*1 prosecutor may The make sperm hair. with no present. reasonable identifiable There- inferences from the evidence adduced at fore we appel- are unable to find that the State, 646 P.2d trial. Faulkner v. 1304 lant prejudiced by was the failure of the The could have de- prosecutor obey discovery order. from duced the evidence the hairs Finding prejudice, no assignment belonged appellant, and so this as- error is meritless. Agurs, United States v. signment of error has merit. 97, 2392, 427 U.S. 96 S.Ct. L.Ed.2d (1976). assignment
In his last of error the appellant states after the trial was judgment The AF- sentence is over, pros defense counsel learned that the FIRMED. comply fully appellant’s did not with ecutor discovery granted by motion as the trial BRETT, P.J., PARKS, J., appellant requested court. The concur. any physician who agree name would appellant’s defense a man who vasectomy possibly has had a cannot emit trial,
sperm. During the evidence had been
presented that seminal fluid was found on victim, vaginal swab of but no However,
sperm was found. a bath towel appellant’s was found in
which home sperm (Tr. 922). had one on it. appel SMITH, Phillip Appellant, Dewitt sperm lant contended that because a found, and he sperm, was unable emit someone else had been in his Oklahoma, Appellee. STATE of house. attached an affidavit to No. F-84-506. Petition In his Error from Dr. Bill Crowell who stated that he contacted on Appeals Court of Criminal of Oklahoma. 4, by November who 19, May 1987. inquired if a man who had had a vasectomy ejaculate Rehearing could still Denied sperm. Dr. June Crowell vasectomy him that if properly told
done, way there would not that a man ejaculate sperm. gave
could He then
prosecutor a local physician name of
contact for the of a vasectomy effect system. reproductive
the male appel prosecu
lant claims that the failure provide
tor Dr. Crowell’s name to the
appellant holding was a violation
Brady Maryland, 373 U.S. 83 S.Ct. (1963) suppres L.Ed.2d 215 exculpatory
sion the State of is specifically requested a defend process.
ant violates due appellant’s
trial, presented evidence that a vasec
tomy performed had been on the years prior
five to the trial. Dr. David
Trent testified for the that when done, vasectomy a man cannot
pass sperm body. outside of his He fur
ther testified tests on the
showed that sperm negative, his count was
him within prior a hammer a few hours the crime. made indi- admissions cating he knew when arrested inter- viewed that the victim had been killed with being a hammer. He admitted at the vic- apartment evening tim’s the same time, but homicide. At that Taylor given twenty him dollars to purchase bag marijuana which he nev- er delivered.
Appellant was arrested several months after He the crimes. left Oklahoma fewa Taylor’s days after murder. While await- ing trial, he told a fellow inmate that Taylor robbing had killed when him. *4 had outstanding stated that he criminal Palmer, Deputy Appellate Public Patti charges needed and to leave the State. Defender, Norman, appellant. for Gen., Turpén, Atty. Hugh C. A. Michael I. City, Manning, Atty., Asst. Dist. Oklahoma Appellant makes assign- a number of appellee. for error, ments of one of which is that he was process denied due of law the because OPINION judge presiding over preliminary his hear- ing BUSSEY, attorney was the of the Judge: brother district the representing State. He indicates Phillip by DeWitt Smith was convicted prejudice the resulted in him conflict to Muskogee County jury in District Court of because defense several witnesses were Degree. in the The Murder First mistakenly dismissed before able existence of aggravating found the three testify. contends that this in circumstances accordance with O.S. by employee error was made an of the 1981, 701.12 and recommended that the attorney. district imposed. penalty death be The sentence accordingly Appellate acknowledge counsel fails to was assessed the trial court. any of express the waiver conflict made apartment residents of The a four unit appellant open his counsel in and court complex early were awakened in the morn- beginning preliminary of the to the 4, 1983, ing to sounds hours November hearing. are not why We informed groaning people what sounded like be Willis v. waiver invalid. would It struggling. was not until afternoon (Okl.Cr.1982). The P.2d 873 incident body Taylor the Matthew prejudiced appellant ap- alleged to have apartment. in his been found sav- pears been more to have a misunderstand- agely with what the medical exam- beaten ing wrong, intentional than an autopsied iner who the victim described as consequence. assign- serious without object, which sur- a blunt had both round merit. ment is without squared faces and a surface. The State theorized, indicated, and certain evidence weapon murder was a hammer. II. great photo-
A
deal of
contends that certain
circumstantial evidence
appellant
victim
graphs
includ-
of the
were not
connected
homicide
ing
there was
the
of the individual who
admitted because
insufficient
outweigh
danger
the
apartment
probative
drove Smith
the deceased’s
value
Also,
photographs
Those
approximate
prejudice.
the
time of the murder.
unfair
complains
lending
depict:
vie-
two friends
testified to
which
the
hair;
portraying
head
loss of
two
and “admitted the crime in
tim’s
intricate detail.”
showing
photographs
white
black and
Id. at 943. The trial court allowed into
photographs
victim’s hands which received defensive
color
of the victim’s
wounds;
photo-
body
three black and white
autopsied
nude
which
been
graphs showing extensive wounds to the
grossly sutured. There was no evidentiary
head,
shaved
one of
shows
skull purpose
admitting
in
photographs,
overlying
peeled
skin had been
after the
contrast
those of the
case.
and,
back;
photograph
one
victim’s
photographs
Other than the
in this
pants
indicating
pockets had
body
his
case, there was no direct evidence2 that the
inside-out.
turned
weapon used on
victim
had a rounded
admissible,
photographs
be
their
For
While
surface.
the medical examiner could
proba-
must
relevant and their
content
suggest
probable configuration
of the
outweigh
prejudicial
tive
must
their
value
object
victim,
photo
used to beat
effect. Glidewell
graphs
conclusively
more
demonstrated it.
pictures
fact
photograph
of the bare skull showed
gruesome
pho-
are
does not of itself cause
round hole
it. The evidence was
fact,
tographs to
be inadmissible.
most
in identifying
material
the instrument of
photographs
cases include
homicide
death and the killer.
It
known
express
victim and the death scene which
hammer,
borrowed
which was
grue-
of the attack
nature
found,
never
time
short
before
mur
pertinent
some but
facts of which a
der. The photographs were also material
To
properly informed.1
exclude relevant
in establishing
culprit;
intent
*5
jury’s
only
from a
consideration
case,
aforethought.
this
malice
repulsive
it is
to say
because
would
This Court held in Oxendine:
juries
fairly consider evidence of
cannot
In the case at
there
no
bar
reason
betrayal
be a
of
crimes and this would
our
photo
for the
of the
introduction
colored
jurisprudential system.
pho-
It is not when
no
slides. There was
issue nor contro-
tographs
gruesome
they
are
should be
versy as to the cause of death. The
Rather,
excluded.
it is when their rele-
admitted the crime in intri-
defendants
cate detail. The
secondary
vance
their preju-
has become
photos
possi-
could
O.S.1981,
12
dicial effect.
2403.
bly lend
in the
assistance
determina-
relies on this Court’s hold-
guilt.
tion
It
admit-
of defendant’s
ing
State,
in Oxendine v.
and lifted. The We held Foster v. link- in the chain of circumstantial evidence — (Okl.Cr.1986), denied, cert. U.S. Taylor’s ing Smith to Matthew death. -, 249, 93 L.Ed.2d that it 107 S.Ct. *6 distinguishable from This case is further which not error to introduce bat was was in that did not confess to Oxendine Smith the like one that had been used to beat the crime; did it in “intri the he not describe There, here, as it was made clear victim. jury. cate detail” to the Nor could the admitted that the instru the time it was conclusively examiner describe the medical not that used in the offense. ment was weapon. photographs murder were of testified, hammer, was identi value, Stewart grue significant probative and their previously except he owned secondary to their evidentia- to the one someness was cal Therefore, ry this Court should not worth. and had an Otasco sticker it was new rulings. interfere with the trial court’s on it. (Okl.Cr. Cooper v. preju- that he Appellant contends was 1983). Newbury Compare the hammer because by admission of diced (Okl.Cr.1985)(photographs admis P.2d 531 “bootstrap” into the State to it allowed prove theory State’s that defendant sible to photograph of the a certain vic- hammer, struck victim on head with a showing punched out a round tim’s skull knife, her with a and ran over her slashed shape approximating the size and hole it truck); pickup Cooper with striking surface. hammer’s How- of the (Okl.Cr.1983) (black and white ever, pictures would have been ad- these photographs corpse admis dismembered only if hammer had even missible evidence, cor prove to destruction of sible our discussion of the See described. roborating partial of testified confessions of the trial assignment. We find no abuse others, illustrating and and corrobo to admitting the hammer. evidence); discretion in court’s rating significant De- IV. tends he should have been to able show the Oakley circumstances under which made During autopsy Taylor, medi- police, arguing his statement to the loose cal examiner removed strands hair subject hearsay was not that it was from victim’s hands. For some un- admissible to show state of mind. reason, the hairs did not reach the known office of Oklahoma State Bureau of reading From our transcript, it Investigation to had been appear appellant does not was in fact result, As a a scientific com- mailed. hair opportunity denied the to cross-examine parison analysis was not made to determine Oakley along these lines. point At one origin the hair. Oakley, cross-examination of de- The medical examiner was allowed to fense counsel questions asked two at once testify objection an from objection over the defense an was concerning sustained general ap- that because of the color and inquiries. one No objection was hairs, pearance suspected they he made or to question sustained belonged Taylor. to He further testified Oakley whether Johns told he could be repeated injury that in cases where is blunt charged accessory, as an but defense coun- head, grasp inflicted victim will pursue Later, sel did not it. the defense tangle his his head own his hair police ask Oakley if the him told that if hands. contends medical ex- cooperate he would with them and tell aminer should not have been allowed to television, they them about the wouldn’t offer since there no evi- charge him a crime. with He answered qualified expert dence he that was as an affirmatively. assignment is without comparison. scientific hair merit because error occurred and the defense was able to show what it had want- disagree We with to questioning. ed the later (Oakley qualified give examiner to medical was charged burglary prior Smith’s opinion origin his as to the of the hair. He trial). represent opinion did not his based upon comparison analysis, hair scientific skill, knowledge, but rather VI. experience he held in forensic medicine. A former cellmate to named qualified express opin well his Billy Joe Dickson testified that expert. O.S.1981,
ion
See
as an
him
outstanding
told
he had
for
warrants
layman may express
Even
opinions
ra
violation,
parole
Burglary
Degree,
Second
tionally
perception.
based on
12 O.S.
his
Kidnapping
young daughter.
and for
his
1981, 2701(1). There was no error.
money
told him he needed
avoid
leave Oklahoma to
the warrants and
V.
trying
killed Smith when he
error,
appellant’s
assignment
As
next
money. Appellant
steal Smith’s
asked for
*7
he
the
improperly
contends
trial court
for-
mistrial,
which was denied.
attorney
inquiring
bade his
a cer-
from
Appellant
testimony
contends the
violat-
witness,
Oakley,
tain
Michael
his
whether
appellant’s
ed the trial
order
court’s
on
friend
Johns
told him could
Jackie
had
he
in
and that
motion
motion
limine
his
for
charged
accessory
be
as an
to murder
granted.
have been
mistrial should
We
Oakley gave
to the time
his
statement
disagree
points.
on both
police.
Oakley
the
Both
and Johns had
During
been connected to
television
appellant’s
the discussion on
mo-
tion,
from Taylor’s apartment
prosecutor
been stolen
the
the
said he
did
believe
evening prior to
ad-
his homicide. Johns
the witness knew the offenses that
the
police,
making
outstanding
mitted to
after
several
warrants
based
arrest
were
statements,
Oakley
go
false
he and
he
upon,
but stated
did not intend to
Taylor’s
during
stolen
during the eve-
his
television
into
offenses
examination
ning
Appellant
of November
con-
the witness. The witness volunteered the
charges
simply
prosecu-
no reason to believe the
after
We have
information about
tor acted
such a malicious intent. We
of the conversation
being asked the nature
however,
note,
do
that evidence of these
and himself.
between
charges
guilt
was
admitted
other than the
of offenses
Evidence
stage
assignment
of trial. See
number VI.
may
is on trial
for which the defendant
one
prove motive.
O.S.
be introduced to
Appellant cites a
of com
number
State,
v.
1981, 2404;
weapon So, in robbery. when used a had a plea reflects entered “his warranted, felony murder instruction been guilty charge rape, degree of first it would still have been murder the first fear)” (force in 1980. ar- degree. gues terms force and violence are terms, necessarily synonymous not there- that manslaughter We further find fore, rape proven. violent justified instructions were not under the brutally evidence. The victim beaten degree rape first statute in object. the head with blunt He was so appellant’s the time of effect at conviction severely beaten that the medical examiner provided: skull observed crumbled when lift Rape by eighteen male committed over apart. Appellant ed told Dickson years age upon a female under the out,” him “took and the de [the victim] age years, fourteen or incapable fense he offered trial was that of alibi. through lunacy or unsoundness of mind suggest There was no evidence introduced consent; giving legal or accomplished ing pre homicide was other than any by female means over- force meditated. resistance, by coming her or means of great bodily threats immediate and harm,
X. accompanied apparent power execution, resistance, preventing such assigns next as error the degree. In all rape the first give court’s failure to an trial instruction (Em- degree. rape is of the second cases concerning impeachment by prior convic added.) phasis previously, appellant tions. As noted object given, O.S.1971, opinion the instructions nor are of the We request any. rape degree Waiver resulted. committed with the Jetton that first fear as defined The two use of force or
1215 provided 21 the jury particularized violent crime within O.S. tions is a statute 1981, Appellant’s provides guidelines for considering mitigating Brief cir- 701.12. from the definition violence cumstances and the sentence us with caused (2d Dictionary Col- unconstitutionally imposed. New World to Webster’s death be 1979): lege physical “1. used Edition force jury at trial instructed in was injure powerful force, as as of so O.S.1981, 701.11, with 21 that accordance act 4. harm 3. violent or deed hurricane penalty imposed the death could not be violating rights, (Emphasis done etc.” they aggravating unless found that the cir added.) actually “force” used The word is outweighed mitigating cumstances cir to define violence. They cumstances. were further instructed State, (Okl.Cr.1982), 650 In v. P.2d 54 Brewer mitigating that circumstances were those denied, 1150, 103 459 U.S. S.Ct. rt. ce mercy in fairness and could be con (1983), held that if L.Ed.2d 999 we 74 reducing de extenuating sidered as or Judgment from and apparent it is gree previ culpability. of moral We have felony violence Sentence that involved held, now ously position, and reaffirm our use, its the State must or threat of pre that these instructions are sufficient to information that it did. We additional arbitrary discriminatory application vent Judgment is that a and Sentence hold Liles, penalty. supra; Brogie of the death contends. never sufficient as now State, (Okl.Cr.1985); 695 P.2d v. 538 Cha agree appellant ei We cannot State, (Okl.Cr.1980), 612 ney v. P.2d 269 Phillip name DeWitt Smith ther that the nom., grounds on sub modified require name as addi such a common (10th Cir.1984). F.2d 1334 same that was the proof tional person previously was convicted. who
Compare Smith XIV. (Okl.Cr.1985)(James E. Smith too common argues assign- again under as Judgment and Sentence alone from use XII, aggravating circum- ment . conviction). Though the old out-of-state “continuing vague threat” is stance gave judgment the name as and sentence urges now that this Court has its face and Smith, the Phillip D. Court Clerk testified arbitrary evaluating this in an factor Phillip De- offender’s name of occa- We have on a number manner. Witt There was no error. Smith. upheld constitutionality sions applica- aggravating and its circumstance XII. is- recently this exact tion. We addressed Appellant asserts that fundamen Foster, supra. assignment is sue tal occurred trial court error because the merit. without specifically define did not for the aggravating circumstance elements XV. probability that the that there existed acts of vio aggravat- would commit future in this case found continuing lence constitute a killing which would “es- ing circumstance that the society. heinous, Liles v. threat or cruel” pecially atrocious denied, (Okl.Cr.1985), cert. present. Appellant does not contend — U.S. -, 106 S.Ct. 90 L.Ed.2d finding under jury’s was unwarranted (1986), position reaffirmed our evidence, we circum- but rather for this explanation no is needed being applied unprincipled, additional in an stance is simple, language. It’s statutory therefore, clear manner. unconstitutional trial. explanation requested from the record that findWe instructed of the definition XIII. terms, this issue to again we find these Foster, Liles, supra; merit. contends neither Okla- be without Cartwright supra; instruc- nor the trial court’s homa statutes *10 1216
(Okl.Cr.1985), denied, 911, 473 U.S. cert. was that the murder was committed for the 3538, 87 purpose avoiding S.Ct. L.Ed.2d 661. preventing or a lawful prosecution. O.S.1981,
arrest 701.- § 12(5). earlier, As mentioned evidence rele- XVI. vant to this issue was introduced in the he urges next was denied guilt stage. During sentencing stage, jury represented a a fair cross-sec- Logan County Court given community tion of the and was one County Clerk and of the Oklahoma Court guilt prone juror one because who could outstanding Clerk was introduced of arrest impose penalty not death was excused. warrants appellant. for the Besides those A careful review record reveals that discussed, previously there charges were juror one for who was excused cause against appellant in County Oklahoma for not on this Both was excused basis. attor- attempting police elude officer a neys requested she be excused because she leaving the scene of an personal accident of some knew witnesses and she injury. Appellant contends that since all of thought might as she be influenced a re- this only charges, evidence and not sult. convictions, felony the evidence should not Appellant further contends ve two have been introduced. expressed niremen who doubts about the held, previously As we evidence of penalty improperly death excused prov other crimes was admissible for prosecutor using peremptory chal ing motive. This Court has held that the challenges lenges. Peremptory are discre particular existence of this aggravating cir tionary usually grounds and are not for cumstance is by viewing determined Supreme review. While the United States accused’s state of mind. Banks v. recently Court has held that these chal 418, The State may
lenges
on charges
be scrutinized
any
is allowed
competent
to introduce
rele
discrimination,
intentional racial
Batson v. vant
aggravating
evidence as to
circum
79,
Kentucky, 476 U.S.
106 S.Ct.
charged if
stances
the accused has been
(1986),
L.Ed.2d 69
the Court otherwise left
O.S.1981,
notified. 21
701.10.
intact the unfettered exercise of these chal
given
We find
timely
lenges.
assignment
is without merit.
notice that this evidence
towas
be intro
duced. But
further contends
XVII.
good
did not
act
faith
Appellant contends the trial court
closing arguments,
because in
he asked the
giving
jury
erred
not
an instruction
finding
to not make a
aggravat
of this
requested
they
if
could
not reach
ing
circumstance.
contends the
punishment
decision on
the court would prosecutor introduced the
to prej
impose
imprisonment.
a sentence of life
udice him. This Court is
willing
Again,
previously
this issue has been
ad presume such an insidious motive. We do
dressed
this
In Brogie
Court.
note that defense counsel did not demur to
(Okl.Cr.1985),
XVIII.
purported
part,
failures on trial counsel’s
aggravating
One of the
five
circumstanc-
and asserts that
made the result of
es
with which the
charged
Washing-
trial unreliable.
Strickland
performance
80 lant’s criticism of counsel’s
ton,
104 S.Ct.
466 U.S.
(1984).
investigate
that he failed to
L.Ed.2d 674
mitigating evidence. Yet there is no hint
trial counsel should have ob-
He claims
*11
might
as to what evidence
have been of-
conducting
method of
jected to the court’s
mitigation.
in
fered
ques-
asked all
dire. The trial court
voir
juror’s ability
pertained to the
tions which
urge
give
Defense
counsel
to
of death. Voir dire
impose a sentence
imprisonment
his client life
and offered
discretionary
the trial
are
methods
mitigation.
in
some evidence
We cannot
court,
find that
there were
and we
say
subject
prose-
that counsel failed to
from that which was
grounds for reversal
meaningful
case to
cution’s
adversarial
conducted. Banks
Cronic,
testing. United States v.
466 U.S.
(Okl.Cr.1986).
2039,
(1984).
104 S.Ct.
doing so.
alibi
at such
by the
and offered
called
XX.
that was available.
time whatever evidence
Finally, appellant contends that his sen
gave
of his
Appellant testified and
compared
disproportionate
tence was
alibi also.
imposed
sentences
in other similar cases.
attorney
Appellant claims that his trial
longer required
perform
This Court is no
objected
prosecutorial
mis-
should have
proportionality
O.S.Supp.1986,
review.
conduct,
not find mis-
did not. We do
but
701.13;
State,
ing during guilt stage that the case “very one” in call for the severe would foregoing, In we consideration urged to not find punishment. jury’s findings beyond a rea- find that the evidence. He guilt on the circumstantial aggravating circum- sonable doubt of the during argument made similar references 1) previously that: stances stages. Appellant contends he in both now felony involving the use convicted of a by this concession that it prejudiced violence; 2) the murder was or threat of penalty case. was a death atrocious, cruel; and, heinous, or especially 3) appel- probability there existed say cannot these statements We commit criminal acts of violence strategy. lant would not a matter of trial continuing threat to hindsight appellate that would constitute a Though in counsel supported by the evidence. strategy, society, were chosen another we would have do not find reason to believe judgment. counsel’s We will not invade trial imposed under the of death was sentence Coleman prejudice, any oth- passion, influence trial counsel Appellant contends O.S.Supp.1986, arbitrary factor. er on less- requesting instructions erred 701.13. offenses. We held earlier er included were not the instructions warranting this case reversal or Finding no error therefore, for, error to fail it was not modification, called is AF- judgment and sentence request them. FIRMED. urges that trial counsel Finally, appellant challenged aggravating have
should BRETT, P.J., concurs. for life and made a case circumstances PARKS, J., dissents. penalty stage. Appel- imprisonment in the PARKS, Judge, dissenting: any controversy There is ... not something victim was murdered with assignment error, appel- In his second that resembled a hammer. We haven’t lant that the trial court claims abused its contested that opening fact from state- discretion and thus committed reversible on, ment contesting we’re not it to- admitting error in State Exhibits Nos. day. how, And I don’t see with that 18 and which consisted of three 8" X understanding, those would become rele- glossy photographs 10" black and white vant this ease. autop- taken while deceased was on the sy autopsy table. of the three two (Tr. 548) Oxendine, As was true in whatev photographs, shaved, head was victim’s probative er photographs value the pos exposing numerous lacerations and a de- any sessed was not related to material is *12 pressed fracture. The third showed the sue in the case. The medical examiner surrounding peeled skin the skull back re- testified concerning inju the nature of the tissue, vealing mucous and brain as aswell probable ries and the of cause death. In missing a semi-circular section of the skull. instance, where the cause of death was State, 940, In v. 335 Oxendine P.2d 943 conceded to have by been caused numerous (Okl.Cr.1958),this Court reversed a murder blows from resembling a blunt instrument of primarily conviction and sentence death hammer, probative the pho value of the autopsy the basis of the admission of tos substantially outweighed by the photographs though even the defendants danger of prejudice. unfair See Ritchie v. the in “admitted crime intricate detail.” State, 1244, (Okl.Cr. 632 P.2d 1245-46 In Oxendine this Court stated: 1981); 940, Oxendine v. 335 P.2d Had there been a conflict toas the ... (Okl.Cr.1958). 943 O.S.1981, See also wounds, cause of death or of location the 2403. an photos or issue to which the were Moreover, against the appel evidence they relevant ... would have been ad- entirely circumstantial, lant was and can they prior missible had been taken be termed overwhelming. In performance autopsy. But Thompson 780, (Okl. P.2d autopsy the handiwork of Cr.1986), Judge this writer concurred in could, the defendant and cir- under the opinion holding Brett’s improper that the cumstances, purpose serve gruesome admission of photographs did not pas- than to arouse the emotions and jury’s affect the guilt determination in photos sion of the ... were [T]he extremely strong view of the evidence of wholly present- inadmissible in the form guilt. however, Thompson, distinguish ed and their admission was an abuse from able the instant in signifi case two the trial court’s discretion ... whole ways. First, cant the instant case involves procedure seems have been so unnec- extremely inflammatory photo autopsy essary highly prejudicial and was graphs Thompson not; whereas forces a reversal. second, the evidence in the instant case added) (emphasis Id. pointed As was out does not even “strong” come close to the Oxendine, autopsy photographs like the guilt evidence that was ones here do not show the crime scene as it Thompson. Id. cutting existed surgi- and other argues autopsy photo- The State procedures performed cal by the medical graphs examiner, were critical to their theory portray but instead handi- victim was killed work of with a hammer. the medical examiner How- ever, sense the medical examiner’s consist ade- manufactured explained against quately be missing State to used semi-circular an accused. case, In specifi- the instant defense counsel section skull without the assistance of objected cally highly photo- inflammatory autopsy photo- aforementioned and, graphs in asserting graphs. addition, they Hemphill Dr. were testified being solely offered jury, multiple inflame the that the cause of death was inju- stated: ries head caused a blunt instru- relatively sharp ment which both flat strik off corner and round Oklahoma,
squared Appellant, STATE specifically stated that ing surface. He probable instrument here would “the most BREGER, Appellee. Glenn Marvin Accordingly, in light of a hammer.” inflammatory au extremely nature of the No. S-86-637. fact topsy photos, and the repetitive merely cumulative Appeals Court of Criminal Oklahoma. testimony, I conclude medical examiner’s 22, May 1987. they pos probative whatever value outweighed by dan clearly sessed was May As Corrected 1987. ger prejudice. of unfair See Ritchie v. (Okl.Cr.
State, 1245-46
1981); Oxendine v. O.S.1981, also 12 See attempt made no to limit photo- prejudicial autopsy effect of the through by using
graphs cropping *13 draw- diagrams. light purely
ings or case, ap- it is
circumstantial nature of strategically
parent autopsy photographs to inflame
used jury so as influence it to return a guilty and a sentence of death.
verdict admitting autopsy photo- error clearly
graphs falls within this Court’s
mandatory re- duty to conduct sentence sen-
view to determine whether the death imposed
tence was under influence arbitrary
passion, prejudice, any 701.13(C)(1). O.S.Supp.lS85,
factor. against
The record overwhelming
cannot termed negate improper
so as to influence and, finding
jury respecting guilt its occurred
insofar as error trial, say I
guilt phase of cannot a fair consistent received trial II, Article 20 of section the Oklahoma
Constitution. Jones v. See I Accordingly, reverse remand for trial.
would a new