Primeaux v. State

“unless the language changed to prior retardation is resolved of mental issue original at 32. Had that ..Id. place, the Court language left been issues, arising confu- facing the from

not be language, the less definitive created

sion firmly believe currently pending. I are prosecutors attorneys and defense

that both recognize where men- readily those cases

will stipulation clear and

tal retardation raising a eases entered. those

should be fact,

question and will be the issue should by jury, unless waived.

determined

2004 OK CR 16 PRIMEAUX, Appellant

Edward Bruce Oklahoma, Appellee. STATE

DNo. 2002-319. Appeals Oklahoma. Criminal

Court of

April Bowen, Wayna Tyner, Perry Lynn

James Hudson, System, Capital Indigent Defense Division, OK, Attorneys Sapulpa, for Trial Defendant at trial. Gibson, Attorney, L. R. Bri-

Mark District Surber, Attorney, District Pa- Assistant whuska, OK, Attorneys for the State at trial. Bowen, Mosley, Gamer James Grechen Sys- Wayna Lynn Tyner, Indigent Defense Division, OK, tem, Sapulpa, At- Capital Trial Appellant appeal. for on torneys Edmondson, Attorney They W.A. Drew General Oklahoma. wei'e found stabbed to Elmore, Oklahoma, Thursday July Brant M. Assistant death on evi- General, OK, Attorney City, Oklahoma Attor- initially dence revealed that Littlecook was appeal. knife, neys Appellee stabbed in the chest awith which major Then, artery.

severed in OPINION stabbed six times back. Littlecook died as a result of loss blood from the LILE, Presiding Judge: Vice wound, initial pulmo- stab which severed his Primeaux, Appellant, Edward Bruce nary artery. post-mortem He also four charged two counts of alternative stab in wounds the stomach. He had defen- (malice Degree theories of First Murder sive wounds on his left hand. murder) felony in of 21 murder or violation forty-one 5 Julia Bear was stabbed times. 701.7(A) (B), O.S.Supp.1999, § & No. Case sitting in She was a wheelchair when she was Kay CF-2000-396 the District Court of attacked. She was one stabbed time each County, for the deaths of Warren Littlecook front both shoulders. She was stabbed July Bear who were killed on Julia upper quadrant once in the left of her abdo- 2000, in City, Ponca Oklahoma. men. She was eight stabbed times below the ¶2 The filed a Bill of State Particulars (three right area punctured breast of these alleging aggravating five circumstances liver, causing bleeding). internal There (1) the deaths of both Littlecook and Bear: wei*e stab wounds both hands. She was previously the defendant was convicted right stabbed once in the side of her back felony involving the use or threat violence (one cavity, stab wound was to the chest (2) person; knowingly the defendant punctured right lung and caused it a great created risk of death to more than collapse). She was stabbed six times on (3) person; especially one murders were (two the left side of her of back these entered heinous, cruel; (4) the atrocious or murders cavity punctured the chest lung the left were committed lawful to avoid arrest or collapse). caused She was stabbed (5) prosecution, proba- of a existence four in upper times her left arm. She was bility that the defendant would commit crimi- stabbed seven times in the left rear of side nal acts of that would violence constitute a her neck. She was six stabbed times on the continuing society. O.S.Supp. threat 21 (one left front of side her neck and face of (2), (5), (7). 1999, 701.12(1), (4), § & these left severed the external ar- carotid ¶ jury 3 A trial was held before the Honor- tery). superficial There were two stab Boyd, Judge, able in February D.W. District on right wounds of side her chin. A jury guilty 2002. The found Primeaux of vacuum wrapped cleaner coi'd was once Degree both of Murder. counts First After neck, her signs around but no there were of sentencing stage, jury found the exis- strangulation. She died aas result of multi- aggravating tence all of the circumstances ple stab wounds. Bear, in the all murder but the “mur- ¶ An empty envelope was discovered der to avoid aggravating arrest” cireum- next ato recliner. This envelope had con- in stance jury murder Littlecook. proceeds tained from Littleeook’s month- put recommended that Primeaux be to death checks, ly which he at received the first of for both of the murders. On March each person month. One described the Judge Boyd formally Primeaux sentenced amount in envelope “large as a wad.” counts, death on both in accordance with the Only was recovered in the $280.00 house. perfected verdict. Primeaux has his money This in a hidden di'esser drawer. appeal of Judgment and Sentence in this case. ¶ Testimony up about the events leading to them deaths couple revealed that the I. FACTS $1,400.00 totaling cashed checks about on

¶ 4 Waxren July They paid just Littlecook and Julia Bear lived 1st. out over for $600.00 together City, at Pine in 812 Noi’th Ponca July. í'ent and bills on that first in weekend ever, way story not match the did received his the victims Primeaux knew initially committed. He murders were first of the month. checks on Primeaux, conjointly charged and bound ¶ meals to delivered Kowalski 8 Frank charges him were but over July noon on around and Bear Littlecook dropped. later Bear, Little- or but Littlecook He didn’t see ¶ propositions raises twelve 13 Primeaux said, “here are Kowalski okay when cook said appeal. propositions These will error his your meals.” they during prose- arose be addressed as 5th, morning July Primeaux left 9 The cution of this case. get a so he could about his house with $15.00 people He several for his told new tire bike. II. PRETRIAL ISSUES However, money. have much that he didn’t quart bottles of beer buy he did some A. He find a tire. morning, he couldn’t after proposition eight, 14 In Primeaux drinking also beer. joined who were friends Supreme argues the United States knife, carving on them saw him with One of Arizonct) Ring decision Court then went to bar picnic He table. (2002) 153 L.Ed.2d 556 S.Ct. “Mend” got angry because his where requires aggravating circumstances that the the beer him drink more of not let charged Information Indictment and be purchased. the Mend proven hearing. preliminary at evening, Primeaux arrived Later that Supreme Ring, the United States a man and that he stabbed home and said any factu capital must make held that a couple up he “tore a He said that woman. finding bearing capital punishment on be al family gath- his Primeaux and good.” real yond Ring, doubt. reasonable S.Ct. bag bloody clothes in a trash his ered 2439-40. they at- to Kaw Lake where bag took the argument 15 Primeaux bases gave tempted to clothes. burn the Ring reasoning found some Roberson, stepson, Billy who a knife to aggravating circumstances as the refers to They stopped at the knife the lake. threw equivalents” of elements “functional way bought lake on the and two stores such, argues Primeaux that the As offense. beer, gas cigarettes and some to burn and the Oklahoma States Constitution United money for provided the Primeaux clothes. aggravating cir- require that Constitution Later, burned tennis partially these items. charged by Information cumstances be found at the lake bottles were shoes beer aggravating circum- and that the Indictment told the clothes were were where officers examining presented before stances be burned. hearing. Other- magistrate preliminary at ¶ wise, juris- Primeaux testified that not have 11 One witness District Court does that afternoon by came her convenience store the case. diction over beer; usually although, he bought some ¶ Ring not as broad is 16 The decision change, this in exact time paid for beer Ring argues. appellant The Primeaux as twenty-dollar also bloody bill. She a he used a specifically raise claim did bought larger a that Primeaux testified constitutionally infirm. was indictment (six usually bought he than amount beer Ring n. 4. does not Ring, 122 S.Ct. at 2437 p.m.) at Primeaux quarts of Busch Beer 3:30 Notice procedure in Oklahoma. change the bought nine more twice more and returned provid- was aggravating circumstances of the quarts of beer. This particulars. document ed the bill of to seek the State intends Randy gives notice Davis 12 Primeaux testified aggravating cir- penalty of re- death. Littlecook Littlecook because stabbed presented to questioned cumstances were give him Police to beer. fused aggra- required to find that the jury was Davis, knowledge Randy claimed beyond a rea- vating existed things circumstances crime, about the and he knew by required is This all that doubt. is scene, How- sonable proved to be true. which crime State, 37, 10, law. v. family Johnson 1982 OK bers of CR his went to Kaw Lake to 815, bloody 665 P.2d dispose of his A clothes. knife was During

thrown into the lake. hearing, Primeaux, waiving confrontation viola- clause B. tions, introduced a statement made five, In proposition Primeaux stating money that Primeaux took from an presented claims that the evidence at the envelope in the victim’s home. hearing preliminary was insufficient hold ¶20 proof preliminary The burden at him for trial for counts of First over the two hearing probable O.S.Supp.1999, cause. 22 Degree Felony Murder. He does contest § presented 258. The State sufficient evi- supporting the evidence Malice Murder. He preliminary hearing dence at to establish claims that there was no admissible evidence probable cause that Primeaux committed the to show that Primeaux attempted robbed or Murder, Felony crime of Robbery with to rob either Littlecook or Bear. Dangerous Weapon a underlying as the felo- (cid:127)¶ only attempt preserve 18 Primeaux’s ny, as well as Malice Murder. appeal general this issue for demur- at prelimi- rer to the evidence the end of the

nary hearing. no He made formal motion to III. JURY SELECTION ISSUES entering plea quash prior at the formal ¶21 one, In proposition arraignment. complains that the trial improperly ex previously We have held that waiver is cused Juror begin Reeves for cause. We by failure to quash effected file motion to premise with the basic that the decision to prior entering plea. Even had his juror excuse a prospective for cause rests assignment properly preserved been within judge, the sound discretion of the trial fail on merit. its There is sufficient whose decision will not be overturned unless from which reasonable cause that Myers an abuse of discretion is shown. v. appellant crime committed State, 1021, 2000 OK CR P.3d committed it could be found magis- 1026, denied, 900, cert. 122 S.Ct. trate. 228, (2001). 151 L.Ed.2d 163 This will State, 26, ¶7, Koonce OK CR juror’s prospective review the entire voir dire P.2d grounds overruled on other examination determine the trial court Landtroop v. 1988 OK CR 753 P.2d proper discretionary made the decision. Id. [citations Primeaux’s omitted]. main juror prospective A willing must con argument is that the trial court relied on penalties law, all provided by sider by Randy Davis, statements made juror irrevocably must not be committed ruled later inadmissible trial. At punishment one before trial has be preliminary hearing, Davis and Primeaux ¶ gun. Myers, 25, 6, 2000 CROK 17 P.3d at charged conjointly with these crimes. 1026-1027. At the evidence was that Primeaux ¶22 The trial potential court first asked acted alone. Reeves, juror you “[C]ould consider all three ¶ 19 Primeaux claims there was no evi- punishments of the impose available that independent statements, dence from Davis’s punishment you one that believe is warrant- against which were not offered Primeaux at ed the law and in the evidence this case?” preliminary hearing due Confrontation “No, She stated Sir.” The court trial then problems. contrary, Clause To during asked, punishments “Which of those could preliminary hearing pre- evidence was stated, not cоnsider?” She “Death.” sented that the victims had before $1300.00 ¶ the murder and could be found 23 $240.00 The trial court went in an attempt murders, killing. after clarify After the Pri- position by asking, Reeves’ “Are money meaux usually you had more saying than he car- that are there no facts or circum- ried. family you admitted to his that stances that can conceive where the he stabbed the victims. Primeaux imposition penalty and mem- of the death would be an

901 ?” circumstances are ... replied what the facts and punishment?” Reeves appropriate “I Reeves: think so.” her. it would bother that ¶ have 29 We held: ¶24 explained to Reeves court The trial oppose penalty all death are who [N]ot all consider requires that she that the law subject capital for cause in to removal impose the one punishments three cases; firmly who the death those believe under the facts believes is warranted she unjust may penalty nevertheless serve asked her if The trial court circumstances. long they jurors capital in cases so as as feelings “and at least her aside she could set clearly willing to state are tem- under seriously penalty consider death porarily in aside their own beliefs def- set you know circumstances once facts and to the rule of law. erence stated, “I I am sure could.” them?” She ¶ State, 13, 23, 1994 CR 871 P.2d Allen v. OK proceedings were then moved The 90-91, denied, 952, 79, 115 cert. 513 U.S. be where Reeves could trial court’s chambers (citations (1994) 370, S.Ct. 130 L.Ed.2d 322 questioned camera. in omitted). Reeves stated she would oppo- if her trial asked her 25 The court considering penalty a hard time the death prevent or penalty death would sition finally feeling pre that her would stated finding de- substantially impair her with penalty. considering her the death vent from stage. stated guilty in the first She clearly fendant never that she would set She stated her would be on feelings pun she was afraid that her and consider all three aside know if long options. and she didn’t mind for a time ishment she could. find that the manner in which the 30 We trial court voir dire in this case conducted her, if trial then asked 26 The State, v. complied the law. Matthews with phase, if she penalty to reach the case were ¶16, 16, 45 2002 P.3d cert. OK CR automatically against the death would vote 1074, denied, 665, 154 123 S.Ct. very penalty. it would be She stated State, (2002); v. 2001 L.Ed.2d 570 Abshier The for her to make that decision. ‍​​​​‌‌​​​​​​‌‌​‌‌‌​​​​​​​‌‌​‌‌‌​​‌‌‌‌​​​​​​‌‌‌‌‌‍hard ¶¶ 603-04, 113-14, 579, 13, P.3d OK CR any hard for court told her that would be denied, 1548, 152 991, 122 cert. U.S. S.Ct. feeling from juror was different and that (2002). The trial court was L.Ed.2d 472 could not consider one someone who position to determine Reeves’ fitness best penalty options. trial court asked by viewing Reeves’ jury duty for this case if there was circumstance Reeves during questioning. Patton demeanor See penalty the death which she believed ¶66, 16, OK 973 P.2d CR stated, punishment. aрpropriate She be an denied, 281-82, 120 S.Ct. cert. U.S. still have a “I know. I think I would don’t (1999). Based on L.Ed.2d problem it.” juror, say cannot voir dire of this we entire its the trial court abused discretion 27 Primeaux’s counsel was allowed juror for cause. removing Reeves potential Reeves question Reeves. Counsel asked death personal belief she IV. STAGE ISSUES FIRST just put penalty or if she didn’t want Reeves stated position decide. A. position. in that put didn’t want to be she ¶ Randy time eodefendant 31 One ¶ ques- police. trial court then continued 28 The statements Davis made several tioning stated that she didn’t to be intro her and she were not allowed His statements three, wrong, Proposition penalty during was but she think the death trial. duced ruling imposing it. The trial trial court’s feel comfortable Primeaux claims that the didn’t by Randy “pre- Davis feelings excluding made court then asked her statements error, you were substantially from in because the statements you impair vent the matter assert penalty?” for the truth of considering death Reeves offered the Randy subpoena stated, of ed. Primeaux intended “regardless “Yes.” The Court: however, Davis, the record indicates that tended to show of the truth the matter as- (a his Fifth gz’oundargued Davis would invoke Amendment serted by Primeaux before trial). Therefore, right not incriminate himself. unavailability was his established. ¶37 analysis An admissibility intended call 32 Primeaux Detective hearsay of statements involves several issues. during his case in chief. He made a Bohon In the context of statements offered for the indicating testimony that his would be record asserted, truth the of matter three issues testimony prelimi- at the consistent with must be evaluated: hearing. nary Primeaux also made an offer (1) Does the evidence constitute the serial proof testimony of Oklahoma State of repetition aof statement? Investigation Agent Bureau of Willie Thorn- (2) What is the statement offered to testimony by stating that his

ton would be prove? as essentially preliminary the same Bohon’s (3) prove Is statement offered testimony. hearing Primeaux wished of truth the matter asserted? admit the statements incriminated Davis and not statement which Davis incrim- Evidence, Whinery, § Oklahoma 27.02 inated Primeaux. (1994). pretrial hearings, 33 In the trial court ¶38 If purpose for which it is ruled that none of Davis’s statements would any offered is not to establish assertions allowed, “for truth of the matter as- by challenged evidence, made it is not serted.” Primeaux indicated in its re- State, hearsay. Chambers v. 1982 OK CR State, sponse motion to a limine 123, 16, 649 P.2d overruled on were that the statements not offered for the grounds other in Richardson v. asserted, truth of matter thus hear- Conversely, OK CR 841 P.2d 603. if the However, say. the trial court ruled that the purpose offering of the statement is to estab hearsay. statements any lish challenged assertion made evidence, hearsay. it is

¶34 At trial there was much argument being against about the statements Davis’s ¶ 39 Statements not offered for the O.S.2001, penal Title interest. truth of the matter asserted generally are 2804(B)(3),states, that, part, § Chambers, admissible. 649 P.2d at 798. The tending expose a statement the declar- determination whether statements “fall liability ant to criminal and offered to ex- within or the scope outside of the definition culpate accused is not admissible un- being prove offered ‘to truth corroborating clearly less circumstances matter asserted’ is perhaps more difficult indicate the trustworthiness of the state- management than aspect other ment. hearsay Whinery, rule....” Oklahoma ¶ 35 trial court ruled that the state- Evidence, (1994). § 28.03 untrustworthy. ments were The -trial court Randy Davis admitted to detectives stated, Randy “the statements that present that he was when Primeaux stabbed made, to his father or either to law enforce- Mr. Littlecook Ms. Bear. He also admit- officials, whomever, hearsay, ment are also, ted that he stabbed Ms. Bear because only grounds under which this court has Primeaux “told him to.” they might been advised be admissible ¶41 Davis stated that he removed Ms. exception would be the to the hearsay rule Bear’s underwear and tried have sex with 2804(B)(3) ...” The contained court went her, ejaculate. but he did not Bear Ms. say on to that it knew no other corroborat- wearing no underwear she when was found. ing circumstances which showed that trustworthy. statements were ¶ 42 Appellant argues: ¶ 36 Primeaux not ruling, does attack that Mr. sought Primeaux to introduce Mr. but claims that the statements should Davis’ statements to parties these third been they introduced scene, because were not in- knowledge why show his he admission, for arrested, repeatedly reason Pri- that he Another had been claims, story, prove that he had meaux is show that Primeaux was changed [sic] is scene, only suspect the in the case. Primeaux to corroborate not present at the been that, evidence, the testimony, to rebut the claims without this Primeaux’s Mr. impression he implicating was left with a false was claim that no evidence State’s existed, suspect in fact that the sole the and that there Randy and for the made, anyone no in- evidence that else was had been but for the statements volved. truth of the statements. the not assert

Appellate counsel does contrary, as in prop- 48 To the discussed trustworthy. statements were true or four, Steiber, during osition Detective cross- Randy examination testified that Davis was difficulty ability in 43 The lies suspect in arrested as this ease. Steiber credibility of the absent de- to evaluate the probable testified that cause had to be estab- If statement is offered clarant. Randy lished before Davis was arrested. asserted, credibility matter be truth Primeaux established the fact that no war- If the statement is not comes an issue. Davis, rant was obtained to arrest but that asserted, the matter offered for the truth of probable someone law enforcement had credibility declarant is immate of the absent him. cause to arrest Primeaux elicited testi- Whinery, § 27.01. rial. mony indicating that Davis made statements types generally 44 There are four Testimony by police. to the indicated that typically group into fall statements the time of the last statement Davis was Whinery, non-hearsay statements. under arrest for crime. Primeaux even § argues Primeaux these state- 28.04. Randy fact established the Davis was types ments fall one of these four —State- charged with this crime. § knowledge. Whinery 28.06. ments of See argues that the statements are ¶49 Primeaux also claims that knowledge that Davis had introduced show the exclusion of this evidence on strict based scene, of the crime which would have been deprived adherence the rules of evidence presence the time of the gained actual process. him of due Primeaux claims that crime. deprived exclusion him of evidence ¶ However, analysis of the state- essential to his defense. reveal that Primeaux’s reason for ments determine whether a defendant was [T]o admitting these statements was show that unconstitutionally right his or her denied Randy Davis was involved this crime or evidence, present must relevant we bal- present when it occurred and to show importance ance the of the evidence to testimony was true. This is Primeaux’s has defense the interests the state the ultimate truth of the matter asserted. excluding evidence. present that Davis was The truth asserted is (10th Embry, 122 Richmond v. F.3d occurred. The when the crimes statements denied, Cir.1997), cert. are details about the crime—Davis is basical- (1998). 1065, 140 S.Ct. L.Ed.2d 126 ly saying, was there and this what happened. Regardless of truth or trust- process, ... To a violation of due establish statements, the truth of the worthiness must of funda- a defendant show denial “I matter is was there.” asserted materiality It is mental fairness....

¶46 presentation go the excluded evidence to Because statements asserted, whether of the matter Davis’s credibil- of the defense that determines truth deprived petitioner has of a funda- ity becomes an issue. Davis’s out of court been mentally material if fair trial. Evidence is statements cannot be tested the adver- Therefore, might suppression its have affected process. sarial statements words, rule, material evi- hearsay outcome. In other are inadmissible under exculpatory that which is Appel- court found them dence is unreliable —evi- if admitted would create rea- lant does assert that were reliable. dence sonable doubt that did not exist without that the statements were Pri- inadmissible. process rights the evidence. meaux’s due not violated ruling. court’s Mullin, (10th v. Ellis 326 F.3d — denied, Cir.2002), -, cert. U.S. (2003)(quoting S.Ct. 157 L.Ed.2d 331 B. 872). Richmond, 122 F.3d at ¶ 55 In a proposition relating to ¶ In Mississippi, 50 Chambers v. 410 U.S. Randy possible Davis as a suspect in this 284, 302, 1038, 1049, 93 S.Ct. 35 L.Ed.2d 297 crime, four, proposition complains Primeaux (1973), Supreme the United States misleading that the State introduced testimo held that the exclusion of evidence which ny of Detective Steiber. The State asked “persuasive bears assurances of trustworthi- any piece if he knew of physical Steiber may ness” not be excluded based on a me- parties evidence or statements made third application chanistic of the rules of evidence Randy hap would tie Davis to what when that evidence is critical to a defendant’s answered, pened to the victims. Steiber “ab case. solutely during none.” This answer came ¶ expressly 51 The Court in Chambers redirect examination. Primeaux did not ob ruling that the on stated was based the facts ject testimony, nor did he re-cross- and circumstances of the Chambers case and examine Steiber this answer. Primeaux nothing ability rule did to dimmish the testimony now claims that the amounted to States establish their own criminal rules sponsored perjury, deprived State him procedures. Id. rights. of constitutional Because there was Chambers, objection trial, no appellant contemporaneous was we (who impeach plain only. Simpson allowed to review for error his own witness See recanted), confessed to crime 1994 OK CR P.2d and later nor was he allowed to call witness that would say that the witness confessed to them. Un- ¶ 56 Steiber was the lead detective on this Chambers,

like in this Primeaux did not cross-examination, During case. as a call Davis witness un- because was testimony Randy was able to elicit Davis available, attempted so he to introduce was suspect arrested as a in this He case. Davis’s police. statements to testimony probable was able to elicit cause had to be Randy established before 53 The State has an interest Davis was arrested. It was wholly established that preventing possibly unreliable no warrant was obtained but that someone in perjured being evidence from introduced at law Chambers, probable enforcement had cause to ar- See 93 S.Ct. trial. at 1048. Pri- Testimony him. rest was also elicited admits that meaux Davis’s statements bear police Davis made statements assurances of no trustworthiness. The state the time of the last statement he was under ments were made after detectives lead him arrest for the crime. Testimony was golden elicited path leading questions down Randy charged interrogation. Davis, with this as an incompetent indi crime. vidual, willing police to tell the exactly they placed in

what his mouth.1 Davis’s ¶ 57 Taken context the detective’s an- do not meet “persuasive statements as may swer well have been correct. Davis surances trustworthiness” standard that made investigating police, statements must be met order to overcome evidentia- parties” but he made no statements to “third ry excluding rules such evidence. parties when as defined involved Furthermore, (or there no indication interrogation). Moreover, transaction Steiber, that Davis’s statement would create a rea- at the may time of well have sonable doubt where Randy none existed before. believed that Davis’s statements were Therefore, the trial court correctly trustworthy, concluded not reliable or thus his opinion 1. Davis incompetent was found to provided stand within reasonable time if with a treatment, trial and that competency therapy he could not training. attain course of

905 trial, ¶ linking prior weeks the 60 Three no was credible that there prosecutor’s at- plain no office contacted Roberson’s There was the crime. Davis to attorney torney, could not contact but the here. error subpoena for A was issued Ro- Roberson. berson, but members of the sheriffs of- C. could not locate Roberson to serve the fice meeting subpoena. had a with the Roberson ¶ prelimi 58 read The State prior prosecutor three weeks scheduled Billy hearing testimony of Roberson nary appear. did not but Roberson hearing was to this a at trial. Prior ¶ Billy un was City police Roberson A held determine 61 detective with the Ponca preliminary hearing tes so that his department available tried to locate Roberson con- six, proposition timony family be used. tacting peo- could and Roberson’s members finding court’s argues knowledge that the trial ple might Primeaux have of he knew was was unavailable error Investigators that Roberson went to Tul- his whereabouts. hearing transcript preliminary people that that the with whom sa and contacted several a “sufficient indicia reliabili reportedly living. does not bear he had been satisfactory ty to the trier fact afford ¶ January 29th, a witness 62 On material prior evaluating the truth basis Roberson warrant was issued for Roberson. testimony.” not located trial. Based on could before court, facts to the trial presented testimony, prior a witness’s To introduce ruling did abuse its discretion 1) the witness’s prove must both the State was unavailable. that Roberson unavailability despite good faith ef- actual the wit- diligence forts due to secure ¶ claims, because Ro 63 2) prior testi- presence, ness’s testify person that he berson was reliability mony sufficient indicia bears murder, a knife into lake after the threw at trial. The record to allow its admission testimony preliminary hearing does testimony regarding must contain reliability indicia of not bear a “sufficient find witness. LaFevers State’s efforts to satisfactory of fact a basis for afford trier here complains that the State’s efforts evaluating prior testimony.” truth of the enough was and claims State were not Supreme has The States 64 United material witness war- required to issue a circumstances, that, when under similar held subpoena Mad- rant out-of-state provided opportunity is a defendant To the con- den’s last known address. examine himself the witness avails cross trary, those actions this Court has held hearing, prior at a opportunity of that has re- diligence due but constitute a tran clause is satisfied and confrontation quired them. hearing script prior is admissible. v. LaFevers — omitted] and citations [footnotes U.S. -, 124 Washington, Crawford 292, 26, State, 27, OK 897 P.2d 1995 CR (2004). 1374, 1354, L.Ed.2d 177 158 S.Ct. 1095, 304-05, denied, 516 116 S.Ct. cert. U.S. procedure proper. that this We held (1996). 820, 133 L.Ed.2d 763 ¶62, 18, State, OK 1994 CR See Howell v. denied, 1086, 1091, cert. 514 U.S. P.2d clearly Ro- 59 The record indicates (1995). 1968, 131 1113, 115 L.Ed.2d 858 S.Ct. at- from trial. Primeaux berson was absent “testimony given un diligence” seeking 65 Roberson’s “due tacks the State’s closely approximat charged as an der circumstances Roberson was his attendance. testimony typical trial. His those of a he had a deal ed accessory to this murder and truth-inducing ain prosecu- made under oath and testify. The required him to Bernay v. atmosphere.” prior ato courtroom tor’s office last met with Roberson 37, ¶ 17, (This 989 P.2d OK August 2001. trial started CR trial date in 2002). denied, S.Ct. ap- February cert. Roberson (2000). dates, trial court did not required court L.Ed.2d all of his peared at prelimi- allowing its meetings. abuse discretion hearings and bond testimony nary hearing person/(the pres- from Roberson to be immediate ence) during read the trial. of another by 7. force/fear IY. FIRST STAGE INSTRUCTIONS through (dangerous weapon). use of a 8. ¶ 66 Primeaux attacks the instruc (2d) 801, § O.S.Supp.1999, 21 See OUJI-CR given regards tions Robbery 4-144. The by elements of Force Felony First Degree elements of Murder contain the first seven elements outlined proposition two. These instructions follow eighth but not the 21 above element. O.S. Information in this which Pri- filed 791, (2d) 1991, § See OUJI-CR 4-141. attacks, proposition. meaux also in this (First Degree requires Robbery there ¶ charged 67 Primeaux was with two be immediate force or fear of immediate Firsb-Degree counts of Murder. Each count force). alleged First-Degree alternative theories of closely looking ¶ 68 In at Infor regarding Murder. The Information mation, it is clear that while it Rob states “felony allegations murder” is as follows: by Force, bery language all contains of day July, 2000, On or of about the 5th and Robbery Dangerous a the elements of with aforesaid, county stage in the and the de Weapon. question The to be addressed PRIMEAUX, fendant EDWARD BRUCE gives whether the Information the defendant of committed the crime MURDER IN charges against appris him notice and DEGREE, felony, THE FIRST a in viola against es him of what he must defend at 701.7(A) by § tion of 21 O.S.Supp.1996 ¶ State, 19, 24, trial. Parker v. OK 1996 CR unlawfully knowingly, intentionally and cert,. denied, 1096, 917 P.2d killing by Warren Littlecook re means of 777, 136 (1997) 721 S.Ct. L.Ed.2d peatedly cutting, slashing, stabbing and argues, brief, reply 69 Primeaux in his him with a knife while EDWARD BRUCE (or fear) Robbery by Force can com- be engaged committing PRIMEAUX with use of mitted a knife so there is no Force, Robbery by by the crime of to wit: clear indication that the State intended to robbing by wrongfully Warren Littlecook charge Robbery Dangerous with Weapon. a taking away carrying money that be However, very beginning from the of this longed possession to and was case, it is clear that the State intended to person Warren Littlecook from his or im charge first-degree murder, with presence, mediate without consent his O.S.Supp.1999, 701.7, § under alternative will, against by a means of knife that theories of felony malice murder and murder. EDWARD BRUCE PRIMEAUX used against warren Littlecook to overcome his It is the use a knife that makes the money, resistance and him of rob con underlying robbery dangerous with crime a trary to the from and the statute in such weapon. though may charge Even the State cases made provided the Robbery Force, used, even if a knife is peace dignity of the State of Okla- is clear here that the State intended the homa. underlying felony to be enumerated felo- objection Primeaux made no to the Informa- ny Robbery Dangerous with Weapon. a Therefore, tion the district court level. we Firsb-Degree The Information recites the State, only. plain Tilley review for error First-Degree murder statute. The Murder ¶43, 4, 607, 1998 OK CR 963 P.2d 610. The clearly underlying statute indicates that the Robbery Dangerous elements of with a robbery robbery dangerous must with Weapon are: (it weapon unchanged many has been for

1. wrongful years). Clearly, the Information is sufficient give Therefore, the defendant notice. taking 2. plain is no there error here. carrying away personal property court, ¶ 71 The trial followed the 5. of another Information and instructed the that the had, Force, this Court has felony Robbery before conviction can be underlying on the omitting required of held that misinstruction value element thereby element weapon.” dangerous can be harmless. In Johnson v. “through the use of 965, Robbery by Force were CR P.2d this Court elements OK elements of stating contain all that an instruction given, which held except Robbery Dangerous Weapon grand larceny the value of the item taken dangerous weapon requirement. twenty for the must in fact the exceed dollars when required exceeding law at the time a value оbjections to made no 72 Primeaux fifty dollars was harmless error because the Therefore, must limit we the Instructions. clearly indicated that the value of plain only. Plain error for error our review fifty items taken were well over dollars. the affecting those “errors substan arises from Johnson, at 727 P.2d 967-68. to although they brought rights tial State, v. of court.” Jones attention the the ¶ State, 83, 76 In v. OK CR 1982 Wofford ¶ 922, 7, 8, 925, quot 772 P.2d 1989 OK CR 1300, P.2d held that an in- 646 Court 2104(D), O.S.1981, § overruled on oth ing 12 “a per- on intent struction which stated State, v. 1995 OK CR grounds er in Omalza natural, proba- presumed to the son is intend 40, 286; 80, Simpson, OK 1994 CR 911 P.2d consequences of his act” was ble usual ¶ 10, at Plain error has also 876 P.2d 694. This in error but harmless. Court Wofford goes the as an to defined error “been intent reasoned that evidence of case, a takes from of the or which foundation by overwhelming established evidence. We right a to his defense.” defendant essential case, find, in that the to present failure ¶40, 23, 876 P.2d at 1994 OK CR Simpson, underlying every felo- include element of 698. ny plain amounted to error. ¶ type in- have that this of 73 We found plain level of error rises structional ¶ though 77 Even have found we of a deprives a defendant error because instruction, plain error in the error plain State, right. v. 2001 substantial See Roberts not, facto, require ipso reversal. does ¶¶ 16-17, 583, 14, 29 P.3d 588-89. OK CR ¶40, 12, Simpson, 876 at 1994 OK CR P.2d RobeHs, trial court added a seventh ele- errors, Only structural i.e. defects that “by first-degree burglary going of ment the framework within which the trial affect through door.” This Court rea- an unlocked in simply an error proceeds, rather than negated the element soned that added itself, require regard reversal process trial consent, as the defendant asserted defense of See Ari of the effect on the outcome. less entry that the victim had ‍​​​​‌‌​​​​​​‌‌​‌‌‌​​​​​​​‌‌​‌‌‌​​‌‌‌‌​​​​​​‌‌‌‌‌‍consented Fulminante, 279, 111 U.S. v. 499 S.Ct. zona through This Court re- an unlocked door. (1991). 1246, 113 302 L.Ed.2d a ease the element was versed the because ¶ 78 Structural errors been in the Id. contested element case. deprivation total of in limited cases: a found ¶ cases, this has found 74 In other Court counsel; impartial lack right of an (now plain known as er- fundamental error grand ju- judge; unlawful exclusion of trial ror) and reversible error the failure race; right denial of rors defendant’s an or in the failure to instruct on element right self-representation; denial of the an properly define element of offense.2 trial; erroneous reasonable public analysis of these reveals that A close cases jury. v. instructions Johnson doubt See elements, or ill-de- which were left out States, 461, 1544, 520 117 S.Ct. U.S. United fined, at trial or formed the were contested (1997). 137 L.Ed.2d 718 crux of the crime. 20 is limited O.S. cases, larceny 79 error mainly cases Reversible 75 In other 2001, 3001.1: specific value has to be reached where a State, 165, 127, State, 83, 740 Hunter v. OK P.2d v. 1987 CR

2. See Slusher OK CR P.2d 1991 814 State, 186, State, 294, 1206, Attеrberry 504, v. CR 731 1986 OK v. OK P.2d Pierce 1988 CR 766 State, 52, 420, State, Maple v. 365, 44, 1983 OK CR v. P.2d Hackett CR 751 P.2d OK 18, 761, 662 P.2d Favro v. CR 749 P.2d 1988 OK Id., Clark, judgment quoting No shall set or new aside sis.” Bose granted any appellate court of this state S.Ct. L.Ed.2d 460 case, (1986). criminal, any ground civil or jury for misdirection of the or error Supreme 84 The Court decided pleading procedure, or un- matter case where the earlier trial court made the opinion reviewing less it is the materiality determination of perjury probably complained the error of has States, prosecution. Johnson v. United justice, miscarriage resulted in a or U.S. 117 S.Ct. 137 L.Ed.2d 718 constitutes substantial violation of a con- (1997). In that determined statutory right. stitutional that, objection absent an important plain only. What makes issue so review error The Court de that, the fact while alternative theories termined that “the error did not warrant charged, murder were form light ‘overwhelming verdict correction in specify theory does under which the de- supporting uncontroverted’ evidence materi Johnson, guilty. 470, 117 fendant found ality.” was The could 520 at U.S. S.Ct. at Neder, guilty 9, have found him of murder malice or 1544. See 527 at U.S. 119 S.Ct at (which felony murder Primeaux claims in- 1833-34. firm). jury Primeaux claims that the verdict ¶ The 85 Court concluded that the Johnson reflects that he was of either convicted first- argument decision countered “the that degree second-degree or malice murder felo- always omission of an element will render a ny faulty first-degree murder because of the Neder, trial unfair.” 119 S.Ct. at 1834. The felony murder instructions. Court found that: ¶ Supreme 81 The United States has impartial Neder tried an judge, was before recently decided a case where an instruction proof under the correct of standard given an which omitted element counsel; fairly with the assistance of States, In Neder offense. v. 527 United U.S. selected, impartial jury was instructed to 1833, 1, 1827, 119 144 S.Ct. L.Ed.2d 35 argument all consider of the evidence and (1999), the Court held that an instruction respect in to Neder’s defense may an of an that omits element offense be course, charges. tax Of the court errone- subject to the harmless error doctrine. Ned- ously charge jury failed to on the fraud, fraud, is a mail er federal wire bank materiality, element of but that did error filing fraud and false tax case. returns One “fundamentally not render Neder’s trial in of elements each count is that false unfair,” in as that term is used our cases. However, must be material. statements Supreme The Id. Court stated that “[t]he jury trial court instructed the consider supporting materiality evidence sowas over- materiality any of false statements. fact, whelming, in argue that did not Neder jury argue does not here —that ¶82 The inquiry is whether it is —and his false statements of income could be found beyond a clear reasonable that a doubt ra immaterial.” Id. 119 S.Ct. at 1837. jury tional would found the defendant Neder, guilty absent error. 527 at ¶86 U.S. argued rely Neder “to that over- 15, 18, 119 S.Ct. 1836-38. whelming guilt record that evidence consider, jury actually did he contends ¶ The 83 Court started from the by jury dispense premise that “most constitutional errors can judges guilty allow to direct a on an verdict 9, be harmless.” Id. 527 U.S. at 119 S.Ct. at element the offense.” at 1837-38. Id. 1833, Fulminante, quoting v. Arizona 499 ¶ The in 87 test set forth this manner: 306, 279, U.S. 111 S.Ct. 113 L.Ed.2d (1991). “[I]f the defendant had clear beyond counsel Is it a reasonable doubt that impartial adjudicator, and was jury tried a rational would have found the defen- strong presumption is a guilty there other dant absent the error? To set a may high [constitutional] errors that have oc barrier so it could never be subject very curred analy- justify are to harmless-error criti- surmounted would ¶40, 10, Simpson, CR 876 P.2d at doc- 1994 OK harmless-error spawned the cism error, for place: the first ‘Reversal trine in judgment, on the its effect

regardless jury asked to to re- prosecutor The judicial encourages litigants to abuse 11, which view instruction number states public to ridicule process and bestirs “mitigating those part circumstances are Traynor, The Riddle of Harmless R. it.’ which, fairness, mercy, may sympathy, (1970) Error 50 degree moral extenuate or reduce the Id. at 1838. prosecutor culpability or blame.” The told mitigating that none of the evidence present case had The in the did, slightest he. “extenuate what that Primeaux evidence to conclude sufficient culpability degree reduce his moral of malice murder or the crime committed During closing, pros- blame.” second crime underlying felony murder and stated, simply suggest you “I ecutor weapon. dangerous robbery with way mitigates no what has done “with use of knife” missing element of justice what calls in this case.” ease, there was in this was not contested overwhelming that a knife was used instruction, quoted portion of the 92 The Primeaux, although he testi- crime. 4-78, upheld by this OUJI CR-2d has been it, that he fied he did not do testified 2001 OK Court. Williams CR stabbing Julia Bear with a person saw the ¶¶ 702-727, denied, 108-09, 22 P.3d cert. knife. 836, 151 U.S. 122 S.Ct. L.Ed.2d (2002). the use the evidence of 89 Because uncontested, overwhelming and we knife was ¶ State, 34, v. 93 In Frederick 2001 OK CR include, in the instruc- the failure to find that ¶ 162, 908, 949, that 37 P.3d this Court held tions, the use of a knife” the element of “with prosecutor argue “the is entitled to that beyond a doubt. harmless reasonable any ‘in mitigation way factors did not [reduce ” were fact that alternative theories The In Appellant’s] culpability moral or blame.’ jury required charged, and the not Frederick, not we held that the comment did theory upon its which based indicate plain rise to the level of error. change our decision. The decision does not supported in this case both theories evidence ¶ argues the in 94 Primeaux beyond a reasonable doubt.3 struction, argument nar combined with the Supreme def

rows the States Court’s United mitigating initiоn of evidence: evidence V. SECOND STAGE ISSUES reasonably find sentencing body a could Citing, A. a less than death. warrants sentence 441, Carolina, 433, McKoy 494 U.S. v. North ¶ argues, proposi 90 Primeaux (1990). 1232, 1227, L.Ed.2d 110 S.Ct. 108 369 seven, argument prosecutor’s tion ¶ gave case all of jury 95 trial court in this instructions defin The based on uniform required mitigating on evi- ing his constitu instructions mitigating evidence violated dence, jury including Initially, instructions rights. we note Pri- tional mitigating factors plain was the determiner of has all but review for sole meaux waived object mitigating were he if the factors this failed to even error on issue because outweighed by aggravating circum- argument prosecutor. See 22, ¶42, crime, State, rather than the actual nature 3. v. 1993 OK CR 852 See Hain 744, offense, required jury was to indicate 752: a P.2d upon con the alternatives which the which of long Court held that a conviction for This has State, also Newsted v. viction was based. See may be affirmed where alternative the murder 734, (Okl.Cr.1986); v. 720 737 Plunkett P.2d supports charged are when ories State, 834, (OH.Cr.1986); Phil 719 P.2d 841 aforethought felony malice murder. either or 556, (Okl.Cr.1982). State, State, 862, (Okl. lips 559 641 P.2d v. v. P.2d 865-66 In James 624, Arizona, Cr.1981), See Schad v. 501 U.S. we also held that when the alternative 2491, (1991). charges S.Ct. 115 L.Ed.2d 555 on the factual basis based holdings stances, they impose penalty our on issues could still less examine several relat- ing penalty procedure previously to the death than death. approved court.4 find no this We reason ¶ plain error is no here. 96 There to revisit these issues. impose argument did not cause supported the evidence. sentence not ten, proposition implies 98 In Primeaux innocent, actually he could be and the B. that an possibility may exists innocent man proposition In ten Primeaux executed. Primeaux also cites Okla- philosophical argu homa’s rate of and death amounts to executions row makes what penalty. proposi population something as evidence that ment the death eleven, urges wrong system. to re- with the Primeaux also tion re- urges aggravating Appellant D. The was not told that the 4. this Court re-examine its clearly outweigh circumstances must stance several issues heretofore denied. on mitigating circumstances. Unconstitutionally vague aggravating cir- A. gave The trial 2d OUJI CR 4-80 which cumstances. aggravating states that circumstances aggra- Continuing society 1. threat —this outweigh mitigating Ap- must factors. vating has been held to be circumstance pellant tions; therefore, objection made no to these instruc- State, 34, CR vague in v. 2001 OK Frederick plain all but has waived 908, 951-51, 173-74, 13, n. 13 n. 37 P.3d error. There was no error here. We have argument 2. to avoid arrest—this Murder consistently stated that the instruction is rejected in Id. was also Frederick. Frederick, 951, proper. at P.3d n. 13. heinous, Especially atrocious cruel— impact placе E. Victim no evidence has State, rejected argument in Lockett v. sentencing Oklahoma's scheme. 418, 53 P.3d OK CR argument impact This is the that victim evi any intervening Appellant has not cited case "superaggravator.” dence acts as This argument or new cause law consistently rejected argu Court has change its stance these is- this court Appellant authority ment and new cites no sues. which would cause this Court to revisit this defining give Life B. Failure instructions 24, Murphy issue. See 2002 OK CR without Parole. or Life 876, ¶ 47, denied, 47 P.3d cert. preserve Appellant failed to this issue (2003). 123 S.Ct. 155 L.Ed.2d 678 request specific he failed to instruc- because F. of Violation Due Process and Sixth on this issue. tions rights to a Amendment determination of sen- rejected previously We Frederick, this issue. have capital tence in cases. Appellant 37 P.3d at 951. has Appellant argues juries in Oklahoma are argument change justifying no new made properly regarding duty not instructed their plain is error in our case law. There no impose Appellant death the sentence. clear, here. claims that without concise instruc- jury happen definitions, what C. The was not told would just jury tions and the makes of a deadlock. in the event appeal, dark.” "shots in the Then on courts trial, Appellant failed to this at knowledge give raise issue proper law defer- plain only. we We review for error Appellant thus ence to the determination. rejected argument. Arizona, consistently this Ring have claims v. that this violates 536 1, State, ¶30, 584, 2428, v. OK CR 19 P.3d Hooks 2001 U.S. S.Ct. 122 153 L.Ed.2d 556 denied, 963, 294, 311, cert. 534 122 U.S. (2002). 371, (2001). argument Appellant’s 151 L.Ed.2d 282 S.Ct. is based claims of Appellant jurors defining aggravating has filed affidavits from in deficient instructions options. This state sentencing his Rule 3.11 motion. affidavits circumstances jurors Appellant specific argument the felt that should There is no here and this they parole, preserved by have received life without but issue was not at trial the offer- They ing specific state surrendered their convictions. of instructions. they gave have their would not surrendered The trial the uniform instructions approved. known that result convictions which this Court has There is no sentencing judge be the to life life error here. parole. Eighth without G. Amendment violation. consistently precisely why Appellant we have This is claims here that Oklahoma’s death giv- penalty narrowly should be held that this instruction scheme does not limit the en; subject instruction avoid penalty. “invites class of murders to the death duty pass argument rejected its difficult sentence on life This has been numerous State, Frederick, 34, v. of an accused.” Malone 1994 OK times. See OK CR 2001 37 707, CR V 876 P.2d P.3d 908.

911 ¶ previously 104 held that victim the execution We “concerns about fers to evidence, narrowly However, impact which meets the Primeaux cannot cite innocent.” definition, innocent is that show that defined relеvant first-de statistics concrete State, executed, gree prosecution. Cargle Primeaux v. murder being are but people ¶ 75, 806, 77, 828, why OK P.2d those statistics 1995 CR 909 cert. several reasons cites denied, 831, 100, is truth 117 which dies 519 U.S. S.Ct. 136 exist —one of don’t (1996). Cargle L.Ed.2d the executed individual. 54 was decided after with the victim and legislature adopted im this State’s “victim is that he 99 Primeaux has shown pact” response statutes United by being victim sent to his death innocent Supreme Payne States Court’s decision v. safe- Numerous constitutional this State. Tennessee, 808, 2597, 111 S.Ct. along way protect Primeaux. guards (1991). L.Ed.2d 720 Furthermore, duly legislature our elected impact [V]ictim evidence should re- penalty fit to of death for has seen utilize unique those stricted to characteristics aggravating circum- containing murders died, the' which define individual who has This could cite numerous stances. contemporaneous prospective cir- why penalty death philosophical reasons death, surrounding cumstances case; punishment in this appropriate is an financially, how those circumstances have however, argument leg- to the we leave that emotionally, psychologically, physically of Okla- people the State islature impacted on members im- victim’s safeguards proper The constitutional homa. family. mediate in the trial Primeaux. been followed punishment penalty appropriate death ¶77, 75, Cargle, 1995 OK CR P.2d case. First, by we find that the statements Coun properly psy show selor the emotional and IMPACT VICTIM EVIDENCE VI. chological impact on to the her due death Le CR her mother. See OK nine, Proposition 100 In ¶ 39, 535, denied, 947 P.2d cert. Roy Louise complains the statements 2329, 141 U.S. 118 S.Ct. L.Ed.2d Counselor contained statements and Sheree (1998). Therefore, statement, impact. of victim not related objected properly to at admitted. impact Three victim statements complains that 105 Primeaux jury. statements was read One remaining with the life of statements deal Deere, sister, Fannie victim Littlecook’s from impact and not the of the Bear’s Julia Bear objec- was no Ed Littlecook. There read general objection death. Primeaux made a Counselor tion to statement. Sheree impact in a to the victim statements written statements, other one was from read two stating that sub motion the statements were Roy, Bear’s sister and the oth- Louise victim stantially prejudicial probative. than more Counselor, daugh- Bear’s er was from Sheree recognized motion The trial the written objections to the victim Primeaux raised ter. during hearing on motion and stated just prior to the introduction impact evidence necessary. argument that further was citing his written motion. of the statements preserve issue. This was sufficient to ¶ objected specifically 102 Primeaux ¶ follows: Roy’s statement is as portions of Counselor’s statement was to be the trial court. This allowed read My my Roy. Louise This is from Aunt nightmares was “I have had sever statement sister was disabled and wheelchair bound. head, my ‘help al I her voice in times. hear- very she do. There wasn’t much could ” Sheree, me, they’re hurting me.’ meager companion Her lived on a and her stayed most of the time. income and home ¶ complains 103 Primeaux now about this great go she Once in a while statement, well language in Counselor’s as as bingo pow-wow. or attend portions other of the statement. visit, enjoy came to we would all complains Roy’s all of statement When she also about All children loved company. her of the except paragraph. for the last sisters, always very her. As we were VII. CUMULATIVE ERROR younger me, than I close. She was so urges 110 Primeaux us to consider always used to watch over her when we proposed in a errors cumulative fashion adulthood, growing up. I moved twelve, in proposition if we find that none of she stay to California and later came to individually them necessitate reversal of his My Navy was in the spouse me. U.S. conviction and sentence. We have reviewed and a nine-month would leave tour effect, any, case to determine the Living overseas. another state and far alleged Primeaux’s accumulation of error. . home, unbearably from I was lonesome. find, fashion, We even viewed cumulative stay with me keep She would come and require errors we identified do not relief. keep company me from me being [sic] Woods v. 1984 OK CR if I so lonesome. I knew ever needed her P.2d always company, now, she was near. Even gone. I cannot she is I believe find it VIII. MANDATORY SENTENCE to think of all the hurt unbearable she had REVIEW. go through. O.S.1991, 701.13, § Title re All loving person. grand- She was a of the quires this Court to determine “[w]hether family They children in loved her. imposed the sentence of death under the why gone. cannot understand she is This passion, prejudice any influence of or other is the ultimate hurt. factor; arbitrary and whether the evidence my Her death has left void life and supports jury’s judge’s or finding of a my I now am afraid for life. I now cannot statutory aggravating circumstance.” Suffi any

watch kind of movies with violence in support cient evidence finding existed death, my it. I After sister’s devastat- statutory aggravating circumstances. ed, joy gone my has from and a lot of life. reviewing After the entire record in this get pen- Bruce Primeaux should death case, we find that the sentence of death was alty. imposed factor, arbitrary because passion, prejudice. The facts of this case Respectfully, Roy. Louise overwhelming and the aggra evidence of the ¶ 107 was not substantially This statement vating simply circumstances warranted the probative. prejudicial more than The state- penalty of death. gives ment glimpse into the life of brief ¶ 112 warranting findWe no error reversal provides picture victim “of those of Primeaux’s two convictions and sentences unique which define characteristics the indi- of death first-degree for two counts of mur- vidual Cargle. who has There died.” was no der, therefore, Judgments and Sentences error in the of this introduction statement. are, hereby, the trial court AFFIRMED. goes 108 The statement of Counselor into more detail Bear’s life. about She states JOHNSON, LUMPKIN, P.J. J.: enjoyed reading going bingo Bear concur. getting up go bingo. They dressed STRUBHAR, concurs in J.: results. phone day talked on once a and Bear play liked to cards. Bear was kind and CHAPEL, J.: dissents. gentle chair years and was a wheel the last my confidant, of my her life. “She was best CHAPEL, Judge, Dissenting: friend.” ¶ 1 today’s I opinion dissent from because firmly about Bear’s I These details life were this believe that Court should not prejudicial also substantially uphold more than two death in a sentences case where probative. many The statement was limited to so errors were made at the trial level “unique characteristics which purposefully define the indi- and where the was misled vidual who has There is died.” no error the State about involvement of anoth- here. er individual in the double homicide for which conviction, felony degree charge and con- murder or tried Bruce Primeaux was Edward not one of the enumerated felonies continue to since it is going is If the State victed. 701.7(B).2 § convictions, O.S.Supp.2000, are under if trial courts pursue capital trials, if capital to conduct going to continue robbery dangerous weap- with a 3 While System Indigent is Defense the Oklahoma under is one enumerated felonies appeals to do for cases going to continue 701.7(B), § making adequate it an for a basis counsel, and if this it as which served felony charge, murder first-degree the State these to be to affirm going Court is asked charged theory. never Primeaux under this sentences, we all have capital convictions did, arguments effectively, The State’s that it job case. than was done do a better “robbery charge Primeaux under a with a system. I con- Capital trials test entire dangerous weapon” theory are inconsistent in Pri- system failed its test clude that language with the actual of the informations case. meaux’s in this case. had actual no- filed Primeaux seeking was him tice that the State to convict ¶2 Although parties it was clear murder, first-degree of two counts under charge the State intended involved felony a aforethought” either a “malice first-degree counts fel- with two Primeaux theory, murder but the did not ade- State murder, ony O.S.Supp.2000, under felony theory.3 quately charge its murder 701.7(B), § the two as an alternative to first-degree aforethought malice counts of surprising charg- enough 4 It is that the murder, actually made, never did so. repeated- the State ing eiTor was ever and made filed in ly, predicate of the three informations Within each the list of for since offenses case, “Robbery murder, 701.7(B), felony § the State invoked first-degree Primeaux’s under felony quite first- ‍​​​​‌‌​​​​​​‌‌​‌‌‌​​​​​​​‌‌​‌‌‌​​‌‌‌‌​​​​​​‌‌‌‌‌‍predicate reasonably specific.4 for its is short and It is Force” as felony charges.1 murder The State still that the error was not degree more remarkable robbery by prior capital can- acknowledges caught force or corrected a now predicate felony for a first- And even if this'Court could overlook as the case. serve information, 906), (Court p. simply original Opinion, because it con- 1. in Primeaux’s July robbery by page, the elements of force and included a second was filed on tains all of charged two a knife was The "use of a 2000. It Primeaux with counts notes that used. (Counts II), through dangerous weapon” missing, first-degree element is and the murder I and Davis, Randy alleged joint count of a that was is not action with and one "use of knife” fact robbery by conspiring equivalent this element. with Davis to commit a (Count III). informa- force or fear An amended (and guns toys guns) While all real even some tion, adding an additional offense to the second qualify purpose probably as for the “firearms” page, On Janu- was filed on October 2000. offense, "robbery dangerous weapon” with a a ary a second amended information "danger- necessarily qualify do not as all knives filed, removing Randy this time reference to purpose weapons” for the of this crime. See ous Davis, conspiracy well as the count. as offense) (defining § O.S.Supp.2000, instruction). (jury any "rob- OUJI-CR 4-144 wrongly 2. three cites Each of the informations dangerous bery weapon" case in which with a 701.7(A)” § O.S.Supp.1996, "21 as first-de- knife, allegedly up weapon used a it is statute, though pro- gree felony murder even particular determine whether aforethought” applies vision "malice "dangerous actually a knife used constituted minor, error, seemingly though murder. This Though question weapon.” there no is due care in illustrates State's lack of further dangerous weapon, it constitute knife can charging preparation of the basic documents “dangerous weapon” that must be use of a capital in this case further undermines by jury charged in the and found information "clarity” opinion in these that the Court's divines proper this crime. The conviction of Opinion, p. charging See 906. documents. Court opinion promotes is inaccurate and con- Court’s repeatedly "use of a refers to the fusion when robbery as an "element” the crime Although agree opinion knife” I the Court’s weapon. Opinion, dangerous with a See actual State’s inten- notice of the pp. felony charge first-degree him with mur- tion to lan- he does not claim otherwise—the der—and 701.7(B). O.S.Supp.2000, § In addi- guage as of the final information is not as clear 4.See 21 tion, opinion suggests. infor- the Court notes its the Court The second amended not, fact, unchanged many years.” provision for all of the “has been “contain[ ] mation does p. Robbery Dangerous Weapon” Opinion, with 906. elements of a 914 required doubt

this error —since there is no that Pri- elements for this offense. it Hence was seeking beyond dispute general meaux the State a knew is that the verdicts him, capital conviction murder based filed in are this case infirm.6 theory aforethought and a on both a malice fact, robbery 6 In the theory force theory felony much harder to murder is—it upon jury which the was instructed would jury wrongly fact that was swallow the the lawfully have allowed Primeaux to be required actually what was instructed on murder, second-degree convicted of an of- felony capital of convict Primeaux murder. penalty fense for which the death is not even jury 5 was instructed that it Primeaux’s punishment.7 an authorized The State and guilty could find him on each the two must, acknowledge, as we Court both first-degree if it counts of murder found that that we do not know whether Primeaux’s engaged victims killed the while jury upon guilty found him based State’s Force,” “Robbery by of a commission aforethought theory, felony malice its mur- which were within elements of listed theory, der or both. What we do know for “robbery instruction. offense of with a jury sure if the is that convicted Primeaux of weapon” dangerous differs from the offense upon felony these two murders based fear,” “robbery force or because rob- theory upon instructed, murder which it was bery dangerous weapon requires with a an jury convicted him offense for element, namely, robbery additional that the penalty legally which the death is not avail- through be of a committed the use firearm or punishment proceeded able ... and then weapon[ dangerous “other Because Pri- ].”5 sentence him to death.8 jury was not meaux’s instructed it had “dangerous weapon” used, to find that a was 7 The record this case indicates that first-degree jury in order to convict him prepared by mur- instructions were der, jury specifically and because the trial court and that neither the State nor that it questioned felony instructed could convict Primeaux of defense counsel mur- first-degree murder under either the State’s der instruction at trial. Hence blame for aforethought” theory felony- “malice or instructing jury, capital its in a defendant’s “robbery by theory' felony theory murder force” also on a murder that does not —and jurors conviction, required permit instructed that were not even capital jointly rests on agree theory on applied which State of all players shoulders three who could —the error; (as must) acknowledges possible prevented State, it that it is have this serious jury counsel, that Primeaux’s him convicted of two defense and the trial court. Ulti- however, first-degree felony mately, counts of murder it up without is to the trial court to actually making finding jury wrongly instructed, ever on each of the ensure that a is not robbery dangerous ground”); 5. weapon The crime of with a also v. see Tibbs 1991 OK CR 115, 1372, robbery by (recognizing includes all the elements of force 819 P.2d 1375-76 fear, Zant). applying Stromberg adds then the element of use of a rule dangerous weapon". Compare firearm or "other (robbery § O.S.Supp.2000, 21 801 with a dan- O.S.1991, 701.8(2) (defining § 7. See 21 second- gerous weapon) (jury 4-144 OUJI-CR in- murder); degree felony O.S.Supp.2000, 21 struction), O.S.1991, (robbery by § 701.9(B) § (establishing life sentence as maxi- fear) (jury force or and OUJI-CR 4-142 instruc- murder). penalty second-degree mum Hence tion). punishment upon parole, of life without instructed, jury Primeaux’s was also is likewise felony unavailable for a 359, conviction murder Stromberg California, 6. See 367- robbery by theory. under a force (1931) (where S.Ct. L.Ed. 1117 invalid, possible general one basis of verdict is overturned); entire must be verdict Zant v. Ste- pre- The Court's conclusion that phens, 462 U.S. S.Ct. sented at sufficient to convict Primeaux (1983) (recognizing Stromberg L.Ed.2d 235 aforethought of either malice murder or "rob- general "rule" that "a bery dangerous verdict must set aside if weapon” felony with a murder rely (which was instructed that could upon) on was not instructed is irrel- evant, independent grounds, of two or more and one of since Primeaux raise a does not sufficien- insufficient, grounds cy those Opinion, p. the verdict because of the evidence claim. See Court may exclusively rested insufficient

915 that if ap- issue.9 I 9 The Neder Court noted an a critical And especially on such pellate beyond court a “cannot conclude rea- conclusion that de- agree with this Court’s jury sonable doubt that the verdict would object wrong- to the failure to fense counsel’s have been the absent the same error —for error, plain al- ful instruction amounted example, the contested where defendant the by lowing for this Court. review omitted element and raised evidence suffi- the United recognize 8 I States Su- support contrary finding cient to a should —it poten- told us that we can preme Court has the Although not find harmless.”13 error tially “fix” such fundamental instruc- even certainly alleged did contest his through a appeal, harmless tional errors on possession of a knife while the victims’ analysis.10 Supreme error the Court’s Under and his home use of a knife them —he States, testimony v. this Court denied both in decision Neder United issue of —the ask, beyond whether the knife or knives that were allowed “Is it clear a rea- used is rob and kill jury Julia Bear and Warren Little- that a rational would have sonable doubt “dangerous weapons,” cook constituted suffi- guilty found the absent the er- defendant support cient to that element of the crime jury apparently ror?”.11 Primeaux’s did robbery weapon, simply with a dangerous did determination to a guilt-phase find its up directly not come since this ele- jury simple The easy and one. deliberated ment was or never mentioned addressed seeking nearly eve- for six hours before an way. Nevertheless, any I do not doubt that recess, ning and then returned deliberate jury responsible that held Primeaux for morning another two a half the next and killing of Littlecook would Bear and like- hours, reaching a verdict on the two before robbery/mur- have wise concluded that their addition, charged. In murder counts dangerous weapon. der involved the use of a court, jury notes to the trial sent series of asking pieces Regardless, 10 kind of appel to review various I find this “filling in” jury late for omitted but essential the case.12 18, 24, State, 186, 824, California, Atterberry OK CR man v. U.S. 87 v. 1986 731 386 S.Ct In recognized: (1967)). P.2d this Court L.Ed.2d 17 705 prosecution, the trial In a court has criminal duty correctly on instruct the salient appears inquiry, jury what to be its first raised features of the law evidence with- "original manuscript” asked for an or the video- request out a the defendant.... Whether tape of interview with Detective Stie- Primeaux’s not, judge requested the trial should instruct separate testimony ber. A note asked for the jury elements of- on the essential of the Stieber, Roberson, Jones, Pam Officer Billie ... fense. essential ele- Misinstruction Fiarris, sought a Shawn also VCR a TV ment is fundamental error because involves videotape to review the crime scene that was appellant's a substantial violation of consti- respond- trial court admitted into evidence. The statutory rights. tutional and regret ed to the two "I notes as follows: that I (all omitted). Maple See Id. at citations also your requests comply am unable to with other 315, 52, ("[I]t P.2d 1983 OK CR providing than the VCR/TV.” long judge has been established that the trial note, should, jurors stating request, jury later sent a third instruct the on the without offense, testimony essential of the and the instruc- would like Shawn elements to review Jones, Fiarris, Roberson, give including law of the tions should Billie Pam Detec- Stieber, asking provide sufficient to definition of the offense inform court could tive if the necessary justify testimony verdict of transcript facts them with a of their or have (citation omitted). guilty.”) responded court it read back to them. The trial ability provide that it did not tran- States, 1, 10, 15, 10. See Neder v. United testimony scripts and that the of witness 1827, (1999) (holding 119 S.Ct. 144 L.Ed.2d reporter was to read back testi- not authorized offense, of a that omission of element criminal concluded, mony jury. The court "Please listing required ele- from instruction your using your continue deliberations notes and offense, subject to ments of that harmless error (Although memory.” collective record filed review). jury’s copies 916 instructed, equivalent dilution of a is not the an actual

fact-finding troubling to a of be approach right jury jury a is Amendment to determination.15 This new Sixth defendant’s me, disturbing departure guilt. this con also a from our own of his To determination necessarily jury jurisprudence, a in have tra right includes Court’s which we stitutional doubt, jury all beyond ditionally on each insisted that the make of finding, a reasonable upon findings factual reversed required factual elements of the offense of the charged where an charged the defendant is convicte convictions element of the which jury a appellate finding jury’s what offense was omitted from a instruc d.14 An about done, properly improperly had been tions or defined.16 279-80, (”[T]o van, Winship, In re U.S. 90 S.Ct. U.S. 113 S.Ct. 2078 14. See 397 508 1068, (1970) (“[W]e explicitly guilty hypothesize a in 25 L.Ed.2d 368 verdict that was never fact protects inescapable that the Due Process Clause hold rendered —no matter how find- upon proof except ings support might accused conviction that verdict be—would to every beyond juiy-trial guarantee.... fact a reasonable doubt of neces- The Sixth violate requires sary appellate specu- the crime which he is to constitute Amendment more than 684, Wilbur, action.”) (cita- Mullaney charged.”); hypothetical v. 421 U.S. jury’s a lation about 698-704, 1881, (1975) omitted) (This analysis 44 508 95 S.Ct. L.Ed.2d in tions was criticized (holding Neder.). due-process requirement that State doubt, prove, beyond every a reasonable must charged necessary to can- fact constitute crime State, 294, v. 766 16.In Pierce 1988 OK CR P.2d attempt undermined to shift not be State’s 365, Court held that of the trial “[t]he this failure presence passion” proof of of on of “heat burden instruct on an of the essential element Louisiana, defendant); 508 to 275, Sullivan v. U.S. error, charged is offense fundamental reversible 278, 2078, (1993) 113 S.Ct. 124 L.Ed.2d 182 a as it constitutes substantial violation of an self-evident, think, ("It we is Fifth statutory rights,” constitutional accused’s beyond requirement proof of rea- Amendment challenged even where failure was not at the require- sonable doubt and the Sixth Amendment Atterberry (citing Id. at 366 trial level. and Ma- jury verdict In ment of are interrelated.... ). ple though repug- "personally And even it was words, required by jury verdict other subject rape the Court to nant” to victim in jury guilty Amendment is a be- Sixth verdict to a that case second that it Court found doubt."); yond a reasonable United States v. so, "compelled” to do law. Id. at under the Gaudin, 506, 522-23, 2310, S.Ct. 115 State, 18, also Favro OK 367. See v. 1988 CR (1995) ("The gives 444 132 L.Ed.2d Constitution 127, (reversing 749 P.2d 129-30 conviction right jury defendant hаve a a determine, criminal rejecting request apply State error harmless doubt, beyond guilt a reasonable his analysis, where trial court failed to instruct on every which he is element the crime with State, offense); intent element of 1988 Hackett v. 466, Apprendiv. charged.”); 476-77, Jersey, 530 U.S. New 44, 761, (reversing OK 751 P.2d CR 763 convic- 2348, (2000) 120 S.Ct. 147 L.Ed.2d 435 failure to tion for instruct on all elements of (Fourteenth process right Amendment to due and" offense; analysis); Maple, no harmless error 662 “[tjaken right jury Sixth Amendment to- (reversing P.2d at conviction for failure to gether, indisputably ... entitle a criminal defen- offense; instruct elements of harmless no jury guilty to ‘a [he] dant determination that analysis). error every element of the crime with which he is ”) opinions beyond sup- do charged, Gaudin). (quoting The actual in these cases reasonable doubt.’ port attempt distinguish Court’s them this asserting wrongly that the omitted or defined Neder, 27, (Ste- 527 U.S. at in 119 S.Ct. elements these cases "were contested at trial J., vens, is, ("There concurring part) in neverthe- or formed the crux of the See crime.” Court less, cases, p. importance Opinion, prior a distinction of true between a 907 n.2. In these jury simply engage harmless-error test that what the refused to kind focuses on Court in decide, judges analysis. appellate did rather error than on what harmless Furthermore, given upon think would have decided if the cases relied within to- issue.”); (see 907) pass opinion opportunity day’s Opinion, p. on an see also id. at Court 30, (Scalia, J., ("I dissenting) totally 119 S.Ct. 1827 instructional involved errors unlike those State, depriving believe that above. See criminal defendant of discussed Johnson v. 1986 OK 156, 965, guilt right wrongly (jury to have the of the 727 P.2d determine his CR 967-68 charged necessarily property means that value crime instructed of stolen must —which $20, $50, every commission of the crime rather value element of exceed than where harmless.”) $2500); charged (emphasis property never stolen exceeded —can Wofford ("Harmless- original); id. at S.Ct. OK CR 646 P.2d 1302-03 applies only jury actually (jury persons presumed error review when the instructed that are is, acts). consequences a verdict—that has found the renders when it intend natural of their addition, guilty pre-date defendant of all these decisions of the elements most crime.") (emphasis original); also Sulli- cited above. see decisions relating Randy Davis and his role particularly dis- approach is new 11 This original infor- especially since the and these crimes.19 The case turbing capital in a Pri- upon charged that Ed- felony offense mation filed this ease murder its decision jury may Randy have based Brice Primeaux and Wade Davis meaux’s ward permit a death sentence. conjointly” not even “acting mutually and committed increasingly (Count Supreme Court has been first-degree murder I two counts of not be allowеd a should emphatic Littlecook; State involving Count II in- Warren penalty to which a maximum Bear) to increase the volving conspir- and one count of Julia requiring exposed without defendant robbery by acy force and fear to commit doubt, on finding, beyond a reasonable jury III). (Count charged Davis was with these element(s) en- upon which the factual crimes, joint hearing preliminary and a same Moreover, it is based.17 hanced sentence during was held November of Supreme Court’s be noted should ¶ prelim- witness at the 14 The State’s first involve a situation did not Neder decision Stieber, inary hearing was Lieutenant Bob improperly defendant where City Department. In addi- the Ponca Police having jury improper- as charged, as well testifying response initial tion to about his should not be ly This Court instructed.18 scene, the crime Stieber testified about by and charges filed the State fixing both upon Primeaux of the State’s focus evolution by jury in an effort rendered the verdicts responsible for Davis as the individuals and capital convictions. to save botched killing of Bear and Littlecook. Stieber ¶ strength of yet recognize I 12 And and Primeaux had been testified that Davis in this presented the State the evidence drinking City at a Ponca residence on seen case, the trial. Therefore stages in both (the murders), 5, July day of the and 2000 were instructional errors charging and they together. that residence had left committed in this errors serious initially that Davis was testified Stieber my and to hold nose might I be able possible brought in interviewed as a to be misgivings about the U.S. my own swallow witness. jurispru- harmless error Supreme Court’s affirm Primeaux’s convic- and vote to dence testified, however, further 15 Stieber sentences, totality light in of the and tions observing an interview that while he was Unfortunately, how- presented. the evidence Bohon, of the by Detective Donnie Davis ever, charging and instructional errors City Department, and OSBI Ponca Police literally figura- beginning, and only the Thornton, “Randy ad- [Davis] agent Willie tively. involved to them that he had been mitted killing of Julia Bear” stabbing and the troubling insidious er- The more and wearing at clothing had been that the he struggle at and grew out of the in this case rors Stieber at his residence.20 the time still with how to handle evidence the trial level penalty any for a crime upon that increases the previously fact relied This Court has (at statutory must published beyond prescribed maximum deci- decision least not in Neder sion) beyond jury, proved preserve a verdict in which the be submitted to Arizona, doubt.”); Ring on an element of failed to instruct essential v. reasonable Ward, fact, 2428, (2002) 2000 OK CR Ellis an offense. L.Ed.2d 556 122 S.Ct. 985, 18, only published opinion defendants, noncapital is the 13 P.3d de- ("Capital no less than Ellis fendants, Court has cited Neder. The which this to a determination ... are entitled apply opinion harmless "[w]e does assert that legislature an conditions fact on which the relating analysis to misinstruction to claims error punishment.”). in their maximum increase jury." at 986. Yet Ellis involved Id. defense, insanity improper instruction on the Neder, S.Ct. 1827. U.S. at 18. See an offense. on an element of a failure to instruct today's yet a Hence decision marks Id. at 985. appeal Propositions III and IV on 19. Primeaux's Court's harmless-error extension of this further handling of this evidence. involve the both my opinion, jurisprudence, a mistaken and in one. stopped point he at that Stieber testified that interview, prepare a watching order to 17.See, e.g., Apprendi, 530 U.S. at 120 S.Ct. conviction, Davis' home. request to search ("Other prior for a warrant than the fact of a subsequent during that a search of Davis’ 18 Bohon testified testified this sec- interview, videotaped,22 ond clothing which was Davis home revealed the described drinking stated that he had been with Pri- that had also that “the knife been used Randy meaux and others at Jones’ house residence, him, back to that he had taken during morning July 2000.23 Davis was found in that residence.” beer, they stated that when ran out of pre- 16 Detective Bohon testified at the beer, got when that more beer was fin- father, Randy liminary hearing Davis’ ished, p.m. day, around noon or 1:00 Davis, Randy him that “Red” informed Primeaux went “check on” Littlecook drinking home with Pri- had been Red’s Bear, get money buy more beer.24 day of the meaux on the murders. Bohon Davis that he stated waited outside on the learning that after then further testified sidewalk while Primeaux knocked on the (from Stieber) information that Pri- door and that let about Bear Primeaux in. Davis indicated that door gone partially the home of was left meaux had to Bear and open, that was in Primeaux the home for day guy,” Littlecook that with a same “white minutes, approximately thirty that he heard they Randy Davis to brought City the Ponca arguing money some about but did not see Davis, Department be Police interviewed. home, anything inside and that when victims, unlike Primeaux and is Cauca- out, Primeaux came back he had some blood sian American. and not Native shoe, money. on his no After but this inter- July 1Y that on Bohon testified go view Davis allowed to home. Agent when he and Thornton OSBI first later, days 19 Bohon that two testified him, was not suspect. interviewed Davis July brought he Davis back for They simply to determine if wanted he had questioning.25 further Davis added numer gone to the home with Primeaux of the vic- ous during details to his account this second tims, or Primeaux at all day been with on the recorded Davis interview. noted that before of the murders. Bohon testified that after they went to the home of Bear and Littlecook gone he had Davis told them that with Pri- looking money, Primeaux went to the day, meaux to the victims’ home that that hе Friendly try get money Tavern to from sidewalk, had out waited on the and that he there, someone that but this was unsuccessf blood,” they had seen “a little bit decided ul.26 Davis maintained that he people heard interview, being to end that which was not “No, saying, the victims’ home we don’t videotaped point At they recorded. any money. going give We’re placed holding Davis in a cell as a material you any money.” argu He also heard the interview, They began a witness. later new progress screaming ment and someone police department this time in the official screaming, “Don’t do this.” After interview room.21 screaming stopped, Primeaux came out of the drinking together, 21. Bohon testified Davis was Mirandized at were all there beer when Pri- beginning up interview quarts the rights of this and that after meaux showed his with his two of beer. him, explained agreed were he to talk to them. they 24. Davis noted that knew from Lisa (who Williams that Bear and Littlecook Williams According prosecutor’s to the statements “grandma” “grandpa”) referred to as and re preliminary hearing, separate there were five in- day ceived their S.S.I. checks on 3rd videotaped, terviews of Davis that were which month. Davis later indicated that he did not eight lasted a total of seven hours. Because couple personally, though know the he knew videotapes none of these included in the rec- Williams. however, Court, my summary ord before this during made various statements these inter- beginning 25. At the of this second recorded in- entirely pre- views is based on Detective Bohon’s terview, Mirandized, again Davis was and he liminary hearing testimony. Thornton, again agreed to talk to Bohon and who conducted all of the interviews him. 23. Davis indicated he went to the home of (who Randy Jones and Sharon Nelson lived a.m., him) outside, across the street at 8:30 from and that Davis noted that he waited because he, Nelson, father, Jones, Shorty” entering his Friendly. and “Uncle he had been barred from wheelchair, her that after she fell out of about legs, from on both blood house with wheelchair, her more he stabbed several area down. the knee Davis stated times. interview, Later, Davis same in that neck,” “poked through [Bear’s] a hose porch of on the that he saw blood indicated coming oxygen off an bottle he described as still) (later saw the home, that he wheelchair.28 When (without on the back of her porch out onto man come Primeaux’s knife had him) asked about where come then saw Primeaux blood on (Red from, stated that his father in the chest. Davis come Davis stated him out and stab down, Primeaux Davis) showing man fell knife at had been off the more, that Primeaux him some stabbed and that when Davis left Randy Jones’ house him pulled him the feet and grabbed then Friendly up with Pri- go meеt that at Bohon testified into the house. back meaux, pocket. put his dad’s knife the interview they stopped point Primeaux took this knife stated that Davis willing to take he would asked him the victims’ from while test.27 polygraph also stated that Primeaux living room. Davis ¶21 poly- that after testified Bohon money from the gave him from the stolen $50 test, by a given different which was graph home. inter- officer, a third recorded they began during that this same 23 Bohon testified view, p.m. that afternoon. 2:30 around interview, that Primeaux had Davis indicated telling that began by Davis Thornton Agent Bear, time which was the first raped Julia polygraph,” and on the do too well he “didn’t possible assault had been men- that a sexual “Okay, going to tell the I’m responded, Davis inter- in case.29 Just before the Davis said tioned During this interview now.” truth concluded, however, Agent than on the porch, rather Thornton up on view he was he had sidewalk, her, later admitted that Davis, and then saying, raped “You confronted was that he home. Davis said gone it, into the initially denying Davis you?”. After didn’t arguing was while Primeaux in the home to Bear. he had “made love” admitted that money, and Littlecook about Bear and with occurred, this had Davis asked when When envelope from Primeaux took brown that once Bear had been stabbed stated that after living cushion of the arm and the between wheelchair, belly fallen out of her in the and Davis got money out of it. chair and room “made love pulled panties off her he had got upset about Littlecook that when stated her,” stabbing was Little- Primeaux while stated this, him. Davis Primeaux stabbed penetrated that he Bear Davis stated cook.30 trying to was fell down and that Littlecook ejaculate, and that Bear but was unable Primeaux front door when crawl out the point. Bohon testified alive at this was still in, him, him and stabbed pulled back grabbed concluded, and then was that the interview chest and more times in the him several day, Davis was booked p.m. that that at 4:10 upper body. first-degree murder. charge of in on a ¶22 Davis, Primeaux then According to was inter that Davis 24 Bohon testified Bear, sitting in her she was while stabbed Pri- Davis stated that longer testified that free 29. Bohon Davis was no testified that 27. Bohon up and Ms. Bear's dress money had "lifted they suspected meaux go, he had received that he could Primeaux, played and that Davis said they suspect with her” still did not but from humping "was on her.” stabbings. that Primeaux see in the actual Davis of involvement any physi- examiner did not find very The medical they interested 28. Bohon testified sexually raped statement, was or that Bear cal evidence Bear had been found because in this assaulted, wearing though under- Bear was not wrapped her cord around a vacuum cleaner Although body neck, was discovered. when her wear had not been releаsed and this fact hearing preliminary they testified at the Stieber when showed public. Bohon testified that Bear, body was found near picture "underwear” Bear and asked scene Davis crime trial, stating testimony "hose,” this he "corrected” indicated that Davis him about this underwear, that slip,” rather than was a "silk was it wrapped around Bear's neck cord vacuum body. found near her talking was was about. what he p.m. again day.31 charge, namely, at 6:36 This Davis over rape viewed on a fourth in the degree. time Thornton accused first Bohon and Davis of suggested stabbing Bear and sus changed by 26 Yet much had the time of pected that number of times she due February Primeaux’s Al- stabbed, may there “a been been though regarding the record what occurred rage sexual Davis then admitted involved.” why in the case occurred Ran- raping Bear after that he stabbed her.32 dy entirely clear, Davis is not statements to maintain that it Pri- Davis continued was parties (during made both various hear- Bear, initially meaux stabbed but stated who case) ings in Primeaux’s indicate that (Davis) her, got had sex with that after he he charges against State dismissed all of its Primeaux his knife from back stabbed Davis October of 2001.34 upper body, times her Bear numerous ¶ 27 how the The issue of Davis evidence abdomen, When and chest.33 asked he also during could be used Primeaux’s trial was area, the neck stabbed Bear in Davis re hotly contested addressed on nu- “No, sponded, did that.” Bruce When asked occasions, merous before during both Bear, why he stabbed indicated that Initially, trial. Primeaux’s the State filed a him to.” Primeaux “told Davis noted that seeking ruling, “pre-trial, motion limine $50, and that gave him afterwards as to whether statements made Davis will thirty-packs bought two beer and ten any part will not be admissible in (at packs cigarettes per pack), of Star $1.83 trial,” arguing that ruling [Primeaux’s] and then went home. necessary because determination presentation would affect the entire during 25 Bohon testified this inter- State’s as its trial strategy.35 as well view, questions Davis was asked numerous by responded adding Primeaux Detective Bo- killings. in the about the knife used Al- Agent list, hon and Thornton to his witness though indicated that he once Primeaux had noting they testify regarding that their yard, thrown it out in the Davis later stated interviews with Davis.36 gave that knife back home it he took the and dad, his dad normally kept pre-trial hearing to his and that 28 At a August held on 8, 2001, subsequent on his dresser. A search of the admissibility the issue a knife Davis home recovered from a Davis’ extensively. dresser statements was addressed interview, In recorded argued drawer. a fifth on the The State if Primeaux that wanted to 11, 2000, morning July Davis portion videotaped confirmed introduce of Davis’ statements, in his that the knife found father’s home was the State would have to be al- he had referring. videotaped the knife to which been At lowed to five introduce the state- preliminary hearing, entirety. of the in conclusion the ments their Primeaux’s counsel magistrate responded that binding announced he was that he did intend to introduce Davis over videotapes, both Primeaux and on the three the actual but question rather to counts, original that he was binding interviewing and also officers about specif- certain (the incompetent 31. interview This fourth recorded third that he was found stand trial and again day) began being Davis Mirandized. gain competency.” hearing unable to And in a 1, 2001, prosecutor on October indicated that hearings, quoted saying, Davis is later as incompetent two doctors had Davis to be found "Okay, I did it.” mentally "seriously pros- and retarded.” Yet the basically ecutor also indicated that State had 33. Davis stated that Bear was in front of the Davis, lost confidence in its evidence and couch when he "made love to her” and that she charges against later stated that it dismissed the heater, the wall crawled over toward he where him for this her, reason. getting stabbed while he the knife. precise case The record in this contains little Limine, 35. See Motion O.R. 321 7/26/2001 happened information about what in Davis' case. (emphasis original). competency There are numerous references to a during the fall determination and Pri- Supple- 36. See Defendant's Second 7/31/2001 meaux brief that states in his "the reason List, mental Witness O.R. 332-36. charges against Randy the State dismissed Davis changed theory their of the case was because hearsay they being are not offered When because by made Davis.37 ie statements the. matter Pri- testimony for the truth of the asserted.” would be objected that this State Primeaux, numerous from our hearsay meaux cited decisions defense as inadmissible hearsay nature discussing the that statements were Court argued Davis’ counsel 2804(B)(3) exception a statement is not § “[i]f rule noted under the admissible rule, truth prove was un- offered to of the matter hearsay Davis because hearsay.” against his asserted then it is the statements were available and responded penal The State interest.38 majori- argued the vast Primeaux were still inad- arguing that these statements ty hearsay, of Davis’ statements were not missible, they not meet stan- because did being purposes because were offered for trustworthiness established dard specific than that the state- other to show 2804(B)(3). § true, e.g., ments were to show that the state- were, fact, Davis, hearing, the ments made within a the end of the court 29 At officers, police to show although of Davis’ state- conversation with certain ruled times, story definitely penal changed multiple in- how Davis his against his ments were way increasingly acknowledged in a terest, view all of the the court needed to culpability participation own and increas- in order to determine Davis’ videotapes ingly participation culpabili- trustworthy, and whether lessened the were statements argued ty of Primeaux.40 Primeaux then actually the statements to be Davis believed if the concluded Davis’ actual making them. The at the time true raped to determine admissions that he and stabbed Julia defense counsel court asked hearsay, prove offered to would be offered Bear which of Davis’ statements therein, these truth of the matter asserted hearing a future on the issue.39 and set under, still statements were admissible ¶30 thereafter, August Shortly on 2804(B)(3) rule, exception hearsay § as response filed a State’s Primeaux against penal statements interest. filing in limine. In this motion subsequent pre-trial hearing At videotaped the five interviews referenced the trial court informed asserted that “all of the individual October Davis and parties it had viewed the Davis video- during the course of statements makes entirety. tapes in The court summa- interrogation process the are admissible” and their being the introduce rized the before court as that he intended to this issue indicated made to the entirety” “in its at trial. Primeaux whether the statements Davis majority under interviewing that the of the officers admissible argued then “vast 2804(B)(3) exception hearsay § by to the made Davis do not constitute statements believed it to be true. A that this have made unless he The trial court commented would against expose protection tending to to the declarant seem to waive Primeaux’s statement exculpate by co-conspirator, liability and offered to admission of statements criminal agreed corroborating conceded counsel that accused admissible unless Primeaux’s is not question the officers clearly decided about indicate the trustworthi- circumstances statements, respond by the State could Davis' ness of the statement. by bringing O.S.1991, 2804(B)(3). made out additional statements § con- The State playing videotapes. actual and even Davis subsequent hearings during that ceded this and witness; and there Davis was “unavailable” as "against penal exception never debate that a reasonable man The interest” real hearsay at position rule allows for the admission trial of the in- in Davis' have made non-testifying of a criminatory the out-of-court statements if he did statements Davis made (the declarant), purpose true, for individual since statements to be not believe these establishing by truth the matter asserted subject obviously did such tend statements therein, provided declarant declarant liability. him criminal trial, testify and the "unavailable” at state- following ment satisfies criteria: videо- that it would 39. The court noted view 2804(B)(3) exception § tapes and research at time of its A statement which was malt- hearing. hearsay rule before contrary pecuniary ing to the declarant’s or interest, subject proprietary tended which filing largely arguments liability, in this ... and 40. Primeaux’s to civil or criminal him appeal Proposition position arguments III. track his a reasonable man would not in his rule, requirements and laid out the for inculpates ad- where Mr. ment himself for hearsay missibility exception. under asserted, the truth of the matter and that’s argued, length, then State Davis’ really all trying get that he is into the inculpatory statements could not be admitted Remarkably, trial.” regrettably for Pri- exception, under this because the surround- meaux, defense counsel did not contest or ing circumstances did not indicate their correct this posi- mischaracterization of his trustworthiness or corroborate Davis’ state- tion, nor again did defense counsel ever di- ments.41 rectly argument raise the that most of the Davis statements that Primeaux wanted to by 33 Primeaux’s counsel countered ref- truly hearsay, introduce were not they since erencing response that he had filed to the being were not offered for the truth arguing motion in limine of the State’s that the matter majority” asserted. “vast of the statements made being Davis were not for offered the truth of ¶ 35 The trial hearing court concluded the the matter asserted. Defense counsel ex- by presenting analysis an extensive plained wanted to use Davis’ state- 2804(B)(3) § evidentiary issue. The court ments changing to show “the overall of his found that because a reasonable man would story” increasing acknowledgment and his not confess to a murder unless he believed culpability, culminating “Okay, with his I did true, this to be and because a reasonable statement, it” stabbing about Bear. Within man would understand that confessing to a argument defense counsel conceded that interest, murder was penal his Davis’ “Okay, I it” being did statement was was, statement that he had stabbed Bear offered “for the truth of the matter assert- indeed, against penal interest. Yet the ed.” court further held that because the state- particu- 34 The court then addressed this being ment was exculpate offered to Pri- statement, lar suggesting although there meaux, it could not be admitted unless there corroborating was evidence that Davis was was clearly corroborative evidence indicating murders, present at the time of the the court its trustworthiness. The court concluded was not aware of corroboration his state- simply that it finding.44 could not make this actually perpetrated ment that he had one of February On day murders.42 The court did not the second address or dire in “non-hearsay” even mention voir Primeaux’s Primeаux’s ar- the State gument. fact, again prosecutor raised the when the issue of statements later made Davis, began Randy argument including address Primeaux’s statements made to actually persons Davis’ Thornton, statements were not hear- other than Bohon and say,43 off, the trial court him saying, cut asked the trial court to “reaffirm its earlier “Well, clear, wait. I think ruling Randy to be Mr. Bowen Davis’ statements are not saying absolutely is offering he is the state- admissible this trial.”45 The trial court argument largely 41. The State’s current tracks Based on what I know of this the lack of evidence, prosecutor during hearing. that of the this forensic the fact that Mr. Davis does provide any information in his statements being that would not have been learned him stated, 42. The court "I not sure that am corrobo- scene, merely present at the his obvious error places rative that at the evidence him scene rises details, and, recalling certain in some—and to the level of corroborative evidence that would change position throughout his ment, the state- indicate the of this trustworthiness confession.” certainly give any ... credibility doesn't The fact that Davis and Primeaux were both to the trustworthiness of the final confession. charged felony theory, under a murder in addi- malice-aforethought theory, tion to the was not January 45.On the State had filed an discussed in this context. limine, seeking additional prohibit motion in to any party making any or witness from comment prosecutor 43. The noted that defense counsel "[a]ny or reference Randy to statements made great had "relied they to a extent on the fact that person.” previ- Davis to another Primeaux had offering things are not these for the truth of the lists, ously supplemental filed various witness matter asserted.” noting that he intended to introduce the testimo- ny persons of other to whom Davis had made statements, 44. The court incriminatory summarized: possibly even noting found ruling, that the Court that those were prior admissible then reviewed its solely exception hearsay under the rule. I dealt as to the also issue been hearsay rule for statements exception to any legal principle don’t know of ar- penal Defense counsel interest.46 me, would allow if I was even inclined to be to gued that should allowed so, Randy do to mention of exclude the various actions that present about or he Davis involvement that has in statements, taken a result of Davis’ were as My understanding, this case in—in toto. e.g., Davis was arrested and that fact relevant, long as as is the evidence charged murders of Bear and Little- with the that’s —that is the foundational consider- clarified The court then that its cook. is, ation that the has to look at is Court hearsay ruling State’s addressed Randy point fact that аt one Davis was challenge, that if statements made and noted or charged arrested or-—is it relevant to person spe- by Davis another take caused case; any probative this does it have value. actions, might ad- cific those statements be say And I cannot it not. I that does think missible, why “the motivation of to show that, have an certainly, op- the State will they someone acted as did.”47 and, portunity witnesses if rehabilitate followed, in 37 An discussion extensive brought Randy it’s out that Davis was argued that there was no which the State can also charged, arrested and get “proper way” for the defense into the brought charges out those charged arrested and fact Davis was dropped Attorney’s the District because statements, upon based his inadmissible office determined that the statements vigorously argued that it had defense counsel made were I think these are unreliable. information, bring to be out allowed just going facts have to Randy “only defense is that since Primeaux’s with, wrestle are entitled know but Randy Davis Davis was there and committed that. these The trial concluded the crimes.” summarizing recognized its Hence the by again discussion limited trial court Pri- evidentiary ruling: meaux’s find out about should charges against Randy what hap- Davis and only ruling

I do believe regard pened charges, and that to those addressed to Court has made was the out- jury would to wrestle by Randy simply “have with” of-court made Davis statements to the this evidence. law enforcement officials. and, course, exception particular Davis These statements included the under himself. rule, (1) following: being hearsay to the are some tests when Davis was booked into there Jail, Kay County you apply essentially go he was asked he was trustwor- —that drugs under the influence of alcohol at the the Court thiness the statement. And found offense,” responded, videotape time of “the and he "I viewing that after Mr. Davis'—the few.”; drunk, (2) wasn't but I had when Davis gave the po- statements that Mr. time, asked, at this same whether he was capacity officers lice that due to his mental offense,” "Yes, responded, during knife."; (3) "armed he given due to the that were inconsistencies I had a when Davis was asked then statements, those due to the circumstances un- knife, responded by demonstrating about given, the der which the statements were hands; (4) Troy when size with his concerning question had substantial trust- (another Jail) Kay County at the Turner inmate I wasn’t worthiness of those statements. even "So, it?", Davis, you referring asked did do convinced that Mr. Davis himself believed Littlecook, the murder of Bear and Davis re- for those them when he said them. And rea- "Well, sponded, Troy, you crazy ‍​​​​‌‌​​​​​​‌‌​‌‌‌​​​​​​​‌‌​‌‌‌​​‌‌‌‌​​​​​​‌‌‌‌‌‍know how I can sons, I ruled that those statements get." be admissible. challenge the Defense counsel did not court's

46. The statеd: trial court argue summary attempt regard in this or that any Davis' not be hearings statements should consid- We extensive did have on whether hearsay. ered by go- Mr. Davis out-of-court statements were ing recog- in this trial. be admissible And noted, however, any nizing hearsay, they exception 47. The reference are up to statements made Davis should taken was offered to allow those statements to be bench, put against penal were at the before such statements admissible was statements inter- jury, argument testimony. ests. And the Court looked the statements before either as Regarding Davis’ statements During to other cross-examination of Lieuten- however, persons, Stieber, the trial court indicated ant investigator who was the lead expected case, that it that these statements would objections repeated over be inadmissible for the same reason that defense counsel elicited the fact that inadmissible, statements were Davis’ other Davis was interviewed four to five times in i.e., that the court found Davis himself to be case, connection with the that he became a unreliable, personal problems due to his ease, “suspect” in the that a knife was found cognitive limitations.48 The court concluded home, in the search of his which was conduct- any such statements should not be refer- (which pursuant ed to a search warrant Stie- brought trial, enced or into the unless responsible obtaining), ber was and that in an hearing were first reviewed in camera making police, after statements to the Davis and the court concluded the statements (without warrant) was arrested upon based were admissible. opinion “the of someone in law enforcement” “probable there was cause suspect February day On next Randy Davis was involved in these crimes.”51 trial, Primeaux’s the State filed a motion examination, On re-direct Stieber testified seeking preclude any evidence that Davis charges against that the Randy filed Davis charged accomplice was ever as an with Pri- eventually dismissed and that “as the meaux.49 The trial court overruled the mo- case,” investigator chief in the he “absolute- tion, recognizing, again, once that “this is the ly” agreed that right this was “the thing to that, type thing unfortunately, do,” upon based what he knew about the will out for sort itself.” evidence at that time.52 ¶40 Nevertheless, during the rest of the ¶ During this same questioning State vigorously pur- the State continued to Stieber, following occurred, (new) exchange theory sue its that Primeaux acted subject which is the Proposi- of Primeaux’s entirely killing Littlecook, alone in Bear and tion claim appeal: IV Randy nothing and that Davis had whatsoev- er beyond to do with the case or the Q. you today, Detective, As sit here do crimes— entirely an initial and mistaken you decision to any piece physical know of evi- charge along him with Primeaux. In this dence or statements made to third far, regard, the went particularly State too persons, whatsoever, that would tie upon its elicitation of testimony and reliance Randy happened Davis to what from Lieutenant Bob Stieber.50 Warren Julia? questioned 48. The trial filing court also whether Davis’ nor of an information can be consid- Troy truly "against pe- statement to Turner was guilt” ered as "evidence of in a criminal interest,” legal- nal as that precluded term has been defined Primeaux should be ing from demonstrat- however, ly. principally, upon The court relied charged. Davis was ever arrested or Davis, misgivings upon viewing its about based videotapes of Davis: regard 50. The State's actions in this form the Proposition basis for Primeaux's IV. Secondly, the fundamental issue of Mr. abilily perceive Davis' and recall and relate specific Defense counsel failed to elicit the day question the events of that was called into actually crimes for which Davis was arrested and prior in the statements. That’s what was the however, charged, put and failed to the Informa- objection prior hearsay essence of to the charging tion Davis into evidence. Since the perhaps statements is that —that as a re- his— (various persons did family learn that other cognitive ability sult of both lack of and abuse Primeaux) members of had been alcohol, arrested and prob- and whatever other emotional charged accomplices in the case as "after-the- have, may lems he was not reliable in the fact,” potentially confusing jury. this was gave concerning statements that he that event. hours, viewing tapes And after for some I point during 52. At no Primeaux’s trial was concluded that that was true. I think that made, jury, reference before the to the fact that remains, making issue still no matter who he is may precluded the State pursu- have been from to. statements due, ing part, its case at least in

49. See problems relating Motion to Preclude the competency. Intro- Surpris- 2/11/2002 to his Randy ingly, duction of Evidence that any Davis was Previ- the record does not contain evidence ously Charged Accomplice, as an O.R. attempted place 405-06. that defense counsel to evidence argued The State regarding that because neither an arrest jury. this issue before Primeaux’s absolutely tying no physical evidence Absolutely none. R. Randy to crime. Davis the questions. I no further Mr. Gibson: testimony was 44 After Stieber’s conclud- objection interposed no to Defense counsel ed, ease, final the State rested its and the testimony arguably violated this —which camera hearing regarding was held what ruling, it asked hearsay since trial court’s pres- Primeaux would be allowed to evidence of state- testify the content to about Stieber they counsel stated that ent.54 Defense utterly Randy by Davis —and ments made testimony Pri- planned present to impeach Stieber failed to cross-examine meaux, that, they to do were allowed testimony, which went to core upon this so, testimony they present also would Nor did defense of Primeaux’s defense.53 Turner, Bohon, Thornton, Troy Agent Officer coupt prior to re-examine its ask the counsel Stephanie Patrolman Don Round ruling admissibility of Davis’ state- Burks,55 among regarding, and Red Davis56 to ments, to the statements in order use incriminatory things, that other statements impeach Stieber. Randy made each of them. Davis to hand, invoked 43 The on the other ¶45 responded by again The trial court testimony was unaware of that he Stieber’s invoking reliability regard- its determination any physical evidence or statements made any The ing statements made Davis. to the murders of tying Davis “whatsoever” proffered court ruled that statements Littlecook, guilt-stage its Bear and both only argument being hearsay, were that the closing arguments. punishment-stage admissibility was for state- made their first-stage closing argument, the During his interest, against penal and that ments at defense prosecutor Primeaux’s scoffed simply trial court could make neces- Littlecook, Davis alone killed Bear and that reliability sary finding of to admit these noting “according the lead detective that to statements. The court concluded: physical is not one shred of in this there During clearly everyone him to crime.” evidence to tie this associ- I understand prose- second-stage closing argument, the his this that this ated with case understands “no relying evi- appeal cutor continued on Stieber’s will or fall on on this case stand testimony: Ap- ruling. dence” Either the Court of Criminal they peals agree will me or will dis- with you back and They still want to come get all this agree me and we’ll to do with solely figure Bruce Pri- out that because faith, good again, but I have made it during happened told his meaux us good I faith I that can in that don’t believe Randy in the bathroom that somehow time necessary finding is to de- make the that they guy. even Davis is real bad And an state- that that is admissible termine sup- suggested you that the evidence against penal interest. ment that; being ports that that same incriminating, you that is charges were So statement Bob Stieber told interest, against penal made quote, determined there dismissed when was argued that and Thornton making at- Stale also Bohon a feeble and unsuccessful After testify, because their tempt bring not be allowed that Red Davis told should out fact testimony only be to that of Randy cumulative investigators a knife with Davis had testimony Stieber. day him on murders — counsel conceded was inadmissible hear- defense objected say to it—defense coun- the State when made the officers whom Davis 55. These were simply jail. sel sat down. he was booked into statements at time During hearing posi- testimony present State took the proposed 56. Primeaux at concerning Davis tion that statements made a number of issues Red Davis of surrounding admissible, jail into time he was booked found in his home—and the knife (re-)Mirandized charge accessory and did as since he not been arrest and Red’s time, present fact in addition in the case—and the not have counsel two murders murders, Randy gave day arguing were unreliable for same after the action) (a non-hearsay found Davis’ state- back the knife reasons that the court had father something” it. had "done unreliable. stated that he and Thornton ments Bohon Davis, by Randy that repeatedly is offered these since the court stated that the proceedings, will not be admitted.... considering issue that it was was wheth- 2804(B)(3) to going Court is be consistent in its “against [T]he § er penal interest” previously it ruling with what has ruled.57 exception hearsay applied to the rule —and spoke up defense counsel to never remind morning proffered defense counsel The next the court about “non-hearsay” its broader entirety preliminary Bohon’s Officer argument challenge or to the court’s narrow- testimony proof and made an offer of hearing ing evidentiary question of the at issue. trial, Al- testify that if he were allowed to at though preserved defense counsel the issue testify conformity “in Bohon with” his would purposes appeal by for making twice testimony.58 earlier — non-hearsay argument trial court ¶46 preceding review of the record proffering entirety and pre- of Bohon’s earnestly that trial court reveals liminary hearing testimony counsel —defense evidentiary to the correct striving make rul- many opportunities missed to correct ings regarding relating Randy to evidence trial court’s to failure address Primeaux’s fully appreciat- trial court Davis and evidentiary argument. broader Hence it is significance ed critical issue.59 quite disingenuous appellate counsel to Nevertheless, totally the trial court failed to express surprise that the trial court failed to argument recognize or address Primeaux’s argument.60 rule on this all, most, if not of the statements made to Davis Officers Bohon and Thornton ¶ 48 Primeaux now asserts numerous non- hearsay, since were being were not hearsay purposes for which the statements purposes offered for other than the truth of Davis made to Bohon and Thornton should asserted therein. This matter defense have been admitted at trial.61 Defense coun- clearly presented argument was in both a arguments sel should have made these at filing pre-trial hearing. court It was suggests they where the record recognized by prosecutor, also who at- thoughtfully carefully have been consid- to tempted respond it at that same hear- court, by the might ered trial ultimately ing, before the court cut him off. The trial prevailed. Although court appeared totally court to remain oblivious to failing erred in recognize the “non-hear- important argument, this tenable and say” argument make, that Primeaux did de- any way. never it in addressed fense counsel’s regarding inaction this failure place 47 Yet would unfair to all question raises a serious of whether Pri- omission, blame on the trial for this adequately represented meaux was at trial.62 day again 57. Later that the court reviewed its to offer the statements for the of the truth matter asserted, ruling admissibility on of statements made [and] did claim the statements were Davis, noting this time also that the court trustworthy.” true quite misleading, This is corroborating unaware of though perhaps Davis' not as inaccurate as the asser- crimes, brief, in the reply actual involvement rather than his tion in Primeaux’s "never presence mere at the scene. raised” a claim that Davis’ statements "were exception hearsay admissible under an rule,” simply which is false. proof 58. Defense counsel also made an offer of Agent testify, Thornton allowed his testimony Regard- appeal, argues would mirror that of Bohon. On that these state- ing other witnesses whom Davis made ments were non-hearsay: admissible trial as statements, incriminatory defense counsel relied scene, knowledge why [Davis’] show upon proffers. his earlier arrested, repeatedly [Davis] been that he changed story, prove that he had been 59. The careful attention of the trial court to this scene, present at the Mr. corroborate Pri- ap- issue reflected Primeaux's brief on story, meaux's to rebut the State's claim peal, today's opin- nor is it reflected in Court's existed, implicating Randy no evidence ion. the fact statements [were] made. appellate 60. Primeaux’s brief asserts the tri- "non-hearsay” argu- al court failed to rule on his propositions appeal Yet Primeaux's twelve ment, spite understanding "[i]n single universal do not include claim of ineffective assis- in the courtroom that the defense did not intend tance of counsel.

927 find out a Nevertheless, The did about later regardless of who officer.66 and 49 McDonald, some five blame, confession months the court’s refusal ultimately trial to incriminatory shooting. The learned that testimony after the about allow to minister, meeting a local after with Mc- by Randy violated made statements up at the offices of right process and Donald showed Cham- to due Primeaux’s Edward attorneys confession, gave a fundamentally unfair. bers’ and sworn trial his rendered transcribed, signed, and Supreme the which was wit- Mississippi,63 Chambers nessed, he the shot right of an ac- that was one who the that recognized “[t]he is, police he his in officer and that- had used own process a trial to due cused in criminal revolver, opportunity to .22 which he then discard- essence, right to a fair caliber the Upon ed.67’ accusations.”64 cross-examination State’s defend however, repudiated a this confes- factual sit- McDonald The Court addressed Chambers sion, preliminary as he had at his hear- the one before done closely paralleling now uation Court, ing.68 came the conclusion to this rights directly affecting “where constitutional ¶51 that he was McDonald testified guilt implicated, the are

the ascertainment present shootings, the time of the even at hearsay may applied not be mechanisti- rule was the street at a café with a since he down justice.”65 cally to the ends of defeat friend, only and that he confessed because ¶50 promised him minister that he would not in that Leon The defendant Chambers, po- go jail profits share from murdering a to could was convicted of bring against to a that Chambers would officer, the trial court refused lawsuit after lice city.69 though shortly Even one of McDonald’s present him to allow crime, individual, lifelong friends that he saw testified Mc- another Gable after officer; McDonald, police and a second to of his friends Donald shoot the confessed three victim, witness, a cousin of the testified that police he the one who shot was 1038, thorities, 284, put jail, charged shooting with 35 297 410 93 S.Ct. L.Ed.2d 63. U.S. (1973). Liberty. hearing preliminary his one Officer At later, however, repudiated McDonald this month 294, at S.Ct. The Chambers 64. Id. 1038. down confession and testified that he was recognized “rights to Court likewise a café a friend at the time of the street in with call witnesses and to confront and cross-examine shootings and came to the scene long been one’s own behalf witnesses in also that he afterwards. McDonald claimed recognized process.” to due Id. as essential pistol .22 caliber months before lost shooting. justice peace accepted The 302, local Id. at 93 S.Ct. 1038. 65. repudiation, to refused bind McDonald over shooting of case about the 66. The Chambers was custody. him Id. at and released from Liberty. Liberty and other officers Officer Aaron 288, S.Ct. 1038. bar, attempting to arrest a man at when were attempted prevent gathered and hostile crowd witness, McDonald as a after 68. Chambers called out, and five or six shots the arrest. A riot broke him, requested that State failed to call he revolver, fired, four of .22 caliber from an allowed treat McDonald as adverse Liberty Liberty in the back. Before which hit witness, fully. him order cross-examine died, however, and fired his he turned around Mississippi's court evidentia- The trial ruled shotgun alley into area from sawed-off ry treat code did not allow Chambers "to Mc- appeared One have come. shots these at as an Id. Donald "adverse witness.” back of the shots hit Leon Chambers in the head neck, Mississippi Supreme Court af- seemingly killing S.Ct. 1038. him. ruling appeal, McDonald did on since firmed Liberty, attended The officers at the scene finger Id. at "point the at Chambers.” way hospital, but did not died who petition Supreme investigate actually S.Ct. 1038. In his dead 93 Court, whether Chambers challenged weapon. court had a When some his friends this trial rul- Chambers McDonald) (including hearsay ruling, arguing that he was ing, along discovered its with alive, hospital. they took him to the Cham- evidentiary still rules application of these ren- “the murder, Liberty’s charged with but bers fundamentally deprived unfair and dered his consistently at maintained his innocence. Id. 289-90, process due of law.” Id. at him of 285-88, 93 S.Ct. 1038. S.Ct. 1038. 287-88, After this con- Id. S.Ct. 1038. au- 69. Id. at 93 S.Ct. was turned over local fession McDonald immediately incriminatory McDonald after saw statements were not hand; pistol in his shooting and the with hearsay. whom McDonald claimed to be friend Nevertheless, Supreme 53 the Court of shootings a at time the café the testified ruled that the trial court’s refusal to let any with McDonald in café that he was not present testimony Chambers the the of three night,70 that Chambers was convicted.71 confessed, whom witnesses to McDonald The trial court did not Cham- 52 allow along with its refusal let to Chambers treat present testimony to bers from indi- three witness, an McDonald as adverse “denied that viduals McDonald confessed to them him a trial accord traditional and shortly crime,72 finding after the this that fundamental process.”75 standards due testimony hearsay.73 was inadmissible Although Supreme the Court did find cur-, evidentiary Mississippi, code unlike hearsay that the trial court erred its rul- law, excep- rent Oklahoma did an ing, question legitimacy the hearsay the hearsay tion to the rule for that statements rule,76 the Court concluded that the impact against “penal the declarant’s inter- 74 evidentiary the trial rulings court’s narrow est.” Hence Chambers could not ar- even had been a denial of gue Chambers’ broader con- exception hearsay for an to on rule Furthermore, right present stitutional to basis. Chambers did not defense and to attempt argue to that McDonald’s out-of- a fair trial.77 I would reach the same conclu- 289, 292, addition, 70. Id. at 93 S.Ct. a proffered testimony 1038. In court's exclusion of the from gun witnesses, purchased finding dealer testified that McDonald a all three that it was inadmissi- 293, year .22 caliber hearsay. revolvеr about a before mur- ble Id. at 93 S.Ct. 1038. purchased der and then a different three .22 5, after the Id. weeks murder. at 293 n. 93 S.Ct. noted, 74. As the Mississippi Chambers Court 1038. exception included statements that were against "pecuniary the declarant’s interest.” Id. 71. at the One officer scene testified that he saw 299, at 93 S.Ct. 1038. Liberty, Chambers shoot and another officer tes- tified he saw Chambers “break his arm 302, Id. 75. at 93 S.Ct. 1038. shortly down" before the shots were at fired Liberty. Liberty saw Three officers who shoot fact, Supreme 76. In Court noted that the they Liberty Chambers testified assumed hearsay long recognized rule "has been and re- shooting his attacker. Yet at witness spected by virtually every based [and] is on at scene testified that looked when Chambers experience grounded and in the shooting began, notion un- and he was sure that Cham- shots; trustworthy presented any evidence should not be bers did not fire and the State was 298, the triers fact.” any Id. at 93 present S.Ct. 1038. unable evidence that Chambers pistol. owned a .22 caliber ever Id. at wrote; 93 S.Ct. 1038. 77. The Court reaching judgment, In we no establish new 72. One of these witnesses would have testified principles of constitutional law. does Nor our that McDonald confessed to him he had shot holding signal any respect diminution in the Liberty night, that same after from returned traditionally accorded to the witness, States in the es- hospital. Another who friend implementation and tablishment of their own testified that he was not in café with Mc- Rather, procedures. Donald, criminal trial rules and would have further testified Mc- quite simply we hold that under the facts and night Donald confessed him that same and rulings circumstances of this up.” told later him not "mess him thirdA witness, deprived trial court longtime Chambers of a fair neighbor trial. friend and Mc- 302-03, Donald's, at Id. S.Ct. 1038. morning would have testified that the approach subsequently This shootings, ap- Chambers after told McDonald him that he plied capital Supreme to a Liberty disposed case before the had shot Court. then .22 of his Georgia, See Green v. caliber revolver. He 99 S.Ct. also would have testified (1979) curiam) (per 60 L.Ed.2d (vacating purchased that he was with McDonald when he death sentence where dence, pistol, replace new trial court .22 caliber excluded evi- one he had discarded, 292-93, hearsay, as several weeks Id. co-defendant told some- later. at victim, ordering one he alone 1038. killed S.Ct. after errand). Green, Green to run the Court 292-93, Although again Id. S.Ct. emphasized evidentiary that narrow rul- correct, ings, basis of the trial court's third exclusion of the even when cannot be allowed to clear, testimony entirely unfairly infringe witness' upon process was not a defendant's due Mississippi Supreme approved right present the trial his defense. Id. at 99 S.Ct. adequately to be reliable ade- found current ease.78 in the siоn by a quately magistrate judge corroborated the trial court Regardless of whether (who original Davis over on the bound incorrectly “against correctly or ruled count), charges rape added when hearsay exception to penal interest” did not dismiss its case State rule,79 Pri- refusal to allow the trial court’s (fifteen until eleven months later Randy present about meaux filed), after case was first months after incriminatory statements Officers Davis’ questions regarding serious had arisen Davis’ Thornton, and to demonstrate Bohon competency to tried. upon this same how the State relied evidence, right I the to due 55 conclude that trial court erred in violated Primeaux’s process failing recognize his trial funda- to the broader due process of and rendered law mentally preposterous find and fair trial issues that were at stake in its unfair. I it evidentiary ruling allowed to hide this evidence narrow on the admissibili- the State was ty agents parties. the of Davis’ statements to third The jury, when of State were from developed permit- court originally and ob- record indicates that trial the ones who evidence, argument when the State then ted substantial on admissibili- tained ty arrest and of the Davis evidence and that the court upon this evidence to Davis relied murders, repeatedly. The charge him both when the addressed issue record with pre- recog- that the trial court presented this evidence Davis’ also demonstrates State impact liminary hearing, ruling when was nized the enormous of its on the evidence Primeaux, hand, ("Regardless proffered testi- on the other whose of whether defense rule, hearsay Randy mony Georgia’s responsible was un- was that Davis for both comes within murders, completely prevented was from this case its exclusion constituted inform- der the facts of jurors ing to of the his Davis had confessed of a violation of the Due Process Clause one (and Amendment.”). rape) investigating Within assess- the murders to offi- its Fourteenth evidence, reliability suggest The record in this does not of the the excluded cers. case ment formally emphasized that the State itself relied that Davis ever renounced confes- the Court sion; McDonald) evidence, (unlike prosecu- was upon disputed its and Davis bound within charges against Id. ("Perhaps for trial on the him. Yet tion of the co-defendant. most over exactly testimony important, never learned what Davis State considered Primeaux’s with, Moore, charged sufficiently and or how the to use it was arrested for reliable it.”) upon (citing got upon him over for based State bound to base sentence death hand, Chambers). claiming parallels very that was now case at same confession it This developed, presented, And since Davis himself wаs the State earlier was unreliable. which upon time was that it calls "unavailable” at the relied the Davis evidence now ’ ' rely 'untrustworthy.' conclusion of the State's lead left to on the essentially recently investigator was holding also in the case there The in Chambers was against him. applied capital in a case the United States "no evidence” before Chambers, Supreme Appeals Court acknowl- for the Tenth Circuit. See Ellis Ir> Mullin, (10th significant implicating edged the Mc- Cir. evidence 326 F.3d 1128-30 2002) present, was to (relying grant that Chambers allowed on habeas relief Donald Chambers upon his “was far less but concluded that defense based trial court's exclusion been,” might diagnosed paranoid persuasive if Chambers with than it that defendant was during pre-trial competency present excluded schizophrenia, uation, been allowed to confes- eval- fully prevented fully McDonald. Id. at sions and 294, cross-examine which defendant from trial). impact insanity that the 93 S.Ct. I conclude presenting defense at his rulings was trial court in Primeaux's case of the Actually, impact of the trial court's eviden- significant more and detrimental. much ruling arguably tiary was in Primeaux’s case very significant impact was clear that it was in the 79. The trial court much more than the excluding any Although ju- made out-of-court statements Chambers case. Leon Chambers' upon Davis’ based its evaluation of reliabil- did hear about three of McDonald's Davis rors confessions, ity separate, and the of his statements—(cid:127) did hear about “trustworthiness” was, made, repeatedly along ruling stated that he with sub- that the sworn confession McDonald, turn, videotapes implicating upon evaluation of the based its stantial other evidence including eyewitness testimony. jury was with Bohon and Thornton. of Davis' interviews credibility does not contain Since the record in case also able evaluate McDonald's videotapes, cannot repudiation directly, this Court actual- his since of these his confession testified; ly to exclude impeach evaluate the trial court's decision was able Chambers simply testimony We have not been Davis' statements. McDonald's "alibi” direct from friend, necessary so. being provided materials do a café with him. with the his who denied misconduct, ruling and that its on this potentially Primeaux’s defense which prejudicial issue could constitute reversible error. Yet stages to Primeaux in both of his trial.82 beyond the court look failed to the frame- ¶ Regarding represen- defense counsel’s evidentiary question work of the narrow tation, recognize I that this Court empow- perceived, the applicability on of the ered decide the claims that are actu- 2804(B)(3) § exception hearsay rule— ally note, raised appeal. bеfore us I recognize and failed even Primeaux’s however, that I am troubled defense coun- “non-hearsay” argument broader consid- —to (and inaction) sel’s actions at trial regarding ruling infringing er whether its could be much-disputed evidence, particu- upon Primeaux’s fundamental constitutional larly defense counsel’s failure to react right to call at trial present witnesses testimony Detective Stieber’s there I defense. conclude the trial court’s “absolutely no[ ]” evidence “whatsoever” hearsay application “mechanistic” rule Randy “that would tie hap- Davis to what rights in this case violated Primeaux’s to due pened Julia,” to Warren and went process trial.80 and a fair very heart of Primeaux’s defense.83 very 56 I note that I further am dis- ¶ Upon reviewing all of the evidence in by turbed elicitation the “no State’s of case, I recognize this the possibility that a testimony from evidence” Officer Stieber and jury that has properly been instructed and testimony its later of during invocation this given complete picture of the evidence closing arguments. testimony Stieber’s con- against Randy State Davis —includ- very misleading, outright stitutes a if not fact ing the false, the State found evi- this of linking characterization the evidence adequate charge dence him with two Davis to of Bear the murders and Little- of Furthermore, first-degree counts given murder and that a cook.81 the context of judge adequate found it attempts during to bind him repeated the State’s trial to over (in charges prevent jury from these hearing anything rape) addition to —could charging Randy about the arrest and nonetheless find guilty of of two (in successfully Davis preventing first-degree addition counts of murder and sentence confessions), testimony death, him upon about based the heinous nature and use of killings, State’s elicitation this Stieber as well as Primeaux’s criminal testimony purposeful Nevertheless, prosecutorial history.84 smacks I cannot condone Chambers, 80. See at 93 S.Ct. 1038 prosecutori- 82. We need not decide whether this ("[Wjhere rights directly affecting constitutional al misconduct alone necessitates reversal guilt implicated, the ascertainment of are presents since Primeaux a cumulative error hearsay may applied mechanistically rule not be claim, in My addition to his individual claims. justice.”). to defeat the ends of upon dissent is based the cumulative effect of the numerous errors in Primeaux’s trial. attempts by 81. The current the State and this Court to defend Stieber’s "no evidence” testimo- 83. trial ny court had earlier made disturbing. investiga- clear the Although are weak and ruling tors fingerprint regarding did not limited nature of find blood its the Davis scene, evidence, aspects many from Davis at the crime and noted exclusion descriрtion Davis' of the crime and how scene review, subject change evidence was de- by tire phys- murders occurred were corroborated pending happened on what progress- as tire trial ical evidence at the crime scene. State witnesses ed. It strikes me as obvious when the lead preliminary hearing at the indicated that such investigator in the case State’s testifies that ishe why suspect corroboration was became absolutely parties aware of no statements to third eventually charged and was in the case. And the tying Davis to the murders of Bear and Little- recognized trial court itself there sub- cook, forcefully blatantly that the State has corroborating presence stantial evidence Davis' opened impeachment kicked door evi- addition, at the time of the murders. the knife incriminatory dence about the content state- home, found in Davis' where he indicated it Why ments made Davis. didn’t defense coun- found, would be arguably also corroborative sel feel the breeze? physical though appar- Even evidence. the State conclusion, ently came to the time clear, however, hope I As I also find that Primeaux’s this knife was not the mur- probability is a weapon, der there reasonable presented of a different the evidence at did Primeaux, possibility particularly exclude for regarding result Davis' knife was homicide, used in the double as he had one indicated. least of his sentences. a man to his to send decision this Court’s conclu- upon our after-the-fact based

death likely most about what

sions done, trial had the defendant’s For the reasons properly conducted.

been above, and remand I would reverse

discussed a new trial.

2004 OK CR 17

B.J.B., Appellant Oklahoma, Appellee.

STATE of

No. J-2003-1398. Appeals of Oklahoma. Criminal

April DOCKET ORDER

ACCELERATED ¶ Appellant pled guilty as a Youthful Offender in the District Court of Comanche County, District Court Case No. CF-2001- A Robbery Dangerous Weapon With years to five under the and was sentenced custody and control of Office Juvenile (OJA). Following “Re-Disposition Affairs Hearing” the Honor- on December Stratton, Associate District able C. William substantially Appellant found “failed Judge, adopted comply previously writ- Ap- and ordered plan ten rehabilitation” the Youthful pellant to the balance of serve Depart- in the as an adult Offender sentence (DOC), with credit ment of Corrections going Appellant prior AWOL. time served District appeals from the order bridging Appellant from the Youthful Offend- into System er DOC. appeal Appellant raised the follow- 2 On error:

ing propositions of in this case notes contains 1827; responses, the trial and the trial court’s tran- 11. Id. at see also id. at 119 S.Ct.. scripts do discussion of these (describing analy- not record 119 S.Ct. harmless ‍​​​​‌‌​​​​​​‌‌​‌‌‌​​​​​​​‌‌​‌‌‌​​‌‌‌‌​​​​​​‌‌‌‌‌‍error case.) inquiries 'beyond parties in the appears sis as "whether it reasonable complained did doubt that error not con- ") (quoting Chap- U.S. at S.Ct. 1827. tribute to obtained.' 13. 527 the verdict

Case Details

Case Name: Primeaux v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Apr 6, 2004

Citation: 88 P.3d 893

Docket Number: D 2002-319

Court Abbreviation: Okla. Crim. App.