Ullery v. State

judgment District Court of Tulsa

County is affirmed.

¶ HARGRAVE, V.C.J., HODGES,

LAVENDER, SIMMS, WILSON, ALMA WATT, JJ., concur.

¶ OPALA, J., judgment concurs but pronouncement.

not in the court’s

¶ KAUGER, J., concur reason of

stare decisis.

1999 OK CR 36 Douglas ULLERY, Appellant,

Brent Oklahoma, Appellee.

STATE

No. F-97-965. Appeals

Court of Criminal of Oklahoma.

7,Oct.

Rehearing Denied Oct.

ington, to death. Jr. sentenced appeals from this conviction and sentence. record, thorough After a review of we However, affirm conviction. we have determined the sentence must be modi- possibility parole. fied to life without ¶2 24, 1993, Ullery March went to On Nancy Norman home to test drive her Neal’s sports car, Mazda which she had advertised house, they for sale. After returned to the Ullery sprayed Mace in face. ran Neal’s She door, Ullery grabbed but her dragged her into the kitchen. As she screamed, ground her he threw on the began kicking her head. When she contin- struggle, ued to scream and he stabbed her wiped five times in the back of the neck. He off, the knife blade disabled the kitchen tele- phone, keys, took car and drove the car apartment. picked to his Norman There he up packed belongings and left. night spent near Stillwater and drove stopped He northwest. Colorado af- committing robbery ter an armed shoot- ing police at a officer. He confessed to Colorado and Oklahoma officers. He was committed for several months and tried in Perrine, Maddox, Capi- Debbie Robert G. being Colorado before returned to Oklahoma Indigent System, tal Trials Division Defense charge. for trial on the murder Norman, Oklahoma, Attorneys For Defen- at dant Trial. ¶ Ullery admitted he Neal stabbed but insanity at raised defense. Evidence Kuykendall, Attorney, Tim District R. showed he suffers from schizoaffective disor- Sitzman, Richard Assistant District Attor- der, by major a brain disorder characterized Norman, ney, Oklahoma, Attorneys For The depression psychotic symptoms, and includ- State at Trial. ing delusions and hallucinations. This dis- Peters, Indigent System, Lee Ann Defense ease manifested when itself was still Norman, Oklahoma, Attorney Appellant for high genius, Ullery in school. A attended Appeal. on the of Oklahoma School Science and Mathe- Edmondson, Attorney W.A. Drew General physics matics. He concentrated in and was Oklahoma, Miller, of B. Jennifer Assistant a brilliant His student. teachers and class- General, Oklahoma, Attorney City, Oklahoma agreed potential mates had he for a Attorneys Appellee Appeal. For on remarkable academic future. Between Ul- lery’s junior years high and senior school CHAPEL, Judge: his best in friend and roommate was killed a ¶ Douglas Ullery 1 Brent was tried car accident. In the months thereafter Ul- lery visibly and in depressed. convicted Murder the First became He com- O.S.1991, 701.7, Degree in plained hearing violation of in to friends of voices and be- County, gan listening constantly District Court of Cleveland Case to in music an effort No. CF-93-496. The found that to minimize those hallucinations. More than heinous, especially murder was atrocious or once saw him cut friends his arms. He told jury’s cruel. In accordance with the recom- them he sometimes had to see blood and feel pain reality. Although mendation Honorable William C. Hether- to know he was in stayed if in doomed he Okla- that he was dropped dramat- Ullery’s performance school homa, responsible MIT and was somehow for accepted at both which ically he was However, afford difficulties; something was unable to he that there was his CalTech. for the university and enrolled at OU in wrong either dirt about and with the red sinister scholarship. His school full fall 1992term on Oklahoma; escape; that he had to and performance continued to deterio- social and carry to out he die. He was unable had to seeing began a mental That autumn he rate. himself, kill and decided to any plans to Health Center. counselor at Goddard health that would force someone commit a crime university Ul- arranged for the to allow She position put kill him or him in a where else to in and lery to move out of dormitories suicide. He no choice to commit had but apartment. January, he moved to an apparently planning jotted notes several January attending classes Ullery stopped robbery apologetic wrote an types of girlfriend, a stu- February 1993. His possessions to friends leaving his document California, up him. The broke dent to steal a car family. He decided he had moving into diagnosed him as staff Goddard this, Acting he called on and leave state. prescribed Prozac major depression and a arranged her car. He took to see Neal (which briefly). Ullery spoke to only he took him in the Mace did not the knife with case not con- fear that he could friends about his calling help. stop Neal from for hallucinations, himself, mentioned trol cut his arms. and continued to PRETRIAL ISSUES 11, 1993, Ullery February told his 4 On might kill himself or some- that he counselor Ullery claims proposition In his first else, plan had a but that he one confirmed and the must be reversed his conviction it, sign and refused a not disclose

would because the trial charge of murder dismissed him- stating that he would not harm contract the time con- commenced within was not Alarmed, made the counselor self or others. Agreement on De- of the Interstate straints Ullery temporarily com- some efforts to have was arrested [IADA].1 tainers Act of deten- emergency order mitted under 21,1996, March in March 1993. On Colorado tion, supervising A director but these failed. request a of Oklahoma filed the State that he was told mother at Goddard custody of the temporary under Article IV they could danger himself or others and 20, 1996, Ullery filed IADA. On June urged outpatient, and her him as an treat Article disposition final under IV request for explored other have him committed. She IADA, prosecutors and the which at options. was alarmed treatment court received on June Oklahoma thought police might come to lock 16,1996, July arrived Oklahoma bought resist. He up him and determined to alleges Ullery now began April knife, a final shotguns then went to two days, brought to trial within he was not counseling he confronted his session where disposi- III under an Article the time allotted police and said he was afraid counselor tion, under an days, the time allotted or 180 he continued after him. Thereafter would be urges disposition. He this Court slept, and his Article IV He seldom to deteriorate. February governs, him III find he was did not see between find Article roommate to tried, statutory remedy apply the time of the murder. timely dismissal. ¶ According to his own account and 5 in- testimony, Ullery’s hallucinations medical ¶ Ullery issue for the raised this 7 appearing a man talking voices cluded verdicts were rendered. first time after the him; him apparitions told bad all these vacate special hearing on his motion to In a suggested he do things himself and about case, counsel and dismiss the verdicts included things others. His delusions bad raising issue sooner. for not apologized up in a police lock him a would belief trial purposes IADA a held that for emerge; We have pit he would never snake from which O.S.1991, §§ 22 1345-49. 1.

340 begins.2 governs? apply? when selection The Which Article The IADA

commences rights argues under adopted encourage State waived a uniform act his claim the IADA when he failed to raise “expeditious orderly disposition” of un- began. Rackley before trial In v. State3 we charges pending against prisoners in tried apply, IADA but stated found the did not other The IADA is in na- states.7 remedial Rackley apparently waived his dicta that had liberally in the ture and should be construed IADA claim when he went to without IV, favor.8 Article when a defendant’s Under challenging transfer from federal to state request temporary a state initiates custo- 4 custody. Ullery cites Gallimore State to dy begin than the trial must no later juris- support argument that this issue is days from the date the defendant arrives However, cannot be waived. dictional and III, jurisdiction.9 Under Article when a violated, finding the IADA did Gallimore requests disposition defendant final re- jurisdiction subject not discuss matter days tainer the time limit is from the noted had not his IADA Gallimore waived receipt prisoner’s request.10 date claims, rights.5 Ullery we he also should find rights, IADA waived his that counsel was ¶ Nationwide, courts have taken three failing ineffective for to make this claim be- approaches problem. different to this The importance fore trial. Given the of this issue urges jurisdictions State us to follow the few impression, rely of first we choose not to holding that where the defendant initiates by finding dicta or avoid the issue waiver. proceedings invariably Article III waives Despite Ullery may indications that have rights (including his Article IV the shorter waived his claim we will address this issue.6 limit).11 that, time These cases determine as the IADA We find was not violated and procedures proce- Article IV and Article III consequently counsel was not ineffective for inconsistent, filing dures are an Article III failing timely to raise a IADA claim. automatically proce- waives those Article IV jur- dures favorable to the defendant. Other presents 8 This case an issue of reject approach impression isdictions this and hold the first for this Court: when both determining party factor State and the defendant initiate transfer is which first initi- IADA, procedures.12 Finally, jur- under the which time limit IADA should ates several 1143, O.S.1991, 1347, I; § 2. Bowie 1991 OK CR 816 P.2d 7. 22 Article United States v. Mauro, 1834, 1842, 1147. (1978). 3. 1991 OK CR 1051. Gallimore, 944 P.2d at 942. 4. 1997 OK CR 944 P.2d 939. also V(C) cites Article of the IADA. That re- section O.S.1991, 1347, § Article IV. quires prosecution brought dismissal if a is not appropriate within the lime limits but its lan- O.S.1991, 1347, Article III. guage suggest bring timely does not failure to prosecution jurisdictional is a defect. In Bell v. York, App.3d 11. State v. 66 Ohio 583 N.E.2d Lane, State ex rel. (1990); Cooper, Yellen v. 828 F.2d bring timely we held due to failure to (10th Cir.1987). See also United prosecution jurisdiction” the trial court "lost (6th Eaddy, States v. 595 F.2d 344-45 Cir. However, V(C) pursuant to Article of the IADA. 1979) (prisoner may rights waive IADA IV Article appears in context to be a reference to the rights if he is aware of and understands those statutory requirement prosecution clear that the voluntary). and the waiver is prejudice, be dismissed with rather than a find- ing subject that the trial court had no matter jurisdiction to hear the case. Webb, (Iowa 12. State v. 570 N.W.2d 915 (Article 1997) applies IV where state is first to 5. Id. at 942. charges lodged file a detainer on after is with jurisdiction); the other Shewan v. 396 1133, Dist.1980) (180- claim, (Fla.App. So.2d 1134 5th 6. Were we to hold that waived his day applied we limit where defendant made Article would have to address the issue as the under- lying request disposition cause of his claim IV for before State took cus- for ineffective assistance 352, prefer tody); of counsel. We v. 227 to address the issue Price 237 Ga. S.E.2d 368, J., (Hill, (Article squarely specially concurring) on its merits. 371

341 reject argument Ullery’s par- hearing.16 We apply Articles when both both isdictions delay not include the between his see we should procedures and look to initiate IADA ties jail and the court evaluation and return in which, violated any, provisions if have been competent in this on which he was found date applies.13 limit determining which time tolling period. was unable to stand approach last 10 We believe the days question 111 in trial for the which and both the State most balanced. Where pending competency his to stand trial was procedures, IADA we initiate the defendant by periods both time are tolled and parties speedy may that both wish assume number. outstanding charges. As disposition of the ¶ 12 the trial We also find court provi- IADA parties have invoked the both granted necessary and reasonable continu sions, suggest the most principles of fairness 9, January good ance for cause. At the approach compute the time is to reasonable 1997, arraignment hearing parties both limit provision under each and see which 7, agreed April to a trial date of 1997. Ul- III, Ullery’s Article expires first. Under lery correctly grounds notes that no for days begun within 180 trial should have argu In appear continuance on the record. IV, 29, Ullery’s Article June 1996. Under promised try Ullery ing prosecutor days begun within 120 after trial should have limits, IADA on trial coun within relies July to Oklahoma. Ul- return May argument hearing on this sel’s from 7,1997. lery’s began April trial on issue, suggesting prosecutor prom had the record to 11 We examine Ullery by try a date.” ised to “such-and-such these time limits were discover whether in appear the Janu This statement does not (1) necessary by and reasonable Rather, tolled either Ullery’s ary transcript. 9 counsel granted good that were for continuances they looking at an asked whether were still (2) delays open court14 or occa prosecutor cause April 7 trial date and the agree by parties Both recognize sioned the defendant.15 we agreed. court We held by com good the time limits were tolled is not shown for a Bell17 that cause petency prosecutor in the fall of 1996. proceedings delay held under the IADA where a application requests for determination affidavit for filed an failed to file an 7, However, not a competency August trial on continuance. this is case to stand 1996, requested adjudged competent at a De one side has a continuance and was which Here, 5, evidentiary parties both post-examination competency for reasons. cember 1996 denied, 830, Cir.), (2nd cert. 100 where defendant filed 212 III time limit controlled 58, (1979) (Article applies L.Ed.2d 38 IV request IV S.Ct. 62 Article III after state filed Article 120-day expired first and state filed by where limit request, but time limit tolled defendant’s si- temporary custody). request jurisdiction). first In State trial in other multaneous Mason, 464, 158, N.J.Super. 162- v. 90 218 A.2d O.S.1991, 111(a) IV(c) Jersey appellate (App.Div.1966), § the New 14. 22 Articles apply (trial necessary specifically may grant any Article IV did not or reason- court found court IADA, open good only continuances for cause shown because the defendant invoked able not, present). 180-day prisoner counsel after the court with and held the State could retroactively period lapsed, file an Article IV 120-day O.S.1991, VI(a) (time request, attempt limit. peri- to invoke the Article long prison- as the tolled whenever and for as od trial, by the as determined er is unable to stand Willoughby, P.2d v. 83 Hawai'i 13.State court). (Article (App.1996) applies IV where request IV time was first to file and Article state hearing first); Morris, record reflect that the 16. The docket and People expired 160 Misc.2d limit competent was found (N.Y.Co.Ct.1994) was held and 610 N.Y.S.2d hearing preliminary Articles, (time, December expired computed had under both However, the trial December 19. both); Burrus, date set for Ariz. under State Ullery competent finding order court's written 1986) (Article (App. Div. 1 III 932-33 January letter, was not filed until governs state where defendant initiated willingness accept transfer under indicated Bell, IV, 180-day relied on the limit 714 P.2d at 206. Bell either Article III or Article Metz, first); F.Supp. statutory requirements motion for continu- expired that a Foran v. Metz, (S.D.N.Y.), or an absent aff'd, on absence of evidence v. 603 F.2d ance based 1097 Foran 342 reasoning jail. spoke at

agreed The Bell He Colorado detectives to a trial date. apply. have also held the does not We a.m. and 7:42 a.m. claims the 6:45 fails to IADA tolled where the state is not videotape of these conversations should not try docket is not a defendant because stage have been admitted first and second suggesting the Again, we are not available.18 unequivo- because officers did not honor his by “unexplained IADA are tolled here limits request contrary, cal for counsel. On the simply because extensions of continuances questioning officers ceased after those exten- the record does not attribute attorney speak with an and did not asked to prosecution.”19 find it rea- sions to the We interrogation until he reinitiated con- resume IADA limits where the to toll the sonable right then waived his to an tact. to, agrees requests or and bene- defendant attorney and confessed to the Oklahoma from, clearly delay.20 record fits the The crime. agreed an requested counsel shows April days 7 trial date. The 88 between this ¶ prove 15 The must Ul- State agreement and trial are tolled.21 (1) lery’s rights product waiver of “was competen found that 13 We have in a free and deliberate choice rather than cy proceedings necessary and and a reason (2) timidation, coercion, deception, or continuance, cause, granted good able for full na made with a awareness of both the tolled the IADA time limits here for 199 right being ture of the abandoned and the days. Under either article was tried consequences of the decision to abandon expired. IADA before the time limits Under requesting it.”22 After counsel a defendant Ullery’s begun have Article III trial should may questioned not be further unless he has 26, 1996; tolling period by for December interrogation.23 counsel or reinitiates After competency brought proceedings that date to attorney, questioning asks for defendant 16, April 1997. Under Article IV trial should stop may must and officers not initiate con 14, 1996; by have commenced November present tact without counsel whether or not a competency tolling period brought defendant has consulted with counsel.24Cus 4,1997, tolling provid March and the further interrogation equals express todial both parties’ agreement brings April ed questioning any or words actions 120-day 7 date within the limit. statutory rights police reasonably likely under the IADA were not should know are proposition violated and this is denied. incriminating response, elicit an with the fo perception cus on the defendant’s rather than Proposition 14 In Two claims the the officer’s intent.25 A defendant reinitiates admitting trial court erred confession inteiTogation represents when he a desire to to Colorado law enforcement officers. After open up general relating directly arrest, discussion Ullery spent night at County hospital indirectly investigation.26 and was taken to the Adams to a criminal 412, 1141, 421, 1135, accompanied by witness must be affidavit. 22 U.S. 106 S.Ct. 89 L.Ed.2d O.S.1991, 584; O.S.1991, (1986). § 12 668. 410 Gallimore, 18. 944 at 944-45. State, 26, 23. LaFevers v. 1995 OK CR 897 P.2d 292, 299, denied, 1095, cert. 516 U.S. 116 S.Ct. 19. Id. at 945. 820, (1996); 133 L.Ed.2d 763 Edwards v. Ari zona, 477, 484-85, 1880, 451 U.S. 101 S.Ct. See, Burrus, e.g., 729 P.2d at 932-33. (1981). 68 L.Ed.2d 378 21. We decline to find counsel ineffective 146, 147, Mississippi, 24. Minnickv. 498 U.S. agreeing April Nothing to the trial date. in the 486, 488, (1990). S.Ct. 112 L.Ed.2d 489 reaching performance record shows counsel’s State, agreement Hooper was deficient. v. Sattayarak v. 1994 OK CR 887 P.2d 1090, 1115, 1997 OK CR 947 P.2d cert. 1326, 1329; Innis, Rhode Island v. 446 U.S. - denied, -, U.S. 118 S.Ct. 299-300, 1689-90, 64 L.Ed.2d S.Ct. (1998). L.Ed.2d (1980). 22. Le v. denied, -, Bradshaw, Oregon cert. - U.S. (1998); Burbine, (1983). 77 L.Ed.2d Moran S.Ct. ¶

¶ face, determining sequence a In whether 18 On its this waiver, pattern a clear invo the maker’s free events shows product is the confession cation, reinitiation, subsequent waiver of we look to the to unconstrained choice it, surrounding right by to counsel followed a confess tality of the circumstances Ullery claims his decision to reinitiate character and the ion.30 including the defendant’s actually by interrogation.27 The contact was coerced events occur State details ring eighteen-minute delay by prepon a between prove a waiver is valid must request for counsel and his removal to of the evidence.28 Where sufficient derance holding videotape stayed cell. The shows he supports a trial court’s in camera evidence Lynch. vol in the interview room with Detective ruling that a defendant’s statements are time, admissible, During pattern that formed: Detec untary and we will not disturb Lynch Ullery, supports tive would stare at who would ruling.29 that Sufficient evidence finally ruling fidget make the trial court’s that state some comment. punctuated Brief would be voluntary. conversation ments were stares, etc., Ullery finally more until asked Ullery began interview asked 17 As the they waiting what were for. He was moved get the death several times whether he could shortly thereafter. penalty. The detectives consistent- Colorado Although ly replied probably ap that he could not receive this interlude odd, Colorado, they penalty pears nothing in the officer’s actions or because they support Ullery’s the state of law conversation claim of coer did not know Oklahoma Ullery argues Lynch Ullery say penalty might he receive cion. knew could not what Ullery eventually played by suggest in this state. decided to wanted to die and on this attorney ing attorney an him consult an to be certain he could would not let talk to penalty. police. Ullery he see receive the death He said he would wondered when would him, willing attorney; Lynch him to talk to detectives after this an told warned be talk, attorney him question was answered. The interview end- that an would tell not to and, eighteen desultory explained speak ed after minutes of that detectives could not conversation, Ullery Ullery attorney. Ullery was removed to a hold- with after saw Shortly replied, Lynch if I ing cell. thereafter he asked to “What ask?” and said speak Lynch, brought questioning by asking reinitiate to Detective back could room, any Explaining time. to the interview and waived his Mi- for detectives at inherently rights. procedure reinitiation is not coerc randa He then confessed to the card, Lynch ive.31 offered his Oklahoma crime. When State, 70, inexplicably attempts argue 27. Mitchell v. 1994 OK CR 884 P.2d 30. The State 1194, 827, 1186, denied, cert. 516 U.S. 116 S.Ct. right never invoked his to counsel. This (1995); Moran, U.S. at 133 L.Ed.2d 50 apparently everyone invocation was clear to Ullery sug 106 S.Ct. at 1141. Insofar as said he wanted to interview room— gests his is invalid due to his mental confession attorney talk to an and the officers ended the illness, suggestion fail. Police must must State, Ray analogy The State’s v. interview. advantage alleged take of his mental state to 823, 825, fails; there, 1988 OK CR 758 P.2d statement, determined, and we have obtain his infra, attorney wanted an to tell him defendant improperly detectives did not the Colorado police authority transport had the whether play Ullery’s depression and desire to die. contrast, county By to another. him from one McGregor v. 1995 OK CR 885 P.2d request a clear to consult with coun- made denied, 1378, cert. 116 S.Ct. bear on sel on a substantive issue which would 50; Connelly, 479 133 L.Ed.2d Colorado v. police. his decision to talk to 515, 522, U.S. 107 S.Ct. 93 L.Ed.2d 31. Sadler v. Le, 542; Connelly, P.2d at Colorado (explanation of reinitiation not itself like- 384-85 U.S. at 107 S.Ct. at 522. ly incriminating response; police sugges- to elicit implicated defendant in tion that co-defendant Denno, LaFevers, at 298. Jackson response but was murder would elicit such a 378 U.S. (1964), right to coun- made before defendant invoked his sel). right to an in established defendant's hearing camera on the voluntariness of his con- fession. transcripts that full it, “Okay, a The trial court held commenting, that would be took jury. Ullery Ullery Lynch also discussed to the good and not be available idea.” would Ullery’s family, objected tapes version of his visits to brief to the admission of the be- Center, worry and his involuntary Health and Goddard the confessions were cause up in institu- police lock him a mental would the cumulative. Before Jackson-Denno Lynch’s questions at this time tion. None of hearing objected to of the counsel admission in in- might have resulted either elicited rule, transcripts, citing the evidence and best criminating statements. in connection “problems noted are there” being tape the redacted before cut off. with ¶ Ullery argues subsequent com- objections to the The record shows no other knew this inter- ment shows the detectives tapes. success- redactions or edited Counsel question- encouraged him reinitiate lude to fully objected proposed to a instruction State room, returning to the interview ing. After portions to the edited which referred like him he asked whether the officers would arguing decision, but, tapes transcripts, that it would and why he explain to he made this editing. to the they explaining. him call attention argues, prevented from contrary, videotape suggests the the the On (1) ¶23 Ullery complains now the refusing suspicious agenda in officers had no admitting tapes erred in both the trial court Lynch Ullery’s explanation; said “be- to hear allowing transcripts and and into evidence that” he wanted to re-advise fore we do (2) deliberations, jury them in and the to use Ullery rights, of his Miranda then went transcripts prejudicial er- the edited contain Ullery’s statement about the right on to Ullery’s changed the nature of rors which opportunity had the to re- crimes. objected admitting to statement. subject, appears the but did not. It the raise tapes transcripts, and that issue both the and forgot asking why detectives about object preserved appeal. He did not to changed they more his mind because were transcripts, content of the and we the edited say in the interested what he had to about only. plain that claim for error We review crimes. find merit in neither claim. right invoked his to counsel subsequently reinitiated conversation but begin by determining 24 We detectives, right, and con- with waived transcription altered Ul- whether errors fessed. Detectives did not coerce this deci- lery’s prejudicially go so as to to statements Ullery’s voluntary waiver was and the sion. him a the foundation of his case or take from admitting court did not err in the video- right claims essential his defense.32 taped proposition This is de- confessions. First, particular error in three comments. nied. Neal, regarding Ullery’s appointment with videotape transcript says “I the edited set it ¶22 proposition Ullery In his third ar- up.” up” of “I said I’d show We instead gues improperly tapes admission of redacted disagree minor claim that this transcripts of his confessions violated his change implies Ullery up” “set the murder. rights process to due and a fair trial. Ul- Furthermore, Ullery’s actual words are clear lery’s videotaped Colorado confession was Second, if tape. the when asked he confession was audio- Oklahoma Neal, audiotape planned to kill the edited taped. ultimately ruled that The trial court (inaudible) “just transcript says one of those tapes would be admit- edited versions both “just things” those ‘the rather than one of stage. transcripts would ted in first Edited things.” Again, agree not moment’ we do jury be admitted and available for the to use changes import of Ul- that this omission provided while the deliberations but statement, lery’s particularly since the tapes played open The trial were court.' (1) phrase tape on the and he uses is clear any court ordered the State to redact descriptions in his state similar elsewhere crimes and reference to the Colorado Ul- (2) Ullery complains wound, Finally, of both lery’s gunshot parties ments. transcript editing in transcripts. a state- agree on redacted version of redaction O.S.1991, § 32. 20 3001.1. Referring request. confession. effect was removed at his He ar-

ment from the video death, gues detectives asked whether to Neal’s could not catch the errors Ullery thought might something that was transcription they since did not have the Unedited, Ullery says yes, happen. have to transcripts tape played in while the just going straight out kill Neal if he was court, acknowledging without had brought gun. As probably would have tapes transcripts both in deliberations. appropriately directed the trial court had the argues transcript The State both that the guns in remove the references to the State to jury was useful since the could refer to it says, stage, tape on redacted he first the replaying tapes, any instead of the and that ‘Yes, just going straight if I to out kill was transcription errors in were harmless since transcript reports this her The edited [cut].” jury tapes comparison. the had the for “Yes, just straight kill you it was know out as precise 26 We have not ruled on this (inaudible).” editing The of her combination State,34 parties issue. cite v. in Both Davis suggest stronger intent and redaction does which we determined it was not error to original in than found the statement. How- ever, transcript taped immediately preceding comment admit a in lieu of exhibits in the transcript rejected tape previous suggesting both and record as and dicta case”, “just in saying he had a knife and the transcripts might admission of violate the agreeing following exchange has him he that, only best evidence rule. We noted as by hap- play meant to it ear and see what transcript jury, the the went to there was no context, transcript pened. In mistake problem of cumulative evidence or undue em- alter statement of intent does not phasis on the defendant’s confession which unplanned killing from an admission of an to might by tape be caused admission of both a premeditated to murder. There confession transcript. emphasized also there We plain is no error here.33 transcript was no claim the itself was inaccu- improperly rate or admitted or contained ¶25 now determine whether We disposed inadmissible evidence. of We Ul- admitting in the trial court erred both the lery’s inaccuracy claims of above and the tapes tapes transcripts. Edited were transcript improperly was not otherwise ad- played stage, in unedited first the Colo questions emphasis mitted. The of undue tape played during stage. rado second and cumulative evidence remain. The record Although jury provided was not tran clearly as a whole reflects that the edited tapes scripts played, while the were edited solely transcripts admitted as an aid to were jurors’ transcripts were use admitted They jury in deliberations. were neither during transcripts Full deliberations. were tapes played while the were in court nor used provided prepared as court exhibits but not argument. impossible in It referred to deliberating, jury jury. to the While importance jury overemphasize the to the of requested audio and video recorders to re argued Ullery’s confession. Both sides it tapes. parties appeal play the Both on make ju proved guilt these arguments. Ullery complains or innocence. Under confused transcripts transcripts might circumstances we cannot find the rors were not warned the errors, unduly although have an instruction to that were cumulative or influenced Ullery argues speculation regarding reply the "reasonable” that counsel’s failure object jury’s review and to the State’s redactions and We to enter actions here. decline into transcripts edited constitutes ineffective assis- may speculation on what the either side’s any we tance of counsel. As have determined transcripts during have See, deliberation. done with transcription did not result in an unfair errors State, e.g., v. OK CR 1996 919 Salazar trial, this claim must fail. Lockhart unreliable (Court speculate on P.2d 1124-25 will not Fretwell, 369-70, v. 113 S.Ct. State, differed); Perry evidence 1995 results if 842-43, (1993); Strickland v. (Court P.2d 535 will not OK CR Washington, 466 U.S. speculate degree suffering experi- of victim (1984). L.Ed.2d enced); OK CR Pickens grounds by other 19, ovemded on Beyond OK CR P.2d 980 Parker v. Davis, Ulleiy's citing the State fails to address (Court videotape). speculate of will not on effect argument, relying waiver substantive instead on guilty by consequences of a not reason of did not err jury’s verdict. The trial court transcripts. insanity permitted. This tapes This verdict is Court admitting the give has held failure to such instruction proposition is denied. statutory manda- was not error because the JURY ISSUES REGARDING procedures “merely tory are commitment SELECTION disposition subse- procedural statement quent the verdict and immaterial to [are] Proposition Nine 27 In concerning rendering a verdict process process and a fair denied due claims was The sanity of the accused.”36 United to instruct by the trial court’s refusal Shannon v. Supreme held States Court consequences dispositional on the United States37 that federal law does not insanity verdict. guilty a not reason of Supreme require this instruction. The Court allegation Ullery never contested the State’s analogized to the situation where the State During individual voir he killed Neal. proof regarding to meet its burden of fails prospective jurors that Ul- dire counsel told system guilt, noting there the assumes a solely killing on lery and relied admitted juror juror acquit even if the is will vote to insanity The trial court denied defense. dangerous and convinced the defendant requests Ullery’s repeated to instruct imprisoned.38 be decline to revisit should We consequences verdict of not on the of a proposition these decisions in this case. This insanity, guilty by as well as his reason is denied.39 testimony During this issue.35 voir offer of on dire, jurors expressed several concern about Proposition ¶29 claims in if happen to he were what would rights Ten that his to a fair trial and due jurors acquitted by insanity. reason of Some by juror process fatally were contaminated they not consider that verdict said could during who lied voir dire. Juror Morris knowing the answer. The trial court without stated she did not remember when the crime the conse request explain denied to occurred, hearing nor did she remember or prospective quences of the verdict to the time, reading it at the nor she about had jurors during voir dire. newspaper read the recent articles about the

¶28 Ullery argues he rul case. information received The trial court based its lied, ings an on the after the verdict indicates Morris cast- on a belief that instruction 575, 2419, 2422, 573, ac- 37. U.S. 114 S.Ct. 129 35. law mandates that a defendant 512 Oklahoma insanity quitted by (1994). reason of must be committed L.Ed.2d 459 ill, mentally hospital he to a state for the where treated; psychia- state shall be examined Shannon, 585, 512 U.S. at 114 S.Ct. at 2427. report evaluate the defendant and to trists must However, the Court earlier noted that defendants court; may the defendant not be re- the trial generally are entitled to instruction on lesser until the trial court determines he is not leased mentally included because of the risk offenses "substantial dangerous public peace to the ill theory." jury's practice diverge that the will from O.S.1991, safety. 22 1161. The defendant's States, 205, 212, Keeble v. United 412 U.S. 93 hospitalization and treatment are for an indefi- (1973). S.Ct. may period hold more nite and the trial court hearing than one on the issue of release at the attorney’s request. district my colleagues disagree I on this issue. I of this case believe that under the circumstances State, 45, 1289, 36. Ellis v. 1992 OK CR 867 P.2d refusing court to either the trial erred instruct denied, 178, 1298, 863, U.S. 115 S.Ct. cert. jurors consequences guilty by of a on the (1994), quoting L.Ed.2d 113 Thomsen v. insanity reason of verdict or allow defense coun- State, 829, 582 P.2d 832. We 1978 OK CR informally explain procedure sel to to con- give held failure to this instruction was not have jurors guess- cerned in voir dire. is no There State, Taylor error in: 1994 OK CR mandating law work involved in Oklahoma’s State, 755, 759; Coggin v. OK CR parties commitment. The trial court and both 1182, 1185; State, OK 745 P.2d Walker v. exactly happen knew what would under denied, CR 995, 723 P.2d cert. the statute. While the trial court was not re- 600; L.Ed.2d Nauni v. issue, testimony quired to allow on this nor 126, 134; State, 1983 OK CR 670 P.2d instruction, general issue a the trial court should 1983 OK CR 659 P.2d Boutwell v. jurors' 327; obvious concerns and have addressed Ragland v. confusion on this issue. imputing support for ing impartiality her the conviction malice afore- doubt on admitted; After the verdict Morris’s (1) automatic bias. thought murder. he eventually He approached tidal counsel. son (2) car; killing intended to steal Neal’s Neal stating an affidavit he and Morris offered option recognized he was before he left sitting possibility of her on this discussed the home; (3) plan he kill didn’t Neal but had called to when she was first ease (4) it; thought he about wore his knife docket; told him she had he said Morris house, just boot when he went to Neal’s facts, knowledge had personal followed (5) case; kicking when neither Mace nor closely in the media over the last the case stopped screaming Neal from he decided to years, thought crime horrible four (6) her; seriously stab knew she would be problem imposing would have no dead, injured, stabbing; if not from the penalty. This affidavit was admitted death (7) he stabbed Neal because he did not want appeal purposes at sen- into the record get up police. her to and call The medical any tencing, but counsel did not file motions “enough there was not time to suffi- examiner Neal died the combina- because testified verify ciently investigate” and the informa- tion of five stab wounds to the back of her tion. Malice, the neck and head. deliberate inten- justifi- tion to take the life of another without argues now this Court should relief, bias, juror cation, grant grounds may Any on the be formed in an instant.44 affidavit; of this in the alternative the basis beyond rational trier of fact could find requests evidentiary hearing an to deter- he Ullery reasonable doubt that intended to kill possible Ullery mine bias. concedes this is- Neal from this evidence.45 in a sue should have been raised motion for juror newly new trial based on misconduct or ¶ Ullery correctly argues 32 discovered evidence.40Such a motion should that, above, in to he addition the admissions year have been filed within one after the conflicting regarding made statements his Ullery to

judgment.41 As failed meet these presented intent in a both confessions and requirements, this claim is barred.42 We de- testimony great expert indicating deal of Ullery’s suggestion propo- cline to treat this incapable forming kill was of the intent to at sition as a motion for new trial and remand stabbing. the time of the The resolution of evidentiary hearing.43 proposition This for conflicting jury, evidence is left to the is denied. will not a even this Court disturb verdict ISSUES RELATING TO FIRST sharply where the evidence conflicts.46We

STAGE PROCEEDINGS accept will all inferences and reasonable credibility tending support

¶ choices to the verd Proposition 31 In Four argues jury rejected Ullery’s insanity If that the evidence is insufficient to ict.47 State, 765, O.S.1991, 37, 40. 22 44. Powell v. 1995 OK CR 906 P.2d 952. 775, denied, 1144, 1438, S.Ct. cert. (1996). 134 L.Ed.2d 560 O.S.1991, § 41. 22 953. 132, State, Spuehler v. 45. OK CR 709 P.2d 2.1(A), 42. Rule Rules the Oklahoma Court 202, argue than his confes 203-04. Rather that 22, Ch.18, (1999); Appeals, App. Criminal Title insufficiently by sion was corroborated other evi State, 40, also Dean v. 1989 OK CR 778 P.2d see trial, Ullery solely argue at on it to dence relies 476, 478; State, 114, 706 Owens v. 1985 OK CR that, whole, a statements were insuf taken as P.2d 913. ficient to show malice. State, cites Allison v. Rogers OK P.2d CR 890 proposi- 151. That case states one denied, cert. U.S. 116 S.Ct. a new tion of error is in motion form of (1995). trial, evidentiary and the Court remanded for an hearing juror on the issue of bias. We do not Bryan example OK CR find this sufficient reason to contravene - denied, -, statutory requirements cert. U.S. the clear and rule neces- sary 139 L.Ed.2d 299. to raise this issue. exempts law from defense, supports malice able doubt. Oklahoma sufficient evidence who, responsibility at the time is denied. those proposition This criminal murder.48 crime, incapable knowing the are Proposi in claims defen- wrongfulness of their act.52 Criminal failing the trial court erred tion Five that presumed are sane. The defendant dants on the less give requested instruction to raising a reasonable doubt has the burden of depraved mind murder offense of er included “If sanity at the time of the crime.53 of his has con degree. This Court the second establishes a reasonable doubt the defendant depraved mind murder is not cluded sanity sanity, presumption of van- of his murder, malice so included offense of lesser upon the to ishes and it is incumbent State failing give did not err court prove beyond a doubt that reasonable Ullery recognizes these rul instruction.49 distinguish right between defendant could that, argues whether or not it is a ings but wrong the offense.”54 at the time of offense, he was entitled to lesser included whether the State has The determines pre degrees all of homicide instruction on general recognize the met this burden.55 We by evidence.50 The State fails to sented that, sup- any evidence tends to rule where this, arguing that address instead jury’s finding met port the that the State has any other form entitled to instructions on burden, finding its we will not disturb sup because the evidence here of homicide thorough appeal.56After a review of the evi- ported finding of malice murder. As we parties, presented both we find that dence stated, previously the issue is not have (1) Ullery doubt as to his raised reasonable supports malice whether the evidence but (2) sanity, presented sufficient the State of intent whether addition evidence prove was sane admissible evidence evidence that a defendant acted there is also beyond a reasonable doubt at the time he Here, design to effect death.51 there without Neal. stabbed of fact no such evidence. No rational trier statements, taken as could find from party 35 Neither at trial seri whole, design death a that he had no to effect mentally ously Ullery fact contested the proposition at the time he stabbed Neal. This mental illness ill. The issue was whether his is denied. that, judgment impaired his at the time he so ¶ Neal, Ullery incapable appreciating argues Proposi in killed he was 34 consequences the nature and of his acts or tion Six that the State failed to meet its beyond knowing right wrong.57Ullery present- proving sanity a reason- from burden of overruled, that, any Ullery’s mistakenly argues not but note most of cited 48. The State in event, Ullery’s because cases discussed lesser included offenses. conviction must stand supports sufficient evidence the alternative of felony State has misunderstood the murder. The Le, 51. 947 P.2d at 546. any underly- well-settled law. In the absence of convictions, ing felony support this Court will O.S.1991, § 52. 21 152. only general murder where sufficient verdict of charged. supports evidence both alternatives 72, 74, State, Cheney OK CR 909 P.2d 53. v. 1995 See, 1376; e.g., McGregor, 885 P.2d at Crawford 85; McGregor, 885 P.2d at 1376. 627, 639; State, 62, 840 P.2d v. 1992 OK CR 862, State, 145, P.2d James v. 1981 OK CR 637 85, Cheney, quoting P.2d at Manous v. 54. 909 865-66. State, 239, 742, OK CR 745 P.2d 744. 1987 54, State, 49. v. 1998 OK CR 968 P.2d Welch State, 39, 1231, 1241; Jackson v. OK CR 1998 McGregor, at 1376. 55. 885 P.2d - denied, -, cert. U.S. 964 P.2d 1150, (1999); Willing 119 S.Ct. 143 L.Ed.2d 217 86; Manous, Cheney, P.2d at 745 P.2d at 56. 909 State, 62, 1074, 1997 OK CR 947 P.2d -, ham 745. — denied, 1081-82, U.S. S.Ct. cert. 118 (1998). We decline Ul- State, OK CR 900 P.2d Valdez lery's suggestion application rule to treat of this denied, cert. post as an ex law. facto State, (1995); L.Ed.2d 341 Johnson v. 595, 596; See, Pugh v. e.g., Tarter v. 1961 OK CR OK CR agree P.2d settled law and 601. We this is Friends, at the time he killed Neal. parade of 'witnesses. reasonable doubt lengthy ed a regarding proposition testified Ul- This is denied. family and teachers disposition adolescent lery’s childhood and Proposition In mental abilities demon- Seven Ul-

and his remarkable injection lery argues improper of Science of Detective strated at the Oklahoma School opinions All these witnesses de- Pearo’s about his mental health so and Mathematics. rapid mental and behavioral de- infected the trial with unfairness as to de scribed during prive process him in began the fall semester of of due violation of the cline which Ullery pre- year high school. United States and Oklahoma constitutions. his senior Bernhard, experts: medical Dr. a For evidence that was sane at the sented two killing, and treated time of the the State relied on Detec psychologist who tested Smith, Colorado, psychiatrist opinion, Dr. who tive Pearo’s formed on March complete Ullery in Oklahoma. that was in control of his and treated tested professionals diag- these mental health mental faculties at the time he stabbed Neal Both disorder, Ullery objected opinion on March 24. to this nosed with schizoaffective combining depression preserved ap severe at trial and has the issue for brain disorder peal. Ullery correctly psychotic symptoms. opinion In exhaustive de- claims Pearo’s tail, lay opinion expert doctors the nature of the was inadmissible as or both described illness, Ullery, testimony apparent its onset and its and should not have been admitt However, judgment require on and behavior. Both ed.58 this error does "not effects illness, Ullery’s specifically already concluded mental relief. We have determined that the hallucinations, guided provided the delusions and State sufficient evidence that Ullery’s judgment ability beyond and his impaired was sane a reasonable doubt without testimony. To control his actions. rebut evidence this erroneous We conclude be presented lay opinion yond one a reasonable that this the State Ul- doubt error could jury’s lery’s mental state and circumstantial evi- not have contributed to the verdict.59 argued The also dence. State (he Lay may testify

statements after the crime knew his ac- witnesses (1) get opinions rationally wrong were but wanted to as to based on the tions (2) penalty) perception helpful to a clear death showed he was sane at the witness’s understanding testimony time of the crime. discuss Officer Pea- witness’s We Seven, lay opinion Proposition the determination of a fact in issue.60 do ro’s We agree questions regarding Ullery’s improperly he had find it was admitted since during impression form an of mental condition the crime necessari no basis on which to ly required diagnosis. kill- a medical sani Ullery’s mental state at the time of the Where However, issue, may say remaining ty lay an whether ing. the circumstantial is witness actions, evidence, Ullery’s of state- he believes a defendant’s conduct taken some officers, irrational.61 police support jury’s appearance the is rational or ments to lay beyond opinion of evidence is within determination that he was sane Admission day Ullery argue anger made and the State each the merits of based on observations before State, 89, opinion expert testimony. shooting); Pearo was Yates v. 703 Pearo’s as witness, 197, (defendant’s expert family opinion his was un- re never offered as an P.2d 199 questionably lay testimony, attempted day garding sanity previ he never based on observations murder). give diagnosis or out as an to hold himself See also ous to and weeks before expert, (in sub- and we do not further address this McGregor, competency pro 885 at P.2d 1374 proposition. may testify ceedings, lay to witness as observa over time while defendant incarcerat tions made State, 136, ed); 24, Campbell CR 636 1981 OK Chapman, 386 U.S. at 87 S.Ct. at 828. denied, 1011, U.S. cert. 460 103 (in (1983) competen S.Ct. State, O.S.1991, 2701; Doyle OK 12 1989 trial, cy finding court that correc defer (sister give CR 785 P.2d could defendant six tions officers’ observations of observation, opinion sanity of based on but could time). hearing in months before not too remote give diagnosis); medical Kiser v. (ex-wife’sopinion OK CR 782 P.2d 61.Cheney, regarding 909 P.2d at 88. defendant’s abnormal behavior However, Ullery, him at never met never observed that had court’s discretion.62 the trial crime, require- oppor- satisfy any statute’s and had no opinion must the time before the from the witness’s a rational basis ment of him until than 48 tunity to observe more parties, perception.63The cases cited both the crime was committed. This hours after here, opin- authority all refer to as used possibly have aided the “opinion” could not by obser- perceptions on formed ions based question Ullery’s determining in of time of the crimes. or at the vation before it fails to sanity at the time of the crime. As in any us to case party has directed Neither statutory requirement for the meet either lay opinion on this Court has allowed which testimony, admissibility lay opinion Pea- of sanity was not where the witness the issue of opinion not have been admitted. ro’s should meet the present at the crime and did not Ullery also claims the trial court erred after the crime occurred. defendant until well repeat allowing to recall Pearo to the State is the case here. Such opinion nev- opinion in rebuttal. As the Ullery stabbed Neal around 11:00 all, have admitted at we do er should been Ullery met a.m. on March 1993. Pearo not reach this issue. only time in the Adams the first and jail p.m. County, around 5:30 Colorado Proposition Eight Ullery In Ullery spent 1993. Pearo and March correctly prosecution repeatedly argues the together 26th. The two hours on the about closing stage argu misstated the law first significant not a concedes this was State that, argued prosecutor ment. The time, argues it sufficient amount of but was Ullery degree of first murder must convict opinion, on his for Pearo to form based if it believed he was insane at the time even time, which perception of at prosecutor argued that he killed Neal. The jury. partially The State is would aid suggested Ullery no evidence was insane may long that interview have been correct: initially assaulted Neal or stole her when helpful opinion enough for Pearo to form a Therefore, prosecutor explained to car.64 Ullery’s the time about mental status at jury, if insane when he even was That all Pearo had the that interview. felony guilty of stabbed Neal he had to be not, opportunity perceive. That is howev- sane when he stole murder because he was er, here. Pearo’s brief contact with the issue support her car. The State cites no cases days two after the murder offers no egregious of law. The of this misstatement for him to formed a basis whatsoever have Legislature provided persons that all are has perception of mental state at the crimes, capable committing except insane killing. opinion that time Pearo’s persons “upon proof that at the time of com faculties at the was control of his they objective mitting charged against the act them killing had no basis: he time of expert CR 64.This statement also misstated evidence. 62. Allen v. 1994 OK denied, S.Ct. prosecutor appeared cert. to misunderstand the The (1994) (victim’s opinion L.Ed.2d 322 mother’s expert testimony. Both doctors said had dominant role in sexual rela defendant suffering from delusions and mental illness jury’s tionship helpful defen determination of (a) plan him to both to steal a car which caused aggressor, killing). motive for dant as (b) prevented and him from and murder Neal consequences understanding acts or the of his Territory affirming 63. an Oklahoma convic- In knowing right wrong. de- from Dr. Smith also murder, Supreme United States tion for the Ullery termined suffered an isolated dissociative in the trial court’s failure to Court found no error episode stabbing. Despite at the time of the lay give opinion a as to the allow witness to testimony repeated that this determina- (cid:127)Smith's Oklahoma, sanity. Queenan defendant’s finding to his of mental ill- tion was incidental 548, 549, 47 L.Ed. 1175 U.S. play part opinion that ness and did not a his (1903). The Court noted the witness had testi- killing, Ullery was insane at the time of the the defendant, regarding fied his observations of the barber, murder, stated, argued Ullery prosecutor suffered a dissociative the "to let his before murder, during episode only when steal- expert opinion the not a witness who not an state an is event, car, upon sanity ing the been which he has formed after the and therefore could not have a arisen and become a matter of during robbery. when public case has the insane all, discussion, justified, at on must be if grounds.” other assistance, knowing wrongful- Ullery tive must incapable of its show that coun- were charged “stabbing Ullery performance was ness.” sel’s was so deficient he did not (1) with a knife” with malice afore- guaranteed by [Neal] have counsel as the Sixth death, thought the intent to effect Amendment, prejudiced and his defense was (2) alternative, engaged in while the com- the performance a of as result counsel’s deficient weapon. robbery dangerous with a mission of deprive errors so serious as to him of a alternative, charged” the “act Under either fair trial with reliable results.69 There must ei- stabbing Neal with a knife. Under was that, probability be a reasonable er- absent alternative, Ullery exempt would be ther rors, the sentencer would conclude the bal- if, punishment at the time he stabbed from aggravating mitigating ance of circum- Neal, knowing incapable of the he was support not death.70 stances did sentence of wrongfulness that act. To hold otherwise subject Counsel must act as an advocate and the avail- would eviscerate both 152 and testing.71 case to adversarial State’s Ul- ability insanity felony of the defense to lery strong presumption must overcome the defy charge. It would also common murder that fell counsel’s conduct within wide sense. This Court declines State’s invita- range professional of reasonable assistance approve suggestion person that a tion to equaled strategy.72 sound trial This purposes found insane for the of criminal law whether, viewing Court will consider coun- responsible may be held nevertheless challenged sel’s conduct facts committing although a murder he had no time, professionally at case as seen it was wrong. ability to understand that the act was unreasonable; so, if we will ask whether the ¶40 objected to this as a jury’s judgment.73 error affected the The misstatement of law. The court neither question not whether the outcome would objection nor overruled the but sustained actions, have been different absent counsel’s argument admonished the was not proceeding but whether the result of the was accurately The instruct evidence. fundamentally unfair or unreliable.74 law, applicable admonish ed on cannot meet this standard. arising prejudice ment cured the from this grant relief misstatement-of law.66 We will Taking several comments out prosecutorial “only on a claim of misconduct context, Ullery downplayed claims counsel grossly improper and unwarranted ar where stage. importance of' evidence first gument rights.”67 affects the defendant’s whole, attorneys argued Taken aas both argument neither affected a substantial This vigorously was insane and should right Ullery’s nor went to the foundation of not be convicted of murder. Counsel re case, Ullery’s and did not contribute to conv jurors expert witnesses had tes minded both require not relief. iction.68 This error does tified had a severe mental illness and ¶41 distinguish right wrong either from could argues Proposi wrong or that acts were when he killed his tion Seventeen that trial counsel failed to jury. Neal. did not use a timeline as a appropriately up his ease for the Counsel sum painstakingly only regarding claim visual aid but recited the chro We address first stage argument. nology In mental illness. Counsel order to show ineffec- Cronic, O.S.1991, § 152. 71. United States v. (1984). S.Ct. 66. Hammon 1287, 1307. 361-62; LaFevers, Bryan, 935 P.2d at P.2d at 306. Le, 947 P.2d at 554. O.S.1991, § 68. 20 3001.1. 1111; McGregor, Hooper, at 73. P.2d at 1381. 1111; Hooper, Bryan, 69. 947 P.2d at 935 P.2d at 361; Strickland, at S.Ct. at 466 U.S. Fretwell, 364, 369, U.S. 74. Lockhart 2064. (1993). 842-43, S.Ct. 122 L.Ed.2d 180 Bryan, 935 P.2d at 361. conjunction opinion mandatory in disparaged Pearo’s about ment with our sen- Officer (1) evidence, tence review.77 must first determine We submitting that both mental health imposed the whether sentence of death was friends, family experts, Ullery’s and be- plus prejudice, passion, under the influence of or should make a difference lieved that evidence (2) factor, any arbitrary other and whether jury Ullery as and that the should well. finding supports jury’s the evidence the repeatedly him counsel referred to as claims aggravating circumstances. We determined monster, actually pleaded counsel with but Proposition that sufficient Eleven evidence illness, jury go the to remember his mental atrocious, heinous, supports the and cruel beyond reject appearances, and the State’s aggravating circumstance. implications a freak that he was or monster. support Ullery’s The record does not claim mitigation, Ullery present ¶ 45 In try clarify complex did not to the counsel regarding ed evidence his mental illness as insanity involved his This issues defense. disciplin well as evidence that he was not a proposition denied.75 is ary problem while incarcerated and had re

morse for the He never crime. had been in RELATING TO ISSUES PUNISHMENT incorporated trouble the law. He the stage extensive his first evidence of extreme Proposition Ullery In Eleven intelligence early promise, and academic on argues sup the evidence was insufficient to decline, illness, rapid set of mental and irre heinous, atrocious, port aggrava the cruel versible mental deterioration. This included Ullery ting sprayed circumstance. As Mace that, medicated, information properly Ullery asked, you in Neal’s face she “What are contributing could continue to be a member you doing doing? Why are this?” She tried society. Ullery on his own testified behalf. run, began screaming Ullery to then as apologized family He and the Neal’s grabbed arm, dragged her her into her expressed and The was remorse. in house, and kicked her in the head. Neal mitigating structed that factors could include: get up to scream and tried to continued as (1) (2) ill; Ullery mentally he was in a Ullery her five stabbed times the back of (3) crime; psychotic episode during the he neck, trying she and believed was still (4) remorse; has he was 19 at the time get In up when he left. to the addition (5) crime; previous he had no contact with wounds, injuries stab Neal had blunt force (6) enforcement; law before his mental ill abrasions, all Any made before death. Ullery exceptional ness was an student with beyond rational trier of fact could find (7) achievement; potential great for be that Neal’s reasonable doubt murder was fore mental illness was warm and preceded physical by serious con abuse and (8) compassionate; properly medicated Ul- suffering.76 physical proposition scious This lery poses no violence and can threat of be a denied. (9) productive society; Ullery’s member of mother has dedicated herself understand ¶44 Proposition In Twelve (10) illness; ing treating mental fami claims his death sentence the state violates ly support help cope will mitigating federal constitutions because (11) circumstances; adjust to his had outweighed evidence of aggravation factors discipline problems jail.78 no urges introduced State. ¶46 reweigh supporting careful, Court to the evidence We have conducted inde- single aggravating pendent circumstance and his evi review and considered evidence circumstances, mitigation. argu- supporting dence in We aggravating consider this as Ullery's Application Evidentiary Hearing unpersuaded by interesting argument on Claims Sixth Amendment and Motion for gratuitous that the level was not of violence since Evidence, Newly New Trial Based Discovered of, it was intended to be in lieu rather than in filed on October is DENIED. to, addition Neal’s death. 76. Charm v. 1996 OK CR P.2d O.S.1991, 701.13(C). 77.21 770-71, denied, cert. (1997); Cheney 80. We are 78.Instruction mitigation. offered in as the evidence well specific facts of that under the

We determine outweighs mitigating evidence ease the single aggrava- supporting the

the evidence Accordingly, modify

ting we circumstance. imprisonment life death sentence to UUer/s parole. Ullery’s possibility

without concerning stage propositions second

other

issues are moot. warranting rever- find no error We Accordingly, Judg-

sal of the conviction. degree crime of first murder

ment for the County is District Court of Cleveland

AFFIRMED. The Sentence is MODIFIED LIFE WITHOUT IMPRISONMENT

THE OF PAROLE. POSSIBILITY

STRUBHAR, P.J., JOHNSON, J.,

concur.

LUMPKIN, V.P.J., concur in results.

LILE, J., part. part/dissents concurs in

LILE, part/dissents Judge: concurs

part. agree Appellant’s 1 I conviction I

should be affirmed. also believe All miti- should be affirmed.

sentence

gating presented to the evidence was great respect I determina-

and have for their Appel- far about

tion. The knew more glean than this can ever from a

lant Court I affirm the sentence of

record. would

death.

1999 OK CIV APP 88

Roy TRITTEN, ux., et D.

Plaintiffs/Appellees, Wayne KINSEY, ux., et

Lester

Defendants/Appellants. 91,240.

No. Oklahoma, Appeals

Court of Civil

Division No. 3.

June

Case Details

Case Name: Ullery v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Oct 7, 1999

Citation: 988 P.2d 332

Docket Number: F-97-965

Court Abbreviation: Okla. Crim. App.