.S. S.Ct. (1991) examination, ap- if jury Appellant require a Ezell was asked

L.Ed.2d ] intoxicated, re- third, to which he non-capital peared a to be capital given a be case just his “I alcohol on absolutely sponded does smelled option the evidence where examination, Ezell On support option. The evidence breath.” re-cross not “that basi- degree agreed with counsel’s statement support case not a second did breath, picked liquor jury cally thus a man with on was murder instruction by objections trial, fight ya’U raising specific no reason?” at a for Thomas thus Love’s, O’Brian, manager giving opportunity at the trial court to cor- the assistant any Appellant rect error. Driver v. testified on re-direct that did not See 760, object appear He said he did not smell Failure to at intoxicated. may any Appellant trial when the error be Appellant, alcohol on did cured judge trial speech, walking. plain have trouble review for all but slur his or waives 866, eyewitnesses error. Shelton None of the other smelled v. (Okl.Cr.1990). Therefore, opined Appellant only that he we review alcohol on or was for Additionally, Holliday, plain Vicki error. intoxicated. at the visited bartender bar after give failure 67 The the re stabbing, that when testified quested in this case instruction was consti p.m. came into 11:00 the bar between Kentucky, tutional error. Carter 450 U.S. calm, midnight, that she he seemed did not 300-01, at at 1119. S.Ct. and that he smell alcohol on him did not automatically require does not reversal as seem intoxicated. may subject constitutional errors be to a ¶ 65 None of evidence showed that analysis. considering harmless error In intoxicated, actually was therefore subject whether such an error to harmless support he failed first element of his analysis, error we must first determine Further, present- defense. no whether it is a structural error or a trial ed, through directly either defense witnesses Fulminante, error. Arizona v. 499 U.S. indirectly witnesses, through the State’s 113 L.Ed.2d 302 was intoxicated to the extent Supreme has Court differentiated be overcome, powers rendering his mental were tween “trial error”' —“error which occurred impossible specific for him to form the during presentation of the case to the Accordingly, criminal intent to kill. the trial jury, may quantita and which therefore be rejected properly court an instruction on vol- tively assessed in the context of other evi untary an accompanying intoxication5 and presented dence in order to determine degree manslaughter6. instruction on first beyond whether its admission harmless assignment This of error is denied. doubt”, 307-08, reasonable Id. U.S. at 111 S.Ct. at and “structural error” —-a assignment fifth 66 In his affecting “structural defect the framework error, Appellant argues reversible error oc proceeds” within defy which the trial “which curred when the court trial refused his re analysis by ‘harmless-error’ standards.” Id.

quested no instruction that adverse inference 499 U.S. at 111 S.Ct. at 1265. See also testify. should be drawn failure to (Okl.Cr. Bartell v. Kentucky, Carter v. 1994). 1112, 1119, 67 L.Ed.2d 241 Supreme give Court “the Fifth stated Amend 68 The failure to re requires quested ment judge clearly that a criminal trial instruction is an error in the give process must “quanti ‘no-adverse-inference’ in itself. This Court can requested tatively struction when a defendant to the “context of assess[]” other evi Any do presented so.” error in the omission of the dence in order to determine requested in this instruction case is reviewed whether [omission instruction] plain beyond error failed to harmless a reasonable doubt.” Ful minante, specific objection 307-08, raise a and inform the S.Ct. at Kentucky. Further, court of duty Carter It is the privilege the constitutional against of counsel in avoiding compulsory to aid the court error self-incrimination which Jackson, 5. See support 964 P.2d at 892. Court will not search the record to error, appellant's assignments unsupported separate argument 6. makes no nor allegations nor review of error which are not supporting cites cases his claim to an in- State, authority. supported by legal Fuller v. 751 degree manslaughter. struction on first He P.2d 768 merely proposition heading raises it in the and paragraph. the first It is well established this

1037 charge To this the defendant has entered infringed upon in this case is the same very plea guilty, in of not which on the State privilege in the case which casts involved proving allega- its harmless the burden of the material Supreme Court announced California, your v. 386 tions of the Information to satisfac- Chapman error standard. tion, doubt, 18, 24, beyond L.Ed.2d 705 a reasonable before 87 S.Ct. U.S. (1967).7 you justified returning a would be ver- guilty. dict of conducting In a harmless er simply charge upon The Information is jury analysis, we was instructed ror find trial, placed upon is which the defendant pled guilty had not and that no the defendant way and sets forth a formal the offense merely guilt arise be inference of should accused, and it of which the defendant is filed the Dis an Information was cause is, itself, no evidence of the de- and of presumed Attorney, the trict defendant you guilt, and should not allow fendant’s innocent, and that each element the crime yourselves against to be the de- influenced proven beyond to be charged had reason filing of the the infor- fendant reason during made doubt. No comments were able mation. presentation argu closing of the presumed of the defendant innocent regarding any inferences to be drawn ments charged against crime him innocent of and Further, testify. Appellant’s failure to from every each material constitut- element against strong. Appellant was the evidence offense, ing presumption such Here, we find omission of instruction until time as his innocence continues such beyond a harmless reasonable doubt as there guilt your beyond satisfaction is shown possibility that the is no reasonable omission doubt, upon and if consider- reasonable might have of the instruction contributed to evidence, ation of all the facts and circum- State, Poplin See v. 761 P.2d the conviction. you in the case a reason- stances entertain (failure (Okl.Cr.1988) give 906-907 guilt able doubt of the of the defendant of concerning requested no adverse instruction him, charged against you must the crime testify failure inference defendant’s give that doubt and him the benefit of analysis subjected to harmless error (sic). guilt of not return a verdict light to be harmless in of absence of found resulting prejudice). Accordingly, Relying on Flores v. assignment of error is denied. (Okl.Cr.), denied, (1995), 548, 133 L.Ed.2d 450 116 S.Ct. assignment In his sixth of er giving instruction Appellant argues that ror, Appellant stage the first in contends says required prove which the State regarding law structions misstated the beyond doubt “the material alle a reasonable proof presumption and the of inno burden Information”, gations and that cence, adequately and failed state the law presumed defendant is innocent of crime closing encompassed general in the instruc charged “each against him and innocent of jury provided by uniform tions instruc constituting such every material element Appellant correctly notes the trial tions. offense” is reversible error. Jury did not use the Instruc court Uniform for criminal cases. request tions This Flores Court stated upon the in ed instructions based uniform instructions shall be used uniform general were to which a structions accurately the law. they unless do not state objection was raised. “However, at 560. deviation from require the uniform instructions does not 71 Instruction No. stated: Brief, Johnson, argues Reply In his error is analysis subject citing Kentucky to a harmless error which held Carter v. L.Ed.2d 202 (Okl.Cr.1982) v. 654 P.2d 1084 Mack retroactively. applied As the issue was to be analysis no harmless was conducted. which error Kentucky application of Carter retroactive Mack, merely reversed and this Court remand- case, Mack, P.2d 1084 is not in this prior Mack v. ed its decision in applicable. is not light of United States automatic reversal.” Id. This Court reviews had a “substantial influence” on the outcome Simpson the instructions to determine whether the of the trial. (Okl.Cr.1994). fairly Therefore, accurately

instruction issue error is grounds applicable states the law. Id. “Even when harmless and not for reversal. committed, required error is reversal is not argues further in miscarriage unless such error results a as a result of give the trial court’s failure

justice or constitutes a substantial violation jury the uniform jury instructions the statutory right.” of a constitutional or Id. 1) never instructed: to limit its consideration O.S.1991, § See also 20 3001.1. Deviation 2) trial; to the during evidence introduced language of the uniform instructions it considering any that was restricted from constitutes error which technical is harmless except matter of fact or given law for that given fairly accurately if the instructions (OUJI-CR (2nd) it while court inwas session applicable state law. Smallwood v. 3) 10-1); its verdict must be based on the (OUJI-CR (2nd) 4) 10-2); as to the (OUJI-CR Flores, (2nd) that, 10-5); 74 In in definition of evidence we held instruct- 5) ing crime, jury speculation objec to limit its on the elements of the about (OUJI-CR (2nd) 10-9). tions jury prosecution court should instruct the as give serts the prove failure to beyond must each element of the crime above listed uniform doubt, jury instructions left prosecution with free reasonable not that the chose, anything rein to consider prove allegations must the material extraneous of the not, guilt in determining beyond doubt, or innocence. crime observing reasonable Appellant generally objected at trial to the “may confusing.” the latter be Id. at 558. requested omission of his uniform case, instruc In this confusion or error created tions. allegations the reference to material up by looking specific cleared at the more ¶ 77 A given review of the instructions Instruction No. forth which set the ele- jury jury shows the was instructed in degree ments of the offense of first malice only Instruction No. 5 to “consider the evi- jury murder. The was also instructed on the dence introduced while the Court is ses- aforethought”, definition of “malice what con- sion”, and as to the definition of “direct culpable, duct is deemed and that if the State evidence” and “circumstantial evidence.” In- prove failed to “each element of the Murder provided part struction No. 7 “[t]he Court Degree beyond in the First a reasonable rulings has made in the conduct of the trial doubt,” jury was to find the defendant and the admission of evidence. doing so guilty. these, Reading and the rest of expressed the Court has not nor intimated entirety, instructions their the State’s any way weight given any or credit to be prove every burden to element of the offense testimony evidence or during admitted charged beyond a reasonable doubt is clear. trial, any way nor indicated the conclu- by you sions to be reached in this case.” argues also the instruction jury was also instructed that it was to jury allowed the to deduce the presumption reach its upon conclusion based “the facts apply every innocence did not element appearing and circumstances in evidence and offense, but to the elements it coming [your] during observation trial.” reject deemed material. We this character- Instruction provided No. also “[t]hese in- ization of the instructions. As discussed law, structions contain all the whether stat- above, specific degree elements of first otherwise, applied ute or by you to be in this malice murder were set forth Instruction case, you and the rules which are to whole, Reading No. 2. the instructions a weigh the evidence and determine the facts particularly Instructions No. it is in issue.” presumption clear the of innocence continues ¶78 until each element of the offense of first given While the instructions degree proven beyond murder is jury instructions, they reason- were not the uniform able Accordingly, doubt. “grave certainly give we have no did not “free rein to -any doubts” that error in anything Instruction No. 1 consider it chose.” These instrac-

1039 However, jury’s specific it is facts of each guided consider- those adequately the tions jury application ag- dictate the of the informed the case which evidence and ation of the Robinson, gravator. the evi- As Court stated must be based on its verdict such, As 900 P.2d at 401: presented law at trial. dence and give trial failure to in the court’s error point much as we like to As would harmless. See uniform instructions was the criteria, specific, applicable uniform to all Accordingly, this P.2d at 702.8

Simpson, 876 cases, appli- murder make the which would is assignment of error denied. “heinous, the or cation of atrocious cruel”

aggravator procedure, mechanical is Rather, possible. the simply not examina- STAGE ISSUES SECOND every the facts of case tion of each In fifteenth 79 his thirteenth and necessary determining ag- the whether error, challenges assignments Unfortunately, gravator proved. was no sufficiency supporting the of the evidence the present fact two cases identical scenarios by the aggravating circumstances found two consideration, partic- the for our therefore sufficiency jury. of the evidence “When case ulars of each become the focus our challenged aggravating an circumstance inquiry, opposed similarity as to one case’s proper there appeal, on is whether test another, sufficiency resolving support the any competent evidence heinous, supporting claim circum charge aggravating State’s aggravator. atrocious or cruel State, v. 847 stance existed.” Romano ¶82 The evidence in the case (Okl.Cr.1993), 368, aff'd, v. Romano 387 unexpectedly showed without 1, 2004, Oklahoma, 512 U.S. 114 S.Ct. teenagers, approached group of invitation (1994). “In making this determi L.Ed.2d shouting racial threats of harm. slurs and nation, should the evidence this Court view pleaded victim with leave The light most favorable to the State.” Id. attempting him and his friends alone and was to leave the scene when stabbed The found the evi victim, in the chest. aware of (cid:127)him aggravator to support dence sufficient heinous, injury poured his chest as blood with especially murder was atro that the heartbeat, sought from one cious, each assistance aggravator requires This or cruel. collapsed shortly Although his friends. he proof torture preceded that the death thereafter, State, victim the evidence shows the physical abuse. Revilla serious period (Okl.Cr.1994), for a of time. As victim de conscious cert. 877 P.2d ground bleeding gasping nied, lay on the 115 S.Ct. air, (1995). him and past walked said includes evidence

L.Ed.2d This you right nigger”, like that “that’s “how do great shows the infliction of either which you fucking nigger” good don’t it.” cruelty. and “feels physical anguish or extreme mental attempted (Okl.Cr.), emergency personnel Medical Hain v. victim, 588, 136 with conscious but communicate 519 U.S. effectively unable to do so because of making were the above L.Ed.2d 517 After inability enough determination, get the victim’s breath to killer and the attitude of the talk, speak. Despite being unable to tears also pitiless nature of the crime can be eyes attempt- from the victim’s flowed Robinson v. considered. (Okl.Cr.1995); Revilla, ed to communicate. 877 P.2d at 1155. Cudjo be on general rule of law is to reliance 81 .This specific case. 925 P.2d 895 cert. de- applied to the facts each provided presents example judge in been case a classic Each this State has instructions, why judges utilize the Uniform trial should copies committee of the uniform Jury Allegations of er- Instructions —Criminal. addition to and notes on use. comments avoided, easily appeal than can rather ror on invited, be disk, copy computer hard instructions judicious through uniform use of the through web available the Court’s site. are also during the of criminal cases. instructions nied, support 136 that was offered in aggrava (1997), unavailing. Cudjo, tor, L.Ed.2d In it would be insufficient. See Torres v. surprised State, (Okl.Cr.1998) (“Evi the victim the defendant and as a 962 P.2d result was shot once the back of the head. prior dence of criminal acts must focus on he was aware that he had in While been only those crimes which indicate the likeli jured, type the victim did not know the of violence.”). hood of future Other evidence injury Although he had received. the victim support aggravator offered in of this included gun immediately saw the defendant with the testimony by Appellant’s family members prior shooting, and asked the defen they were afraid of him and needed the shoot, pursuit dant not to there was no of the house, sheriff to evict from their by victim the defendant nor other actions testimony jail while shooting. directed toward the victim after the spray filled a bottle with sprayed urine and Further, gravity injury the of the victim’s guards on who serving were his food. This apparent was not to others at the scene as pattern evidence shows a escalating of crimi coherent, the victim talked in a sensible man activity general nal disregard for the ner. As this Court said “the manner of [the] society rules of supports jury’s which the killing not injury did involve acts of finding probability of the danger of future cruelty beyond scope killing the of the act of continuing ousness which constitutes threat itself.” Id. at 901-02. society. to ¶ Considering unprovoked manner Appellant’s own words and actions case; killing of present the con- show the callousness with which this murder victim, suffering scious physically of the both was committed. threatened to emotionally; the attitude of the killer as only teenagers harm not outside the con by Appellant’s evidenced taunts and verbal store, venience but also the clerks inside the threats, stabbing; both before and after the Further, store. completely record is void crime, pitiless and the nature of this we any sign of Appellant. remorse This say, construing cannot the evidence in the evidence of attitude and actions light state, most favorable propensity showed he has a to violence which jury’s heinous, finding of the atrocious or continuing makes him a society. threat aggravator cruel supported suffi- State, See Turrentine v. 965 P.2d 977-78 cient evidence. — (Okl.Cr.1998), denied, -, (1998). further contends S.Ct. 142 L.Ed.2d 562 Ac cordingly, evidence was support assignment insufficient to of error is denied. “continuing society” threat aggravating circumstance. In support ag order to SECOND JURY STAGE INSTRUCTIONS gravating circumstance, the State must dem ¶ 88 In his fourteenth and six onstrate a defendant will continue to error, assignments teenth chal society sentencing. threat to after Malone lenges jury instructions on the above 876 P.2d A aggravators. In proposition his fourteenth history, defendant’s criminal the callousness error, Appellant argues jury was mi- crime, others, against threats lack of heinous, “especially sinstrueted as to the remorse, attempts prevent calls to the atrocious, aggravator or cruel” when the police are all previous factors this Court has court failed to “physical” include the term ly addressing considered when this issue. phrase physical “serious abuse” as re

Medlock v. quired by OUJI-CR 2d 4-74. We review t. cer plain specific objection error as no 310, 133 L.Ed.2d 213 the instruction was raised at trial. Turren presented 86 The State Ap- evidence of tine, 965 P.2d at 975. pellant’s history prior criminal in the form of degree burglary, pos- convictions for second Turrentine we found this same escape session stolen vehicle and from a deviation from the uniform instruction error. penal If “However, institution. this evidence was all Id. persuaded we are not Appellant argues proof penalty. Ledbetter over- lessened the standard the error drafting in- apply to find this looks the fact that the new had to which “continuing term “serious abuse” threat” the aggravator... [t]he struction on Okla- term proof, and that Jury controls the standard homa Uniform Instruction Commission Further, jury.” “[t]he given to the Id. aggravator. set forth elements as used this context phrase ‘serious abuse’ jury in- 92 The form of the uniform referring commonly interpreted as ag- struction does not list elements of the physical Mollett v. abuse.” gravator, merely out but sets the evidence necessary support aggravator. the The to (1998). Here, 859, 139 L.Ed.2d 758 clearly jury the that the instruction informs controlling jury on the the was instructed alleged probability there a State has exists Further, jury abuse.” the term of “serious that the defendant commit future acts of will advised, or never either instructions continuing violence constitute threat argument, prosecution’s closing to em the society. jury also the instructed portion over phasize any of the instruction prove allegation beyond State must Therefore, we find the error harm another. given The instruction reasonable doubt. proof it not lessen the standard of less as did jury jury properly the informed the of the impact no on the and thus could have had prove aggravator and State’s burden to the sentencing decision. necessary support ag- the the evidence assignment In his sixteenth of Short, gravator. P.2d at 1103-04. See error, Appellant the instruction on contends Accordingly, assignment of error is de- adequately in “continuing threat” failed to nied. jury prove struct the the State must probability beyond assignment a reasonable doubt the 93 In his seventeenth error, will future acts of that the defendant commit of contends the trial court Appellant argues probability the of erroneously jury violence. instructed the on the bur aggrava future violence is an element of the necessary aggrava proof of to find the den “very continuing tor which is essence alleged in the Bill Par ting circumstances the failure to instruct threat”. He contends particular, complains In ticulars. jury threat future to focus on the jury court instructed the that it must find the omitted an essential element of the

violence aggravating cir “material elements” of the aggravator jury’s from the consideration. cumstance before it could consider the death (O.R.609).- penalty. Appellant argues the Initially, note the we instruc phrase “material elements” inclusion of in given tion this case was the uniform presump deprived him of the benefit of the (2d) struction, 4-74. In Ledbetter OUJI-CR penalty phase innocence in the of trial. tion of (Okl.Cr.1997), we that when the instruction is read He asserts challenge an instruction on addressed a defining conjunction “continu with those heinous, atrocious, “especially or cruel” heinous, ing “especially threat” and atrocious aggravator and stated: jury permitted cruel” the to choose “elements” as such: it is the There are no which elements it deemed material. aggravator prosecution which the had itself prove Appellant eligible for to render argument 94 This continuation penalty. penalty, It the death is the death Proposition re- argument made VI aggravators, not the individual which the allega- “material garding the use of the term jury appropriate punish- must find as stage instructions. As with tions” the first aggrava- ment for the defendant once the instructions, stage stage the second the first proven.... tor is instructions, entirety in their ac- when read Likewise, curately appropriate aggravator we state the burden Id. find jury is in- proof. In No. 3 the “continuing not have elements. Instruction threat” does structed, prosecu- pertinent' part, the defendant is aggravator It itself which the doubt, allegations made beyond “presumed innocent of the prove, tion has to a reasonable Particulars, ... against him in Bill of Appellant eligible the death to render survivors, presumption why continues until the State the victim should not killed, (internal beyond proves guilt a reasonable doubt.” have been citations omit- instruction, ted). together with the This read more specific addressing the evidence instructions case, the State filed a necessary prove alleged aggravating Impact indicating Notice of Victim Statement circumstances, adequately informed the witness, Margie Osuji, its intent to call as a presumption of innocence and the testimony, the victim’s mother. Prior to her Therefore, proof. the trial State’s burden objected grounds on the the evi- give appropriate failure to uni- court’s dence was unconstitutional and that error

form instruction was harmless did improper statement itself was itas was based not have a substantial influence on the out- entirely impact on the emotional of the wit- Simpson, come of the trial. See P.2d at specifically ness’s loss. also ob- assignment 702. This of error is denied. jected concerning to statements the witness’s seeing get diploma dreams of her son VICTIM EVIDENCE IMPACT go college. Appellant argued such state- eigh asserts in his impact ments were not relevant victim evi- assignment teenth impact of error the victim objections dence. The court overruled the rights evidence violated his constitutional as Osuji testify. and allowed Mrs. was She exclusively it was centered on the emotional the last witness called for the State by specula loss suffered witness and was penalty phase prepared of trial and read a inflammatory. impact tive and Victim evi jury comprised statement for the which two constitutionally acceptable dence is “it unless quarter pages transcript. and of the unduly prejudicial is so that it renders the fundamentally Payne unfair....” stated, Osuji part, 98 Mrs. the victim Tennessee, 808, 825, 501 U.S. was her child and that she missed him (1991). 115 L.Ed.2d In Car very much. She said her son was a well- 827-28, gle, 909 P.2d at we set out the basis behaved, young level headed man who was Supreme the United States Court utilized to very responsible by everyone and well liked Eighth find the Amendment is not violated who knew him. She testified how she would impact victim evidence and that the Four go day to her son’s room each and on lie potential teenth Amendment has the to be cry, days bed and and that some she would implicated appropriate if restrictions are not cry throughout day or in the “wee hours” placed impact victim on evidence. morning of the longing to see her son. She Cargle, nights, 96 In stated that she dreaded the 909 P.2d. at and could sleep night Court stated: well at when she was home go alone. She said she could not to a conve- statutory language O.S.Supp.1993, [22 night nience store at thinking without § is 984] clear the evidence should be re- happened had what to her son. She also “financial, emotional, psy- stricted to the stated that had robbed her of see- effects,” chological, physical impact, and or ing her stage get son walk across the and survivors; of the crime on the itself victim’s high diploma, seeing go school her son personal as well as some characteristics of prom college being his senior and to and of a long personal victim. So as these grandmother. testimony, After Appel- characteristics show how the loss of the lant noted for the victim record the witness financially, emotionally, psycho- will was visibly crying throughout logically, reading physically or impact on those af- fected, relevant, statement. The gives jury it is State admitted the witness as it “a glimpse emotional but stated there were no life” which a defendant emo- outbursts, However, to extinguish,” good “chose ... tional that the witness these “took personal stop characteristics control of herself’ and did not should constitute a have to “quick” glimpse, testimony and its use be her due to her should emotions. Without comment, showing limited to how the victim’s death the trial court noted the State affecting might affect the victim’s call could its next witness. of counsel counsel’s in this effective assistance impact evidence The victim 1) adequately: challenge the arrest failure to weighting the scales very close to comes case suppress the evidence seized as by so and move to prosecution the side of too far on 2) result; investigate evi-. impact intensely focusing on the emotional not a racist. dence that loss. Id. at 826. the victim’s Cargle, we stated analysis of an ineffective assis- 102 An this, way hold the discussing we in no begins pre- counsel claim tance of irrele- impact of a victim’s loss is emotional competent sumption that trial counsel was that, inadmissible; simply we state vant or provide guiding hand that the accused impact, admitting of emotional needed, is on the and therefore the burden other the exclusion of the especially to per- to demonstrate both deficient accused factors, greater a much a trial court runs resulting prejudice. Strick- formance and questioned on having its decision risk of Washington, land v. exposed appeal.... The more 2052, 2064, 80 L.Ed.2d death, aspects aof victim’s the emotional two-part which sets forth the test Strickland likely will a “rea- their verdict be less a de- applied to determine whether must be question response” to the soned moral has denied effective assistance fendant been die; a defendant deserves whether First, the defendant must show of counsel. greater the risk a defendant will be deficient, performance that counsel’s Process, (citations omit- deprived of Due second, perfor- show the deficient must ted). prejudiced mance the defense. Unless “it cannot showings, defendant makes both ... from be said that the conviction resulted Osuji’s statements con 100 Mrs. adversary process that son, a in the inability breakdown cerning crying her for her 687, Id. at renders the result unreliable.” pro go stores were sleep and to convenience Appellant must demon- emotional, 104 at 2064. S.Ct. psychological, and bative representation was un- strate that counsel’s experienced as a result of physical effects she professional prevailing under descrip reasonable only child. The the murder of her challenged action could norms and that the personality provided a brief of her son’s tions strategy. Id. not be considered sound unique characteristics of the glimpse of the 688-89,104 at 2065. at S.Ct. McFail. While individual known as Jason for concerning her desires her statements a of ineffec 103 When claim may speculative and her son’s future were disposed of on the of counsel can be tiveness impact evi relevant victim not have been prejudice, that course ground of lack of dence, prevent their admission did 697, 104 at followed. Id. at S.Ct. should be jury fulfilling in the second its function prejudice prong, the Concerning the Short, P.2d at 1100. stage of trial. See 980 Strickland, Court, interpreting Supreme impact portion of the victim testimo While a has held: whole, emotional, a ny very taken as testimony the bounds of admissi was within alleging prejudice must appellant] [An evidence, on emotion did not and its focus ble errors were so serious show “that counsel’s so prejudicial effect or skew have such trial, a deprive of a fair as to the defendant from its presentation as to divert Strickland, trial whose result is reliable.” moral decision on duty to reach a reasoned 2064; U.S., 687, S.Ct., at see at 104 466 impose penalty. Id. whether to the death Morrison, 477 U.S. also Kimmelman assignment of error is de Accordingly, this 2574, 2582, 365, 374, L.Ed.2d 91 106 S.Ct. nied. (1986) (“The of an ineffective- essence unprofes- claim is that counsel’s assistance

INEFFECTIVE ASSISTANCE upset bal- the adversarial sional errors so CLAIM OF COUNSEL prosecution ance between defense the ver- unfair and assignment the trial was rendered nineteenth of er- Whiteside, suspect”); Nix v. ror, rendered Appellant he was denied the dict asserts 157, 175, 988,

supra, inquired at defense counsel as to whether the (1986). Thus, 998, Appellant any at L.Ed.2d 123 an knew making witness racist analysis focusing solely on mere outcome any statements and whether had determination, without attention to wheth- particular relationships persons. with black proceeding er the result of was funda- The witness testified that he had never heard unreliable, mentally is defective. unfair make racist remarks and that solely a conviction or sentence To set aside while lived in Louisiana “he rented would been because the outcome have dif- guy trailer and had a black and his brother may grant ferent but for counsel’s error living Appellant paid there.” Cantrell said to which the the defendant windfall law the rent and problems he knew of no be- entitle him. See United States v. does not tween and the other two men. Cronic, supra, 466 U.S. at 104 Counsel closed his examination of the witness S.Ct. 80 L.Ed.2d 657 by inquiring knowledge Ap- into Cantrell’s Fretwell, pellant’s tattoos and whether there were 369-70, Lockhart v. 838, 842-43, that were “offensive as far as race is in- 122 L.Ed.2d

(1993) (footnote omitted). responded volved.” The nega- witness in the Although we must totality tive. When asked on consider the of the evidence which cross-examination tattoo, factfinder, pride” about the “white before our “ultimate focus the witness inquiry Appel- must be on the fundamental fair said he had never seen that tattoo on proceeding being ness of the lant. whose result is Strickland, challenged.” 466 U.S. at Here, counsel did 2069; S.Ct. at Fisher v. evidence that was not a racist. That counsel could have done more is insuffi regard claim cient to finding warrant a of ineffectiveness. ing challenge failure to counsel’s arrest tattoo, showing for the As absent a of incom disposed upon a can be of based lack of petence, appellant an . is bound the deci object prejudice. may the failure to While sions of his counsel and mistakes in tactic ineffective rise to level of assistance of strategy and trial provide grounds do not counsel, a failure often will not such be con subsequent attack. See Davis v. objections might clusive. Where that have (Okl.Cr.1988). To the best of properly been raised would have been over knowledge, counsel’s the witness did not might ruled and those that have been sus tattoo, pride” know about the “white there tained would have amounted to at most inquiry fore counsel’s not him does render incorrect, ruling the harmless error had been ineffective. Effective assistance of counsel

Appellant has failed to show that errors does not mean a defendant is entitled to great counsel were so as to render the flawless or Rushing victorious counsel. Short, results of the trial unreliable. 980 State, Here, P.2d at 1102. the arrest and seizure of appeal 107 Filed with the direct was an legal, Appellant the knife were therefore was Application Evidentiary Hearing for on Sixth prejudiced by not counsel’s failure to raise an Amendment Claim Supple- and Motion to objection. ment, 3.11(B)(3)(b), pursuant to Rule Rules Next, Appellant complains the Appeals, Oklahoma Court Criminal of present that counsel failed to evidence of App. Appellant his Title Ch. as- animosity. Application lack of racial in his serts the that counsel was brief, appellate Appellant fails to set forth in failing investigate pres- ineffective to and subject what on evidence could have been ent allegations evidence to rebut the State’s presented. Appellant argues that counsel’s was a racist and the murder (Appellant’s) direct examination of his half- killing. of the victim was a racial Attached Cantrell, Jr., (13) Roy opened brother Application the door to the are thirteen affidavits. photographs Appel for the to admit State Six affidavits are from friends or tattoos, lant’s they one of which read “white relatives of who state are pride.” Cantrell, During persons his examination of black and never knew 2) matters; testify racist, sociology dur- each of and that defended them be testimony used slurs witnesses whose was offered ing when others racial at instances remaining evidentiary hearing by stipulation are was them. The affidavits toward trial, except at available the time of for employers and who Dr. from co-workers former Rettig; Rettig Richard physi- that Dr. they had known also never stated 3) trial; cally testify at unavailable to all affidavit is a Dr. to be a racist. One witnesses, previously Dr. except stated Ph.D., Ret- Rettig, sociology, who Richard tig, would have testified information inmate testify to the subculture would set forth in to the ap- the affidavits affixed prison settings, and that tattoo 4) plication evidentiary hearing; for the evi- setting only in acquired in such a and dence that Appellant was not a racist and response pressure from other inmates. people acrimony held no for black would Appellant’s Application contended these proceedings no have effect on the trial dur- convincing items the “clear and constituted ing stage presented; second it been had and necessary under Rule evidence” 5) why testimony no was offered as to trial 3.11(B)(3)(b)(i) a strong pos- to demonstrate counsel did not call the witnesses listed in sibility ineffective. trial counsel was application evidentiary hearing; how- thoroughly Appel- reviewing After ever the decision not to call those witnesses it set application, lant’s we found forth “clear reasonably upon could have been based le- convincing necessary and under evidence” gitimate strategy. trial 3.11(B)(3)(b)(i) strong Rule to demonstrate a Supplemental 110 In Brief on Re- ineffective, possibility trial counsel was there- Evidentiary Hearing, Appellant manded rais- evidentiary hearing fore an was ordered. 1) propositions es three of error: the District hearing held in the Such a District Court finding fact and conclusions of Court’s law Bryan County. In accordance with this 2) record; supported by Appel- are not the trial court’s request, Court’s written find- opportunity present lant was denied an ings along and conclusions law of fact defense that the victim was the death of not hearing transcripts were filed in this racially and that he was motivated not 3.11, the findings Court. Rule of fact Under theory racist in order to rebut State’s 1) conclusions of law were determine: 3) case; presented evidence witness, availability of the evidence or evidentiary hearing established that trial evidence or effect of the witness on failing defense counsel was ineffective for 2) proceedings; trial the fail- court whether investigate relevant ure or item of to use a witness evidence was was not a racist and 3) strategy; if the wit- evidence or racially crime was motivated. impacted ness was cumulative or would have the verdict rendered. Turning proposition, to the first parties that both were contends ¶ 109 The District Court stated in its the prepare ordered and submit to District law, findings fact and conclusions of proposed findings of fact and Court conclu- (4) testimony from four took witnesses setting of law the facts sions forth estab- stipulated and considered evidence hearing evidentiary at and lished seven witnesses whose ac- affidavits had by Ap- conclusions those facts. warranted companied application evidentiary pellant findings proposed asserts of fact his hearing. Briefly, the trial court made the completely ig- and conclusions of law were 1) findings: following a determination could Court, by nored the trial the District not be made whether trial counsel knew or merely prosecution’s adopted pro- court testimony should have known posed findings conclusions of of fact and law witnesses, stipulated that no evidence was responsibility its and therefore abdicated presented that trial counsel should have act as a neutral and unbiased factfinder. testimony known of the of witnesses Geral- Spikes, Spikes example dine Rhonda and 112 As of the trial Sharon Cul- an court’s ligan, position, prosecution’s Ap- knew of deference to and that counsel the existence Rettig ability pellant findings regarding and Dr. Richard of his directs us to the Spikes. findings any In the way

witness Geraldine counsel in Spikes. knew of Ms. We law, fact and conclusions of the trial court find the trial court did not abuse its discre- testimony Spikes found the Geraldine es- concluding tion in pre- that no evidence was Spikes Ap- had contacted tablished that Ms. establishing sented that trial counsel should trial, pellant jail, prior to while in but she have known that brother-in-law’s did defense counsel and advise not contact any mother testimony had relevant to offer testimony might him she be able trial. That this conclusion was also further found offer. The court there was no by prosecution argument reached in its evidentiary presented at the hear- evidentiary at the hearing does not show that ing that trial counsel knew of to establish Ms. the trial responsibility court abdicated its as Spikes or that counsel should have known of a neutral findings factfinder. The of fact and Spikes any testimony might Ms. she they pertain conclusions of law as to Ms. have that would be relevant. Spikes properly were based on the record applicable law. evidentiary hearing A review of transcript Spikes shows Ms. testified that ¶ 116 haveWe reviewed the remainder of Appellant was her son’s brother-in-law. She findings the trial court’s of fact and conclu- jail, prior stated while they sions of law and find are also based trial, him she called once a month. upon presented the evidence at the evidentia- She said she was not contacted at the time of ry hearing applicable Ap- state law. trial, but would have testified had she been pellant’s merely claim that the trial court so contacted. On cross-examination parroted proposed findings of fact and Spikes Ms. said she never contacted prepared by conclusions of law as the State is Appellant’s attorney, that her contact was unfounded. solely Appellant. challenges also the trial findings 114 The trial court’s fact finding regarding court’s the absence of addi- concerning Spikes properly Ms. were based testimony stage tional second to the effect Further, on the record. the trial court’s was not a racist. The trial proper conclusion of law was under case law court stated: from this Court. Roberts This Court finds not that trial coun- (Okl.Cr.1996) this Court sel’s decision not to call additional wit- held: nesses at trial in Roy the same vein as We likewise hold’ Petitioner cannot show objectively Cantrell was reasonable trial prejudice by perceived counsel’s failure to strategy, appeared but that such to be the thoroughly investigate more his case. prudent most seeing course available after defense, presented Counsel a viable total lack of constructive effect nothing there is indicate additional (Find- testimony. achieved Cantrell’s evidence counsel could have obtained ings Law, pg. of Fact and Conclusions of changed would have the outcome of the 5). punishment. trial or the determination of Appellant argues finding “com- evidence, Concerning mitigating counsel pletely disregards Appellant’s argument that failing cannot be ineffective for to more trial defense counsel was ineffective for fully develop history, Petitioner’s life broaching subject with Cantrell without presented Petitioner has not shown he being fully prepared present the available attorney. such information to his Courts favorable (Appellant’s supple- evidence.” historically have held a defendant bears 4). brief, pg. mental supplying some burden of counsel necessary information within his knowl- ¶ Appellant’s 119 The issue of ra (internal omitted). edge. citations cial by tolerance was not raised the defense ¶ case, present the no evi stage Testimony until the second of trial. dence evidentiary stipulated was introduced at the evidentiary evidence at the hearing any way in hearing Appellant’s family informed members trial Spikes counsel about Ms. or that trial Ap- and friends indicated their doubts that Finally, Appellant and that he contends the evi- pellant committed the murder presented evidentiary hearing at these facts had dence the racial slurs. As two used beyond reasonable doubt in established that counsel was ineffective proven been trial, failing Appellant’s weight of evidence of stage first of concerning prior racial racial tolerance and that the trial court’s testimony Appellant’s finding contrary not sec- was.error. In the questionable. We will tolerance evidentiary open transcript hearing, Appel- of the guess trial counsel’s decision to ond sister, mother, the racial tolerance issue with Mr. lant’s brother-in-law’s door to Cantrell, they considering apparent Ap- lack mother testified had known Cantrell’s never pellant any acrimony knowledge the tattoo. to be a racist or to hold of about stipulated reviewing entirety, people. in its it is clear for black evidence the record many have asked as wit- from friends and co-workers also said the that counsel could they findings produce could whether same. The trial court’s of fact accu- nesses as he rately thought was a racist and it would reflected this evidence. light made difference of the not have .However, the trial court’s conclu- Appellant’s evidence of own actions and sions as to the issue of ineffectiveness were the time of the murder. That

words solely upon counting up not to be based evidence, Appel- upon which the found number of witnesses who testified guilty, lant showed he killed an unarmed same manner. The trial court was to deter- spewing young black man while racist ob- if if mine the evidence was cumulative or scenities, stabbing. both before and after impact would have had an on the verdict. Presenting testimony of opinion wit- 3.11(B)(3)(b)(iii). Here, See Rule the trial who, place, agree nesses the first did light Mr. court found that of Cantrell’s jury’s guilt, would with the determination by testimony, testimony Appellant’s further mitigated the evidence offered not have family and friends was cumulative. As an support aggravating circumstances. court, appellate will not evaluate Court racist, or not was a he Whether the effectiveness to the number wit- presented guilty on the evidence was found testify nesses who to the same evidence. by trial strate- the State. It was reasonable Further, the trial court found the evidence gy spend not to the time on a for counsel by the defense not relevant as it offered was impact. which would have no defense aggravating did either of the not controvert proposition In the second alleged by circumstances the State. We brief, challenges supplemental agree Appellant’s personal and find beliefs finding Appel- trial court’s mitigate racial tolerance did not the evidence solely a lant’s racial tolerance was second heinous, the murder was atrocious or stage Appellant argued at trial and at issue. to a cruel nor was it relevant determination evidentiary hearing that evidence of his dangerousness. Appellant’s future proving racial tolerance relevant to 3.11(B)(3)(b)(iv) 124 Under Rule racially victim’s death was not motivated. law of the findings of fact and conclusions of given strong prosecution’s 121 The case trial court shall be deference determining proposition against Appellant upon Appel this Court was based counsel; however, by appellate at the time of lant’s own actions and words raised ultimate killing” shall determine the issue the offense. The label of “racial Court Here, put by Appellant, not the whether trial counsel was ineffective. on the case record, thoroughly have reviewed the Appellant’s personal beliefs on the we State. proceedings as well as make it which includes trial issue of racial tolerance would not evidentiary hearing, possessed the alle- probable more or less ineffectiveness, gations in order to deter- necessary aforethought for first de malice O.S.1991, § denied effective 12- 2401. mine whether gree murder. See Therefore, have considered properly limited assistance of counsel. We the trial court challenged conduct on the facts of Appellant’s personal beliefs to counsel’s evidence of at the time and have stage. the case as viewed second 1048 possess premedi- professionally un that did

asked if the conduct victim, and, so, Mil the that he was the error af tated intent to if whether reasonable go- his father judgment. upset 947 and concerned that jury’s Le v. fected the denied, just (Okl.Cr.1997), (Appellant’s) daughter 535, ing cert. 524 to abuse his 556 2329, Appellant, and that he 930, 141 L.Ed.2d 702 as he had abused 118 U.S. S.Ct. (1998). perceived inappropriately to what he reacted by group at him the were taunts directed pre on the record 125 Based teenagers at the convenience store. Based sented, that counsel called one we find case, stabbing in upon the facts of the stage testify during second witness defense, argu- type choose this instead of tolerance. Several other Appellant’s racial ing Appellant did not intend to Mil that be- if have to the same witnesses would testified acrimony people, for black cause he held no fact, In of the witnesses called asked. two strategy. was reasonable evidentiary hearing testi at the Rule 3.11 reviewing 127 In counsel’s conduct we stage during the second fied guided are the admonition set forth failing Any counsel trial. omission 776, 788, Burger Kemp, 483 107 v. S.Ct. was reasonable trial call additional witnesses (1987): 3114, 3123, 97 L.Ed.2d 638 range profes strategy within the wide sionally scrutiny performance In Boltz v. competent assistance. ‘Judicial of counsel’s 1117, highly must be deferential. It is all too 143, second-guess tempting 112 S.Ct. for a defendant to 502 U.S. (1992), quoted United counsel’s assistance after conviction or ad- L.Ed.2d 109 we Glick, sentence, easy 710 F.2d verse and it is all too for a States v. (10th.Cir.1983), court, examining cert. denied 465 U.S. counsel’s defense after it (1984): unsuccessful, proved 79 L.Ed.2d 229 conclude that a has particular act or omission of counsel was attorney strategic makes a “[A]n who Isaac, Engle unreasonable. investigation into few- choice to channel Cf. 107, 133-134, 1558, 1574-1575, upon plausible lines of defense er than all L.Ed.2d 783 A fair assessment of strategy

which he bases his are reasonable attorney performance requires every that as- and his choices on the basis those distorting effort be made to eliminate the ...,” An sumptions are reasonable attor- hindsight, effects of to reconstruct the cir- ney’s decision not to interview witnesses challenged cumstances of counsel’s con- rely on of informa- and to other sources duct, and to evaluate the conduct from tion, professional if made in the exercise of perspective counsel’s at the time.’ Strick- judgment, is not ineffective counsel. U.S., Washington, land v. clearly 126 The record in this case S.Ct., at 2065. strategic shows trial counsel made choice theory upon a defense based that the record indicates counsel When deliberately strategy upon post-traumatic suffered from chose a certain client, syndrome an which to defend his or her we will not stress as result of abusive childhood, relationship strategy particular guess appeal. and in second on See (Okl.Cr an father. In addition to testi- Frederick v. abusive .1983). decisions, mony family establishing from members Tactical whether wise or unwise, unsuccessful, successful or cannot or abusive environment which raised, testimony dinarily presented form the basis of a claim of ineffec counsel Oliveras, experts concerning impact three tive assistance. U.S. Ortiz (1st Cir.1983). upbringing Appellant. experts F.2d At the conclusion of on These trials, non-prevailing party a result his abusive child- most will al testified hood, ways they types suffered from various wish had called more or different witnesses, strategy. disorders which or used different of mental disabilities and/or erupt at the reaction was is not the test of effective could times when event, determining past current but to assistance of counsel. wheth not related to the the wide attempted to show the er counsel’s conduct was outside events. Counsel assistance, prejudice any arbitrary fac- competent passion, or other range professionally of (2) tor, supports and the evidence counsel fulfilled whether we consider whether testing jury’s finding aggravating of the circum- making the adversarial function of Le, O.S.1991, in 21 947 P.2d at 556. stances as enumerated process work. Turning portion § 701.12. to the second ¶ Here, presented a viable counsel mandate, jury found existence fulfilled the function of defense and thus (2) 1) aggravating two circumstances: testing process work. making the adversarial heinous, atrocious, especially murder or was funda- ultimate focus must be on the As our 2) cruel; and there was an existence of a trial, of the we find mental fairness probability that the defendant would commit strong pre- Appellant has failed to rebut criminal acts of violence that would constitute profes- sumption that counsel’s conduct was O.S.1991, continuing society. 21 threat to sionally and that he has failed to reasonable 701.12(4)(7). § each of As discussed above fundamentally fair show that he was denied aggravators supported by these suffi- Accordingly, assignment of error trial. cient evidence. is denied. Having aggravators sup- found the evidence, ported by turn sufficient we OF ERROR CLAIM ACCUMULATION mitigating Appellant presented evidence. twenty-first assign 130 In his (17) ranging family seventeen witnesses error, aggre ment of contends the members, neighbors, and friends to a social war gate impact of the errors this case worker, psychologist psychia- a clinical and convictions and at the

rants reversal his Appel- trist. These witnesses testified very of his death sentence. least modification history lant did not have a criminal violent repeatedly has held that a cumu This Court conduct; at the time of the offense he was argument lative error has no merit when this acting anger out of towards his father errors Court fails to sustain other childhood; capacity because of an abusive his by Appellant. Ashinsky v. raised criminality of his conduct or appreciate (Okl.Cr.1989); Weeks v. require- to conform to his conduct to the 1196 (Okl.Cr.1987). However, impaired; ments of he was under law irregulari numerous when there have been alcohol; he was under the the influence of during of a trial that tend to ties the course disturbance; influence of mental/emotional defendant, prejudice rights of the rever family history. age and emotional required if cumulative effect of sal will be into This evidence was summarized fourteen deny the defendant a all the errors was (14) jury factors and submitted fair trial. Bechtel evidence, mitigating their as as consideration jury circumstances the well as other trial, sep- LooMng stages at both (O.R.621). might existing mitigating. find or arately, we find certain errors did occur. Upon our review of the record are considered when such errors aggravating circum- weighing careful collectively, they singularly and were not so evidence, mitigating we find stances and the egregious numerous to have denied or factually the sentence of death to be substan- Therefore, Appellant a fair trial. no new appropriate. the record tiated and Under trial or modification of is warranted sentence Court, say we cannot before this assignment denied. and this of error is by passion, prejudice, any other influenced or O.S.1991, arbitrary contrary factor MANDATORY SENTENCE REVIEW 701.13(C), aggravating finding § that the outweighed mitigating evi- circumstances assignment twelfth Accordingly, finding no error war- error, dence. Appellant argues death sentence modification, ranting the JUDG- mandatory reversal withstand our sentence re cannot O.S.1991, 701.13(C), is AFFIRMED. § MENT and SENTENCE view. Pursuant we must determine whether the sentence JOHNSON, J., LILE, J., concur. imposed the influence of

of death was under ” State, 3, 23, J., STRUBHAR, in Torres v. 962 P.2d cert. P. concurs results. lence.’ — denied, -, 826, 142 CHAPEL, J., in part/dissents in concurs (1999). Cudjo, L.Ed.2d 683 See also part. (wherein found P.2d at 902 this Court evi- CHAPEL, part/dissents in Judge, concurs proba- dence of non-violent offenses was part. in “continuing aggravator). threat” tive of the jail affirming conviction in filled a Evidence while 1 I concur spray sprayed urine and it on I dissent to the decision bottle with this case. only guards serving food is the sentence. who were to affirm the death by Appellant act that could be characterized aggravating circumstance of “es 2 The However, in the of as a violent act. absence heinous, atrocious, only pecially or cruel” is any prior evidence of criminal acts of violence applicable cases which the murder to those activity or evidence of violent criminal occur- by physical preceded torture or serious crime, ring after the failed to estab- State State, Cudjo 925 P.2d abuse. by Appel- pattern lish a of criminal conduct denied, 1126, 117 (Okl.Cr.1996),cert. 519 U.S. likely continue in the future lant will (1997). Here, S.Ct. 136 L.Ed.2d 863 specific based on the facts in this record. injury of his while the victim was aware survived, consciously, period for a brief ¶5 Further, while the facts of this case dying, there no evidence the time before illustrate a senseless murder and the absence by preceded torture or serious murder any by Appellant, remorse the murder experienced physical or that the victim abuse particularly not committed in a itself was suffering prior physical conscious or mental Cudjo, brutal or calloused manner. See murder [the victim’s] to his death. “While 902; P.2d at Snow v. 876 P.2d tragic, the [the] was senseless and manner of denied, 1179, 115 513 U.S. injury killing involve acts of or did not S.Ct. 130 L.Ed.2d 1120 There cruelty beyond scope killing act of sought no evidence out his vic itself.” Id. at 901-02. engaged planning tim or calculated support finding kill McFail in order to aggravator The other found this particularly the murder was committed in a “continuing threat.” “To case that of brutal calloused manner. Malone threat, continuing support aggravator Ac showing State must cordingly, sup the evidence is insufficient to a threat defendant’s behavior demonstrated finding port appellant constitutes a society probability that threat would and a continuing society, aggra- threat to and this in the future.” Hain v. continue to exist only aggravators vator fails. As two were 1130, 1147 (Okl.Cr.1996), cert. supported found and neither is evidence, penalty in sufficient the death (1996). A defendant’s criminal L.Ed.2d 517 case should be vacated. crime, history, the callousness of the threats others, remorse, against attempts lack of aggravators 6 Since both fail for insuffi- prevent police are all factors calls evidence, modify I cient would the sentence previously considered this Court has when Moreover, parole. majori- to life without Cudjo, addressing this issue. 925 P.2d at ty opinion glosses over serious issues raised concerning ineffectiveness of counsel claims.

¶4 history my judgment, aggravators Appellant’s criminal does not even if the aggravator. Although prior upheld, support could be this case should be reversed degree burglary, pos- sentencing hearing. remanded for a new convictions for second escape vehicle and from a session of stolen support

penal were admitted institution probative aggravator, this evidence is not prior aggravator. crim- “[E]vidence

inal acts must ‘focus on those crimes

which the likelihood of future vio- indicate

Case Details

Case Name: Phillips v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 15, 1999

Citation: 989 P.2d 1017

Docket Number: F-97-695

Court Abbreviation: Okla. Crim. App.