Slaughter v. State

839 finding supports trial court’s and peal whom action is against persons challenged surrounding have not land owners may the defen- allege brought, but finding review. on certiorari Section plain- that of the claim is adverse to dants’ and the trial applies to these facts tiffs. attorney fees was correct. court’s award of request the correction B. a written If has without title been CERTIORARI PREVIOUSLY GRANT- refused defect brought and an action is cause reasonable ED; AP- COURT OF CIVIL OPINION OF section, provisions pursuant to the VACATED; ORDER AWARDING PEALS attorneys may award reasonable the court FEES AFFIRMED. ATTORNEY prevailing party. fees HODGES, V.C.J., SUMMERS, JJ., WATT, OPALA, ALMA WILSON added). (emphasis court awarded trial concur. purchasers. Surrounding attorney fees to brought appeal only an property owners and-LAVENDER, C.J., KAUGER, attorney award. fee HARGRAVE, JJ., dissent. SIMMS and reversed, Appeals 5 The Court of Civil that, 1141 was the concluding while section authority

only statutory for an at- asserted award, apply

torney fee did not these controversy That court viewed

facts. necessity involving merely way “a

one egress ... to land- right ingress OK CR 78 as con- property,” not “title defect” locked Ray SLAUGHTER, Appellant, Jimmie templated by It section 1141. concluded v. attorney fee did not authorize statute in such an action. award Oklahoma, Appellee. STATE of pro No. F-94-1312. [t]itle 1141 of “Section attorney’s fees in prevailing party vides Appeals of of Criminal Oklahoma. Court correction the circumstances where a written without of a title defect has been refused Dec. 1997. brought.” cause and an action is reasonable Rehearing Denied Feb. Minerals, Inc., 911 P.2d v. Santa Fe Voiles (Okla.1996). n. The Court of litigation Appeals’ that this Civil conclusion a title untenable.

did not involve defect judicially es

Purchasers filed this action adjoining over the land.

tablish an easement legal right ... property

“An easement is support title.” quiet

and will an action 374, 178 Stanfield, 198 Okla. P.2d

Buttrill ¶ 4). by the (Syllabus Court

Surrounding counterclaim property owners’ the entire five-acre

asserted that owned Thus, a contro possession.

tract adverse properly

versy over title was before

court.

¶7 submitted re- Purchasers written surrounding property owners for

quest trial court of the title defect. The

correction to correct

determined that the refusal on ap- The record

defect was unreasonable. continuing

violence that would constitute a (21 O.S.1991, 701.12(7)); society § threat knowingly defendant created a great risk person of death to more one than (21 701.12(2)). O.S.1991, § jury Before the deliberations, began second-stage prose- allegation cution dismissed the that the mur- charged I especially der in Count was hei- nous, jury atrocious. As to Count Appellant knowingly found created great per- risk death to more than one son; it did find be a would continuing society. threat to As to Count especial- found that the murder III, Coyle City, J.W. Oklahoma Patrick A. heinous, atrocious, ly Ap- or cruel and that Williams, Tulsa, appellant for at Trial. pellant knowingly great created a risk person; death to than more one did Wintory, Lane, Richard Wes Assistant continuing not find threat. The trial court Attorneys, City, appel- District for Oklahoma jury’s followed the recommendations and lee at Trial. sentenced to death on each count. III, Coyle McCoy, L. Gloyd J.W. Okla- affirm.3 We appellant. homa City, “right 112 At July around noon” on Edmondson, General, W.A. Drew Attorney 1991, Ginger Neal pitbull noticed that her Humes, Attorney William L. Assistant Gen- Ozie, dog, barking acting strangely eral, City, appellee. Oklahoma yard. back Ozie was somewhat skitt- ish, more so around adults than with chil- LUMPKIN, Judge. dog dren. The hurry get was in such a to ¶ Appellant Ray Jimmie Slaughter practically was into the house ran over a jury tried in way the District Court on place child refuge CF-92-82, County, Oklahoma Case No. sufficiently and house. Ms. Neal was concerned convicted in glance two counts of Murder in yard out the back an see if (21 701.7(A)).1 O.S.1991, § First Degree present; Tri- nothing. intruder were she saw A May 16,1994 later, al commenced on noise, and few minutes continued she heard a if a as 7,1994, until October when the backfiring returned ear were or a firecracker had ex- punishment.2 its on prosecution ploded. verdict The Independence Day As two sought penalty, the death in alleging days away, each thought nothing of the noise. (1) Moss, count that especially murder was Rhonda who lived in the same house atrocious, (21 heinous, O.S.1991, Neal, or cruel as Ms. heard the noise. At least 701.12(4)); § probability there existed a neighbor backfiring one other also heard the the defendant would commit criminal acts of noise. Neither Ms. Moss Neal nor Ms. 3, Perju- presented appeal, adjudicated 1. was also convicted of Count on proposi- (21 O.S.1991, 491) (two 4, ry years); § record, Count totality of error tions based on the (21 O.S.1991, (four 491) Perjury years); § Count enunciating and a clear decision on each of 5, (21 O.S.1991, 491) (five Perjury years); § supported by those issues the law and facts. 6, (21 O.S.1991, 491) (three Perjury § Count Through process, this we ensure confidence that 7, O.S.1991, years); (21 491) Perjury § Count our are on decisions based the rule of law and (one year). guilty The found merely are not result oriented. eighth perjury. on appears Appel- count It judgments lant does not contest these and sen- 3. Appellant’s Petition in Error was filed this appeal. tences on 9, Court on June 1995. brief was 1996, July filed and agree my colleagues the State’s brief was filed long opin- 2. I this is a October 1996. The case exceptionally long ion. was submitted to the it reviews an parties right argument trial. The to know this Court October 1996. Oral Court thoroughly August has reviewed the voluminous record held 1997. Melody kill until the bodies of would have to both and thought much about it Jessica. Melody paternity her 11-month-old Wuertz was concerned action Jessica, early were found daughter, by Melody jeopardize could his status as a next evening same in the house door. Army; additionally, officer in the reserve married, Appellant was and his wife did not on floor in her Melody was found Melody know about the affairs with and oth- shot once in the bedroom. She had been 1990,Appellant er women. In the fall of In spine and once the head. cervical duty during called active Desert Storm addition, she had been stabbed the chest military operation, and was stationed at Ft. genitalia; carvings there were and in her Riley, duty Kansas. He remained on active her which authori- on abdomen and breasts mid-July, peri- During there until 1991. interpreted symbols of kind. A ties as some od, payments Appellant what scant had made hairs, Negroid comb filled with some under- Melody stopped. Melody This forced hairs, containing Negroid wear head some support through Department seek child gloves unused condoms and some were found Services, enraged of Human an action which Melody’s body. near No seminal fluid was death, Appellant. Melody Before her ex- bathroom, Melody. in or on found pressed people Ap- to several fear that her Melody’s curling plugged iron was still in. pellant against would take action her because just Baby hallway; was found in the Jessica support proceedings she had initiated child days shy birthday, she had of her first been against him. shot twice the head. The medical examin- time ers who examined the bodies estimated ¶ Appellant presented an alibi defense. approximately to be between 9:30 death presented purporting He to show he July p.m. a.m. 12:15 family shopping Topeka, was with his Kan- ¶4 prosecution’s theory was that sas, at the time of the murders. Other facts surprised in the bathroom while presented will be as become relevant. (the preparing evening for work she was City shift at the Veterans Admin- Oklahoma I. (but paralyzed Hospital); istration was then unconscious) by the shot to the rendered PRE-TRIAL ISSUES paralyzed spine; cervical was forced to lie killed; conscious as her child was then A. bedroom, dragged was to the where she was to her head. The killer killed the shot error, proposition In his second attempt planted the evidence in an then Appellant claims the trial court committed investigators throw off the trail. allowing error defense reversible (a prospective jurors Hospi- question nurse at the counsel to about VA tal) penalty in suspect very beginning. from the their attitudes toward the death Melody had had a sexual relation- relation to other sentences. ac He and ship, Melody knowledges of which this Court has refused to allow the result became pregnant. Appellant signed an affidavit ac- evidence on the cost-effectiveness of 17, 1990, paternity July penalty during sentencing stage knowledging ten death State, 907 days Despite capital was born. case. See Smallwood v. after Jessica denied, (Okl.Cr.1995), acknowledgment, Appellant’s support of the P.2d cert. -, Melody 136 L.Ed.2d 330 meager,

child was a fact mentioned U.S. S.Ct. (1996). However, claims the issue here is Melody’s get- than once. insistence on he more allowed, provide monetary support not that evidence be but ting Appellant to jurors question him. be about their for her child irritated He once re- should able hospital perspectives penalty the death in terms of to a co-worker at the marked factors, i.e., jurors’ concerns about Melody getting “pushy,” and if she con- cost incarceration for life would way, tinued to act that he would have to kill the cost of another, support prompt was caus- them to be inclined her. To he said work, problems day to sentence to death. ing him and one decision ¶8 moved for a mistrial. After further dis- is correct his assertion and cussion, everyone a motion in limine concern- it decided to exclude presented that he also correct that the ing jurors. following the issue. He is except the individual The that, Beyond the motion. trial court denied exchange then occurred: support his contentions. the record does honor, Wintory: Finally, your let me Mr. Indeed, have found at least two instances we say my request I this. renew question counsel asked the where defense question Mr. defense —and this Court dire; on neither occasion during voir and his Slaughter specifically on his waiver of objection by prosecutors. raised In was an courtroom, open right public to have a and short, Appellant ques- allowed to ask his procedure that he has since [sic] and Appellant’s complaint tions.4 This renders that has been outlined. moot. interroga- You mean as far as the Court:. panel in camera on tion of members of the B. questions? these three proposition his third Yes, Wintory: Mr. Your Honor. Appellant alleges trial court him denied right public portions trial when agreeable, Court: Is that is that Mr. [sic] public. Again, voir dire were closed to the Coyle? proposition the record shows the is without Yes, Coyle Mr. sir. [defense counsel]: conducting merit. After voir dire with all Court, I Mr. Williams: would advise the jurors present, agreed the court to individual court, your I an officer of have conferred jurors questioning of the on the issues of our client him of the with and advised capital punishment, pretrial the occult and addresses, Wintory that Mr. matter publicity. Rather than conduct the individu time, you tell at this that Mr. was—would chambers, judge’s al voir dire small Slaughter apprised has of the fact of been was made to have it in the the decision pro- the nature this in camera and what spectators. courtroom but to exclude At that purpose ceeding is. The of it is to safe- point, Melody’s parents the court noticed guard tainting any prospective of the other courtroom, questioned were in the juror jurors any from the remarks whether should be allowed to remain. interrogation. That it who is under would prosecutor, Wintory, expressed Mr. private, be done in that it is an in camera purpose belief voir dire was individual courtroom, proceeding, your I albeit prevent contamination of other accidental explained per- him he is that to jurors, objection parents and he had no fectly willing proceed for us to in that point, were allowed to remain. At that de correct, Slaughter? fashion. Is that Mr. Wintory, agree fense counsel said “I with Mr. public.” needs to Slaughter: Mr. That is correct. dire, individual voir the court ordered the good enough? Court: Is that parents to leave the courtroom. Defense Wintory: good of counsel is Mr. Word objected prosecutor counsel to the fact the enough for me. parents privately conferred with the over the issue, status, special gave claimed this them Court: That is fine. And for the Court too. you point, at all about 4. At one defense counsel Patrick Williams tions: "Are concerned potential juror following ques- money expended by asked Baldwin the amount of that would be people capital punish- tion: "Some seem to view peniten- State if someone were committed penitentiary on ment and life economic tiary the rest of their natural life and was not terms in sense that would favor execut- paroled? going Does the economic factor be ing somebody spend so wouldn't have to juror replied weigh you?” on When the money keeping prison them in for life. What I factor, would not be a Mr. Williams stated: is, you equate need to body’s living would ever know some- you. going put "Thank You're not a dollar dying on dollar value?” The sign somebody’s juror gave on life?” The juror told him that would not be a factor. No negative Again, objection response. raised, objection question and the was al- lodged, question was allowed to stand. (5-19-94 46). lowed to stand. Tr. On another (5-24-94 30). Tr. occasion, following ques- Williams asked the Mr. 140-41). (5-18-94 trial, deciding days Tr. before a time frame which this Without “clearly in a locked courtroom Court deemed unreasonable.” Id. In proceedings whether contrast, Appellant arraigned of an in camera hear- on Febru- equivalent can be the 5, 26, ary hearing August this to be a sufficient waiver of 1993. At a on ing, we find 1993, prosecution right proceedings to have the conducted announced it had not proposition particulars, open court. This is without filed bill of but added “we counsel, merit. would advise Court and we’ve before, spoken that we do intend seek the C. (8-26-93 penalty death in this matter.” Tr. ¶ proposition, Appellant In fourth 3) added). (emphasis particulars The bill of provide prosecution claims the failed to de- 15,1993. Jury was filed on November selec- important exculpatory evi- fense counsel 16,1994. began May tion for trial There- dence which would have shown murders fore, Appellant had six months’ official notice than theorized could have occurred earlier prosecution would seek the death support prosecution. In of this conten- penalty. tion, Appellant supplement filed a motion to ¶ unquestionably 14 This is a volu 3.11, pursuant Rule the record minous record. from the above Ch.18, O.S.Supp.1996, App., Rules of dates, it seems evident knew well 13,1996. Appeals, on June Court Criminal prosecution of trial that the in advance That motion was denied this Court on case, penalty tended to seek the death in his 3, 1996, July because it did not meet the particulars. and would file a bill of Under requirements of Rule 3.11. has case, of this six circumstances we find provided support no other evidence months before trial constitutes a “reasonable allegation. Consequently, it to we find be State, time,” 980, Marquez v. 890 P.2d 3.5(A)(5) (C)(1), without merit. See Rules & (Okl.Cr.1995), particulars to file a bill of Ch.18, O.S.Supp.1996, App., Rules give Appellant notice of what the would State Appeals.5 Court Criminal penalty. use to seek death Under the circumstances, the trial court not abuse did D. allowing filing. his discretion in such a See proposition 11 In his fourteenth of er- State, Carpenter 929 P.2d 994-95 ror, Appellant argues the court in not erred (Okl.Cr.1996) (bill particulars filed three particulars. quashing the bill of He bases arraignment month months after and one (Okl.Cr. this on Hunter v. 829 P.2d 64 reasonable); before trial McCracken v. 1992), that a where this Court held bill of denied, (Okl.Cr.1994), cert. particulars must be filed before or at the 516 U.S. 116 S.Ct. 133 L.Ed.2d 108 arraignment. time of district court (1995) (bill particulars and amended bill of Language in Hunter itself ren particulars filed six and four months before There, reasonable). proposition ders this without merit. proposition trial This deemed noting particulars the bill of must after when without merit. filed, we added that the trial court for II. good can cause shown extend time. ability This is at the trial court’s discretion. TRIAL FIRST-STAGE ISSUES

Id. at 65. A. ease 13 The difference between this Hunter, proposition Ap- prosecution Hunter is vast. 15 In his sixth particulars pellant complains right did not file the bill of until seven he was denied peas Additionally, appears and carrots —or "[w]as it trial counsel knew the then asked Rickey replied During preliminary hearing, something?” and to which information. carrots nothing Agent Rickey found at the counsel asked OSBI Lonnie to re- it was. He testified he house, say investigation. Rickey prompting steps "[w]e’ll defense counsel to trace his autopsy peas Dill re- know where those and carrots and testified he talked to about never from,” Rickey port things re- showing Jessica had a small amount other came to which "where stomach, baby-sitter plied they had fed in her and went to Wuertz’s had discovered the food we (12-14 evening try before. PH Tr. house to to find the source of that food.” the child that the 71-73). happened, the date Defense counsel asked this 848 authorities at the improper admission of evidence mislead while

a fair trial because dealing leaving point the occult and satan- which with same time evidence could evidence was not rele- Appellant. pointed ism. He claims the evidence the evidence Whether Melody and away impor- vant to whether he killed Jessica him Appellant from is not were, Wuertz; prejudicial if it its case, relevant, but even tant. either the evidence is any probative might value it value exceeded any tendency as it would to make the “hav[e] have had. any consequence existence of fact that is of here, to the determination of the State, action” — v. 809 16 cites Sellers Melody who murdered and Jessica Wuertz— denied, (Okl.Cr.1991), cert. 502 P.2d 676 U.S. probable probable than it “more or less 912, 310, 112 252 S.Ct. 116 L.Ed.2d without the evidence.” 12 would be O.S. support of contention evidence of the 1991, knowledge § 2401. That had disagree is not relevant. occult We of the occult would be relevant to show that Appellant’s characterization the case. symbols he could have carved such into the say of the occult This Court did not evidence flesh of Wuertz. The State was re- irrelevant; always we deemed the would present quired to evidence that created a particular irrelevant in that case. ultimately identify Ap- which There, mosaic would Appellant sought to introduce testi pellant perpetrator as the of these offenses. mony City girl who that an Oklahoma affinity knowledge connection to his case had become involved toward satanism, many pieces occult was girl and the had also received a one of (also signed by puzzle identity not in which established the of a note someone else case) complex in the who was believed to be individual. See Commonwealth v. volved Drew, 65, 1233, in satanism. The note involved informed 397 Mass. 489 N.E.2d 1242- (1986) (evidence parents girl that she would kill her and that help 43 of satanism could kidnapped. girl explain she would be acts of violence which placed undergo in a mental institution to appear inexplicable); would otherwise to be therapy in these occult influ Costal, 200, connection with Pa.Super. Commonwealth v. 351 (1986) (Court it ences. claimed was error 337, 505 A.2d 338 deems defen- evidence, it exclude this as have been would “highly probative regarding dant’s beliefs presence relevant show the and influence slayings”; manner of the therefore evidence City. Id. at 683. satanism Oklahoma improper). of satanism not disagreed. We Whéther satanism or other also claims that the court present, occult influences were or even wide allowing testimony Agent from FBI erred spread, City, Oklahoma is not relevant Lanning Kenneth on the occult. He con showing absent some evidence more than a Lanning “expert” tends was not an tenuous connection between the defendant field, qualified and therefore was not to testi case, the issue. In the Sellers there was matter, fy preliminary as one. As a connecting no admissible evidence that de long qualification Court has held that the of a Consequently, with the Id. fendant occult. testify expert person to as an is a matter properly part the issue was not of that which rests with the sound discretion of the ease. court, trial that decision will not be Here, the evidence is relevant. appeal disturbed absent abuse of that Sellers, Unlike where there was no admissi State, 319, 338 Taylor discretion. v. ble evidence to indicate the murders them (Okl.Cr.1995); Clayton n. 85 v. slayings, selves were here there ritualistic denied, (Okl.Cr.1992), cert. P.2d carvings body Melody were on the Wuertz 123 L.Ed.2d 275 U.S. S.Ct. pointed possibility which of an occult- (1993). This Court has defined “abuse of slaying. related items at the scene Several “clearly erroneous conclusion discretion” planted by Appellant to lead authorities judgment, clearly against one that is away suspect. from himself aas logic presented in and effect of the facts support against application.” It is true that one make an of and could (Okl.Cr. argument plant would be inconsistent to R.J.D. P.2d 1990) Board, approved by (quoting v. 94 Okl.Cr. method would not Stevens (1951)). 949, shall permitted testify expert. We be as an Rather, the evidence which led the therefore examine run the test he had would not be Lanning expert. as qualify trial court to considered valid evidence because he did possess required permit. not supervi- Lanning testified he was a agent in sory special the Behavioral Sciences gist opinion Id. at 114. The of the is clear. Academy at the FBI in and Services Unit authority As one evidence has stated: “La Quantico, job Virginia. ap- His consisted of misleading might can be bels otherwise knowledge plying his of the behavioral sci- deprive party expertise of which is needed justice system; specifi- ences to the criminal develop the issues in the case.” 2 L. training, cally in the areas of research and Whinery, Commentary Oklahoma Evidence: case consultation. on the Law Evidence at 561. See also States, Jenkins v. United 643- F.2d ¶21 Appellant’s contention at trial (D.C.Cir.1962) (psychologist’s ability to that, primary expertise Banning’s as opinion render an on a medical issue in the focused on the sexual victimization of chil depended case on the nature and extent of allegation such dren and since there was no title). knowledge, not on his Here is a trial, present Lanning in this was outside his good example. Although Lanning’s acknowl expertise. To take such a area restricted edged expertise lay field in the field of ignore past caselaw from view is this children, sexual victimization of he also testi dealing expert with witnesses. Court Sec that, in study, fied the course of that he had requires tion 2702 of the Evidence Code developed specialized knowledge and ex expert qualified “by who testifies be must pertise systems in the field of occult as skill, experience, knowledge, training or edu in manifested themselves the commission of Although the cation.” Evidence Code studying. crimes which he was As he inves cited, Perry this idea is well described occult, tigated quicMy the field of the (Okl.Cr.1977). There, P.2d allegations most discovered of child abuse driving issue was whether a defendant was this area were done broader context of intoxicating while under the influence of an Consequently, began occult behavior. beverage. prosecution’s witness thoroughly familiarizing himself in the area statutes, qualified under OMahoma which re thoroughly of the occult to better and more quired special permit from the Board complete job specialized in his He area. Chemical Tests for Alcohol Influence before by attending doing did this seminars and testing purpose. could be conducted reading subject extensive on the as well expert possess The defendant’s did not experts speaking in the field for infor permit, court and the trial refused to let the applied mation which in his could be investi testify defense witness based on that lack of Garrett, gative process. See Yates v. 19 Okl. reversed, permit. noting This Court 142, 143 (1907) (although they may 92 P. permit possession while of such a be would experts be sense good qualifications, evidence of witness’ its knowledge extensive and exhaustive absence is no real indication that the witness subject, acquired witnesses who had some perform qualified is not the test. subject knowledge of the based on their ex chemist, physician, technologist, A medical periences properly qualified testify). biochemist, per- biologist, toxicologist or a light background, not find we do training experience son with similar ruling clearly trial errone court’s ordinarily expert qualified as an con- ous. ducting scientific tests to determine the interpret- complains alcoholic content of blood and in of other in- See, ing III trial court the results of such tests. stances which the admitted § of the occult. The rationale for Wharton’s Criminal Evidence 591.- Un- application admitting testimony Lanning applies der the trial court’s of the stat- ute, Company DuPont as well: the evidence shows both that the chemist here knowledge developed perfected the latest had the to leave certain who trial, objection lodged shall which could at this Court at the scene kinds of evidence give them the error as harmless “unless it investigators or consider either mislead outcome, identity. The evidence a ‘substantial influence’ on the ha[s] to the killer’s clues as ‘grave in reviewing belief or court doubt’ also tend to show leaves could system could as to whether it had such an effect.” Id. system how that belief the murders. allow him to commit ¶26 of which The comments ¶23 find the evidence Nor do we complains now do not rise to standard— probative. than substantially prejudicial more Melody’s were error at all. indeed likely true that the evi

Although it is most by carvings in her body was mutilated Appellant to the not “endear[ ] dence did flesh; therefore, concerning comments Costal, juror,” A.2d at evi average relevant, probative mutilations are and their which tended to dence was also introduced substantially outweighed value is not not involved the oc show O.S.1991, danger prejudice. of unfair cult, just braggart trying and that he was concerning § 2403. The same is true Additionally, him. impress those around enjoyed killing statements that he Viet- jury that it was the trial court instructed the nam, failing “big to see what the deal” dealing give expert free to concerning baby’s death: these state- weight and credit it the occult whatever mind, of illustrate ments show state proper. Id. at 338-39. deemed person might capable murdering be how ¶24 reasons, proposi- For all these a small child. tion is without merit. Appel- 27 Another witness testified that special lant him he in a once told had been B. go villages unit forces would into proposition of 25 In his seventh Vietnam, out identified as seek individuals complains that evidence Ap- Vietcong sympathizers, and kill them. allegedly committed “bad acts” which he had pellant said when he cut the throats of deprived him a fair trial. He asserted the victims, Again, him no gave an “erection.” evidence, much of it from acts or statements objection lodged. Again, we find earlier, years portrayed him as a committed This, relevant, plain, error. too is reversible worshiper.” Specifically, “murderous devil way as a knife was used an unusual enjoyed killing that he evidence showed Melody. Vietnam; not know what the he did killed, baby a wit “big being deal” was about a next contends Vietnam; Appellant sup improperly that while ness testified that when thousands died in co-worker, Appel posedly people. other This is watching television with a killed some jury Appel incorrect. The witness told the lant said of a character on television that criminal “mutilate a sleazeball like that and he lant “told me about two instances of could background point, which—” At that defense recognized”; wouldn’t that he referred result, patient type objected. counsel As a heard uncooperative as “the nothing Appellant may the fact sleazeball I could mutilate.” None of these about others, only in preserved appeal, as defense killed as this was discussed errors was object, objected Additionally, counsel either failed to on the bench conference. app disregard what little tes grounds than those asserted on was admonished to different subject timony on the which it heard. This Consequently, we review eal.6 plain, Simpson cured the error. Charm v. 924 P.2d reversible error. — (Okl.Cr.1994). denied, (Okl.Cr.1996), When no cert. U.S. carry stigma but "a certain that could 6. The State in its brief asserts these and other crime still by Appellant jury.” are not covered statements act not related to the influence a An O.S.1991, 2404(B) § are not "acts” as charged crime need not constitute violation contemplated by view that statute. This narrow governed by the criminal law for it to be State, 767 statute is incorrect. Freeman v. 2404(B).). § (Okl.Cr.1988) (Act may not be a P.2d (1997); Melody money Appel- -, 1560, 187 ody sought when from L.Ed.2d 707 117 S.Ct. (Okl.Cr. prosecution support lant to her child. The 70 n. 1 Ezell v. 909 P.2d 1995); produced showing that Johnson be- Richie — (Okl.Cr.1995), denied, -, gan helping Appellant prepare for the mur- cert. U.S. (1996). by keeping this him abreast of ders. She did 117 S.Ct. 136 L.Ed.2d Melody while he was sta- what did and said it Appellant also contends was Riley, by obtaining Negroid tioned at Ft. testimony about his bias to error to allow patient clothing hairs and from a counsel wards African Americans. Defense hospital mailing Appellant those items to object testimony, to this so will be did plant them at the murder scene. so he could plain, error. reviewed reversible ¶33 investigation As the into the mur- no such Simpson, 876 P.2d at 693. We find prosecutors progressed, Johnson and ders testimony error. The was relevant show agreement. reached an One of the terms Appellant planted evidence why would have agreement this was that Johnson would be indicating an African American at the scene prosecution Ap- assisting immune from murders, why Appellant committed the agreed cooperate with pellant if she au- person to to authorities was the first mention investigation. thorities their addition possible that it was his interview providing authorities with information con- the victims. African American had Mlled cerning participation, her Johnson also re- Additionally, despite testimony Ap that telephone conversation she had with corded Americans, the pellant did not like African recording Appellant, and wore a device to a Appellant same witness testified that worked meeting with him. After an earlier she had Ri with an African American while at Fort attempt, failed Johnson committed suicide ley, girl, “a nice and described her as February 1992. testimony This to discount liked her.” tends Appellant bore a the assertion universal (a ¶34 January Saturday), On hostility all African Americans. towards a call at work from a Johnson received friend, an article on who told her there was Accordingly, proposition this is with- Slaughter early ease in the edition of the out merit. Sunday newspaper, and Johnson’s name was copy in it. When Johnson obtained C. article, newspaper and read the she became ¶31 eighth proposition In his waving around and very agitated, her arms Appellant argues that excited utterance testi- do, they how this saying could could “[h]ow mony of Cecilia Johnson should not have telephoned someone happen.” Johnson then into To been admitted evidence. understand and, telephone, yelled: “[h]ow while proposition, necessary it is to recount this supposed to happen, you could produced more facts at trial. repeated remarks to protect me.” She ¶32 telephone when she ended the Cecilia Johnson was a nurse who the witness conversation, “[t]hey my Appellant Hospital adding used worked with at the VA words, explicit, they City. Appellant have to be so OMahoma At the same time didn’t vague. How could Melody, could have been more having was sexual relations with divorce, happen.” She then said: undergoing and her have let this Johnson going to kill me. I’m very goner, be- “I’m a he’s self-esteem was low. After witness Appellant having going get killed.” When the pregnant, came started jail, prosecu- pointed out that John- sexual relations with Johnson. The completely at her as if she were theory tion’s out evi- son looked borne —which people knew ignorant, and told her dence at trial —was that killed, have her and he would have ability recognize women who were vulner- who could jail. then exploit vulnerability to his an alibi since he was Johnson able and to Johnson, gone pa- Appel- how she had into black own ends. it came to related When brush, room, got pair got hair off a mastery complete. openly tient’s lant’s She behind, patient hostility had left expressed to co-workers her to Mel- of underwear plant startling relates to the event. The sent the items to so could issue scene to mislead authorities. At them at the is whether the statements were made while trial, disagree counsel did not defense Johnson was under stress of excitement statements could be classified as first caused the condition. utterances and therefore admissible excited ¶ 38 The witness testified that O.S.1991, though hearsay. even agitated reading Johnson became while 2803(2). contended, however, § that the He appeared article and to be in a state admissible, as latter statements were excitement the entire conversation. longer Johnson was no under the stress agitated, shaky She either irritable by seeing newspaper excitement caused spoke trembling with a entire time. She merely trying assign article and was signs anger, voice. She exhibited of either Appellant. blame for the murders on fright or terror the entire time she made the ¶35 exception excited The utterance appears statements at issue. It Johnson hearsay against is rule admissible a made few statements before she made a court and not run afoul of the does Confron- call; telephone uttered other statements dur tation Clause of the Sixth Amendment be- ing telephone of a the course call of undeter cause such statements are made contexts length; mined then made the remainder of provide guarantees “substantial of their immediately completing the statements after Illinois, trustworthiness.” v. 502 U.S. White telephone call. We do not believe an 346, 355, 736, 742, 112 S.Ct. 116 L.Ed.2d 848 period elapsed extended of time between the (1992). Supreme pointed As the Court has time Johnson first viewed article and out, “firmly exception nearly this rooted” is Further, completed the statements at issue. recognized centuries It two old. four- appears that all of Johnson’s statements at fifths of the states as well as the federal rules issue were made while she was under the of evidence. Id. at 355 n. at 742 S.Ct. by stress excitement caused the event. As qualify excep- n. 8. under this all conditions were met to admit the state tion, requirements certain must be met. ment, allowing the court did not err in ¶36 This Court has observed there are complained-of testimony. proposition This requirements three foundational which must without merit. hearsay be satisfied before evidence can be admitted into evidence under the excited ut (1) D. exception.

terance There must be a star (2) condition; tling event or there must be a complains next the court relating startling statement to that event or allowing erred in what he an characterizes as condition; statement must be opinion by the medical examiner that John- made while the declarant is under the stress being Again, son truthful. further ex- startling of excitement caused event necessary. amination of the facts is (cit Marquez, or condition. 890 P.2d at 983 ¶40 (Okl. above, ing McCalip expressed As noted Johnson Cr.1989)). hostility Melody per- determining In towards because she whether state Melody creating problems Ap- ceived exception, ments fall under this examine we fact, pellant. timing both the Johnson once told a co- the statement and its spontaneity. Ap- worker she kill As this is would someone for determined context, case, pellant. Taken in the co-worker analysis facts of each we conduct the suspected case-by-case the “someone” mentioned was basis. Id. Melody. theory One defense at trial was appears argu 37 There to be no Johnson, Appellant, that it was who com- startling ment that a event Reading existed. mitted the murders. newspaper article in which she was named cooperating as Despite hostility with authorities —a fact John towards Melo- evidently dy, son not want did Johnson adored Jessica because she was clearly upset any Appellant’s always her. Nor is there child. She was anxious to know — dispute pictures baby, point that a statement was made which obtain at one simply to have Jessica as fulness. The doctor expressed her desire testified that a even very pale voluntarily; her own. human face cannot be made generally that such a condition is due ¶42 that both When Johnson learned pressure, fall blood which is an involun- murdered, had been she and Jessica response. tary He further testified he knew noteworthy witness reaction. One said way of no an individual on his own what- white, immediately pale and as if she turned deliberately ever reason could instantane- An- had drained out of her face. the blood ously pale. make the face He also testified appeared other witness testified drugs that there were some which could af- nearby pole, grabbed “shocked” system, fect the autonomic nervous that he fainting. significance she were To relate history, did not review Johnson’s medical reaction, prosecution of this called Dr. and that he did not know if she taking Jordan, the Oklahoma Medical Examin- Fred any drugs. expresses such None of this er, testify about the autonomic nervous opinion response that Johnson’s to the news system. prosecution’s theory was that contrived; genuine of the deaths was and not contrived, response not be Johnson’s could merely gave responses reasons how such genuine; implication and was therefore occur, could and how could not occur. was that Johnson either did not know the State, Davenport v. pending, were or did not know that deaths Cf. (Okl.Cr.1991) (expert testimony on child ac- case, In going Jessica was also to die. either syndrome commodation is admissible evi- theory it would tend to refute the defense if, among requirements, dence other the ex- trial, she had committed the murders. At pert general acceptance testifies about objected defense counsel on the basis that syndrome in community the scientific qualified the medical examiner was not to expert’s knowledge syndrome; and if give expert opinion respons- an on autonomic expert background testifies about objections, es. The trial court overruled the syndrome, stating and nature of rather than admitting testimony. claims opinion an particular was error. as to whether or not a syndrome). child suffered from the ¶43 above, As we noted the trial Despite deciding Appellant, court has wide latitude in whether the assertions of person testify expert to allow a as an the evidence was relevant. Defense counsel appeal paint that decision will not be disturbed on tried to Johnson as the murderer. Clayton, an abuse of that giving opinion, absent discretion. an Without doctor testi- 840 P.2d at 28. fact Dr. person The mere fied as the control a could exert the state Jordan was medical examiner does system, over the autonomic nervous and fac- completed not detract from the fact he also system. tors which could affect that Had school, medical was a medical doctor and was murderer, or Johnson been the known that practice licensed to medicine in the killed, State going she Jessica would not jobHis him required Oklahoma. to be famil surprised. have been could use the every aspect anatomy, iar with so he could provided by information Dr. Jordan to assist differentiate between what was normal and determining them in whether Johnson addition, what was not. In Dr. Jordan also feigned surprise learning when of the deaths. court, coming testified that before he re this, From could draw its own con- viewed literature in the field of autonomic concerning clusions whether com- Johnson responses. light qualifica of his other going mitted murders knew tions, qualified we hold the doctor was as an happen. expert, only by knowledge, not education and ¶46 Appellant’s proposition ninth of er- by educating further in but himself ror is without merit. particular subject Perry, at issue. See at 114. P.2d E. Further, disagree we ¶47 proposition of Dr. In his tenth characterization Jordan’s

testimony vouching for Johnson’s truth- contends the court erred in allow- Jessica; concerning impose him might present irrelevant evidence

ing the state pay, if he he would answer As noted and that did of Nicki Bonner. concerning debts him Melody. She also told at the above, Appellant’s wife Bonner was obligation to file Ap- Melody would be under testified that She time of the murders. spent money accounting of how she Riley-Tope- Ft. them the pellant was with give forced to her. Addi day Melody and would be when ka area the entire could During tionally, pointed out that Jessica in Edmond. killed Jessica were death, thus part estate after his cross-examination, that at inherit of his Bonner admitted murders, daugh his other interfering with the amount she had credit time of the $25,- Appellant’s anger was a ters would receive. approximately which totaled card debt con of this information. Evidence result anger Appellant had cerning the amount of ¶48 Appellant claims this evidence relevant, any to illustrate as it tended argues the evidence The State irrelevant. killing motive would have relevant, not tell this Court but does O.S.1991, Melody. 12 in addition to child fail to see the is. We what that relevance 2401; Mayes § P.2d this error will be The effect of relevance. (Okl.Cr.1994), denied, 1194, 115 cert. 513 U.S. Appellant’s first in connection with discussed (“Our 131 L.Ed.2d S.Ct. proposition, below. ‘having anything into evidence statutes allow any any tendency to make the existence F. consequence to determina fact that is of ¶49 complains the Appellant next probable or less tion of the action more ir improperly present allowed to State probable than it would be without the evi Ap prejudicial testimony from relevant and ”) (emphasis original). in dence.’ attorney concerning her pellant’s paternity ¶ Accordingly, Appellant’s eleventh his state of Appellant about attitude proposition of error is without merit. trial, prosecution Cathy At called mind. Christensen, an as a witness. Christensen G. law, attorney specializing family in had been ¶ proposition of Appellant after 52 For his twelfth by and counseled contacted testimony Appellant alleges the of paternity action with the admission Melody filed the and Robert Hazelwood de- Department of Human from John Call state Services.7 prived in him of a fair trial. He contends nei- met with late Christensen subject City in the area office. She ther witness had testified afternoon at her Oklahoma trial, Appellant’s angered by Mel in which testified at testified that establishing paternity nothing there was the ac- ody’s filing of the action and the ceptability of their theories in the scientific becoming While her of State’s involved. fice, testimony occasionally shall examine the of paced back and forth and world. We men, question first must address a palm into the of another. both but punched one hand action, of paternity Ap waiver. As discussed angry pellant became so Christensen did brief, Appellant initially 53 In his seems him, another

want to be alone with and asked question acceptability of of the to advance a attorney building to remain. in the scientific communi- witnesses’ theories initially ty. advancing after no error. The State’s theo- 50 We find it. He argument, he fails to further discuss ry killed support argument with rele- having support also fails to keep from Jessica authority. Consequently, of he could not control. vant citation child in a manner which that, argument portion of his pointed out to him since has waived Christensen 3.5(A)(5), 22 through the state review this Court. Rule Melody had filed her action Ch.18, Services, App., Appellant O.S.Supp.1996, Rules Department Human Appeals. We therefore obey any a court of law Court Criminal would have to orders attorney- privilege previously client with Christensen. waived his Va., portion University Psy- only to the first American School limit our review chology, University Psycholo- neither witness had testi- Nova School of argument, gy, George Washington University subject area in which he testified and the fied in the begin Psychology. provided Hazel- Appellant’s trial. We School He has also at groups seminars across the nation to of men- wood. professionals, justice tal health criminal offi- testified he was a mem- 54 Hazelwood workers; cials and social and in most in- Academy Group, organization an ber of stances, has received feedback as a result. agents specializing FBI in behav- of former seminar, As a result of one such five atten- joined together to act as a ioral sciences who (who psychologists psy- dees were either or consulting group. Most of his and research chiatrists) made women available to him for sadism; work had been the field of sexual Although his studies. he had never testified however, field, in his studies of this he be- subject, testify at trial on the he did before a type who intrigued came with the of woman grand jury Georgia. into would allow herself to be ensnared such trial, credentials, a situation. At Hazelwood’s 56 Based on these we find sadism, testimony allowing dealt not with sexual but error Hazelwood to render an expert opinion subject compli- rather with the common characteristics of Jenkins, “compliant” Defense ant woman. at the so-called women. See 307 F.2d 643- 44; objected Perry, fact counsel based on the Hazel- 114. The issue is not expert previously in this qualified wood was not whether the witness has testified subject; testi- on the it is field. Defense counsel also claimed the whether “a witness is skill, mony nothing profile qualified expert by knowledge, would be more than as an objection experience, training evidence. He did not raise the education.” See O.S.1991, § 2702. there was no scientific basis for the testimo- We also find that testimo- ny. ny properly Although We therefore need not address admitted. Hazel- appeal. testify, issue on wood was allowed to he testified general. as to characteristics He was not ¶55 that we The same rationale specifical- allowed to mention Johnson Cecilia Agent Lanning’s used to find no fault with ly, keep testimony but was told to his II.B., above, testimony, appli see Section is general characteristics. He also did not offer Although compliant woman cable here. opinion toas whether Johnson constituted syndrome specialized exper of is not area such, “compliant woman.” As the evidence tise, topic he familiarized himself with the improper. Davenport, was not 806 See P.2d regular the course of his research at 660. recurring pattern because he saw it as a ¶57 specialized psychologist within his area. Based on his labels observations, published “professional an article outlin John Call a witness” whose ing publication training in these characteristics. This the field of divorce and child Call, presentation findings custody. degree in led to a of his to a who has a law as group professionals publi being only approximately in Australia and well as one of journal. psychologists in an In cation Australian medical board-certified forensic addition, nation, presented testimony solely help he has both solicited information profession explain diagnoses professionals provided from and information to of other groups Hopkins University significance diagnoses. He al at Johns and the those Medicine, Georgetown University testify any diagnosis did not as to he made School independent professional diagnoses psychology department, Kirby Psychiat made Diagnostic City, providers actu ric Center New York Old Johnson’s health care who Psychiatric Hospital, ally opportunity Dominion International had the to sit and talk with (Call Melbourne, her had never known Johnson while Conference Sexual Violence alive). Likewise, Australia, D.C., attempt Washington, Psychologi was he did not Association, University Virginia cal tell the what Johnson did or what she Nursing, the Pines Treatment Cen could or could not do. He stated he School Smith, testifying provide information for [the ter for Juvenile Offenders in Ft. “to Sex psychological perform fers to his own tests helping understand other jury] to consider (8- those, opinions from as one may heard.” and form his [they] which 19). always rely patient on what the said. cannot 30 Tr. given Johnson was not He also admitted jury the explained to the differ- 58 Call seen; to have some tests he would like traits, personality personality ences between professional saw at least one mental health maladaptive coping mecha- and disorders diag only three times and another Johnson nisms; powerful it can so how denial become purposes. her for insurance This evi nosed disorder; personality can become credibility, not goes to the witness’s dence by organic brain are caused some disorders admissibility v. of the evidence. Diaz He told the damage or substance abuse. (Okl.Cr.1986). State, diagnosed having had been Johnson major depression, a depression neurotic and Accordingly, proposition is with- also exhibited avoi- recurrent disorder. She out merit.

dant, dependent, self-defeating personal- and opined person that a with ity traits. Call H. (1) repeatedly chooses general these traits proposition of er- his thirteenth people that lead to mistreat- and situations ror, Appellant should not contends State (2) (3) self-sacrifice; ment; engages in re- argue theo- have been allowed to alternative (4) pleasure; volun- jects opportunities for jury. prosecution’s guilt ries of demeaning or things to do that are teers primary Appel- at trial was that contention (5) preoccupied unpleasant; frequently Edmond, Riley, lant left Ft. drove to commit- (6) abandonment; easily hurt with fears of murders, Topeka, then ted the returned (7) disapproval; avoids social criticism or family spent met his the rest of where he significant occupational activities that involve day. gave the trial court in- (8) contact; difficulty ex- interpersonal has on, briefly prosecution structions and the pressing disagreement with others because argued closing, aided and support approval; and of a fear or loss of Johnson in the murders. Un- abetted Cecilia being alone. feels uncomfortable scenario, der this it was Johnson herself who from the Call obtained these characteristics entered the Wuertz house and committed the Manual, widely ac- Diagnostic Statistical scenario, killings; Appellant as- under this cepted publication diagnosis used in the planning commission of sisted her treatment of mental illness. the murders. ¶59 facts, Based on these we find no For same reasons set forth in the cites Lambert

error. (Okl.Cr.1994) above, Tibbs v. the trial court did not P.2d discussions (Okl.Cr.1991) allowing testify support in in of his abuse its discretion Call to P.2d him. expert. allows an contention. These cases do not avail as an The Evidence Code Lambert, charged expert testify opinion “in form of an or In the defendant was with testimony aforethought the malice murder. The trial court otherwise” if such will “assist felony Appel gave or to instructions on murder. trier of fact to understand the evidence O.S.1991, argued given a fact in issue.” 12 lant he was not sufficient notice determine (facts information, O.S.1991, theory § § of this in the and this 2702. See also Lambert, upon expert bases the Court reversed on this basis. or data which an Tibbs, at 504. in this Court opinion can those made known to the P.2d Likewise given reversed because a defendant was not expert hearing. before the Facts need type in if it sufficient notice that he could be convicted of be admissible is of felony underlying felony reasonably upon by experts in the murder when the relied field.). Tibbs, alleged. not been 819 P.2d at particular are we concerned with Nor essence, testimony all- 1376. In both of these cases dealt the fact that Call’s was not process violation that results He with the due conclusive. admitted cross-exami- given is not sufficient no person nation that such a not be a when defendant would theory charged pre- tice of the under which he is zombie-like trance. He also admitted he specific knowing sharing information is not acts of and ner’s] [the] because enough allegations.8 in its [the intent to take life.” As the victim’s] correct, instructions were the court did not ¶ 63 Such is not the case here. however, allowing argue, err in the State to legal theo Unlike the cases where different briefly, aided and abetted Ce- ry guilt upon, was instructed this case proposition cilia Johnson.9 This is without having with alternative theories deals factual merit. basis, i.e., legal the same ei directly ther committed or aided and abetted aforethought of malice commission I. This situation is similar to that

murder. twenty-third propo- 64 For his and last (Okl.Cr.1995), 89, 99 Cannon v. 904 P.2d error, Appellant sition of cumu- contends the denied, 1176, 116 rt. 516 U.S. S.Ct. ce lative effect of errors at trial mandate that (1996). There, 134 L.Ed.2d 219 his ease be reversed and remanded for a new appellant’s complaint was that the instruc trial, that his sentences or be modified. We finding guilt tions whether he allowed shall this contention in address connection murders, actually merely or committed error, proposition first partner committing aided and abetted below. that, the murders. We noted under the aid ing theory, jury abetting had to find III. principal the defendant was a to the crime. here, “explicitly

There as the instructions SECOND-STAGE ISSUES underlying charged crime referred] the elements of the indicate[d] A. There, Id. charged proved.” offense must be proposition his fifteenth here, whole, when as a the instruc “[r]ead complains protection clearly required tions to find that against Jeopardy Double was violated be- conduct vic [the defendant’s] [the caused count, death and that he intended to cause in each murder tim’s] take her found life, part- aggravating “great or that he aided and abetted circumstance of [his risk down, 8. Since these two cases handed son committed the herself murders. See 9-15-94 (Nicki Court in Parker v. (Okl.Cr.1996), 985-86 Tr. Bonner testified that - denied, -, evening July rt. U.S. had told her the 3rd that the ce thing S.Ct. 136 L.Ed.2d 721 has restated he could think was that Johnson had com- murders; determining the standard this Court will use in mitted the that he could not under- that, give why thing whether an information is sufficient to stand she would do a unless like being charged Appellant complain defendant notice of what he is she heard about the nuisance Specifically, (Bonner with. this Court will determine being); she was 9-19-94 Tr. 75-76 testi- gives responsible "whether the Information the defendant fied she believed Johnson was not charges against apprises behavior, notice of the him and labeling her her as an out-of-control against (uncontradicted him of what he must defend at trial.” Id. psychotic); 5-31-94 Tr. at 986. This determination will be made on a by prosecution pre-trial statement session that case-by-case basis. Id. This Court will “look to argued through pleadings defense counsel had together the ‘four corners’ of the Information provided Appel- and otherwise indications that with all that was made to a crimes; rather, material available responsible lant was not for these preliminary hearing through defendant at dis was); (questioning Johnson 7-7-94 Tr. 116 covery to determine whether the defendant re by attempt witness defense counsel in to discred- satisfy process require ceived to due notice agreement prosecution, it between Johnson and Only ments.” if this Court finds the defendant dispute that where counsel stated there was no process did not have notice a due sufficient will immunity long put got Johnson so as she did not violation be found. Id. crime); herself at the of the 10-3-94 Tr. 11 scene (uncontradicted by prosecutor during comment bench conference that defense counsel had of- Although light 9. of this discussion we do not pointing question, theory upon fered evidence derer). to Johnson as the mur- decide the there is another strategy giving Defense counsel denied a which to base the court’s the instruction: murderer, pointing to Johnson as the instead the instruction was warranted based on the evi- presented presented by claiming the- the evidence show dence defense. (9- sloppy investigation part ory at trial was his alibi defense. on the of authorities 133-34). strongly implied defense counsel also that John- 22-94 Tr. 858 (21 rationally person” guidance,’ than one O.S. and that ‘make reviewa of more

of death 701.12(2)). 1991, process imposing ble the sentence of § State, 1309, Paxton v. death.’” 867 P.2d prosecution’s theory was 66 The denied, (Okl.Cr.1993), 886, cert. 1324 513 U.S. house, entered Wuertz that (1994) 227, (quot 115 S.Ct. 130 L.Ed.2d 153 Melody preparing go surprised as she was ing Godfrey Georgia, v. 420, 428, 446 U.S. work; by firing her a bullet incapacitated (1980) 1759, 1765, 64 398 100 S.Ct. L.Ed.2d spine para of the which would into an area (footnotes omitted)). The rationale behind kill; by baby Jessica lyze but not killed that, by very aggravator language, this is its head; shooting her in the then killed death, a risk of that risk must there must be into her head. firing a bullet person, great, be to more than one it must be circumstances, these alleges that under and the defendant must know that risk ex great person can create risk death ists. person one time. find to more than one We here, jeopardy but an no double violation interpreted 68 We have this explanation aggravating of the circumstance First, ways. two different we have held that why. necessary to show person the fact more than one is killed satis obvious, requirement aggravator.10 re- fies the for the Although 67 it is bears person peating any aggravating that circumstance to have also held that more than one We killed; constitutionally “channel need not it is sufficient that valid must be objective knowingly great ‘clear and defendant created a risk of sentencer’s discretion ‘specific provide and detailed death others.11 standards’ State, 1130, (Okl.Cr.), State, 1356, (Okl.Cr. 1995), v. 919 P.2d 1147 913 P.2d 1370 cert. See Hain - -, 588, denied, denied, - U.S. -, 121, 117 S.Ct. rt. U.S. 117 S.Ct. 136 L.Ed.2d ce killed, (1996) (Defendants (1996) (although only person set fire to a 72 136 L.Ed.2d 517 one State, trunk); "small, Cargle people firing weapon car with two in the v. of a enclosed" area 806, (Okl.Cr.1995), denied, cert. 909 P.2d 832 of a store where others could have convenience 100, (1996) - U.S. -, 54 finding aggravator 117 S.Ct. 136 L.Ed.2d been killed satisfied the (Defendant accomplice by Paxton, (fact aided and abetted present); 867 P.2d at 1330 accomplice shooting (3) victim shot one while people range defendant "shot three at close State, 1351, other); v. 887 P.2d 1364 Hooker pursued a small frame house and both inside denied, 858, (Okl.Cr.1994), rt. 516 U.S. 116 attempt Linda Neal and Edward Peters in an ce 164, (1995) (This S.Ct. 133 L.Ed.2d 106 Court satisfy further harm them” was sufficient to re person "killing than State, stated that more one quirements aggravator); for this v. Smith support aggravating 1366, denied, (Okl.Cr.1986), sufficient to stance," this circum 727 P.2d rt. ce killing 1033, 3277, and concluded that the of the 483 U.S. 107 S.Ct. 97 L.Ed.2d 780 (1987) (evidence defendant's wife and her mother was "sufficient sufficient where the defendant great support aggravating circumstance of continuing course of conduct person.”); risk death to than one more which a murder is committed threatened the life Staf State, 223, (Okl.Cr.1993) v. 853 P.2d apparent ability had the another and ford (The appellant State, "fact that killed three innocent life.); person’s taking means of Ross v. people supported jury’s 117, (Okl.Cr.1986), determination that aff'd, 717 P.2d 81, 487 U.S. great 2273, created a risk of death to more than one (1988) (After 108 S.Ct. 101 L.Ed.2d 80 State, (“That person."); Sellers v. 809 P.2d shooting policeman, defendant threatened motel contemporaneous multiple killings peo fact of cooperate clerk with death if she did not ple amply supports jury's in the same room satisfy aggravator); him. Deemed sufficient to State, determination.”); v. 665 P.2d 1251, (Okl.Cr. Jones v. 648 P.2d Stafford 1205, (Okl.Cr.1983) (Fact defendant denied, 799, 1982), cert. 459 U.S. 103 S.Ct. herded six victims into a meat freezer the size of (Fact 74 L.Ed.2d 1002 that defendant shot range, killing opened at close all closet fire person, seriously and killed one then shot and them, presence was sufficient to find the sufficient). wounded two others was We have circumstance). aggravating prior also noted our cases establish that "it is not person sup the death of more than one which circumstance, ports aggravating but the de Cartwright 11. See denied, (Okl.Cr.1985), create the of death to fendant’s acts that risk cert. 473 U.S. (1985), proximity, another which are in close time, in terms of S.Ct. 87 L.Ed.2d habeas writ 1477, killing act granted grounds, aff'd., location and intent to the of the 822 F.2d on other State, 291, (Okl.Cr.1994), 356, 1853, 876 297 itself.” Snow v. P.2d 486 U.S. 108 S.Ct. 100 L.Ed.2d 372 1179, denied, (1988) (one killed, person person nearly 513 U.S. 115 S.Ct. died rt. one ce 1165, (1995). being hospital); Pennington before taken to the v. 130 L.Ed.2d 1120

859 ¶ ings justified only sorry conflict between these were and was that 69 We see no died.). aggravator— one of his intended victims had not holdings. The rationale for the is, constitutionally that the reason it is ade proposition 71 therefore this We find one murderer quate differentiates —is be without merit. particular by demonstrating a from another of the state of mind at the time murder. B. of a aggravating Unlike the circumstance proposition, Appellant In 72 a related prior felony, violent which demonstrates a there contends was insufficient evidence to actions, continuing past defendant’s support jury’s finding Appellant know a defendant’s future threat —which indicates ingly great created a risk death others. aggravator gives in dangerous actions —this sufficiency the issue of When evidence at the sight into a defendant’s state of mind regarding aggravating circumstance is committed. It evinces time murder was appeal, raised on this Court will utilize the disregard utter knowing, reeldess and any competent test of “whether there was signifi sanctity by posing of human life support charge evidence to the State’s Penning cant risk of death to others. See aggravating circumstance existed.” ton, (Finding 1370 that “the act 913 P.2d at (Okl. State, 1124, 846 P.2d 1147 Woodruff Cr.1993), shotgun in repeatedly firing a rather denied, 934, 114 cert. 510 U.S. S.Ct. small, as a 7-11 store is a enclosed area such (1993). 349, Furthermore, 126 L.Ed.2d 313 person act. other [The store] reeHess light must be viewed in the evidence easily by one of those could have been killed most favorable to the Romano v. State. blasts.”); shotgun Smith v. 727 P.2d State, 368, (Okl.Cr.1993), aff'd, 847 P.2d 387 denied, 1366, (Okl.Cr.1986), cert. 2004, U.S. S.Ct. L.Ed.2d 97 L.Ed.2d 780 U.S. S.Ct. (1994). (evidence support is sufficient ¶73 Here, easily that standard is aggravating circumstance “where a defen lying The victims in or near the met. were continuing dant course conduct hallway They of the house. were but a few committed, in which a murder is threatens apart. feet Evidence indicates apparent the life of another and has the killed within minutes of each other. Evi ability tatóng person’s and means of dence also showed killed Jessica to life.”). examples Because both of the listed pay being sup avoid forced to State-ordered satisfy yet requirement, this still channel child; Melody port for the he killed because discretion,

jury’s finding it follows that a she had involved the State matters which theory under either factual would be suffi business, he believed was none of the State’s cient. simply he could not kill Jessica and because discussion, light Ap of the above Melody knowing it. without about We find pellant’s argument must fail. Based on the satisfy requirement that the these facts trial, presented it is obvious that proximity in killings occur in close terms of instance, Appellant Snow, time, at least one was “found 876 P.2d at location and intent. guilty” aggravating of this circumstance not proposition 297. This is without merit. people present

because there were other who C. Hlled, could have been but because he killed people by two actions were in close which proposition 74 In his seventeenth proximity space, in terms of both time and error, Appellant alleges insuffi there was “rapid the nature of which were and fluid.” support finding cient evidence to that the Snow, Cartwright, 695 at 555. heinous, P.2d See especially murder of duplication 876 P.2d at 297. There was no atrocious, Using the same standard or cruel. circumstances, above, as in each murder we find this of review as enunciated callous, disregard evinced the same reeHess proposition to be without merit as well. The sanctity Davis v. for the of human life. shot Melo evidence indicates Cf. (Okl.Cr.1995) (de para dy spine, which left her the cervical head, killing she was in people lyzed fendant shot four and unable to move. While state, Appellant In the parole two. Later officer he felt shoot- killed Jessica. told prosecution, improper impact testimony.12 victim favorable to the He also light most suffering. physical complains jury properly and mental indicates both was not instruct- intentionally committed concerning impact We find the use of the victim ed Melody’s baby virtually trial, murdering objected testimony. At defense counsel acts — eyes significant of her created a injected front to the evidence because it “extrane- —-which Melody, creating thus ex- level of tension important ous matters” which were not to Hain, See cruelty. mental 919 P.2d at treme the ultimate decision in the case. Defense objection lodged general counsel also a appeal, Appellant use of the evidence. On

D. objects to the evidence because it was irrele- ¶75 vant, probative far proposition and its value was exceed- eighteenth In his of er- ror, prejudicial ed its effect. To the extent Appellant contends he was denied a fair objection appeal sentencing hearing due to the admission of on is different from Wuertz, Melody’s including today, just required 12. Susie mother and Jessica’s and and it that I grandmother, gave question-and- energy evidence in a concentrate more time on that than I-—or answer format. She told the that she would I on that than could afford and still remain full- "wonderful, forget feeling” never wonderful ministering. essentially time And I’ve had to Melody she had was born. She also noted when ministry my take some time off and time off that, although Melody epilepsy was stricken with plans step ministry for the future and out of the eighth grade, stop in the it did not her from while, it, spend for a a we call sabbatical to time doing things Melody do. wanted to dealing with the emotional chaos this has many active in school activities. She told the brought my family put my for me and and has although that there were difficulties associ- result, support family, life a on hold.” As to wedlock, being ated Jessica’s of work, with bom out "I doing carpentry paint- he was at the time really truly gift and feel that Jessica was a from ing, things require and other that did a lot of change God to her because it made a in her and emotional involvement. just change a Wuertz, father, in her life.” She noted that Jessica Lyle Melody’s testified as mother, cheerful, very, very was "a lot like her Melody’s epilepsy and how it influenced her life. cried, seldom ever not that she wasn’t normal many thoughts He echoed of the same as his crying, just very with but she was a cheerful little Although Melody squab- wife. he and had had bright eyes.... sparkle child with in her She growing up, bles she was while he felt their extremely Personality- was an beautiful child. relationship greatly improved, had and had been wise, you just hug wanted to her all the time.” looking seeing relationship forward to their con- possible put know that "I don't it's into words improve. by relating tinue to He ended events feeling you the kind Melody that have about loss. transpired which had the last time he had seen only daughter. Melody was our was our the two: special daughter. Melody daughter was our that Well, the last time that I seen Jessica was— high college we her school and Melody May and end when had— years encourage we had to a lot. Some- us, come home to visit and I thank God for the you quote, times when have, child that is the gave memories that I that God us memo- child, unquote, perfect you I think don’t become cherish, ries that we can because one of the you as close to them because haven’t had to live memories that I’ll cherish the most is whenev- through problems, prob- some and our most of Melody grandmother er and Jessica’s finished encouraging Melody lems of had to do her with giving evening, put a bath Jessica one her in that, epilepsy certainly anything and that wasn’t pajamas, some fresh and she come in and know, you just something was her fault. It was chair, my up lap my crawled on and she you plans had to overcome. I’m—we had lots of shoulder, right up my crawled and she laid Melody future with and Jessica." her, angel there and and I rocked I rocked that Wuertz, brother, Wesley Melody's sleep. forget feeling, recalled that I will never had, Melody good, feeling had normal brother-sister rela- warm that I thank I tionship years, in their earlier but God had become for those memories. past years. extremely try just impos- closer in the few He was For me to sit here and to—it’s proud Melody, doing recap years my daughter's as she was well on her sible me to moments, impact just very own. He noted the deaths had a definite a few life in much, I loved her minister, much, Wesley, very on his life. who had been and I’ll miss them both changed, explaining missing seeing well, right his whole life said I'll now Jessica — being ministry years just can take its emotional toll. would have been four old and I can died, towhead, big eyes. added when He "it was an outside see her little brown I’m ministry required large going joy, influence that all that miss but I thank God for portion my my energy, emotional emotional the memories. budget, just get through, By agreement, opinion punishment to deal as to know, instance, grieving process. just given. You not months, for two or was elicited or In each up three weeks or two or three but witness was cross-examined. two, trial, “simply weigh if imposed proposition jury this is can then the and at what you I plain, for all but reversible error. believe—and this is not —this is what waived want to This is not of those emphasize. one ¶ no such We 76 We find error. parts beyond a reasonable doubt because already such is determined evidence ”; you’ve already theory at found that — 880, 933 P.2d relevant. Ledbetter objected. point that defense counsel After a (Okl.Cr.1997); Gargle v. 909 P.2d conference, prosecutor bench the continued — denied, (Okl.Cr.), cert. U.S. as follows: (1996). -, L.Ed.2d 54 S.Ct. your you have to established satisfac- [I]f extraneous, such, impor As it is not and it is tion, beyond you if are satisfied reason- an to determination of tant the factfinder’s conduct, doubt that a—-that the the able punishment. At the appropriate least one of planning, planned killing the of one or the family members related how deaths had persons, being Melody both more that and life, temporarily to his as he had affected Wuertz, beyond a rea- Jessica is—exists another, emotionally demanding up take less doubt, therefore, you that as sonable found job. testimony. no The We find error the existence, aggravating an circumstance in question-and-answer by the format used you weigh if up against and then that the minimum, prosecutor kept to a narratives that of items the defense the Defendant appears prosecutor pains to and the took you mitigating to as cir- wants consider outburst; the risk an emotional decrease of you cumstances and if find —and I reiter- nothing indicating we see the record prove is ate. This not another burden to short, outburst occurred. we emotional doubt, you beyond if a reasonable but jury based find no evidence the its determi you aggravating find that that circum- reason, nation on emotion rather than stance, kill planning the and Appellant claims. Wuertz, outweighs mitigat- Jessica the ¶77 Appellant complains also the court ing— any give it did not erred when instruction (10-7 109-10). prosecutor Tr. The finished jury impact how the the to use victim objection. point por- after This another Again, has evidence. waived all prosecution tion shows the did not mislead plain, failing but reversible error to inter- jury proper proof. as to burden pose particular objection at this trial. We prosecutor’s law is cor- The statement in- Although no such error here. find (“It Paxton, is rect. See given structions were similar to laid those jury weigh sufficient instructed 828-29, Cargle, out in 909 P.2d at this Court evidence, mitigating aggravating and evidence, and along has reviewed with other only aggravating circumstances when presented stage, in the second evidence clearly outweigh mitigating may the capable reviewing the evidence under Ledbetter, imposed.”). penalty See also death proper P.2d at standard. (re- review, 4-76 4-77 OUJI-CR 2d instructions thorough we not find After do finding aggravating a unanimous jury misapplied quiring doubt) beyond circumstances a reasonable sentencing arrived at an erroneous decision (if aggravating found as a result. and 4-80 circumstance doubt, beyond penalty a reasonable death proposition Accordingly, this is with- imposed unless also finds such cannot be out merit. any mit- aggravating outweighs circumstance found).13 igating circumstances E. comment, when taken as proposition 79 In twentieth whole, in this accurately reflects law jury was Appellant contends the misled as proposition This is without merit. State. proof. Specifically, proper burden of points prosecutor to a comment in his F. second-stage closing where tells proposition that, next of er aggravating circum- 81 For his once have the ror, Appellant penalty that the mitigating circumstances the asserts death stances Appellant's 13. OUJI-CR 2d in effect at the time of trial. instructions counsel, prove Ap is unconstitutional under the Oklahoma Con- ineffective assistance Citing pellant § 2 stitution. Article of the Consti- must show not that his attor tution, ney’s Appellant argues persons performance acceptable fell “[a]ll below lev life, right liberty, professionalism, els of inherent but have the performance pursuit happiness, enjoyment substandard an of and the of had effect on industry,” proceeding. of gains own each the outcome of their Okla- Unless an life, both, right appellant show homan the “inherent” can “it cannot has and be said that ... penalty the death must therefore be abol- the conviction resulted from a adversary process breakdown in that ished. result renders the unreliable.” Strickland ¶ trial, and 82 At before defense counsel 668, 687, Washington, v. 466 U.S. 104 S.Ct. argued penalty death cruel un was 2064, (1984). 2052, 80 L.Ed.2d 674 See also punishment. usual He did advance the Fretwell, 364, Lockhart v. 506 U.S. 113 S.Ct. argument Accordingly, now he advances. he 838, (1993). 122 L.Ed.2d 180 appeal. has waived it review on Edwards (Okl.Cr.1982); ¶ v. 655 P.2d 1050 support contention, 86 In of Appel- (Okl.Cr 631 759 Tubbs P.2d that, merely any lant states if in .1981). propositions forth, he has this set Court has waived, issue deemed the counsel was inef- ¶83 penalty Nor do we find the death carefully fective. We have reviewed each section of violates this the OMahoma Consti occurred, instance in such which a has waiver face, Appellant’s tution. its argument On Appellant prejudice. and find cannot show that, reply falls The most short. obvious Appellant right live, has an “inherent” so ¶ 87 also trial contends counsel Supreme did his victims. Our own Court has was for failing ineffective to call as a defense right noted that the to labor or earn one’s witness Edmond Police Detective Dennis any legitimate industry livelihood field of Dill, who he contends had information con a right property, any or business is of cerning the last time the had child eaten. unlawful or unreasonable interference with We find we cannot the issue at address this of abridgment right such is an invasion of juncture appeal process. As we noted right, liberty that of restriction of earlier, Appellant support of a request for guaranteed by the citizen as the Constitution. evidentiary hearing sup a motion to filed Arnold, Herrin v. 183 Okla. plement pursuant 3.11, the record to Rule (1938). Surely person killing infringes Ch.18, O.S.Supp.1996, App., Rules of right. on presented that same has 13,1996. Appeals Court Criminal June of nothing showing Legis to this Court that the That motion denied this Court on ability punishment lature’s to establish a of 3, 1996, July because it not meet did degree any death for first way murder requirements threshold of Rule 3.11. As right violates his “inherent” to life. above, Appellant provided has no other evi support dence to allegation. Conse ¶ proposition 84 This is without merit. quently, find it to we be without merit. See 3.5(A)(5) (C)(1), O.S.Supp.1996, Rules & IV. Ch.18, App., Rules the Court Criminal Appeals.14 INEFFECTIVE COUNSEL CLAIMS Appellant alleges was denied his complains he because right present to effective assistance counsel. To counsel did not evidence issue, all, hardly digested But if we were even to address the stomach contents were at merit, very indicating would have no for the same had reasons it she eaten short time would had no merit in before she was killed. fourth Evidence trial indicat- proposition. The detective would have testified ed that Jessica been fed the same kind of any he was to find approximately unable food containers at the food as found in her stomach at baby p.m. evening crime scene which matched the contents of before killed. For valid, Appellant’s theory Jessica’s stomach as found the medical exam- to have been he would iner. The medical testified that the have had convince the examiner Jessica was stage proceedings him a fair the first denied good and the did life as a nurse of Ms brought proposition Although no evidence In his mneteenth patients. trial. form, presented in this complains prosecutorial misconduct forth nurse, competent Appellant was alleges stage which he occurred in second may have episodes where he even stage We shall address the first trial. patients, he by his did irritated been issues first. patients. irritation front of display that Here, above, preju- show Appellant cannot A.1. dice. Appellant’s alle- is true of same complains first have shown that gations trial counsel could dire, prosecutor alluded terrorists voir ailing family Ms and eared loved up blew the World Trade Center New who traits was of both these mother. Evidence However, City. provide failed to York has In- of the trial. presented during the course transcript citation the tMs Court with to deed, already irritated evidence showed an we Accordingly, where the error occurred. when

Appellant became even more irritated Rule alleged address the error. cannot Jessica, as an unwanted that even informed Ch.18, 3.5(A)(5), O.S.Supp.1996, App., heir, portion Ms entitled to a of would be Appeals.15 the Criminal Rules Court of estate, thereby dimimshing the amount wMch among Ms cherished be distributed could ¶ complains prose- the Accordingly, it family members. would improper dire re- cutor voir made presented in no had it been made difference eoncermng the nature of a criminal marks Again, Appellant cannot show another form. objected Specifically, counsel case. defense prejudice. “if question by prosecutor the that to ¶ your tossed into different theories are He trial counsel did also contends it, will, you you if if when why lap of who done give adequate not reasons present you aggravating not circum- hear the evidence we should find —” However, that, present. appellate counsel shows after de- the record stances support objected (saying broad contention “a criminal has failed to tMs counsel fense thereby specific examples. it, waived they prove It is it’s a is never a who done trial 3.5(A)(5) (C)(1), 22 appeal. Rules & it.”), prosecutor on See both the court and Ch.18, O.S.Supp.1996, App., Rules prosecutor corrected his agreed, and the Appeals. Court Criminal may Any which have been question.16 error corrected, present therefore was ¶ proposition 91 TMs is without merit. harmless. y. Appellant’s true com- 95 The same is OF PROSECUTORIAL ALLEGATIONS prosecutor the term “rea- plaint the confused MISCONDUCT pros- shows the doubt.” The record sonable conclusion” used the term “reasonable proposition Ap- ecutor In Ms fifth presented evidence to be in connection with prosecutorial misconduct pellant contends We find none. plain, at reversible error occurred. time she had eaten killed wiAin a short after context, baby prosecutor p.m. July 1 at approximately 7 it is clear the Taken in house, transported Melody Aen Ae drawing sitter’s Aat parallels between case baby baby Center; Ae to her own dead house; from sitter’s bombing Trade of the World and raAer, baby Ae sitter and Aat neither she nor using bombing to make he was Aeory, reported the This is a ludicrous murder. might be of evidence which point as the kinds no trier fact would subscribe one that rational at the scene. left Accordingly, Ae even if we were to consider to. evidence, prejudice for Appellant could show believe, sir, beyond you rea- right. "All If 16. failing to call Dill to stand. present we the evidence doubt that sonable theory, you you only reasonable cause lends one provide does State its brief-in-chief 15. The conclusion—” one reasonable Consequently, to come specific citation to Ae record. (5-16 138). alAough of Ae Tr. Ae has waived review comment, it to determine if shall examine we case, now, prompting defense counsel to homa waives —we waive on record point Your Honor —. out “he left out the reasonable conclu- sion, beyond a reasonable reasonable doubt.” point, objected, say- At defense counsel by asking juror The court clarified “[i]f ing gratuity improper “[t]he and it —.” you to that [the evidence] leads conclusion of prosecutor responded by saying “[t]hey doubt, guilt beyond you a reasonable can find interrupted by can attack —but was de- follow-up, guilty?” prosecutor him As a fense counsel who said “—it’s sure that jurors prosecution’s reminded keep going anyway. object he’s So we proof “beyond burden of a reasonable (10-5 objection to it.” The was overruled Tr. 140). (5-16-94 Error, any, 98-99). doubt” Tr. corrected. shows, 98 As the above evidence

testimony important of Nicki Bonner the defense case: if the believed her testimony, physically it would have been im- prosecutor claims next possible to be in kill- Edmond main accused his witness of commit- defense ing approxi- and Jessica Wuertz witness, ting perjury. The Nicki Bonner noon, mately at the same time be in a ex-wife), (Appellant’s Ap- had testified that Riley, restaurant Ft. near some 282.7 miles pellant day with July them all on 2. She hours, away. four minutes family’s day detailed the activities that as Initially, it must noted the basis they began by eating follows: a late break- objection for defense counsel’s at trial is un- approximately p.m. fast at 12:30 a local at appears clear. It defense counsel was ob- (between Following the restaurant. meal jecting prosecutor may on the basis that the p.m.), family by 1:15 and 1:30 drove keep filing perjury not his word about not lake, nearby to Topeka. Tope- then went In charges case, against Nicki any Bonner. In ka, stopped they large depart- at a discount objection the basis for trial at is not the store; there, ment Appellant bought his appeal. as it Consequently, same is on Ap- Amanda, daughter, at jewelry watch pellant has plain, waived the claim all but approximately p.m. counter at fam- 3:30 Simpson, reversible error. 876 P.2d at 702. ily items, other bought checking at out appears 100 It the comment was invited receipt main A register. for these other statement, In closing error. defense they items p.m. showed checked out at 4:16 pointed jury counsel Williams out to the They up gasoline then filled the car with at a inconsistencies in their theory the case station; nearby Tope- service and drove to a hand, commenting on prose- that the one mall, they ka approximately where arrived at argued Appellant cution committed the mur- p.m. They 4:30 purchases made several at prevent to knowledge ders Bonner’s mall, various stores then went to a affair, illicit on while the other hand acknowl- picture motion at a theater the mall at edging certainly that Bonner would learn of approximately p.m. movie, Following the the affair after murder. Mr. Williams than family quarters returned to argued prosecution explain why could not at Riley, arriving Ft. there at approximately despite Bonner maintained the alibi knowl- p.m. 10:30 edge of other this and affairs and actions. ¶97 argument, his closing prose- In He added story Bonner had maintained her cutor told the that prosecution, stating threat of even that record, [F]or the State of investigators everything Oklahoma state would they “do pursue perju- mind, will, will not this woman an can to break [sic] that woman’s ry any testimony. spirit count of her corrupt point Our her to the that she guy hear, is with right say business that there. would what wanted to which (10-5 Slaughter. We’re done Nicki So said would have been a lie.” Tr. 26-28). retaliation, threat, no there’s no no fear. argument, Later in his Mr. Williams surprise, just Wintory directly That’s been but let me addressed Mr. asking sir, state it for the you, you record. The State of Okla- him: ‘What I want when have a 1157, 1163 (Okl.Cr.1994), cert. Oklahoma, to for the State of chance close denied, evidence, one scintilla 115 S.Ct. tell our U.S. from you get (1995). an indictment There, used

which the Court L.Ed.2d Slaughter now against grand jury Nieki that clear issue before it was “but one made (10-5 41). Bonner, one Tr. Defense shred.” example of an all too common occurrence reason Bonner argued then counsel argues counsel criminal trials —the defense pres- was to had been indicted for murder17 provoking prosecutor to re improperly, against Appellant. He testify sure her kind, judge and the trial takes no spond that argued that Bonner knew “with action,” adding “[cjlearly two corrective mentality in this of the State of Oklahoma improper arguments- apparent —two under ease that when she takes stand right make wrongs not for a result.” —do things to God tell the truth and tell oath Reviewing at 1044. ear Id. S.Ct. don’t want he and the State Oklahoma holdings, appro forth the the Court set lier power perjury? hear that have the priate standard: 42). (10-5 off.” Tr. It didn’t scare her [v. in Lawn holding United This Court’s traditionally taken 101 This Court has States, 311, 2 355 U.S. 78 S.Ct. appellant complain cannot the view that an more L.Ed.2d 321 was no than ] prosecutor by a were invited the comments Inappropriate application of settled law. fact, has this Court by defense counsel. alone, comments, standing prosecutorial imply fact an gone so far as to that the mere dispositive justify reviewing court re was invited is the issue.18 would error the fact an error invited in an verse a criminal conviction obtained dispositive issue. Instead, proceeding. otherwise fair teaches, the remarks must be exam Lawn rulings later has 102 This Court its ined within the context of the trial to de Young, States v. upon United relied U.S. prosecutor’s the 1038, termine whether behavior 1, in 84 L.Ed.2d 1 105 S.Ct. See, e.g., Hogan v. prejudicial In holdings. amounted to error. other support of its Error, by grand jury himself invited. if for the of error which he has 17. Bonner was indicted the murders, shown, charged way clearly when any was the same was invited not and an the indictment was dismissed and information grounds recognizable appeal.”); on error an charges against her against her. The State, 805, was filed (Okl.Cr. Satepeahtaw 809 v. 595 P.2d prelimi- of at the conclusion the dismissed 1979) ("Finally, prosecutor’s even if the remark nary hearing evidence. Cecilia due to lack of may improper, be under the doc it excused jury grand proceed- at Johnson had testified the State, error."); v. of invited Kiddie 574 P.2d trine pre- ings, before the but had committed suicide 1042, 1977) ("This (Okl.Cr. Court held 1048 has Therefore, liminary hearing. what evidence prof permitted shall not be to that the defendant may presented part was not a of the record have any alleged the coun error which defense it from at trial. by opening the the instance invited sel in first conduct.”); by v. question or their Fox own State, 68, (Okl.Cr. P.2d 73 18. See v. 909 Ezell 1974) ("We State, 60, (Okl.Cr. 63 are of 524 P.2d 1995) ("This Court also refuses to countenance error, State, opinion this it is error.”); the that if constitutes v. Pierce relief invited 1255, 1990) ("The (Okl.Cr. upon which invited error a reversal conviction answers P.2d 1259-60 State, purely objects may predicated.”); which now resulted v. to through not be Sasser 714, persistence (Okl.Cr.1966) We (quoting the of his own counsel. v. Pierce P.2d princi recognized the State, 699, (Okl.Cr. 1963), have often well established Court 383 P.2d the may complain pal error that defendant not "[tjhis repeatedly Court has held observed that invited, reversal cannot be which has permitted profit appellant 'will not to that an be State, error.”); predicated upon Smith v. such alleged by or his in error which he counsel (Okl.Cr. 1988) (noting con 759 P.2d 233-34 question by opening the first invited the instance improper closing prosecutor making duct of in conduct; the their own and counsel for or "ordinarily argument [which is] one revers profit by may not whatever error defendant admissibility despite weight and ible error the incompetent by the admission of such occasioned evidence,” er "[t]he Court noted additional State, ’’); v. 640 P.2d evidence.' Menefee complained appellant’s of was invited the ror (Okl.Cr.1982) ("Appellant Jones invited the Therefore, he cannot be heard to com counsel. having jury, judge's admonishment plain, appeal, court that the trial erred so, ap complain on will not be heard to done testimony.”); Casey allowing jury the to hear this peal.”). ("The (Okl.Cr. 1987) v. P.2d may complain party well that a rule is settled words, proba- responses” Court consider effectively the must the vited can be discour- prosecutor’s aged response by prompt ble the would effect action from the bench in ability jury’s judge have on the to the the form of corrective instructions to the fairly. context, and, In this defense necessary, when an admonition conduct, well as counsel’s the nature of the to errant advocate. prosecutor’s response, In- relevant. case, Plainly, remedy in the better Appeals, most applying deed Courts of at least with the vision accurate of hind- holdings, these have refused to reverse sight, have would been for the District prosecutors convictions where have re- Judge improper argument with the deal sponded reasonably closing argument promptly defense counsel and thus attacks, rendering defense counsel’s thus prosecutor blunt the need for the to re-

unlikely that astray. led spond. Arguably defense counsel’s mis- judge conduct retrospect, perhaps In could warranted the idea of “invit- him, interrupt argument way and admonish response” ed has evolved thereby rendering prosecutor’s contemplated. Lawn and the cases re- earlier sponse unnecessary. Similarly, prose- suggest- cited above should not read as cutor at ing judicial approval the close of defense encouragement— summation or— objected should have response-in-kind inevitably the defense coun- exacer- improper request sel’s statements with a bates the tensions inherent adver- give sary indicates, timely warning court process. As Lawn itself jury. curative is not instruction Defense prosecutor’s issue license to counsel, obviously vulnerable, though even improper arguments, make otherwise but could prosecutor’s thought well have done whether re- likewise “invited context, prosecutor’s that the sponse,” remarks were harm- unfairly preju- taken ful to his client. diced the defendant. 11-13, (citations appropriate Id. order make an assess- 105 S.Ct. at 1044-45

ment, omitted). reviewing court must not and footnotes This is more in weigh impact prosecutor’s keeping opinions by re- with other this Court marks, but must take which either into account modified reversed based on opening though defense counsel’s salvo. even it was Thus the invited. See Starr (Okl.Cr.1979) import of the evaluation has been that if (“It prosecutor’s “invited,” appellant the true complain remarks were that an cannot respond and no by did more than of error which first raising substantial- he invited the ly scale,” (Okl. “right subject. in to order the such com- Luker v. 504 P.2d 1238 Cr.1972). However, a reversing ments would not warrant con- when the situation has it, required viction. we have nevertheless considered issues, though they the merits of even were by have any Courts not intended means defendant.”); by first broached the Manuel encourage practice to the of zealous coun- (Okl.Cr.1975) 239-42 going sel’s “out of in bounds” the manner (comments plus other errors mandated re here, encourage defense counsel or to versal). prosecutors respond to the “invitation.” Reviewing put here, ought courts to be in 103 Clearly prosecutor’s the com- position the of weighing inap- which of two ment was unwarranted and error.

propriate arguments the “In- lesser. defense counsel was also not without blame.19 appellate Coyle juiy We find it ironic somewhat that Mr. told the he called one witness "to if, complains Wintory counsel Mr. because inferred through gum chewing see all her when she lying. the stand, witness was Defense counsel occa- you really on the could evaluate if she stepped sionally line over the in three different have would known there a man there or ways: against prosecution, attacking attacks the (10-4 20). discussing not.” Tr. When the testi- personally; a witnesses and combination of those mony boys of the two who saw near two. deaths, Coyle the house near time the Mr. flat, lied, following representative just The are that of defense noted "Some them are he (10-4 against particular 51). you counsels’ attacks witnesses: but that’s for to determine.” Tr. police witnesses know the recalled Johnson's reactions some who all answers When one witness (10-4 116). they newspaper article which she was the Tr. to the named, before take test.” Re- jury Coyle suggested by ferring diagram to the that the Mr. to a of a wound made the examiner, reading newspaper too Coyle investiga- had been the witness medical Mr. said the (10-4 75). evaluating Tr. another wit- much In retrieved knives at home in accor- tor ness, Evelyn Cunningham up “and came he said specifications given by dance with him the medi- only lied the lied. She not examiner, here and she report, drawing a before made that cal she perjury lied court. There’s (10- Wintory up "she and Mr. cooked for trial.” lied, okay charges against She but that’s her. 124). Referring prosecution's theory 4 Tr. 86). (10-4 against talking JR.” Tr. because she’s weapon, Coyle juiy Mr. the the of a murder told informants, testimony Discussing the he asked you pull prosecution team back and tell "want good, why why, prosecution’s case was so if the weapon. that Ladies that is the murder and (10-4 they to call “liars” to the stand these they making up. They gentlemen, are that don't 123). up argument Coyle Tr. Mr. finished weapon. They making are have murder that to, said, stating: down as I do “This case boils (10-4 125). up.” Tr. Mr. Williams also attacked beyond you boys and a rea- believe the snitches by criticizing way investigator in the the the case Williams, 132). (10-4 Tr. Mr. sonable doubt?” photographic lineup: "what is she handled a it restrained, although more was also without fair-minded, thorough, professional and our in- improper fill comments. He told the that to mind, open vestigator did? one with case, prosecution’s prosecu- gaps fair, who to be that’s one wants because what pile "dipped gutter tors into human of snitch- you expect would and demand of them.” After produced es” a witness who said describing tions, investigator’s he what deemed ac- Shadow, sitting Dodge actually said he was you "Is fair? Is what added: that you adding that "I'll talk to more about these your investigating expect prosecuting offi- miscreants, pieces these of human driftwood that (10-5 16-17). do little cial to with a kid?” Tr. prosecu- paraded up are here.” He observed vein, want to talk In similar added: ‘You presented jailhouse tion tion, three “snitches —correc- manipulation, take a about child cause (10-5 and one rat. Two.” Tr. two snitches pervert you him to the truth as know it to be 21-22). also made reference to a Mr. Williams saying Dodge is a I know how Nissan. don't "contingent fee to lie” made between contract that, you you assign disgusting. view but I it to as 37). (10-5 prosecutors Tr. the inmates It’s unfair. And it’s untrue. But that’s what Defense counsel even more forceful explain they perhaps Wintory did. Mr. can And prosecution their references to members of summation, you why it that to in his he does presented by discussing team. some evidence In accept way, why you people he would ask prosecution, but known to the Mr. defense proof beyond a reasonable doubt because its very Coyle the evidence "doesn’t fit told (10-5 reliability, respect.” his conduct in time, they’ve well their so done their drive 24). mistake, Tr. Williams stated that “Our (10-4 22). try best this out.” Tr. kick mistake, Slaughters’ Judge Black’s mistake was presented by Contrasting two the evidence job.” believing people in (10-5 these would do their sides, go we on in this he said "evidence what 58). prosecu- Tr. the lead He also noted (10-4 up.” They just make Tr. courthouse. it by noting Mr. tor’s demeanor and actions Winto- 28). "They a similar vein: don’t want to In terms, "contemptuous ry spoke with Bonner in They guilty. learn truth. want to make him memory He added he wished his was as tone." (10 31). They got jail." him in Tr. —4 "because, Wintory’s they good as Mr. don’t see, following: similar vein is the “You this is they’re subjected up], going to be to his [measure else, gentlemen, they something ladies and harpoons and his sneers and derisive ridi- verbal evidence, up. they just don’t make If Bonner, cross-examining cule.” When Mr. say they just up. it make it And and be- Wintory's demeanor: Williams said Mr. supposed they say you're cause to believe it's sneer, smug derisiveness of "[h]ere comes hopped say a fence. Where so because he counsel,” adding that "can and sneer mock just is the evidence of that? Let’s the world precisely people that was who don’t remember it they up. up Let's that what—what make it make somebody particular said some time time doing the Or on the 7th or 8th. let’s make years maybe 11th, and earlier these months because they day up the what did on the is he’s timely question (10-4 ask to folks didn’t move to the up.” discharged. 45). just make it Tr. Let’s perceive the Mr. Williams ad- point, personally and find truth.” Coyle ad- At one Mr. becoming personal (and the mitted attacks were when investigating officer in the case dressed the inject personality he said don’t like to into testify) we "I her to as follows: "Did have— failure trials, Pfeiffer, representing who you sitting but when I am a man did see Detective who’s been degree facing charged you first murder and the grinning, did her take the over here see God, life, that, expect, by you prospect losing that his I that witness stand and tell I didn't scare know, going get girl? Detective he’s to fundamental fairness because little You sure didn’t. You courtrooms, Pfeiffer, why you Why you in these did did do that’s what we talk about scare her. trial, (10-4 (10-5 try prosecution.” Tr. Why you a fair 62- that? didn’t to be fair?” Tr. fair and 32). 64). by Referring expert the to witnesses called "Now, Coyle against prose- prosecution, Coyle combined attacks the Mr. noted: some real Mr. describing one important specific Since there’s cution and witnesses case. scene, boys Appellant the call the had seen near mur- zero evidence of JR at the crime let’s who short, as we shall see other repeat com- was often to information in forced below, plamed-of closing argu- get comments order to an answer out the witness. ease, ments neither did side honor.20 We shall the Under circumstances of this we find light assess this error in of all portion appellant’s the evidence to error com- presented. plaint. Appellant complains prose- next the 3. questions cutor which asked he knew alleges prosecu- the next Bonner would have no answer. Defense objected during began

tor mistreated Bonner prosecutor cross-ex- counsel when the complains her.21 Appellant question gentlemen amination of that with “The ladies and prosecutor improperly used Bonner the significant have heard a amount of testimony evidence, evidence, bolster other evidence which had physical come and reading transcript A earlier. shows about what occurred in this house on that was, best, very day that Bonner at prosecutor reluctant was unable to finish —.” answers, gave question. witness. When she she so did Based on what follows in the grudgingly.22 Accordingly, prosecutor record, portion we quoted find the above observation, der at try- scene of the murders: just time "You Court: "No ing Counsel. She’s know, him, gentlemen, your question, you're this for ladies and to understand and Remember, greatest starring punching your finger at role. he’s her and—” Shake- Wintoiy: speare Imagine objecting my "Is the Court opportunity in the Park. demean- him or towards the witness?” now to involved in added this.” He there "Yes, telling just your punching Court: I am. You’re investigator was no what had told the finger yelling yelling at boys her like I’m at when identified and his car you line-ups. you "Do remember what she told —” "And, Wintory: Judge, this same is the Court—" the other witnesses? I wonder that she told personally, Court: "You know I don’t mean it boys showing these photos. whenever she them the trying your but the witness is you understand Do think was a fair-minded question. point trying That’s the I’m to make.” lineup? you you up Did hear her come and tell Wintoiy: guess "Judge, point I (10-4 94). I want to how fair was? No.” Tr. He then is, gestures make is that and loud voices boy attacked the other who had seen at throughout been used the defense this trial Noting the scene. witness earlier right Court has defended con- positively identify Appellant said he could not duct—and this the first on time this record preliminary hearing, Coyle Mr. noted that okay, Judge.” you, jury, "when he comes to court he tells our that — just Court: "Go ahead. Go ahead. I’m years ago,

that that’s the man he saw three —but you’re trying to observe the witness. I think Slaughter JR is the he saw in car. man Two witness, Court’s entitled to observe the too. years ago positive. told use he couldn’t be understand, just trying She’s the Court sees keeper? Guess who’s been his Theresa Pfeiffer.” it.” (10^1 96). Tr. following representative example: 22.The ais compliment 20. We would be we remiss if did not shortly exchange complained before the of in judge general patience trial for his de- brief, transcript shows an obvious lengthy meanor the course of this trial. divulge reluctance of the witness to information job keeping He did squabbling, an admirable during cross-examination. bickering shouting opposing between coun- Wintory: [referring tape passage re miscar- sel to a minimum. The conduct of trial counsel "Well, riage] transcript, I mean based on that may beyond on both sides not have been re- obviously, miscarriage she has had a of JR’s proach, certainly but the court's was. child, pretty that is a clear indication that sex, you have had don’t think?” judge first claims rebuked Mr. miscarriage; Bonner: "If she have a did I don’t Wintoiy appears for his actions. It court sure know for did.” making pointed prosecu- observation about the Wintory: you your "But heard re- husband’s context, tor’s conduct. taken in the sponse important when he told her that was to prosecutor’s actions not were serious. Taken in too, referring miscarriage, right?” me the to context, appears Wintory becoming it Mr. was Bonner: "I don’t remember if I heard it or not.” by the frustrated witness's obvious reluctance to Wintoiy: sorry. appreciate you "I’m I that saw questions. point following answer his oneAt the transcripts you you heard. But do recall exchange occurs: seeing transcript your response a with husband’s that, Wintory: surprised by topic important "You’re that information. on this that was was to me you the If defendant—let me ask this. Did too?” you phrase exactly.” Bonner: "I don’t remember that —" forthcoming in her concerning not answers. Ap- witness was preface questions merely a to victim, prosecutor’s trying in to the informa- find no error a pellant’s We actions toward may may not have from a hostile witness. which Bonner elicit information tion Appellant is no error here. known. There ¶ Appellant prosecu accuses the also type of this complains of a second instance In harassing the the com tor of witness. however, ques- the a review of questioning; exchange, plained-of the witness had been the was clearly prosecutor tions indicates concerning testifying what she told authori to state whether trying get the witness from telephone ties about calls house authorities important give it she knew was may upset who have been with other women shortly after the mur- information accurate Appellant. asked whether the call oc When which should be This information ders. murder, year the the a curred within before and we find knowledge, the within witness’s so, yes.” The responded witness “I believe no error. ‘Well, you’re prosecutor sure then said: ¶ particularly argu- find 106 Nor we do objected, today.” counsel about that Defense prosecutor questions posed by the mentative stating prosecutor arguing was with the the a Appellant could have killed about whether the agreed witness. The court sustained wife, Bonner As former child. objection. request did Defense counsel not position to unique in observe would be a This stated an admonishment. Court has general life in Appellant’s attitude toward responsibility to re is trial counsel’s particular. in and children quest objecting inappropri to an relief when ¶ Appellant complains of what he also request As did not an ate action. counsel gratuitous a remark made counsel. terms which would have cured the admonishment had discussing interviews Bonner When provide cannot relief. Cheatham we authorities, prosecutor asked wheth- the (Okl.Cr.1995). P.2d 423-24 they investigating homi- er she knew were objection, court When a trial sustains not replied did know witness cide. Arnold v. most error-is cured. first; first told her were (Okl.Cr.1990). 1145, 1150 one was. P.2d This crime, the investigating then told her crime ¶ complains because Appellant also response, prosecutor the was homicide. prosecutor put a frame failed to time “Okay, you mention that said Because didn’t Ap- vague questions. question and asked very You were told in that first on direct. instance, pellant each fails to mention interrupted by defense and was interview —” response objections, counsel’s to defense objection. being After told counsel’s rephrased cure question was the error. prosecutor questions,” “stick court to Error, Appel- any, if could not harmed format. question-and-answer continued lant’s case. During the information questioning, gratu- of the constituted the content complains prose- which also from the witness. remark was elicited assuming itous facts questions cutor while asked Accordingly, apprised question Again, not evidence. Error, in the correct format. objection information clarify and the rephrased after any, was harmless. cured; or the witness did error was question, and it was re- understand in Appel- 108 The same result is found question of a phrased. The same is true prosecutor improperly complaints the lant’s Appellant alleges was a misstatement questions questions. Even if the phrased facts; alleges served question first, improperly phrased at record; and a interject information into the ques- as a result received information on the question Appellant alleges based complain. tions of which does assumption in the rec- facts were contained Appellant complains prosecutor ord. repetitious questioning, in his and criti- allegation makes an way she answered cized witness court or prosecutor argued with trial prosecutor is true. The questions. This counsel when made about defense questioning because the remarks repetitious in his objection. Appellant ing objection. with faced an lists no a valid is the equivalent This examples, admonishment, a specific making instead blanket of an and cures the error. transcript. page reference to numbers prosecu- next claims the Assuming proper this constitutes a citation to tor read from a not document admitted into record, pages we have examined the cited transcript evidence. on Based citation jury and find that either the was ordered provided by Appellant, we are unable to disregard prosecutor or the comments Appellant. make the same inference as We respond objection. trying was We allegation see no factual basis for the here. no find error. claims that the total ef- ¶ 114 Appellant specifically lists one ex- improprieties exasperated fect of these both change improper he contends shows cross- judge jury. and the We note that the examination of witness.23 After review- solely court not limit did itself to the com- that, exchange, ing we find if even prosecutor, ments of the but defense coun- exchange any improper, error was general sel as well.25 This comment does cured when the witness said she did not actually show the affected antics question understand the and it was restated. prosecutor alone, of the but to both sides. occasion, prosecu- another On This, in combination with the witness’s recal- tor “making accused defense counsel of citrance, clearly exasperated all parties in- speech.”24 prosecu- do not condone We volved in the trial. The effect of this will be here; nonetheless, tor’s comment ap- it does below, examined when all pear from the record that defense counsel taken into consideration. beginning fact an make unwar- ranted failing comment about authorities’ 4. record an interview conducted with prosecutor’s prosecu- Bonner. While the next remark was claims the impact it tor improprieties was invited error. The did limit his to Bonner. error would have been small. He claims he also mistreated three other immediately prosecutor court corrected the defense witnesses. the cross-examination merely and stated defense counsel Schley,26 mak- of Donna it light came to that some "Now, Wintory: Slaughter sorry. 23. if Jim talking Williams: "Which interview are we —I'm If Wuertz had been murdered on an about?” evening Slaughter duty, when Jim Wintory: on day just "The same I asked this wit- alibi, apparently duty an ironclad he was ness, on Judge.” coworkers, right?” Williams: "There was more than one interview Bonner: "Yes.” and one was recorded and for reason I don't Wintory: you "If hadn’t been there with Amanda know—” off, day and Alise on he would have had no Wintory: "Judge, speech.” making a he’s alibi, right?” just just stating Court: "Wait a minute. He’s “Object question, Williams: to the form of that interview, objection. identify Let’s which Your Honor.” first second.” "Well, if Court: she can answer. She does not question have to answer a she can’t answer." point 25. At one the court stated: “I to tell want Bonner: "I don’t know.” getting absolutely both sides that the sick Wintory: you, "Thank Your Honor.” Now, go you of this total business. ahead and say Court: "Overruled. You don’t have to thank your question simplify questions. reask counsel, you, just special let be. it This is Stop questions up these convoluted that take two outfit, privilege just making ruling. I’m An- your or three sentences. Go ahead ask question you you?” swer can. Can (9-19 88). question.” Tr. Bonner: "He’ll to restate it.” following 24. The Schley occurred: manager large was an assistant true, fact, Wintory: department Topeka, Ap- you discount store in where "Isn’t told the investigators pellant bought July -you daughter claimed he wrist- 3rd none didn’t that— any copies pulled tell them She this. You told watch. testified of cash them phone register tapes requested by calls—” She authorities. Court: "Wait minute. You asked her—” was called as a defense witness defense in Wintory: attempt sorry.” investigation Appel- "Sure. I’m to show the any Court: "You sloppy. didn’t tell them of this.” lant’s case was attempted to exactly allude inadmissi- questions, did not of affidavit portions her ble evidence. pros- testimony. noting, so the match her In “Well, taMng your look ecutor said Concerning allegations affidavit, and, then, golly, Mr. your

words repetitious, agree. prosecutor was we the couple things that managed find a of Coyle by Appellant examples the cited about; The right?” is that you’re not sure Bevel, testimony by captain Tom dealt with objection as “editorials.” question drew an Department, City Police in the OHahoma guilty are The commented “both sides court expert is an in crime scene reconstruc- who prosecutor it,” to use of then directed the testimony, the of the tions. Given nature the cross-examining gollies.” more While “[n]o although present, was not error repetition, McNish,27 prosecutor her the asked Vanessa present. from issues and did not detract the Appellant had told that if both Bonner and prosecutor attempted re- appears It the jury they together all when grand the phrase questions to the certain make certain line, they through her “would went check-out testimony given probative its was maximum question telling the truth?” be value. objection. During cross-exami- drew an the the complains also counsel Kissinger,28 nation of Leslie defense prosecutor attempted to allude inadmissi- objected when the- on different occasions: in-camera hearing In be- ble evidence. an expect- be proseeutor asked her if she would testified, por- judge Bevel excluded fore important ed to remember “other details” prosecution of luminol29 evidence the tions an removed vari- evening she and associate hoped present. Feeling that admit- safe; if she knew that her ous items from the not would ting portion of evidence of items removed associate had said list effective, prosecution elected not prepared, fact and later asked her was in gave theory it. present any of Bevel plainer” if she knew a list exist- “even more occurred, and the order in which the murders ed; if it was her asked the witness appeared paralyzed testified it opinion guns and knives the associate took hallway into bed- from the her dragged property from the safe. from the retrieved room, During exami- she was killed. where many the court Again, in instances told Bevel, attempted to prosecutor nation question, rephrase the which prosecutor to “Now, so we clarify point saying: when are more than Other instances did. you based upon which say evidence cross-examination, is within aggressive which interrupted by court your but—” by this Court. the limits tolerated go any After a brief he could further. before conference, judge said he was bench

5. anything prosecutor saying the had done just wrong, wanted to be careful. but prosecu- next claims pre- that no inadmissible evidence Given improperly during exami- tor his direct acted jury, find no error. we sented prosecution He claims witnesses. nation complains repetitious during prosecutor FBI repetitive questions of testimony, leading prosecutor asked presentation of asked hearing 29.Testimony during an in camera a cashier at the main check-out McNish was 27. department large capable is discount store which line of showed luminol a chemical Topeka. sprayed She had told authorities she recalled detecting of blood. When minute traces coming daughters and the two Nicki Bonner light, glows the luminol if on an item dim line, distinctly through her but remembered has held evidence present. This Court blood closing argu- them. was no man with there testing is admissible. Robedeaux of luminol ment, jurors Coyle told he called the Mr. (Okl.Cr.1993), ni de cert. judge her demeanor and witness so could ed, L.Ed.2d S.Ct. 513 U.S. her truthfulness. determine (1994). although Consequently, admissible 57 evidence, did allow evidence the trial court Kissinger, attorney and distant cousin of Error, any, testing Appellant's car. luminol Bonner, things testified as to removed from Appel admitting was to in not such Appel- Slaughter's after Guthrie house safe lant’s benefit. arrest. lant’s However, State, Agent objection agree an was Gomez. We this is error. Omalza v. 911 (Okl.Cr.1995). sustained, repetitive and no answers were P.2d 309 it is Below, given. find no We error here. invited error. this will Court assess probable prosecutor’s response the effect the ¶ prosecutor 123 The also asked one wit- jury’s ability judge had the to evi- the ness had worked with who Cecilia Johnson fairly, taMng dence in context both the re- thought whether the witness was Johnson mark and counsel’s defense conduct. capable killing baby the an- Jessica. No given objection swer ¶ after the was sus- Appellant 126 to also refers the end of Consequently, tained. we no find error. Wintory’s argument, Mr. where he urged the

jury up say, to you may “stand and have 6. thought you gotten away could have with this, you’re wrong. but guilty. You’re 124 lists other exam guilty. You’re Let record reflect he’s ples of he improprieties. what considers He head, grinning shaking and he’s his but he’s complains prosecutor, first that in his 169). (10-5 guilty.” Tr. con There was no closing argument, first improper made temporaneous comment; objection to this exercising right to a reference witness’s her therefore, it is for plain, waived all but re During to remain silent. closing the first versible error. There is no error in the first argument, Mr. Lane stated “of course portion quoted. of the statement tak When Slaughter Nieki didn’t volunteer that infor prosecutor en context the telling was not July mation either on 6th when she met jury thought Appellant he guilty; police Edmond officers at Edmond.” This rather, was responding to comment distinguished right Court has of a defen made in closing argum defense counsel dant to remain silent from the assertion of ent.31 The same cannot be said for the last right as applied person. a third sentence, where he asked the record to re State, (Okl.Cr. v. Jones 985-86 flect grinning shaking and 1986) (citing State, v. Sands 542 209 P.2d head, Here, guilty.” “but he’s oc error (Okl.Cr.1975); State, Glover P.2d interpret asking curred. We cannot this as (Okl.Cr.1975); Walker v. P.2d guilty. to find See Omal (Okl.Cr.1976); Black v. P.2d za, at 309. The P.2d effect this (Okl.Cr.1983)). doing, we so have noted reversible, and it plain whether and will be right that “the to remain a personal silent is discussed below. privilege vicariously which does extend pretrial persons.” silence of third Id. 7. Accordingly, we find error here. 125 He prosecutor next claims the prosecu- next claims the telling

erred in he had evi- improper other tor made concerning Ap- remarks presented.30 dence which have could been pellant’s proof. burden of questioning While Specifically, Wintory Mr. position said: family of someone who's a you you Or want do to hear all it? justice And all member that wants see done. we If you you saying— didn't know what were they’re talking wanted to avoid all the stuff said— said, oh, you yeah, we turn, want to hear all. it about, gosh, just anybody loose no matter Bring give you you on. we it And didn’t—we still didn’t evidence, what the but there is more to it than know, you got all the evidence — did, you’re going that. So if what to do I proper admissible and for the Court— you yourself ask to do for me. Put in a that the Court determined— position somebody justice who to see wants (10-5 159). Tr. After court overruled the done, case, justice somebody done in this mistrial, prosecutor proceeded motion up going every stand like I'm each ask subject. to another do, yourself, you one of all to at least to stand prosecutor 31. The noted that defense counsel say, up you may thought you have could jurors put Williams had asked the themselves this, gotten away you’re wrong. but position of someone who had a one loved guilty. guilty. You’re You’re Let the record prosecutor right, on trial. The noted all head, grinning shaking reflect he’s he’s but added: guilty. but he’s hope you I won’t think it unfair me to ask you just opposite put yourself to take for a new be modified or remanded Bevel, fence Wintory asked if would Mr. Capt. sentencing proceeding. independent possible to obtain have been Defense of the evidence.32 testing some alleges prosecu 129 He first im claiming question objected, counsel jury they part tor tried to convince to prove plied burden a defendant chain, when he of the law enforcement not decide whether something. We need investigat jury on behalf of the thanked the as to an question constituted inference officers, himself, and dozens of ing “dozens here, proof because of burden defendant’s that and law enforcement folks both civilian were, comment on we have held even for this case several have been involved permissible. to evidence access defendant’s holding whether the com years.” Without State, 1186, P.2d 1201-02 v. 884 See Mitchell the court sustained ment was we find denied, 827, (Okl.Cr.1994), 116 516 cert. U.S. objection and admonished counsel’s defense (comments 50 133 L.Ed.2d S.Ct. comment, thereby the jury disregard the to argument that defendant during closing may have occurred. curing any error which spatter his blood subpoenaed own could have 531-32; Smith, Gregg, 844 P.2d 932 P.2d at During error here. experts). find no We 881; Keeling, at 1303. 810 P.2d witness, de of the same reeross-examination prosecu- next accuses the Appellant “how—under the Consti counsel asked fense “planning” of the murders equating tor of the to going how I’m of the States tution United light In of aggravating to circumstance. an droplets,” at which time two blood test these no error. Mr. exchange, the entire we find interjected prosecutor “We concede the you “if find the Lane told the (8-31 136). The Tr. We concede—” cannot. circumstances, planning the aggravating was out of order prosecutor court told Wuertz, outweighs kill and Jessica disregard the jury to and admonished the by interrupted an mitigating and was —” circumstances, we Under these outburst. objection “planning to MU”was not any effect not have had any find error would 110). (10-6 & 7 Tr. aggravating circumstance First, prosecutor con upon jury. “Creating a response, prosecutor said counsel; point being by made defense ceded I made it clear —” risk death. If haven’t of therefore, prejudice cannot show court, interrupted by the who told He was clearly him. which Sec on an issue benefits language.” We find er- him to “use ond, jury to disre court admonished ror, fact especially light outburst, any error curing thus gard the argument showing how the to make an fails State, may occurred. Smith prejudiced which him. remark (OM.Cr.1996), cert. de P.2d 531-32 assigns next as error - nied, -, S.Ct. U.S. following comment: (1997); Gregg v. L.Ed.2d 1023 other testimony of the Defendant’s The (Okl.Cr.1992); Keeling v. 867, 881 P.2d ones who face daughters, they’re not the 1303 (Okl.Cr.1991).33 You must punishment what did. for know, irony of I the horrible

appreciate, yet more fe- testimony. He finds their B. spare him poke out front use males to Ap- mitigat- proposition, consequences of conduct. In his nineteenth see, if you it doesn’t ing circumstances alleges improper remarks pellant cold, three run he has your blood sen- make stage trial mandate his second Lane, the occult and made references to who Specifically, "Are these still avail- he asked: priest subpoena power guaran- high any party to "screams” able if teed pendent testing made references inde- by wanted to obtain the Constitution are drinking comments blood. These things kinds of that Mr. for the review, appellate as were not waived done, you Coyle asking to be the kinds about examples prosecutorial miscon- included 127). (8-31 Tr. of tests—” 3.5(A)(5), See Rule in his brief-in-chief. duct Appeals, 22 O.S. Criminal Rules the Court complained Coyle argument, Mr. 33. At oral Ch.18, App. Supp.1996, closing argument Mr. made in of statements much, daughters very care for him complaint who 133 For final prop- very Right. osition, much. who love him He following contends the four, all of whom could have cared him. comments were error: He was remorseless. He was without nothing, bring You can do nothing them mercy. He is without remorse now. At back. You do nothing True. can to ease smirk, my closing argument the cold- pain that his conduct on the inflicted blooded, you pitiful poor gave fool look he family. other members of his There are me, mercy. he is without nephews nieces belong to Wes court, objected. The with- Defense counsel going grow up, though. Wuertz that are sustaining overruling objec- out either going There are lives that are lived tion, argument “it’s stated out people these folks. are There supposed one who are to evaluate. It comes you’ve never met. You saw some them close, (10-6 go Let’s & counsel. ahead.” you’ve from the VA. There people are nev- 123-24). Tr. the Appellant claims reference er met and never will meet to whom Melo- daughters improper, “use” his is but dy and Jessica’s fives have meant some- gives authority no reasons nor cites thing something and would have meant support any Clearly, his statement. defen- more. The conduct goes outward like the present dant is family entitled to members to ripples stream, in a as does an act of present However, mitigating evidence. evi- mercy, stream, an so does act a as does at dence trial tended to show used justice, act thing because one that’s advantage. Consequently, females to his the you give can Wes Wuertz’ children when interpreted “use” comment could be as a happened want to show that to their comment on the evidence. Aunt and their Cousin Jessica. ¶ concerning 132 The comment the look give justice. You can give them You can Appellant’s on during closing arguments face justice. you them while are Because is another The matter. State cites Smith v. pick up vengeance, you pick entitled can State, 1366, (Okl.Cr.1986), 727 P.2d 1373-74 justice. up pick up justice You can and denied, 1033, 107 3277, cert. 483 U.S. S.Ct. 97 you power have the it. You can- wield support L.Ed.2d of its conten you give not take cannot back to back — tion proper a defendant’s lack of remorse a people these portion of their lives subject during for comment closing argu surely which he cut from them as as he cut Smith, however, ment. the defendant Melody’s life from her shot Jessica’s testified, thereby took the stand and allowing her, you fife from but can tell them that judge jury part to observe him as while— presenting. he was evidence Id. at 1374. (10-6 124-25). & here, & Tr. Defense counsel Such is not the case where objected Likewise, improper to the comments as “an testify. did not v. Roberts argument of (Okl.Cr.1994), denied, what to tell them.” We shall cert. portion preserved address that which was U.S. 115 S.Ct. 130 L.Ed.2d 96 (1994), objection jury below. observing appellant during videotaped properly interview ad ¶ 134 portion. There is no error toas too, Appellant, mitted into evidence. prosecutor Before the could advise the videotaped; interviewed and the interview anyone, what “tell” his remarks were cut however, his demeanor at that time was not complete' off and thought. he did not prompted prosecu what comment by nothing There therefore which went circumstances, tor here. these Under sub jury. jective prosecutor observation as ¶ something not in 135 The evidence error.34 The remainder the comments are will effect this error addressed below. therefore addressed insofar as closing guilty.” 34. must at It be said that the end of his he did not ask trial court argument stage, Wintory record, in the first Mr. did part to make the observation a make a "Let comment: the record reflect he’s trial court did not do so. head, grinning shaking and he's but he’s during Appellant’s on face cerning find look error. We plain, reversible would be context, closing arguments. comments Taken none here. presented

fairly evidence which reflect phase penalty prosecution

by the C. of the trial. argument bases errors, that, the fact but for these

VI. his alibi defense and would have believed We guilty. him not shall examine found ANALYSIS HARMLESS ERROR evidence, prosecu- compare with the first in his Appellant contends against him. tion’s there can be proposition of error that in this case. harmless error above, noted NicM Bonner testi- As

A. family July 2. All fied awoke on four that the car, blue-gray Dodge There is no blanket rule deal be harm They trial errors can went to a local restau- ing with whether Shadow. first in Bartell P.2d approximately rant This Court late breakfast less. (Okl.Cr.1994), held that structural at the restaurant did 98-99 noon. waitress Bonner, the testify affects NicM error of constitutional dimensions at trial. She did recall proceeds, the trial of a framework within which as she resembled the mother friend. in error the trial a with trial error She also stated man was Bonner and while however, such, trial process girls; itself. As a error —consti the she was unable identi- subject Furthermore, to harmless- fy Appellant otherwise —is as that man. tutional or case, analysis lineup of this analysis. photographic In our the error when shown same in boys found no structural constitutional the Edmond identified we have from which any pick Appel- found is sub Accordingly, Appellant, error was unable to out errors. ject analysis. present shall in to a harmless error We lant man who was her the as Additionally, day. in this trial and examine the errors she stated therefore restaurant table; present present compare against them the evidence for all at the Bonner ordered ed, the evi being mindful that “the weaker in his statement to authorities said defendant, the likely less her own meal. against person a the each ordered dence Simpson sitting be harmless.” the man with error She also did recall hairline; (Okl.Cr.1994). Ap- family receding having P.2d the as a receding hairline.

pellant has a B. ¶ following the 141 Bonner testified meal, family nearby to a lake. No the drove ¶ stage, 138 In the first we found presented to contradict this. evidence was (1) allowing erred these errors: court family then drove con 142 She testified present irrelevant evidence the state to (2) stop Tope- Bonner; nearby Topeka. Their first cerning Nicki debts of large a Hyper-Mart, ka discount de- miscon at following prosecutorial instances there, got (a) partment they Bon- main store. When prosecutor accused the duct: (b) perjury; department, ner one while committing went to witness of defense They to another. daughters and his went prosecutor defense counsel accused (c) approximately 30 minutes after ar- prosecutor reunited speech”; erred “maMng a so, they did Amanda showed riving. When telling he had other evidence (d) purchased for presented; Bonner a watch which could have been They had other jewelry her counter. closing argument: “Let at commented they purchase, they so went grinning and he’s items wanted reflect he’s the record register. A re- head, through main check-out guilty.” In the shaking his but he’s ceipt a check-out argu register from that shows closing stage, we found error second p.m. con- time of 4:16 prosecutor commented ment when the jewelry parties at stipula- 143 The saleswoman re- 146 Both into a entered Appellant purchased quarters tion that the distance between the

called that watch however, Riley at Ft. daughter; she was unable to Wuertz home Edmond (4) miles; hours, is 282.7 it takes receipt four twen- recall the date.35 There was no (23) ty-three minutes to drive that purchase.36 route. The checker at the main The from the distance Wuertz home Dil- register seeing recalled testified she Bonner miles; Topeka lard’s in is 283 four girls through takes and two come her checkout (4) hours, (24) twenty-four minutes to drive line. She did not see a man them. She that distance. The distance from Dillard’s to seeing would have remembered man had Appellant’s quarters Riley at Ft. is 64.5 accompanied girls. one the woman and the (4) miles; hour, it takes one four minutes ¶ 144 Bonner that after leaving testified driving to drive it. All times were conserva- store, they nearby discount drove speed tive limits. estimates at lawful they gaso- station where filled the car with there, family mall, From went to line. they approximately where arrived at 4:30. ¶ 147 prosecution’s evidence showed they She testified first went to Dillard’s. approxi- the victims were at murdered There, bought a T-shirt. The re- mately July noon on boys 1991. Two ceipt purchase for that shows it was made at walking to passed the downtown area a car there, p.m. family 5:14 From went to sitting approximately which was one block stores, pic- various then attended motion approximately from the Wuertz residence over, picture ture. After the motion p.m. boys, 12:30 Jeremy One Cavi- Riley. returned to Ft. Bonner testified ness, wandered a short distance from the approxi- arrived back at the base at so, others. When did he walked close to mately p.m. 10:30 passed car, the car. As he he noticed Bonner, Appellant’s startled, 145 Amanda older in it. someone was Caviness was daughter, family anyone testified expect went to the he did not in to be the car. Hyper-Mart Topeka, Appellant in where The inman the car also looked startled and bought put Caviness, her a watch. She the watch on looked giving at him a “what-are- right purchased. it was after She did not you-doing-get-away-from-me” kind of look. date; recall the but remembered that the The man had been bent forward car awakened, morning appeared next when she her father seat and to be fidgeting with some- gone; she, was thing; and her sister and their Caviness recalled it was almost'as mother to building, reading book, were taken another the man except were a disappeared where her mother for a moving. while. shoulders were Caviness identified Photographs July were taken on in Appellant photograph lineup a as the man family attempted they as to dress been saw in grayish had he the car. The a car was July photograph, on 2. In that Amanda was color in with some blue it. Caviness did not wearing was; however, a watch. know what kind of car it he sales; however, Riley owing 35. Bonner and the arrived at problems children Ft. to sales clerks They Appellant's stayed quarters on June 30. in experienced scanning had with device at that they while were there. Bonner and Elise drove time, it was not uncommon for the sales clerk to Slaughter back to residence in Guthrie on number, punch partial along ain UPC with the July premis- to allow authorities to search the tendered, price, given. change amount This stayed Riley Appellant. es. Amanda Ft. in with partial might identify product, UPC number Riley day. Bonner returned to Ft. the next The provide any specific but would not information. days, family attempted next few various members receipt indicating Such a was found the sale of a steps Appel- to retrace their secure to witnesses. July p.m. Timex watch at 3:26 The clerk processed Riley facility, lant was out of the Ft. testify purchase was unable to was the one family and the whole returned to Oklahoma on made; Appellant the best do she could was to July 11. testify tape the transaction shown on the store Appel- was consistent the sale made to 36. Authorities had returned the store much tape produced lant. That from the was not attempted store tape later and obtain the for that trial; register. partially at it had They been lost. were successful. The system register scanning store used a UPC why put- could not understand State was photographic ear in a identified this, ting through him there was worse he lineup the ear saw. as undergoing, was punishment than what he Murphy, was boy, Aaron 148 A second day had having every to live with what he day. He saw Caviness with Caviness shooting baby Appellant said done. car, ear saw a man in the approach the thing for him to handle. the worst had up, if startled. The man been look as Appellant said he did not feel he could also in man’s ac- leaning the seat. The forward the cali- be convicted for the crime because as well. appeared to startle Caviness tions weapon ber of the was untraceable. too, Appellant the man as Murphy, identified initially he Although in the ear. had he saw found, Melody’s body When Nissan, Murphy also the car as described symbols there were carved her flesh. he Appellant’s car as the car saw. identified tending to prosecution introduced evidence car, it specifically recalled because He symbols equivalents were crude show the cover on Appellant’s, had a beaded seat like symbols taken from found occult books the driver’s side. Appellant discussed witch- Appellant. had trial, jail pending Appel- 149 While told co-work- craft with He one co-workers. inmate, Stoltz, Donald one of the lant told an break-up lover had er that with a former Nissan, boys identified his car as but accept. been difficult him He Dodge; implied this weakened the he mentioned that did not want become against case him. prosecution’s witchcraft, but he was find- re-involved with boys got good look one also said ing it lure. sta- difficult resist its While him; and if he had had his window rolled at Riley, Appellant had tattoos tioned Ft. boy to rec- up, that wouldn’t been able by a what their made. When asked friend him, slightly the windows were ognize was, symbols significance said tinted. When the inmate asked He later said of Satan and the brotherhood. why at the could not the waitress restaurant power. Appellant also collect- gave him him, Appellant replied “It was obvi- identify showed he two ed knives. Evidence ordered ously guy.” another Day 1991. One knife knives after Father’s inmate, Hull, Another Dennis testi- not find particular authorities could —which study stayed after a anywhere fied Bible dimen- after the murders —had forgive me upset. Appellant exactly said “God matched dimensions sions which I Hull body. what did.” When asked Melody’s found stab wounds it, Appellant why said a “demon told he did ¶ scene, At the murder authorities Appellant explained Melo- me to it.” do pieces found of evidence which tend- various threatening marriage, dy to ruin his was was African-American, including point ed to to an money, for more and was pressuring him Negroid were later hairs. The hairs deter- everything. threatening to tell his wife about patient come from a who mined have $2,000 given her for a down He said he had hospital in in the ward where Cecilia the VA house, and had on the Edmond payment Ft. Appellant while was at Johnson worked pres- appliances; she was given her new but package to Riley. Johnson mailed a Cecilia suring money. Appellant also him for more a murders Appellant short time before the he with either told Hull had shot victims received, package were committed. The (Hull a .25 caliber could not remem- a .22 or quarters. placed in and was which); Melody he in and that had shot ber Furthermore, July 3 inter- when asked spinal paralyze her. cord any who could have views if he had idea ¶ inmate, Hunter, Lloyd A tes- third murders, Appellant suggested committed the meeting prayer after tified that one man; subject been it no such had was a black depressed. jail, Appellant looked he noticed Appellant by authorities before broached nothing he Appellant told there was Hunter it. mentioned forgiven, to which had that could not be done authorities found They Also at the scene Appellant replied, “even murder?” cosmetically more, single he which had been Appellant said hair talked some immediately companies, imported treated so much was not rec- each of which once (earliest year ognized being April as human. The hair was later and latest 1990). with November determined to be consistent head hair of there were five (one shipments to four imported vendors working a woman who was at twice) February between and December Riley. Ft. The woman admitted Eley manufactures other be- bullets applied many so different treatments to her caliber, production .22 vary sides but its will badly damaged hair that it was and brittle. upon depending demand. Production at the Jessica, Melody The woman did know company usually small consists between had, and had never been to Oklahoma. She 300,000 200,000 and at a time. bullets The however, night worked with production of total subsonic .22 bul- caliber before the The worked murders. two on the approximately per lets was million rounds 6½ ward, both used the same same common 275,000 year, approximately of which were areas, including the same restroom. Based exported Appel- the United States. When evidence, Appellant only per- on this gun July lant’s safe was on searched son agent who could have been the transfer .22 authorities found several boxes of caliber Riley that hair between Ft. and the ammunition. Included that ammunition Wuertz home in Edmond. Eley point box hollow .22 subsonic told while co-worker long-rifle caliber bullets. The box contained was still VA hospital at that he was 13 rounds ammunition. by Melody’s irritated attempts get more Eley buys lead blocks from a money from him after Jessica was bom. He lead manufacturer. The lead melted down undergone years said he had a divorce earli- during manufacturing process. Lead is er, nearly everything. and had lost im- He year, ordered at different times plied prepared go he was not through such depending necessary what is a particu- procedure again. He pres- said production lar batch. toDue the fact that sured him could “take aout contract” on processed the lead itself is mined and at her. The witness this to understood mean he times, different it will contain different would her killed. told one co- impurities. amounts of trace impuri- These enjoyed military worker that he had ser- shipment shipment, ties can differ from so Vietnam, vice in enjoyed killing he had as long acceptable are within limits knife, using and mutilation which he said imposed by the A manufacturer. test for the was “better than sex.” percentage and amount of trace elements slugs 156 Firearm were recovered found, slugs was conducted of the and sam- Testing slugs scene. revealed to be ples Eley taken from the ammunition found .22 long-rifle testing caliber bullets. After in Appellant’s gun analyzed. safe were also comparison, firearms experts determined agent FBI who conducted the test testi- by Eley, bullets used were made a Brit- pieces fied that all tested were so close on ish manufacturer. The bullets were some- composition distinguish that he could specialized, what bul- subsonic among samples. those said He all had the (did lets not break the sound barrier when copper, same trace amounts antimony, of bis- fired, and were therefore quieter). At the muth and silver and lack of arsenic. There- murders, surrounding particu- time the that fore, samples all were consistent with coming lar brand bullets was in not sold Okla- larger out of original piece. They the same homa; they a special would be In order. differences, no had they so that’s where 1990, 5,500 Eley boxes subsonic ammuni- originated. could have He testified if imported tion were into the United States. the bullets had been manufactured at differ- This accounted for 0.0125% all the ammu- times, ent he expect composition would not to nition in year. sold the United States that be the same. He added that the bullets 1991, Eley In dropped shipment its into the analyzed were made at different times in 5,100 United States to batches, boxes. That account- expect different he would to see ed for 0.0116% of the ammunition in quantitative sold the measurable in difference the country 1990, Eley in 1991. In analyzed. sold to five amounts of trace elements above,

¶ military at Ft. find when combined with policeman the A former night July the Riley that on the of defense counsel which invited testified conduct parking requested go errors, to he not have affected the out- could Ap- in quarters which which serviced lot further find that the come of trial. We to staying. He was asked look pellant was cumulative effect these errors would plates. license with Oklahoma vehicle changed the outcome of trial. a search of the colleague He conducted At p.m. midnight. lot between 11 b. time, car be- such vehicle was the no Bonner. There were longing Nicki ¶ Also harmless the second parking lot with Oklahoma other cars stage prosecutor when the commented tags. away men were called at two Appellant’s during look face that the on investigate anoth- approximately midnight closing argument him to showed cold They approximately at er matter. returned person. There was other evidence blooded morning, The next 2 a.m. to watch car. tending to show exhibited emo park- they Appellant’s ear in the discovered tion at the death the victims. witness One They had not another ing lot. conducted that, Appellant’s response com testified lot returned parking search of the when plaint police were focused on him a.m., approximately because did not police investigation, she could said any activity transpired in the lot. think had deaths, ignore baby as a had been great ear had a deal of trash While Bonner’s prompted Appellant respond killed. This it, appeared very Appellant’s car clean “well, there were of babies killed thousands inside. Vietnam, big it was no deal. All of a (7-26 baby big is a deal.” sudden one 3.a. 89-90). Tr. Another commented that witness this, that, appears although 159 From about ba talked without emotion strong p.m., after he Appellant had a alibi He being up cut told anoth bies Vietnam. that time. had no such alibi before At power killing got witness from er he restaurant, specifically recalled the waitress babies. Another witness testified when seeing Nicki Bonner. She recalled expressed she condolences man, identify she could not but deaths, just kind of smiled and ex Hyper-Mart, jew- she At the man saw. pressed no emotion. She testified seemed elry Appellant’s buying a little clerk recalled by the more concerned about retaliation watch, recall the date of girl a but could not family Wuertz than the deaths. purchase. receipt specifically No identi- fying purchase particular watch of the Additionally, Appellant told at least Furthermore, had could be found. Amanda (failed) at- witness Johnson’s first one after register spe- the main the checkout clerk at tempt that his comment to commit suicide seeing and her cifically recalled Bonner you, “might but I wish she sound vicious specifically daughters, but also recalled there completed job.” He if she had said man was no with them. succeeded, might have taken the focus light strategic flaws off of him. defense, relatively and the alibi circumstantial evidence set forth strong on this other evidence show- 163 Based above, the error we have determined ing Appellant appeared cold-blooded and dis- complaining of the introduction listed above the passionate, see reversible error in we no against improper Nicki Bonner of evidence dining closing argu- prosecutor’s comment of could not have affected the outcome the ment. improper The same is true of the trial. first Accordingly, Appellant’s and which were not invited error. comments are twenty-third propositions of error with- Concerning improper the the conduct the of we out merit. prosecutor in form invited

VII. VIII. CONCLUSION MANDATORY SENTENCE REVIEW Accordingly, judgments the and required by 165 This Court is sentences of the district court AF- are 701.13(C) O.S.1991, § to determine whether FIRMED. (1) imposed the sentence of death was under CHAPEL, V.P.J., P.J., STRUBHAR, and passion, prejudice any or the influence of J., LANE, concur in results. (2) factor, arbitrary other whether the supports jury’s finding aggra- evidence the of JOHNSON, J., recuse. vating circumstances as in 21 enumerated CHAPEL, Presiding Judge, concurs in O.S.1991, Melody § 701.12. In murder of result: (1)

Wuertz, jury murder found ¶ 1 agree I that Slaughter’s convictions heinous, atrocious, cruel; especially or of sentences death should be affirmed. I knowingly great defendant created separately briefly write address three person. risk of death to more than one First, points. I agree while that the Okla- Wuertz, jury the murder of Jessica found penalty homa death statutes are constitution- great the defendant created a risk death al, join I majority’s do in the rationale person. judge more than one The trial Second, opinion. therefor as stated in this report following also listed the non-statu- opinion thirty pages devotes almost to a tory aggravating circumstances: the mur- prosecutorial discussion misconduct. I be- ders were committed while Wuertz opinion lieve this long, too and this is attempting support to obtain child among the sections that could cut. This Jessica; hard-fought planned outstanding case with pre- murders were at- torneys on both sides. On occasion each side meditated; the defendant murdered his own may but, reviewing have crossed the line all brain; by shooting daughter her in the twice allegations, I find there is no reversible symbol the defendant mutilated and carved a error. girlfriend. on his former was in- ¶ 2 Finally, disagree I majority’s with the following structed on the mitigating circum- hearsay testimony decision that Cyn- some daughters stances: he had three who care thia Johnson was admissible as an excited him; long he career as a nurse and telephone utterance. I her believe conversa- patients competently; served his he served tion appropriately with the OSBI was admit- military; vet; awas Vietnam utterance, ted as excited but that her prisoner county jail; was model while subsequent conversation with her friend was convictions; prior felony he had no he had not made while Johnson was under the stress history acts; prior violent he had skills of excitement. the evidence was and talents which would be utilized for bene- admissible, relevant and otherwise and John- population.37 fit of inmate certainly son was unavailable as witness. record, reviewing After I believe these statutory find that aggra- We these statements were admissible under 12 O.S. circumstances, vating coupled all the 2804(B). 1991, § trial, stages evidence from both sufficient- ¶3 I am Judge authorized to state that ly outweigh mitigating present- evidence joins Lane in this vote. by Appellant ed at trial. examined We above, errors contained in trial and find imposed sentence of death was not under passion, any prejudice influence arbitrary

other factor. factor, Although mitigating you is not we give then determine whether or not should note that the was instructed could use any weight to such factor under all first-stage relevant instructions in the second you have heard in both the first and second discretion, "may, stage, your but each consid- (IXO.R. 1655). stages.” your sympathy er as a factor in deliberations and

Case Details

Case Name: Slaughter v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Dec 17, 1997

Citation: 950 P.2d 839

Docket Number: F-94-1312

Court Abbreviation: Okla. Crim. App.