Shelton v. State, 793 P.2d 866

Shelton v. State

793 P.2d 866

Okla. Crim. App.

1990

Check Treatment

*1 SHELTON, Appellant, Dale Austin Oklahoma, Appellee. STATE

No. F-86-920. Appeals of Oklahoma.

Court of Criminal

May 1990. *3 place

drove car to the he was house”, staying, “big near the intersec- Bryant tion of and 50th streets Okla- City; Appellant homa drove back in their Thompson car. Hawkins later chained “big Appel- the loft of the house” barn. chain, raped lant removed the and sodom- Al- ized and rechained her. holding though Hawkins claimed he was ransom, Thompson for a ransom demand *4 day Appellant was never made. The next Thompson in and Hawkins drove her car to Seminole, Sportsman Lake in Oklahoma. Appellant again served as a lookout while bound, gagged Hawkins and drowned Thompson. Appellant helped Hawkins drag body the of the lake and camou- out flage nearby in a ravine. it under brush Meanwhile, girl Hawkins’ friend and her Thompson’s nephew took children to their regular babysitter. Appellant and Haw- kins fled the state and were arrested subse- Sacramento, They in quently California. perfected together were tried each has Clowdus, Diane Irven R. Box and Okla- appeal. separate a City, appellant. homa for Gen., Atty. H. Henry, H. William prop Rоbert in Appellant argues his first Gen., Luker, City, Atty. Asst. Oklahoma char osition of error that the admission of victim, appellee. for regarding the Linda acter evidence Appel Thompson, him a fair trial. denied Maryland, lant relies on Booth v. OPINION 496, 107 (1987) in 96 L.Ed.2d 440 S.Ct. LANE, Judge: Vice-Presiding Supreme which the United States Shelton, Appellant, was Dale Austin impact the use of victim disapproved of by jury for the crimes of charged and tried provide jury with in statements which the (21 O.S.Supp. Degree in the First Murder regarding personal the charac formation B); Kidnapping counts of 701.7 two § victim, impact the emotional teristics of the (21 O.S.1981, Purpose of Extortion for the family family’s and the of the crime on the (21 745A); Degree First O.S. Rape the § opinions crimes and the defendant. of the 1114); and Forcible Oral Sod- Supp.1983, § Booth impact The victim statement was 888) (21 O.S.1981, No. in Case CRF- omy § stage sentencing used in the of trial. of in the District Court Oklahoma 85-6156 complains testi at 2532. of S.Ct. a verdict of County. jury returned ex-husband, Thompson’s uncle mony from punishment and set at guilty to each count good that she took care of boyfriend to for each count be imprisonment life children, nutritiоusly, took fed them her Appellant was sen- consecutively. served necessary and them the doctor when accordingly. tenced backyard they would not fenced her so Testimony also 19, 1985, into the street. Appellant served as wander August On Thompson aero lookout, established was a serious Don Wilson Hawkins while a degree who had a bachelor’s Linda car bics student way into forced college in Minnesota. Unlike from small Shepherd Mall Postal Station the Booth, regarding the emotional evidence City kidnapped Thompson no Oklаhoma her fami impact Thompson’s murder on daughters. Hawkins of young and her two opinion photograph crimes or therefore was ly, family’s her house”. This presented properly at trial. the was admitted. See Oxendine P.2d Kidnap charge the prove In order to Extortion, prove had to the State ping cards photo-identification were forcibly seized and confined City Police Officer found Oklahoma her authori Thompson’s daughters without Horn, in purse a crate next the O.S.1981, regard 745. Evidence ty. § "big garage house”. Co-defendant took carе of her chil ing how City Police Detec Hawkins told Oklahoma Appellant did not have prove dren tends to put purse of tive that he Sellers pro them. The permission her to confine in a he killed crate next woman outweighs value this evidence far bative identification cards there garage. These thus, cause, might it any prejudice it are evidence fore material corroborative properly admitted. See which is relevant the identification also Thomp regarding 2402. The evidence Appellant’s victim. We find rele in aerobics and interest son’s education photo-identification vance of cards these not have been admit irrelevant and should jury outweighs danger that the would impact *5 possible of this evidence ted. in this substitute emotion for reason case. however, is, minimal that it could not so (Okl.Cr. State, Newbury 695 531 v. P.2d jury’s verdict. It’s ad

have affected the 1985). mission, therefore, error. is harmless See (Okl.Cr. State, Cooper v. 671 P.2d 1168 Appellant his asserts as third 1983). proposition improperly of error that he was argues he was Appellant next de pre change a venue. He сlaims denied of by fair the introduction of one nied a trial publicity County in trial Oklahoma tainted photo-identification photograph and two panel. has jury the The trial court the Thompson while pictures of she card taken change deny a grant discretion to of encourage not was alive. This Court does the venue and we will not reverse trial photographs of taken of victims the use absent an abuse of that court’s decision prose caution their demise we before State, P.2d Godbey discretion. v. 731 986 proof to other forms of cutors first seek (Okl.Cr.1987). An abuse discretion in of prejudicial. Newbury are which less a grant change the refusal of venue State, (Okl.Cr.1985)overruled publicity only of shown pretrial because is McCalip grounds on part in other prevented the where defendant was from State, 778 P.2d 490 by receiving impartial jury. trial an a fair However, photographs of victims while (Okl.Cr.1986), State, 719 Plunkett v. P.2d 834 may they were alive be admissable where denied, rt. 479 107 U.S. S.Ct. ce to a material issue and they are relevant (1986). jury panel 725 93 L.Ed.2d in reasonably jury assist the deter would people had consisted of thrеe who guilt. mining the Whittmore defendant’s heard of case before trial nine this 1154 case, but people who had heard of the had case, identity opinion. Extensive In the not formed an voir the instant juror who Appellant raped, sodom was Each had dire conducted. the woman whom was case before trial was individu kidnap murder a heard the helped ized and ally by judge the trial Appellant argues that examined coun material issue. jurors finally in Each of the x-rays the of the sel chambers. stipulation that dental any aside stated he or she could set match seated skeletal remains would the impartially judge x-rays identity opinion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍as a trial held and case eliminates dental trial. This only presented the at establishes the on evidence stipulation This issue. jury a fair trial. Hale v. photograph the standard of identity of remains. The the (Okl.Cr.1988) cert. eliciting testimony from de in essential 878, 109 Thompson was in nied U.S. S.Ct. key witnesses two no abuse of We find brought “big the L.Ed.2d the woman fact denying up postal by judge in to the substation to wait for discretion change of victim. One woman came and Haw- Appellant venue. towards her and about that kins started in Appellant also attacks venue security guard mall time a from the went County by arguing he was Oklahoma So, by. escaped just by the that woman waiving into Seminole coerced venue grace security guard showing up. of that the this County. Neither facts nor law of thereafter, Thompson A short time Linda has support argument. Appellant this case up drove substation ... right in the constitutional to be tried 11,7). vol. county in was committed. which crime II, art. 20. This constitution Okl. Const. § objected point at on the this may personal privilege is a al grounds wаs an improper this reference to P.2d 377 waived. Morris v. be crime, attempted kidnapping. another This (Okl.Cr.1961). However, waiver of venue Appel later evidence was admitted over in this The evidence is not an issue case. prosecutor’s objection. The state lant’s clearly established crime was commit refers to admissable evidence of the ment and Seminole coun ted both Oklahoma gestae kidnapping res was, therefore, proper ei ties. Venue daughters proper and is therefore and her county ther State's discretion. Evidence of another crime will comment. O.S.1981, 124. where, here, excluded as it incident not be ly events are in their emerges as revealed of er proposition In his fourth sequence. Gay natural ror, prosecutorial asserts miscon 1987). (Okl.Cr. him a fair trial. denied duct object at trial to several failed *6 Appellant claims heated ex several to improper statements. Failure alleged prosecutor changes the and de between may the cured object at trial when error be fair prejudiced counsel his to а fense by this judge waives review by the trial plainly trial. As the record reveals these for all but fundamental error. Cole place in and out exchanges .took chambers (Okl.Cr.1987). State, 747 man v. P.2d presence jury, Appellant’s of the side the record, con review of the entire we After specious. argument is the statements did not affect clude these therefore, not this trial do outcome of Appellant argues several next Campbell reversible error. See constitute by prosecutor made the statements (Okl.Cr.1981), P.2d 352 cert. during argument war objeсted closing to denied, 103 S.Ct. argument fell The State’s rant reversal. (1983). cites Appellant also L.Ed.2d possessed by latitude coun within the wide to which the trial court several statements the and the State to sel for both defendant objection. his These statements sustained standpoint the freely, from their discuss by any was cured the were such that error as and deduc evidence as well inferences Mann trial court. See therefrom. will oc arising Reversal tions (Okl.Cr.1988), denied 488 U.S. cert. the argument by counsel for only cur when 102 L.Ed.2d 163 improper grossly unwarranted State is point mаy which the defen on some affect other Appellant misconstrues State, 722 rights. dant’s Hartsfield argues prose the evidence when he crimes (Okl.Cr.1986). after We conclude crimes improperly referred to other cutor prose the of the entire record that review opening which statement evidence argument grossly closing was not cutor’s case during elicited the State’s was later Appel infringe did not on improper describing of events In the series chief. rights. lant’s and his Appellant culminated Thompson and her kidnapping argues cо-defendant prosecutor also Appellant prosecutor stated: children the regarding his co- improper comments made closing Ap- there, during argument. acted as defendant they got Shelton When pellant advise as to how gun went does not this Court Hawkins with his while lookout therefore, him, police him. we before the attacked remarks affected Sacramento these (Tr. IV., 240). argument. testimony This will this Vol. not address City Bill by refuted Oklahoma Detective Although object to he did Sheriff, Diego County Deputy Citty. San prosecutor following comments pаt- Rye, Robert testified he conducted argument the second during closing of Appellant at the Sacramen- down search trial, they now claims stage County he arrived to transfer to Jail when improper appeal sympa for constitute an Diego, and saw San thy for the victim. Rye no evidence of cuts or dress. saw way Linda can be There is no drive from During bruises. the ten hour VI, 181). brought back ... Vol. Diego, Appellant did not Sacramento San up here I I still had the evidence wish any received Rye mention to that he had you pictures I’d like to show because judge viewed the video abuse. Thompson because that’s what of Linda After con- tape Appellant’s confession. VI, 192). (Tr. Vol. we’re here about. totality circumstances sidering the prosecutor’s not condone This Court does including Appel- the characteristics of the jurors encouraging the to allow comments interrogation, lant and the details of the improper sympathy, prejudice sentiment or Appel- judge properly concluded influence their decisions. Grant v. voluntary. lant’s confession was These improрer appeal sym- statements are an asserting In his confession is However, by failing object pathy. only inadmissible because the other evi all funda- trial, Appellant has waived but corpus dence of the delicti was obtained error. We find these comments do mental accomplice testimony, from uncorroborated they as are not so not warrant reversal Appellant erroneously argues the State’s jury’s prejudicial as to have affected the witnesses, Shirley Lovell Pitts and Chris Vaughn verdict. accomplices were to his crime. Corrobora required testimony tion of a witness’ is not error, partici the witness absent evidence proposition fifth As his planning pated in the or commission of was im Appellant asserts his confession *7 (Okl.Cr.1986) State, v. 727 P.2d 1366 grounds the alternate crime. Smith properly admitted on 1033, 107 involuntary or that the t. denied 483 U.S. that either it was cer (1987). 3277, The corpus 97 L.Ed.2d 780 only evidence of the delicti S.Ct. other evidence that Pitts or uncorroborated accom record contains no was obtained from kidnap judge planned Lovell or committed the plice testimony. When the trial con hearing ping murder. Pitts and Lovell are at v. Denno to de or ducted Jackson fact, after the and as Appellant’s confession most accessories

termine whether such, contradicting testimony require their does not cor voluntary, sharply evi Denno, roboration. Id. was heard. Jackson v. See dence See 1774, 368, 12 L.Ed.2d 908 84 S.Ct. 378 U.S. Appellant next asserts the trial court im- in (1964). Appellant was arrested When properly denied his Motion Severance Sacramento, in he was held first California peremptory and forced him to share chal- Diego. Appel transferred to San and later lenges his co-defendant. We will ad- with police that Sacramento offi lant claimed question peremptory chal- dress the of irons, leg punched him stomped on his cers lenges first. a full and sides and demanded in the ribs However, process makes a due photographs taken confession. ’ constitutionality challenge to the of Appellant and his tattoos at the O.S.1981, 22 which re City provision detectives who of 655 request of Oklahoma § quires him that co-defendants who are tried Diego to interviеw traveled to San (9) perempto in the nine alleged jointly attack. must share no evidence of this reveal challenges by statute. This ar ry v. Denno allowed Appellant stated the Jackson Peremptory chai- gument unavailing. photographs were taken hearing that these

873 Haw- opportunity to cross-examine and are not had the a creature of statute lenges are oppor- avail himself ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the kins but did not or federal con required by either state testimony, Haw- State, tunity. After his direct 730 P.2d 535 Fritz v. stitution. See by questions posed Oklahoma, kins rеfused to answer (Okl.Cr.1986); 487 U.S. Ross v. (1988) Attorney during cross-examina- 2273, the District 81, 101 L.Ed.2d 80 108 S.Ct. 1250, 11, contempt by and was held direct 109 S.Ct. tion 487 U.S. reh. denied asked the trial court Supreme trial court. When 101 L.Ed.2d 962 whether he wished to right Appellant’s counsel in Ross that the recognized “No, Hawkins, replied, he im challenges is denied or peremptory cross-examine V, 181). Appellant’s right no.” Vol. defendant does not re paired only if the by oppor- provides. was satisfied law Id. of confrontation which state ceive that case, tunity Hawkins. See In this to cross-examine at 2279. 108 S.Ct. State, challenges Taylor he peremptory all the received O.S.1981, 655. to under was entitled § Appellant's cross-ex might speculate We

Therefore, process against claim his due Hawkins would have been an amination of challenges must sharing peremptory of However, futility. we can de exercise in fail. preserved only properly matters cide those review. on the record for our on Bruton relies Griffith 1301, (Okl.Cr.1987); State, 734 P.2d 1620, States, 88 S.Ct. 391 U.S. United (Okl. Holbert v. (1968) argue he was 20 L.Ed.2d 476 Cr.1983); Ingram v. trial the admis joint in the prejudiced any Cross-examination out-of-court of his co-defendant’s sion by the defense. may be waived witness grant deny decision to statement. Appel us We find that on the record before left to the sound discretion severance is to cross-examine. lant waived his interest of both In the the trial court. properly denied severance. The trial court urged have economy, we justice persons charge try jointly courts examined the content We have also allegedly participated in the same have who of each co- the out-of-court-statements possible. Cooks criminal act whenever they mutuаl if are defendant to determine (Okl.Cr.1985) cert. de each co-defendant ly antagonistic in that L.Ed.2d nied incul exculpate himself and attempted to 438. (1985); see also the two If the defenses of pate the other. resulting an of discretion Absent abuse try mutually antagonistic, are defendants Appellant, the decision prejudice to the a fair trial jointly denies each ing them disturbed on court will not be confes tried on the each would be because at 658. appeal. Cooks Murray v. the other. See sion of *8 State, (Okl.Cr.1974),Master v. P.2d 739 528 necessary Bruton, sеverance is Under that (Okl.Cr.1985). We find 702 P.2d 375 introduce, through seeks to when State by each made the out-of-court-statements the confession of a non-testi party, third a antagonistic not in this case was defendant inculpates the which fying co-defendant therefore, severance was to the other non-confessing defendant. Bruton ground. necessary ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on this not of evidence the introduction prevents rule the non-confess directly incriminates which Oklahoma, 470 v. Relying on Ake of his Six violation ing defendant 1087, 68, L.Ed.2d 53 84 105 S.Ct. U.S. right confrontation. Mene Amendment the trial (1985), Appellant next contends State, 640 P.2d 1381 by refusing process him fee due court denied investigator to assist appoint an either the Bruton rule for outside This case is attorney trav confessed; grant his his defense or (1) and with reasons: two of his investigation Hawkins, to be used for co-defendant, el funds testified. (2) his the trial court requires that case. Ake was introduced confession Appellant’s psychologist psychiatrist or appoint a testimony of Detec- through the the State a defendant defense when assist with the Citty. record reveals tive 874 that your Daddy anything you tell showing tо ever parte preliminary

makes an ex wrong? was likely to be sanity is judge that his 83, time; some- trial. 470 U.S. One significant factor at THOMPSON: a LORI case, Appellant In this times. at 1096. 105 S.Ct. In insanity defense. attempt an Did he ever did not THE Sometimes. COURT: (Okl.Cr.

Standridge v. wrong? it was find out that open question 1985) left this Court Yes. THOMPSON: LORI to as the Ake holding extended whether Huh? THE COURT: expert. psychiatric than a sistance other Yes. LORI THOMPSON: held Ake does Court has Subsequently, this happened when And what THE COURT: an investi appointment of mandate the him some- you told out that he found State, (Okl. Vowell gator. wrong? was thing that 394, Cr.1986). Castro In spank- He would —а LORI THOMPSON: cert. denied (Okl.Cr.1987) 485 U.S. ing. (1988) we L.Ed.2d 446 you a give He would THE COURT: denying err in did not held the trial court get spanking a you Did ever spanking? expense for pre-trial motion defendant’s right? telling what was for to interview to continue money in order No. THOMPSON: LORI In the for trial. prepare witnesses So, happen to what can THE COURT: case, demonstrat Appellant has not instant wrong? something you you if tell to evidence he was denied access ed spank- get a You’ll LORI THOMPSON: guilt punishment. to either is material ing. to show substantial Appellant has failed spanking. get a THE You’ll COURT: requested of these the lack prejudice from today right? So, you tell us what’s will investiga of an appointment funds and the I don’t know. THOMPSON: LORI properly de trial court We find the tor. tell us what You wouldn’t THE COURT: appointed an request Appellant’s nied Macy today? If I let Mr. ask right was Mun travel funds. investigator and you tell us what you questions, will some (Okl.Cr.1988), son you answer? right? Can 1019, 109 S.Ct. cert. denied Yes. THOMPSON: LORI 102 L.Ed.2d 809 what could you And know THE COURT: that five next asserts wrong? it you you if told happen to compe Thompson was not a Lori year old spank- get You’ll LORI THOMPSON: could not grounds she witness on the tent ing ... to tell and was unable take an oath Lori, you promise will THE COURT: O.S.1981, rеquired by wrong as from right? only you will tell what’s competent witness A child is 2603. § Yes. LORI THOMPSON: if she has he or under any- you won’t tell And THE COURT: issue, knowledge of the matters at personal wrong? thing that’s affirma an oath or similar has taken No. THOMPSON: LORI Gray v. the truth. tion to tell you agree to not tell Will THE COURT: In this 884-85 P.2d *9 wrong? anything that’s place exchange took following the case Yes. LORI THOMPSON: Thomp whether Lori camera to determine right knows I think she THE COURT: testify: competent son was wrong. from the Okay. do know You THE COURT: right Ill, 136, 137) telling what’s difference between wrong? and what’s facts testified to the Thompson also Lori Yes. THOMPSON: Lori LORI are satisfied remembеred. We she knowledge and af- personal you Thompson had you And know —do do THE COURT: The re- tell the truth. she would you you if firmed happen to what could know are thus of 12 quirements Did wrong? something that was told Ah-huh. asser- ANSWER: the bald Appellant makes satisfied. then, and prejudice you danger of unfair did he take QUESTION: the And

tion that jury far misleading the place else? likelihood all some the Lori value of probative outweighs the us to the— Took ANSWER: has assertion testimony. This leading sug- and Objection as MR. BOX: Lori support in the record. no gestive. as follows: testified house. —to this ANSWER: MACY): Lori, remember you do (BY MR. COURT: Overruled. THE mom- your stamp bank with to the going me, Judge. Excuse MR. MACY: my? was had (WHEREUPON, a discussion Yes. ANSWER: counsel, and out with-court the bench as to objection have an MR. We BOX: jury.) hearing of suggestive. leading and that as is Judge, question MR. MACY: Overruled. THE COURT: gun. saw or not she whether anyone MACY): see (BY you Did MR. going he’s I know what MR. BOX: bank, you and besides stamp there at the being suggestive. object as say and I Katie? mommy and your five talking about a MR. MACY: We’re NO. ANSWER: girl. old little year hap- me what Okay. Tell QUESTION: right. Overruled. All THE COURT: mommy and your you and pened when following was in (WHEREUPON, the stamp bank. got to the Katie hearing jury). getting was she When ANSWER: Lori, you were there while MACY: MR. she started when stamps the cow—and mommy and Katie day your that with on got in the cowboy car the get gun? cowboy, you did see house. went to the car and Yes. ANSWER: Cowboy did QUESTION: What —what (sic) our record Let the MR. BOX: your car with got in the when he do objection. honey? mommy, Yes. THE COURT: on. put handcuffs He first ANSWER: were— Where MR. MACY: the hand- put he QUESTION: Before Yes, a moment. Just THE COURT: your mom- anything to did he do cuffs on in the record is noted your objection my? overruled. money? her Some ANSWER: gun? you see the Where did MR. MACY: honey. up, QUESTION: Speak here, something was Right ANSWER: money. of her Taked some ANSWER: holding it. he do before what did QUESTION: And on who? QUESTION: Right here that? Cowboy. ANSWER: On much be- I remember don’t ANSWER: holding it Something was QUESTION: fore that. on? thing the first What was QUESTION: Yeah. ANSWER: Cowboy came to happened when head honey, just go Okay, QUESTION: mommy? your happened then. tell me what into the car getting was She ANSWER: the car. he started Then ANSWER: came and he starting the car and she you talk— Okay, can THE COURT: and she car on to the the corner around thing. into this Talk MR. MACY: So, got inside he yet. her door didn’t ??? up car Okay. her. He started hurted ear and ANSWER: (sic) this house. he druve hurted her? say he QUESTION: You *10 there? happened QUESTION: What Ah-huh. ANSWER: in the other put had to We ANSWER: put did he Okay. And then QUESTION: mommy. And my with that wasn’t room on, honey? the handcuffs was ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍suffi- Hawkins’ confession us and she whether my mommy wanted to see v. e.g. Fontenot See ciently and we were redacted. a drink of water wanted my daddy (Okl.Cr.1987); Ward week I think and 742 P.2d 31 there for one When P.2d 123 found ... took the stand Appellant’s co-defendant there, QUESTION: just stop right Let’s to cross-ex- Appellant waived at this honey. That’s all I want ask amine, scope moved outside Appellant time. cautionary instruction. See Commis- of the 152-155). Ill, Vol. However, OUJI-CR 817. sion Comment testimony corroborating Lori had this make clear that we must also Nothing straight was direct and forward. at tri- cautionary instruction been indicated misleading unfairly testimony her longer have been sufficient al it would no prejudicial. v. New Cruz holding under the recent argues he was Appellant next York, 107 S.Ct. U.S. by court’s deni process the trial denied due (1987). L.Ed.2d 162 lodged for al of his Motion Continuance stage rested in the second after the State argues the trial Appellant also grant a continu decision to of trial. The refusing give instruction erred in court within the sound discretion ance lies independent provides that OUJI-815 which showing of abuse of trial absent a court must corroborate evidence of the homicide State, Henegar v. discretion. in agree We that Appellant’s confession. (Okl.Cr. 1985). will not Abuse of discretion must dependent evidence of the homicide indi appellant does not be found where an We Appellant’s confession. corroborate by denial of the prejudiced he was cate how refusing erred in this agree the trial court motion. Pankratz However, the record reveals instruction. facts (Okl.Cr.1983). Appеllant presents no corroborating Appellant’s ample evidence preju how he was this to indicate Shirley Pitts identified the confession. denial of his Mo by diced the trial court’s “big as Lin brought woman to the house” he was He states tion for Continuance. he Thompson. Chris Lovell testified da separate receive opportunity to denied the vaginal sexual Appellant have oral and saw degree of indi regarding his consideration Thompson. Thompson with intercourse charged. in the crimes participation vidual seen, being awаy from alive driven was last fact, life Appellant received consecutive In “big by Appellant and Hawkins. house” committed; his the crimes he sentences for were found Thompson’s skeletal remains find the death. We co-defendant received they would be found. Appellant where said his discretion judge did not abuse corroborating contains Where the record Appellant’s Motion Continu denying evidence, corroborating give failure to ance. in reversible er does not result instruction error, proposition of his tenth Maxwell As ror. regarding the issues Appellant raises three State, (Okl.Cr.1987); Smith jury. Appel submitted to instructions cert. denied (Okl.Cr.1986) should have urges the trial court lant first 3277, 97 L.Ed.2d 780 that a provides given OUJI-CR asserts by Appellant next may not be considered confession refusing jury to instruct than the court erred any defendant other jury against 717 which sets forth the under In this case we have OUJI-CR made it. person who argues this of duress. and his co- defense by both confessions supported by Chris Lovell’s Each defense was at trial. properly admitted defendant Thompson he Appellant told testimony that entirely redacted ex of the confessions escape Hawkins help her because “them” used wouldn’t “they” and cept for the words Citty’s Detective testi might shoot him and times when he Sellers seven Detective gun and hid Hawkins’ mony We need Hawkins’ confession. recounted if he could have been killed question told him that he expressly not reach the do

877 Thompson. record no helped The contains that or

evidence Hawkins used actual force BAKER, George Appellant, compel to so- rape fear to kidnapping or to assist in domize murdering KAISER, did not Lexington her. evidence Stephen Warden

support this instruction whiсh the Center, Appellee. Correctional properly court refused. See Lee v. No. 70836. (Okl.Cr.1981); 21 637 155, 156; 152(7), compare Tully v. §§ Oklahoma, Appeals error, proposition As final his Division No. 3. argues error the accumulation of er

justifies or reversal modification. 29, May 1990. is nei ror found addressed such that ther modification or reversal is warranted. (Okl.Cr.1987), 1349, 738 P.2d 1363

Stouffer 1036, t. denied U.S. cer S.Ct. L.Ed.2d

Finding requires no modifi- error reversal, judgment

cation or and sen- is AFFIRMED.

tence of trial court JOHNSON, JJ.,

BRETT concur.

LUMPKIN, J., concurs result.

PARKS, P.J., specially concurring.

PARKS, Presiding Judge, specially

concurring: separately appellant’s

I write to address in re- that the trial court erred

assertion

fusing appoint investigator to an to either grant him funds

assist with defense purpose. used for that It continues

to be opinion be the of this writer that Oklahoma,

ruling in Ake v. (1985), “must L.Ed.2d 53

necessarily any be ex- extended ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍include ‘necessary adequate is

pert which an ” Ake v. defense.’ Before defendant n. assistance, however, he entitled such requisite showing

must first make case, present agree I Id. In the

need. appellant failed majority that has

with prejudice the lack show substantial from requested investigator or Ac- funds.

cordingly, I the trial court concur

properly denied the same.