Pickens v. State, 885 P.2d 678

Pickens v. State

885 P.2d 678

Okla. Crim. App.

1994

Check Treatment

*1 678

words, timing it is the of the evidence based anticipated attempt impeach a to wit- degree, at a

ness issue to it is in our

addressed Section 2608.

jurisprudence has vacillated on whether the

predicates ultimately codified Evi- followed, especially

dence Code must be as it non-opinion

relates to evidence.1 submit the issues involved admis- cooperative agreement of a do

sion not re-

quire “vouching” “bolstering” analysis. v. testimony regarding

The of the witness agreement not

cooperation constitute does

“bolstering” any taking more than a witness prior testifying oath to or an expert providing his or qualifications

witness her to

testify prior opinion rendering an as an

expert. Lynn PICKENS, Appellant,

Darrin

v. Appellee. Oklahoma,

STATE of

No. F-90-1297. of Appeals Criminal of Oklahoma. 14,

Nov. State, overruled). 1. See Scales v. 737 P.2d tion evidence had been The old 1987) (Court witness, making a an in- proposition cases were based on the it was im defendant, may testify court identification of the testimony bolster it because was self- extra-judicial (Cothrum as to mony serving, simply hearsay identification because "testi immaterial or lesp State, concerning pre-trial of a victim identifi v. 379 P.2d Gil material, State, only competent cation but most 355 P.2d 453-54 ie State, State, (citing Noyes for corroboration.” Id. v.Hill 1370-71 (Okl.Cr. 1972)). pre-trial 1973) ("It P.2d 1075 competent Such identi is not testimo introduce may ny fication evidence also be admitted "not what as to a witness have sworn or stated occasion, to corroborate previous an identification simply made on some to confirm or independent identity.” (citing up as testimony evidence of Id. bolster of said witness as deliv (Okl.Cr. Young v. jury, ered before the the absence some 1975)), witness, if it is first testimony demonstrated that the by identifi attack on the of said as longer er can no (citing showing make an differently in-court identification that the witness had sworn differently Elvaker v. testimony or stated delivered on (Okl.Cr.1985)). case, See Also Trim v. the trial or in the absence of some (Okl.Cr.1991) (same); Maple impeach (citing effort made the witness." (Okl.Cr.1983) (reversed P.2d be Doser v. 88 Okl.Cr. (1949) 17)). testily extrajudicial (Syllabus cause officer allowed to toas decision in Court’s victim); present identification case is consistent recent with the line Brownfield 1165, (Okl.Cr.1983) (same); allowing P.2d State, extrajudicial Hickerson v. of cases identification (n to be admitted witness as a case in oti ng permitting extrajudicial cases not identifica- chief. *2 appeal convictions, raising of these twen-

ty-one propositions of error. We reverse propositions address those contain- Busch, Wallace, J. Michael W. Creekmore pretrial guilVinnocence error II, Luker, Sapulpa, at H. William *3 stages. Defender, Deputy Appellate Indigent Nor- man, During early morning the appeal, appellant. on hours of Febru- ary 4,1990, Quick Pickens robbed Mr. Nelson, Atty., Don I. Sapulpa, Asst. Dist. Sapulpa. convenience store After the rob- Loving, Atty. and Susan Brimer Gen. clerk, bery Tommy he shot the Hayes, Lee Blalock, of Oklahoma and A. Diane Asst. four A Hayes’ times. customer body found Gen., Atty. City, appeal, Oklahoma on between February 2:00 and 3:00 a.m. on appellee. unjacketed Three .38 caliber lead bullets scene, OPINION were found at the and two more were body. recovered from police Tulsa ar- CHAPEL, Judge: rested Pickens charges February on other on Lynn by jury Darrin Pickens was tried They 9.1 found a snubnose .38 caliber re- the District County Court of Creek in Case volver in Pickens’ car. Ballistics tests con- No. CRF-90-66 before the Honorable Don- nected the revolver to the Tulsa crimes but Thompson. ald D. He was convicted of First could not confirm it weapon as the in the Degree O.S.1981, Murder in violation of 21 Sapulpa crime. When Pickens was inter- (21 § Feloniously Carrying a Firearm arraigned viewed and Sapulpa charges on the 1283) O.S.1981, § Robbery With Fire- on March he confessed. arms After Former Conviction of Two or (21 I O.S.1981, Pickens More Felonies contends that his The 1) confessions were especially found that the murder inadmissible because he was 2) heinous, atrocious, cruel; waive his Fifth or and Sixth Pickens had Amendment previously Subproposition counsel. In been convicted of felonies involv- A Pick- 3) violence; challenges ens admissibility Pickens committed the mur- of his March der purpose avoiding for the preventing or confession on Sixth 4) prosecution; lawful grounds.2 arrest or Amendment there brought Pickens was probability awas Pickens would constitute a from Tulsa to County police the Creek de- continuing society. partment threat Pickens was on March being given after death, years, sentenced to. ten and life im- Miranda warnings, approx- interviewed from prisonment, respectively. perfected He has imately 11:00 a.m. until p.m.3 12:15 or 12:30 February Denno, On Pickens robbed a Tulsa issue. Jackson v. 84 store, killing by Circle K convenience the clerk (1964) established a defen- shooting February her four times. On Pickens right hearing dant's to an in camera on the robbed another Tulsa Circle K and shot the clerk voluntariness of his confession. times, three but failed to kill him. Pickens was fleeing arrested while from the scene of that brought 3. When County Pickens was to Creek on crime. Pickens was convicted and sentenced to March repre the Tulsa Public Defender office imprisonment charges death and based on sented him in County his Tulsa case. The Creek events, these and the conviction was affirmed in representation. officers were aware of this Pick- Pickens v. Subproposition ens claims in B that his waiver of [Piclcens-1or Tulsa case]. the crime in rights during Miranda the first interview was crimes, preceded this case the Tulsa the Tulsa vitiated the officers' failure to tell him he shortly trial was County before Creek attorney could have present, his Tulsa or to con sentencing trial. Formal in both cases de- Wisconsin, attorney. tact the Tulsa In McNeil v. layed completion until of each trial. 2207- (1991), brought judge Supreme this issue before the trial during argument Court held hearing: that invocation Jaclcson-Denno of the Sixth Amend might right "The impor- arraignment other factor that ment be of to counsel at on one tance place charge to the Court is this interview took did not suffice as an invocation of the immediately arraignment right his initial Fifth during here in Amendment to counsel interro County.” prosecutor responded gation Creek charges. that on other unrelated That would irrelevant, timing appear interview was to cover the situation here: Pickens' invo judge appear counsel, did not to rule on the right cation of his Sixth Amendment right, that the State must an to waiver of Pickens was escorted interview After the arraign- relinquishment or lunch, transported to court and intentional abandonment then County charges about 1:00 privilege.6 The court ed Creek of a known depart- police then returned p.m. minutes, He only record of the Creek ment,' Sapulpa confessed to the where he in full: arraignment, state videotape in a second interview crimes on “Deft, given present. Copy of C & deft. beginning began p.m. 1:30 Before that about deft, open Mike & I read to C confession, County offi- Deft, Loeffler, Asst. D.A. advised of his earlier Miranda showed Pickens the cers 2,May rights. Preliminary hearing set what he him if that was form and asked plea p.m. at 1:30 Court enters signed morning. Guilty No bond will be set.” *4 Not for deft. day’s Although characterizes the the State (OR 7) confession, it clear that long is events as one first, In the interviewed twice.4 Pickens was advised of note indicates Pickens was This arraignment, Pickens confessed before any rights, absent indication his details did not robbery and but some otherwise, assume this Court must reeord the crime scene. The quite correspond with correctly right included the the trial court videotaped confes- interview second was judge required a trial counsel. damag- sion, in Pickens admitted more which regarding a to make an extensive reeord relied on this ing facts. At trial during counsel court defendant’s waiver of interview, played was for the second No record here. proceedings.7 such jury- Pick- presume will not waiver of This Court right to counsel from a silent record.8 ens’ right Amendment The Sixth suggests Pickens Nothing in the record a arraignment, at defen counsel attaches arraignment.9 at right his to counsel any postarr- waived right has a to counsel dant arraignment court March prove To a valid On aignment questioning.5 sign he refused to a Miranda by appointment De- crimes and that of the Public as evidenced Tulsa, County. signed one in Creek his Fifth waiver in Tulsa would not invoke fender interrogated argument contrary law and has no right to case when This Amendment to counsel argues that Pickens County charges. The State further on these merit. in Creek hearing during that the Jackson-Denno admitted County requested counsel neither Creek he had Fulminante, 111 S.Ct. 499 U.S. 4. Arizona attorney. A review of the record his Tulsa nor 1246, 113 L.Ed.2d 302 had asked counsel whether shows the trial court during appeared to concede this The State any way in his Pickens referred hearing argument at trial: in the Jackson-Denno proceedings or his Tulsa statement to the Tulsa “|T]hat purpose of the initial interview was replied court-appointed attorney. that Counsel subsequent taped interview and the any made such references Pickens had not interview, that, not Pickens did in the initial Jackson, Michigan 106 S.Ct. 475 U.S. pro- the Tulsa specifically advise officers about (1986); 1404, 89 L.Ed.2d 631 Battenfield v. questions ceedings answer their about but did denied, - cert. exchange amount to an does not that case. This -, 117 L.Ed.2d U.S. counsel, acknowledgement waiver of as the Finally, to Pick- the State cites State contends. County supra, in which the ens v. Zerbst, 6. Johnson continuing videotape was admitted to Walker v. 82 L.Ed. 1461 aggravators, avoiding as res arrest threat and (Okl.Cr.1990). P.2d 1064 the Sixth judicata. does not reach dicta, presented that here. In Amendment issue (Okl.Cr.1987). Swanegan v. opinion occurred while "[T]he interview states arraignment the Creek Appellant on awaited Williams, See, e.g., Brewer v. clearly charges.” This is belied (1977); Day case, 51 L.Ed.2d not before this which was actual record in opinion in Pickens was court. The the Pickens videotaped confession whether the confined to stage that case was admissible in second infer a valid State claims this Court can 9. The adjudication the admissibili- familiarity presumed with and is not final waiver from Pickens' counsel, stage videotape guilt/innocence ty in the right both Miranda and his noting to the Tulsa here. that Pickens had confessed appointing counsel for Pick- that issued an order admission of a color County. Although this ens in Creek is dated defendant’s statement was not harmless er- arraignment, days after Pickens’ there four though substantially ror even it matched an intervening logi- no court dates and the statement, were earlier as the Court would not arrangements ap- that cal inference is speculate regarding impact of the'color pointment during made of counsel were or as videotape or its arraignment. a result of the March 9 This ultimate sentence death.13 Pickens’ video- further indicates that Pickens did not waive taped clearly confession was obtained in vio- arraignment. counsel at lation right of his Sixth Amendment to coun- sel and should not have been admitted. The right Pickens’ to counsel comprised confession most of the State’s case p.m. videotaped had attached before the 1:30 Pickens, against and the State has not shown interview, again he was advised of his beyond a reasonable doubt that its admission any rights, Miranda nor effort made to did not contribute to Pickens’ conviction and determine whether he understood he had that the error was not harmless. right present during ques to have counsel tioning or wanted counsel in that interview. argues IV Pickens A defendant waive Sixth Amend court committed fundamental error right ment to counsel after the att *5 in failing to instruct on lesser included of Here, nothing in aches.10 the record indi degree fenses of second murder and first so, cates that Pickens did or was afforded the degree manslaughter instructing opportunity to do so.11 voluntary defense of Although intoxication. Admission of the confes the record request does not indicate Pickens sion was not harmless error. Harmless er ed instructions on the lesser included of applied illegally ror is obtained confessions degree fenses of second murder and first beyond where the State demonstrates degree manslaughter, the trial court should reasonable doubt that the unconstitutional give such requested instructions whether or confession did not contribute to the convict they not if are warranted the evidence.14 ion.12 the State introduced into Supreme Court has held that in death transcripts partially evidence tape of the re cases, jury must be instructed on lesser interview, emphasized corded first noncapital included supported by offenses confession, played it for the evidence, give jury order to jury, exclusively and referred to it almost option acquittal viable between and a death stage argument. first No evidence penalty offense.15 No such instructions were links Pickens to the scene the crime: no given. evidence, fingerprints, blood stain or ballis positively tics evidence connect Pickens with Based on the evidence at trial indi Tommy Hayes Quick cating Lee and Mr. 21. The Pickens had immediately smoked PCP videotape includes admissions of fact which before the crime the trial court instructed match the jury crime scene but were absent from voluntary pro intoxication. The tape recorded priety interview. This Court has voluntary intoxication instruc- 18, 23-24, 10. California, Curliss v. man v. 386 U.S. 1984). 17 L.Ed.2d 705 Walker, disregard 11. The 795 P.2d at officers' blatant Pickens' Sixth Amendment must be traced to the Attorney. county It District is the 14. Bennett v. Attorney's responsibility District to inform area 1987); Funkhouser v. ( police that the to counsel attaches at ar- Okl.Cr. raignment present any and counsel must be questioning further unless a valid waiver of Alabama, 625, 633-645, 15. Beck v. 447 U.S. counsel is on record. 2382, 2387-2393, (1980); S.Ct. 65 L.Ed.2d 392 Arizona, 624, 644-48, Schad v. Fulminante, (1991); Arizona S.Ct Chap- Dawson v. shooting, MY LEE HAYES means this will not not at issue and tion is body causing mortal wounds in the of the judgment for that of the its substitute HAYES, LEE from which said TOMMY not a de- Voluntary intoxication is court. LEE mortal wounds the said TOMMY homicide, may be a defense to but fense languish and die.” HAYES so degree murder if a defendant first specific form the intent intoxicated he cannot The law in effect at the time of the offense consis- malice.16 This Court has required for O.S.Supp.1989, trial was 21 and instruct on tently held that a court should separates degree first murder into where a defendant lesser included offenses B, A, murder, and malice Section Section homicide, intoxi- may guilty of and where be felony murder.18 The elements for malice from form- might prevent a defendant cation felony this statute. murder differ under compel cases ing specific intent.17 These specific crime Malice murder is a intent re- non-capital lesser includ- instructions on the Felony quiring aforethought. murder malice do not have a malice com- ed offenses which specific not a intent crime and must be to instruct on the lesser ponent. Failure in the commission of one or committed while harm- noncapital offenses was not included “pre- more enumerated felonies. The term jury Pickens’ because even if the found used, less design” is not meditated him from form- prevented intoxication PCP nowhere in the instructions. necessary for specific intent every An information should state option acquit or convict it had no charged of the crime suffi material element degree first murder. Pickens of ciently charges apprise a defendant claims in V himself.19 against which he must defend Suf clearly charge him with information did not ficiency of the information is fundamental felony murder. The infor- either malice raised for the first time on be mation I stated: for Count must cite facts to appeal.20 An information *6 in and “That said defendant the allege every material element of the crime aforesaid, year day and afore- State sufficiently charged apprise a defendant 4, 1990], unlawfully, [February did said prepared to meet.21 The of what he must be feloniously, authority willfully and without allege ele information here some law, premeditated design to of and with a of malice murder and some elements ments LEE effect the death of one TOMMY felony The element of “malice of murder. HAYES, included; DARRIN LYNN PICK- the said some refer aforethought” is not necessary aforethought” is ENS aka DARREN LYNN PICKENS ence to “malice 701.7(A).22 § engaged charge being then and there for a sufficient under while adequately al Robbery information does not committing the crime of with a As this aforethought” it misses the cru- lege “malice Dangerous Weapon did kill the said TOM- State, (Okl.Cr. State, See, 879 e.g., 20. Miller v. 827 P.2d v. 840 P.2d 638 Crawford State, 1992). (Okl.Cr.1992); ( 767 P.2d 889-90 Lamb v. State, 1988); Biggerstaff P.2d v. Okl.Cr. State, (Okl.Cr.1994); 350-51 21. Allen v. Miller, 827 P.2d at 877. State, See, (Okl. e.g., Hogan v. 877 P.2d 1157 J., dissent); Cr.1994) (opinion Chapel, Fon State, Holloway v. 22. The State cites (Okl.Cr. 1994); 881 P.2d 69 Hooks tenot 1979), "premeditat for its claim that ap design” Holloway did not ed is sufficient. (Okl.Cr. 1990); Thomas v. Holloway language. held that the Oxendine sufficiency for of an information test contains a statement of whether the information ordinary constituting the offense in concise facts Attorney’s County District office is 18. The Creek language, person will know what so normal information, responsible language intended, actually whether a defendant was to the former Oklahoma murder which is similar misled, put a would defen and if the conviction statute, O.S.Supp.1973, § declared un- jeopardy a second trial of the dant in double Georgia, by 2726, constitutional 238, Furman v. However, Holloway, 602 P.2d at 220. offense. prior Holloway to the test enunciat was decided Miller, States, supra. Revilla v. ed in 19. Dunn v. United (Okl.Cr. 1994). of malice murder. emphasized cial element Some ele- physical use of “serious felony murder are included ments of without abuse”.26 alleging underlying all the elements aAs result of the errors identified felony. charge An information intended to a guilt/innoeenee stage of the trial this ease is felony defendant with murder must recite REVERSED and REMANDED for NEW allege every underly- facts to element of the TRIAL. ing felony.23 JOHNSON, V.P.J., and LANE and allegations going felony mur STRUBHAR, JJ., concur. “surplus”;

der cannot be dismissed as al though was instructed mal LUMPKIN, P.J., concurs result. murder, vigorously argued ice LUMPKIN, Presiding Judge concurring in robbery shooting, bolstering empha results: felony apparent in sis on murder the indict concur in the results reached ment. Nor should the be State allowed to Court in this case. I continue to III, allegations Robbery use the in Count interpretation O.S.1991, adhere to the Firearms, support with incomplete seq., regarding sufficiency 401 et felony charge murder in Count I. It is error my separate information as set forth in opin- to combine different theories or offenses in ion in whole, Miller v. one count.24 Taken as a the Informa V.P.J., (Lumpkin, In appear allege tion does not Concur each element Part). malice, degree felony of first murder under Part/Dissent both, required by as Miller. Despite the fact that do not we discuss the stage

second we must reach that

of Pieken’s inXIV which he com- plains of the trial court’s instruction on the SYSTEMS, AT & T NETWORK heinous, aggravating atrocious and cruel cir- Petitioner, cumstance. This Court has determined that aggravator if constitutional limited to crimes where the death of the victim was Lula BROUSSARD and the Workers’ preceded by torture or serious Compensation Court, *7 gave abuse.25 The trial court the standard Respondents. instruction, 436, OUJI-CR BUT added the No. 83016. following paragraph at the end: you “In order for to consider the Appeals Oklahoma, Court of statutory aggravating circumstance that the Division No. 3. heinous, atrocious, especially murder was you unanimously cruel must first find that 21, June 1994. preceded by the victim’s death was torture or 16, Rehearing Aug. Denied 1994. (O.R. 238, physical serious emphasis harm.” 25, Certiorari Denied Oct. 1994. added) This Court does not condone and has never

accepted phrase “serious harm” construction,

as a limiting but has Allen, 26. See, Hooks, 1282; e.g., P.2d at 65. Clayton 862 P.2d at denied, (Okl.Cr.1992), - cert. Schad, 631-33, 2497; 501 U.S. at 111 S.Ct. at -, 123 L.Ed.2d U.S. Allison v. Stafford (Cornish Brett, J.J., specially concurring); Rojem v. Davis v. denied, cert. L.Ed.2d 238 Stouffer 1987) denied, (Opinion Rehearing), cert. U.S.