Van White v. State

(O.R. 251). sрecific juror indicated under- circumstance I find to be the revers- at ible error herein. points. stood these that a defendant is enti- Morgan states tled, inquire “upon request,” to to discern jurors predetermined im-

those who are to Morgan, at

pose penalty. death nothing I at 2233. see counsel record which demonstrates defense CR 10 1999 OK any request during general was denied such Stephen WHITE, Appellant, VAN nothing in the voir dire. I see record majority’s support statement that “coun- similarly prevented questioning

sel from Oklahoma, Appellee. STATE of Here, panel the trial other member.”3 No. F-89-566. jurors potential court informed the possible if punishments three and asked Appeals Criminal Oklahoma. juror capital punishment feelings had about March prevent substantially impair which or would considering possible pun- him all or her from Hain, at

ishments. Just as inquiry.

we in this should find no error respect affirmed with

sentence should be point.

this

JOHNSON, Judge: specially concurs. opinion 1 I specially concur herein reversing remanding

as it to the relates resentencing. I

this case wish make it for appellant objects Proposition

clear II potential by question jurors

to first asked secondly complains appel-

the court and following

lant was allowed to ask the

question, you penal- “Do think that death

ty ought every imposed particular to be for murder, crime, every

class of like a mur-

der?” question 2 I the first asked do not believe agree I the court was error but with the

opinion clearly second. as it relates to the It ques- counsel to

was error not to allow ask jury as not the

tions to whether or believed guilt finding of would

automatically impose penalty. the death questions

Counsel be allowed to ask should imposition

concerning automatic Therefore, penalty. specially I

death concur my position

but wish to make clear as to the indicating jurors originally juror, "I think the later sion to One of the seated was excuse (sic) impartial threatening jurors, up, receiving phone a fair set call. set excused after 416). (Tr. jurors...." objected Defense the trial deci- counsel court's

256

258 Giulioli, Attorney,

Thomas District C. Stidham, Moore, Gregory R. Patrick Assis- County Attorneys, Okmulgee tant District Courthouse, Oklahoma, Okmulgee, for at trial. State Parish, Butterworth, Lawrence W. Joel Oklahoma, Henryetta, for the Defendant trial. Gardner, Pybas, Appel- D. Julie L.

Jamie Counsel, Norman, Oklahoma, late Defense Attorneys appeal. on for Loving, Attorney Brimer General of Susan Oklahoma, Blalock, A. Diane Assistant Attor- General, Oklahoma, City, At- ney Oklahoma torneys Appellee appeal. on OPINION JOHNSON, Judge: 22, 1982, Stephen Van 1 On December White,1 Okmulgee charged in Appellant, was County Case No. District Court CRF-82-375 (malice aforethought) in the Murder with (Count I), Battery Degree Assault and First (Count II), Robbery Kill with with Intent to (Count III) and At- Dangerous Weapon IV). (Count Jury began Trial tempted Rape May found Mr. Wdiite him to guilty on all counts and sentenced finding aggrava- I after three death on Count received ting circumstances. II twenty years imprisonment on Count III and IV. imprisonment on both Counts life imposed in Judgments were and Sentences jury’s on the verdicts ‍‌​​​‌​​‌‌​‌​​​‌‌‌‌‌​​​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‍June accordance with 15,1984. F-84-557, in appeal Case No. On direct II, the IV were affirmed and III and

Counts and remand- was reversed murder conviction ed new trial. Van White for a April P.2d 814. On Bill of Particu- filed an Amended the State alleging aggravating circumstances. lars four 15-19, jury May Mr. was tried Wfiiite First-Degree Murder. and convicted of stage, punishment At the conclusion of the alleged ag- of the four found each Ap- and sentenced gravating circumstances trial court entered pellant to death. The Stephen Vann White. referred to as It is noted that has also been American Judgment and in accordance with cers had information a Native Sentence in the the homi- male had been seen area of jury’s Appel- verdicts on June spotted Appellant cide. These officers walk- perfected appeal lant has his to this Court. stopped the street and to talk with down Upon seeing get him. the officers out of FACTS car, Appellant in the their raised his hands Lorene 3 On December Ms. air, spread-eagled turned around and leaned shopping in downtown Jackson was Okmul- against a wall. The officers turned gee. Waggin She entered the Tail Thrift around and one of them noticed that his Shop doing as she was accustomed to when ap- tennis were stained with what shoes entered, in she was the area. When she it peared They Appel- to be blood. asked and appeared in that no one was the store. She agreed go police lant to the station with greeting called out a and when no one an- questioning. them began get swered she a chill. consid- She station, Appellant given 8 At the was his store, exploring sensing ered but some- rights questioned Miranda3 and about the thing wrong get was left she the store to Appellant initially Mann homicide. told the store, help. exiting As she was she saw in officers that he had been the immediate appeared what to be blood on the floor. Ms. area, going Waggin but into Tail. denied Draper Jackson then called to who James taking physi- He consented to the of certain washing was across the street his Mr. cab. place evidence which cal took Okmul- Draper response call. came to her gee Hospital. Appellant was returned to the Draper department police placed 4 Mr. went in the store to investi- where he un- was gate. Draper ap- Agent Mr. arrest. saw blood and what der When OSBI Proctor told peared upper plate Appellant he was under arrest for First De- to be an of false teeth Murder, said, gree dropped lying on the floor. his head and This so alarmed Mr. subsequent “I did it.” Draper His confession was that he went back outside and called recorded, transcribed and entered into evi- police. dence. ¶ Okmulgee police arrived and conducted ¶ 9 Geraldine Dennis testified that she complete inspection a of the house. The Waggin Shop went into the Tail Thrift body lying of Geraldine Dennis was found they was followed in she man. After front of the closet in the second bedroom. store, man entered slammed the door blood, alive, She was covered with still pulled pocket. out of knife transported hospital to a in Tulsa. The man, Appellant, began later identified as partially officers nеxt discovered the nude neck, chin, stabbing in- Mrs. Dennis Mann, body Shirley employee eyes. side the mouth and above the Mrs. lying pool store. in a She of blood Dennis’ dentures came out of her mouth and darkened bathroom and was not alive. Mann, eyeglasses her came off. whom Mrs. day, 6 In the late afternoon of the same Mrs. Dennis had seen when she entered the Appellant checked into the El Rancho Motel store, phone went to a across the room. Okmulgee. He asked the motel owner if Appellant stopped attacking Mrs. Dennis and change twenty-seven he could dollars worth Appellant went after Mrs. Mann. disabled hearing of coins. After about the murder of Mann Mrs. so she could not use the Shirley television, owner, Mann on the motel phone attacking back to Mrs. Den- went Milligan, police department Mr. called the to nis. Mrs. Dennis fell to the then floor and inquire large change if a amount of had been Appellant go put saw to Mrs. Mann. He robbery/murder. taken knife her back and forced Mrs. Mann to ¶ following day, Okmulgee building. Police the back of the Mrs. Dennis heard Perry Agent Detective say, Harkrider and OSBI2 Mrs. Mann “You to shouldn’t do this me. patrolling city. Proctor were The offi- I have cancer.” Mrs. Dennis crawled behind Arizona, Investigation. 2. Oklahoma State Bureau of Miranda v. 16 L.Ed.2d 694 against desk, apprised closet. him of what he must defend in a curtained off and hid pulled at trial. Id. at 986. This Court stated that to her and Appellant later returned case-by- this determination will be made on Dennis lost con- of the closet. Mrs. her out case basis. Id. not awaken until she was aftd did sciousness hospital in care unit at the in the intensive' ¶ case, Appellant 14 In the instant never Mann, respect to Mrs. it was Tulsa. With objected the Information at trial. None- Appellant had also at- determined later theless, Appellant charg- claims that now her rape her after he had stabbed tempted to deficient it used document was because to death. “premeditated design” the term instead of ¶ pertinent subject facts will be discussed aforethought.” 10 Other trial was “malice assignments of error to Appellant’s in the context of the trial for Murder in the second they Degree. appeal, which relate. first First On his direct II, III were affirmed and the

Counts and IV reversed, PRETRIAL ISSUES murder conviction was on other grounds, for a new trial. and remanded Van ¶ 26,1995, January Appellant filed a 11 On P.2d 814. White v. 1988 OK CR requesting present two addi- motion leave to again by jury Appellant was tried for First assignments Appellant’s of error. re- tional 15-19,1989. May Degree Murder on quest granted of this Court on was Order 30,1995. January Upon looking no merit in either to the “four We find corners” propositions together of error. of these additional the Information with all of the ma- Furthermore, only Appel- Appellant we will address terials that were made available to upon hearing through that based an interven- preliminary lant’s assertion discov- law, ery, was ing change Appellant in the the Information we find received sufficient no- subject legally charge against present to confer matter him in sufficient tice of the addition, jurisdiction specific trial court. on the case. In we find that the crime of Murder in the intent element specific 12 A reference is made at O.S.1991, Degree pursuant to 21 First O.S., top the Information to Title 21 701.7(A), sufficiently alleged § was Degree § Murder 701.7 which is the First “premeditated design.” use of the term statute and the instructed the two 16 The voluminous record from aforethought murder. Defense coun malice replete trials is with notice the nature object the “malice afore sel did not charged. Appellant the crime It is clear thought” Relying upon instructions. Pickens charged he was with malice understood 1994 OK CR Furthermore, it aforethought murder. Information in now contends the parties involved in this case clear that all the clearly present case was insufficient. charged with malice believed find, in the 13 We the Information Accordingly, aforethought we find murder. clearly case set forth sufficient facts instant irregularity Informa- that the allege degree critical of first elements require tion does not reversal and we find applied Mil murder. This Court Pickens process occurred. that no due violation ler v. Therefore, proposition must fail. of error required a criminal Information to set which allege forth facts tо each element of TRIAL TO STAND COMPETENCY rejected charged. This Miller crime 15,1996, argu May after oral 17 On Parker v. case, through Appellant, by ment in this concluded that failure We counsel, appellate filed a “Notice of allege constituting an offense raises facts Change In The Law and Motion For Leave process questions, but does not automati due Assignment Er jurisdiction. An Additional cally affect the trial court’s Id. to Present requested this Specifically, Appellant Consequently, at our review now focus ror.” v. judicial Cooper notice of gave Appel Court to take es on whether the Information Oklahoma, 116 charges against him and 517 U.S. S.Ct. lant notice of the 262 ¶1, 12, 1117, 1121-1122,

1376-77,134 (1996),holding P.2d L.Ed.2d 498 that OK CR 806 denied, statutory 112 116 requiring rule a defen- cert. S.Ct. Oklahoma’s such, the trial court prove incompetence his to stand trial L.Ed.2d 109 As dant to retrospective by convincing properly determined that a in a criminal case “clear and competency right to due determination was feasible. evidence” violates defendant’s process under the Amend- of law Fourteenth ¶ Appellant argues 20 also he has a Supreme The Court held the burden ment. process liberty having due interest his higher “prepon- proof be than a could not competency he tri determined before stands of the evidence.” Id. at 1377. derance contrary, Appellant’s interest un al. On the 22, 1996, Accordingly, August 18 on competency being is in found der the statutes Direсting Trial issued an “Order The Court competent participate proceed in criminal to Feasibility To Determine Of Conduct- “every stage ings. This is defined as of a Hearing; ing Competency Post-Examination prosecution criminal after arrest and before And, Feasible, Hearing Using If To Conduct to, including, judgment, but not limited inter Constitutionally Acceptable On Standard.” rogation, lineup, preliminary hearing, motion 7, 1997, Maley, April the Honorable John dockets, discovery, pretrial hearings and tri Judge, Okmulgee District District Court of 1175.1(3). O.S.1991, § al.” The statutes County, hearing determined that such a was require only Appellant that a determination feasible, 19-21, 1997, and on November pro competent participate to in criminal Judge Maley retrospective post- conducted a conviction, ceedings and before his does by jury. competency trial examination prohibit remanding from a case this Court Appellant proven found had not for a lower court to make such determina that he preponderance of evidence Bryan tion. v. CROK incompetent during trial on the time of his retrospective compe 15-19,1989. However, May Appellant raises tency proceedings not violate did eight supplemental propositions of error liberty process supple due interests. This stemming retrospective post-exami- from the proposition mental is denied. competency nation trial. supplemental 21 In his second error, proposition In his first claim, Appellant contends the evidence was proceed retrospective competency claims the establish, competent insufficient to he was 1) process violated due because the trial Appellant stand trial in 1989. bases this Ap violated court abused its discretion and contention his that witnesses’ pellant’s process rights by concluding due it impaired mentally he was and did not assist retrospectively was feasible to determine his at his his own defense 1989 trial. Howev 2) competence trial and to stand er, pertinent Appel issues are: whether retrospective competency proceedings violate ability lant had the to consult his attor with both state and federal laws and constitutions. neys Appellant had a rational whether Appellant argues first the trial court erred in understanding proceedings and factual finding proof met its State burden States, against Dusky him. v. United feasibility hearing where the State’s 788-789, 4 L.Ed.2d 1) evidence consisted of the State’s assertion (1960). Overwhelming pre evidence was upon “all that those records were relied Appellant the nature sented understood Hospital from Eastern avail State are still consequences proceedings and had able and can be used all of the doctors or ability to assist his counsel his defense. 2) people,” the medical that Dr. Goodman Any rational triеr of fact could have found 3) testify would be “that available presented from the evidence several of the witnesses who or were testified proven incompetency by pre had not his testify available to from Eastern State Hos ponderance supple of the evidence. This pital testify.” would also be available to We claim mental is denied. find these similar circumstances be claim, supplemental 22 In third those Marshall trial when and Boltz asserts the court erred [Appellant Restored is Native Re- American]. into evidence its Order of cans it allowed sponding objection, containing opinions its and find- to defense counsel’s the Competency prosecutor Appellant’s competency offered no race-neutral reason for ings the issue of on juror, excluding reasoning: the “The in 1989. The State introduced black to stand trial juror play, in to rebut the black doesn’t even come into document surrebuttal this Judge, [Appellant] if Mr. an witness Dr. Lanier because White of defense Indian, I competent to stand trial in the fact that have excused a black Appellant was not play.” Regarding Dr. man into the reasoned that Lanier’s doesn’t come State Americans, jury prosecutor two Native the ex- testimony would mislead the into believ- plained they ing forced to trial without ever “were excused because of—de- Appellant was they competent. Appellant spite they further the indicated that being found fact could serve, they of Restored were diabetic.” argues that since the Order both Additional- ly, prosecutor argued, un- “I Competency introduced under the the don’t think the ease, proof con- standard is the same as a civil which [clear constitutional burden of legal vincing], opposed it null and void and of no this is as to a criminal case. This thus, really quasi-criminal. purely effect and an irrelevant factor this isn’t This is a prosecutor competency proceeding. Appellant also ar- civil commitment case.” The not- 1) although people ed that most know gues the Order constituted inadmissible would not 2) him, Maley by looking hearsay, placed Judge au- at he was an “Indian” and [who non-jury pro- people the Order the 1989 there were several the box thored ceedings] prohibited position of becom- whom he are “Indian” too. The the was sure court, finding jury properly impan- proceeding a in a over which he trial the witness 3) sworn, unfairly injected presiding, and eled and overruled defense counsel’s was now opinion proceedings, Judge into the motion. Male/s thereby jury invading province Appellant 25 We do not find that violating Appellant’s rights. constitutional making prima has met his burden in facie ¶23 A review of the record reveals that against case of discrimination Native Ameri Judge Maley when allowed the Order to be prosecutor’s cans. We find the conclusion admitted, specifically granted defense identity Appellant that racial between jury opportunity “argue to the counsel prospective juror precondi the black is not a changed. the —the burden has And challenge clearly tion for a violated Batson4 is, question point that —and now Ohio, principles set forth in Powers v. time, competent by or not he is whether 416-417, 1373- 499 U.S. preponderance of the evidence. And mere (1991). In Green v. 113 L.Ed.2d for their determination to make.” that’s ¶30, objected While defense counsel to the admit- for a new we reversed and remanded evidence, tance of this he failed to make this finding the trial court failed to trial after argument jury. circum- to the Under these require prosecutor to articulate a race- stances, we find that has waived exercising peremptory heutral reason for its Additionally, appeal. for review on this issue only challenge prospec black to remove error, assuming arguendo there was we find Here, juror. judge require tive the trial did given overwhelming it to be harmless prosecutor to articulate a race-neutral competence evidence of and the instruc- However, prosecutor’s reason. based on the proper proof. Appel- tion on the burden of law, understanding of the said erroneous supplemental third claim is denied. lant’s a race- reason was insufficient to establish Fourth, Accordingly, explanation. asks this neutral Octo this case was remanded for reverse and remand this case for new ber evidentiary hearing prose competency exercised to determine trial because the State exercising its peremptory challenges by striking the cutor’s race-neutral reason three per panel: peremptory challenge to remove the minority members of the three juror. spective November American and two Native Ameri- On one African Kentucky, L.Ed.2d 69 Batson issue, explanation legal and the Maley, Judge, tor’s as District held Honorable John only the trial review is for clear error hearing. hearing the evidence and After Pennington v. court. the arguments, the trial court found find no 913 P.2d 1365. We clear trial notes that prosecutor had noted his supplemental evidentiary hear This error. juror prospective the because excused ing claim of error is denied. juror appeared to was inattentive and sleepy.5 The trial court found this reason be ¶ proposition supplemental 29 In his fifth to be race-neutral. error, Appellant of claims the trial court allowing fundamental error in the committed ¶ Appellant supple submitted two day proceeding competency final of to be his arising of error from this evi- mental claims in his The record re- conducted absence. First, dentiary hearing. he reаsserts his Okmulgee County veals that the Sheriff of remand, objection arguing to this Court’s presence related to the trial court in the have been reversed and remand case should difficulty in sides that the counsel for both competency ed for a new trial based on the housing Appellant be- necessitated Appellant argues violation. Batson/Powers ing transported night to McAles- each back abuse, integrity given potential for the court, ter. The trial in conference with coun- compromised process is when the State is sel, day agreed all that since the final given opportunity respond, to not another proceedings transcript would consist withstanding respond its refusal to on the Ap- testimony closing argument which Additionally, Appellant ar first occasion. participation, Appel- pellant would have no nearly judge gues impossible it for the to is day. present that lant would not need to be fact, challenges intelligently, rule after the on The trial court informed the that be- juror purported con based observation presented to cause the be applies during duct voir dire. The same prior testimony which would be read into the appellate attorney, present not at who was record, immediately by closing argu- followed time, intelligently challenge the strike ments in which would have long after the relevant events have occurred. participation, Aрpellant’s presence was not authority These concerns and relevant were day. necessary that by this Court in its decision to considered ¶ evidentiary hearing. remand for the This Appellant argues he was nei evidentiary hearing supplemental claim is de waiving personally ther consulted about his right nied. right present nor did he waive his to be trial, day present during to be the final supplemental 27 In his second evi- including reading of the verdict. Addi claim, dentiary hearing Appellant asserts the tionally, Appellant argues he did not forfeit prosecutor’s stated race-neutral reasons for right present engaging in dis to be pretextual. Appellant were rea strike disrespectful during ruptive behavior or juror actually sleeping that were this sons proceedings. charged A with a defendant claimed, prosecutor would have called it felony statutory has both constitutional and requested to the attention and court’s right personally present stages all to be at juror Additionally, remove the for cause. trial. Clark v. 1986 OK CR highly suspect Appellant reasons it is 375, 377; O.S.1991, § 583. Fur by holding prosecutor would risk reversal O.S.1991, ther, § a defen 912 mandates interpretation of fast to his own incorrect presence dant’s when a verdict is returned. rather than a race-neutral provide Batson 1175.4(C) O.S.1991, § Additionally, 22 man originally reason at the time one was called right present to be at his dates a defendant’s for. competency hеaring ap made to unless it is review, pear presence that his makes it 28 On this Court called to the court impossible hearing in upon analyze neutrality prosecu to conduct the a rea- According "Sleeping/not paying to his handwritten notes submitted attention.” noted, prosecutor as State's Exhibit hand, 92, 95-97; Simpson, the other a de- sonable manner. On OK may voluntarily right. waive that citing Chap- fendant CR 876 P.2d at California, Darks v. man v. 152, 162; State, (1967). 824, 828,

P.2d Brown v. 1994 OK CR 17 L.Ed.2d 705 The burden State, 12, 48, 56, 69; Gregg v. 871 P.2d 1992 beneficiary thus on the State —the ¶82, 24, 867, 876-877; 844 P.2d Par- OK CR prove beyond error —to a reasonable doubt 293, 11, 556 P.2d ker v. 1976 OK CR error the is harmless. 1298, Further, a defendant can forfeit 1302. State, relying Snyder 33 The on v. Mas- right present proceedings against at his to be sachusetts, 97, 107-108, 291 U.S. 54 S.Ct. if, him after he has been warned the court 330, 332, (1934), responds 78 L.Ed. 674 that he will be removed if he continues to Appellant’s rights with, were not interfered disrespectful engage disruptive in or behav- justice by Appellant’s nor was thwarted ab- ¶ 24, Gregg, 1992 at ior. OK CR 82 844 P.2d during prior sence the introduction of sworn 877; 443, at Peters v. 1973 OK CR testimony reading and the of the verdict. ¶ 13, Darks, 1372, In 1375. 1998 The Appellant State reasons that because ¶ 38, 163, OK CR at 954 P.2d at this Court present prior was time testimo- may although such a waiver held that be cross-examination, ny, the opportunity for record, preferred prac- inferred from the counsel, consultation with observation of wit- court, tice would be for the trial on the nesses, panoply and the of reasons which record, rights to advise the defendant of his еxplain right Appellant present to be and, if the defendant desires to waive his during originally his trial were met. rights, intelligent knowing obtain an and ¶34 waiver. transcripts were read in the presence courtroom in the of defense counsel. ¶ Here, 31 the record is silent as Nothing in the record indicates there was any attorney-client to Absent a consultation. any irregularity toas the manner and meth- consultation coun between his transcripts inod which the were read which record], [apparent knowing sel permit any prejudice would us to conclude voluntary presumed. should be waiver Accordingly, occurred. we hold that the er- any The record is also silent as to evidence to beyond ror harmless a reasonable doubt. support Appellant’s right a valid forfeiture of deny supplemental We claim of error. present. Accordingly, to be the trial court holding day Appellant’s erred the final supplemental propo 35 In his sixth competency proceedings, including the ren sition, Appellant claims the trial court erred verdict, dering Appellant’s absence. allowing testimony to elicit from State regarding Appellant’s compe 32 We must now decide wheth Dr. Goodman tency er A this constitutional error was harmless. to stand trial. states this merely finding plain pre-trial error is was in threshold violation of trial court’s review, order, requirement appellate discovery for error as well аs the trial court’s may nevertheless be found harmless. order in limine to limit Dr. Goodman’s testi 40, 28, Simpson mony given prior proceedings. v. to that OK CR 690, give 698. In order for intent constitutional State did not notice of harmless, testimony error to be deemed the Court must elicit from Dr. Goodman other doubt, beyond testimony given find it previously reasonable did than in earlier sanity. Chapman proceedings regarding Appellant’s not contribute to the verdict. v. . 18, 24, 824, 828, stand, California, 386 U.S. Before Dr. Goodman took the defense any objecting L.Ed.2d 705 The standard for counsel made a record testi mony Dr. than constitutional violations is well-known: rever Goodman other his testimo ny is in trial sal order unless the State can show the from and state beyond report error was harmless a reasonable ments in Dr. contained Goodman’s Fulminante, 15, May Despite doubt. Arizona v. defense counsel’s ob 1246, jection, trial court ruled that Dr. Good S.Ct. 113 L.Ed.2d (1991); testify Bartell v. man would be allowed to as to his rights under the violated his records and his voir dire opinions on all the based time of np May observations Ar- Eighth and Fourteenth Amendments and lodged counsel a con- trial. While defense §§ 20 of the Oklahoma ticle 19 and tinuing objection, request failed to addi- first sub- He contends Constitution. Dr. prepare for tional time to otherwise improperly trial court proposition that testimony regarding Appellant’s Goodman’s jurors prospective about their questioned Court, Allen v. District competency. See penalty. He ar- ability impose the death Witt, Wainwright gues holdings of that the that Dr. does not show Good- The record 83 L.Ed.2d 841 469 U.S. different than his man’s (1985) Illinois, Witherspoon brought matters into prior or new (1968) 510, 1770, 776 20 L.Ed.2d 88 S.Ct. Thus, any will error is waived and the trial. when the trial court asked were violated proposition is de- not be considered. This jurors they prospective if could consider nied. penalty doing violence to their death without ¶36 supplemental proposi- In his seventh by excusing per- conscience and two venire tion, fair Appellant claims he was denied a their answers to the trial sons based on prosecutorial competency trial because of disagree. questions. court’s We Specifically, Appellant claims misconduct. prosecutor argued beyond scope proceedings, attempted to competency Appellant misinterprets ¶ Wain 39 him, jury against commented on inflame the wright. Wainwright Court clarifies testify, improperly Appellant’s ‍‌​​​‌​​‌‌​‌​​​‌‌‌‌‌​​​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‍failure to and Witherspoon and reaffirms the standard set testimony. have inflated Dr. Goodman’s We Texas, 38, 448 100 forth Adams v. U.S. and, question examined the comments (1980), 2521, L.Ed.2d for deter S.Ct. 581 proceedings, the entire we find based on juror mining exclusion on the of their basis nor neither reversal modification warrant- objection capital punishment. The stan 41, Hogan v. 1994 OK ed. See CR juror’s applying dard is views whether ¶ claim is 1163. This “prevent sentence would or sub death denied. stantially impair performance of his ¶ supplemental propo 37 In his last juror in in duties as a accordance with his sition, jury Appellant contends the verdict Wainwright, 469 structions and his oath.” finding competent him to stand trial is erro 105 S.Ct. at 852. U.S. required never neous because the clarify on to that this standard “does went determine if he had a factual and rational juror’s proved require not that a bias be with against understanding proceedings 424-25, 105 ‘unmistakable Id. at clarit/.” previously and him. We have considered 844. This Court has considered the S.Ct. rejected argument in Tate v. very question same and determined 1182, 1188, OK CR question by judge the trial while the used 79, 11, Lambert v. ideal, voir not “we cannot conclude dire was P.2d 497-498 and decline to reconsider holding. supplemental claim is de that it was the ‘substantial our This inconsistent with Having Appellant’s sup nied. denied all of impairment’ test articulated Witt.” Batten Appel plemental propositions, we find that field process rights lant’s due were not denied denied, cert. U.S. competency proceedings. these (1992).6 1491, 117L.Ed.2d 632 RELATING TO ISSUES 40 A trial court’s voir dire review of the JURY SELECTION subject jurors that the in this ease reveals cause, they properly were excused proposition 38 In ninth error, occurring dur- could not follow the law and instructions. he claims errors However, matively question Battenfield, at issue. 816 P.2d at unlike the instant case, given opportunity defense counsel was jurors responded affir- to rehabilitate those who Therefore, there was no error and this sub- FIRST STAGE EVIDENCE proposition is found to be without merit. ¶44 proposition In his third sub-proposition, In his second error, Appellant claims that his confession holding that the of Batson claims properly was not admitted into evidence be Kentucky, 476 knowingly cause he did not intelligently (1986), was violated when the L.Ed.2d 69 rights during police questioning. waive his removed three Native American venire State challenge did admissibility people by peremptory challenges. Appellant of his confession at trial. No motion to is a Native American of the Creek and Utah filed, suppress was nor was the admission of Upon review we find that Batson tribes. contemporaneous confession met with a was not violated. objection. Furthermore, Appellant made use provided racially 42 The State neutral typed version of his statements to explanations for the removal of each of the police in his case in chief. You .cannot have jurors. three Native American Two were too, your cake and eat it saying as the old unemployed women who were and unmar- goes. By failing object affirma posited employed ried.7 The State and tively using evidence, Ap the confession in jurors preferred. married were The third pellant plain has waived all but error. We juror Native American was removed because find no error. charges pending by against were the State

his brother a and he was to be witnеss in ¶ 45 When the issue voluntari of that case. We find no error. This sub- raised, totality ness of a confession is of proposition merit. has no surrounding circumstances the confession State, must be considered. Castro v. 1987 Finally, sub-proposi 43 in his third 182, 26, 394, 403, 745 P.2d cert. tion, Appellant contends that the trial court denied, 485 U.S. 108 S.Ct. 99 refusing erred to exclude three venire (1988) (quoting L.Ed.2d 446 Schneckloth v. persons for cause. The trial court did not Bustamonte, 218, 226, 412 U.S. refusing abuse its discretion to excuse the (1973)). 2047, 36 L.Ed.2d 854 ultimate jurors. Moreover, many Appellant’s three of test of voluntariness of a confession is requests granted. of removal for cause were product essentially whether it is of an following: Court This has determined free and unconstrained choice its maker. It is well settled Oklahoma that a defen- totality AId. review of the of the surround right particu- dant has no vested to have ing circumstances includes the characteristics juror panel. right lar out of a His is that of the accused and the details of the interro objection of rather than that of selection. Bustamonte, gation. 412 93 opinion And if the trial court is of the that S.Ct. at 2047. any juror impartial is not fair or or is for unqualified, may reason excuse the ¶46 case, present sup- In the the record juror upon challenge either of one of the ports finding the confession was not parties upon his or own motion without violence, by any extracted sort threats or juror challenge. Whether or not should by any implied prom- nor obtained direct or excused rests in the sound be discretion ises, slight, nor exertion however court, trial and unless such discretion argument, Appel- improper influence. In his is abused there is no error. lant contends that it was his mental condition 123, ¶4, involuntary, Lewis v. CR this OK which rendered confession appropriately police P.2d 82.8The trial court did not no abuse its matter how offi- sub-proposition may discretion. This is without cers have The United behaved. States Supreme merit. Court has determined Further, important It should be noted that the State used its sixth 8. it is to note that juror challenges, peremptory peremptory to excuse another who was did not even use all of his unemployed prejudicial also and unmarried. She was not thus was no effect from the there trial jurors Native American. court’s refusal to remove these for cause. murderous who survived the a factor. from the victim of a condition defendant mental reasons, foregoing we find For the However, fact does not attack. they hold that “this merit. proposition error is without mental justify a that a defendant’s conclusion condition, by apart from its relation itself and error, proposition of In his fourth coercion, dispose ever should to official improperly Appellant argues that the State ‘voluntariness’.” inquiry into constitutional testimony countering used rebuttal 157, 164, Connelly, Colorado v. insanity. regarding The evidence evidence 515, 520, 93 L.Ed.2d reports medical complained of consisted of goes say it is error testimony Drs. Portnoff and prior from the deficient mental condition presume that the testi- This evidence contradicted Garcia. in a case is sufficient of the defendant expert, Dr. mony Appellant’s psychological involuntary. Id. or her confession render his Donica. ¶47 Furthermore, has our Court sub-proposition, Ap In his first deficiencies that mental or intellectual held it error when the pellant asserts that Farris v. a confession invalid. do not render and Dr. Garcia’s read Dr. Portnoffs State P.2d CR OK previously transcribed from 998; Tarver v. 1982 OK CR transcripts hearing without hav preliminary Only if the accused’s again. testimony transcribed It is ing this impairment great as to degree of mental is so transcription every which omission capacity to understand the deprive him of the reversal, capital in a case. necessitates a even meaning confession should and effect of his White, 47 at 1988 OK CR Van be considered inadmissible. the confession unavailable to Both doctors were at 819. ¶62, 13, Lee v. passed testify person. Dr. had Garcia is, pertinent question de 1020. The unable to be away and Dr. Portnoff was Appellant’s alleged mental retardation spite preliminary hearing was clear located. The history, did he alleged and inhalant abuse judicial equipped provide to ly a tribunal consequences his confes of understand OK accurate rеcord. Britt v. 1986 CR agents?9 to the OSBI sions Furthermore, 812, 816. Immediately placed un- after he was and prosecutor assured the trial court murder, degree Appellant first der arrest for no men counsel that there would be defense said, “I did it.” More- dropped his head or, competency, possi of as far as tion made over, subsequent confession the arrest and ble, prior counsel. It mention of defense place only day one after the murder. took presumed prosecutor that the vio cannot be during agents that their The OSBI testified promise and the trial court’s di lated his Appellant he was coher- conversations with any objec devoid of rective. The record is respond questions to without ent and able to during this tions made the time which any trouble. Therefore, testimony jury. was read for the plain only. for error the record was reviewed ¶49 supports a The record below none, sub-proposition is without Finding freely finding Appellant’s that confession was merit. voluntarily given. He understood Appellant’s next 52 The contentions waiving right of to remain silent. effect sub-propositions will be addressed to- three Besides, Appellant attempted to have never overlap. previ- gether arguments The as the not suppressed and he did his confession testimony ously sworn of Drs. Portnoff addition, object at trial. In to its use Garcia, hospital corresponding re- and the during his made affirmative use of it himself in an рort, all introduced the State were Finally, we find that use of the case chief. Appellant’s effort to combat evidence. confession did not contribute Donica, evidence, primarily from Dr. beyond defense death conviction or sentence of insane, that he overwhelming Appellant asserted reasonable doubt. There testimony specific intent to commit eyewitness could not form the forensic evidence and points during questioning. rights at three different was read his Miranda faking incapable and that he was to Drs. Portnoff and were murder Garcia used previously impeach given mental illness. This Court has the statements to Dr. Doni- may properly interpretation held that the State introduce ca. Dr. Appel- Donica’s testimony regarding a defendant’s impeached by rebuttal lant’s statements could be testimony at the time of a homicide. mental condition sworn of Drs. Portnoff and Garcia. Maghe light above, v. 620 In of the discussion these sub- propositions P.2d are likewise without merit. error, proposition 56 In his fifth Ap- ¶ Here, this same evidence was pellant allowing contends that Dr. Goodman by defense in his direct exami used counsel testify attorney- in rebuttal violated his Donica,, thereby opening nation of Dr. O.S.1991, privilege § client under 12 as door rebuttal. Driskell Cf. rights. well several of his constitutional ¶ 100, 360. For rights asserts that his were violat- testified, example, during Dr. Donica the de ed when the State was allowed tо call Dr. chief, fense case that the defendant was witness, Goodman as their rebuttal when Dr. mentally capable faking his condition. originally appointed by Goodman was analysis by The State attacked this introduc Court to aid the defense.10 The defense prior testimony of sworn Portnoff testify chose not to have Dr. Goodman on its originally and Garcia. Where the defendant behalf. regarding competency, any used the evidence White, discovery 57 Prosecutorial alleged error was invited. information Van generated by non-testifying psychiat defense OK 47 at at 819. CR experts question. ric is an unsettled In Ake ¶ Appellant goes on to claim that Oklahoma, evidence, the use of this same (1985), L.Ed.2d the United States Su Garcia, privilege of Portnoff and violated his preme Court 'held a criminal defendant O.S.1981, against self-incrimination and process right expert psychiatric had a due § Supreme 1175.4. United States Supreme assistance. The Court did not di has held that “the of information State’s use rectly appointed address the role of court during psychiatric obtained examination for psychiatric experts implied they but purpose rebutting the limited a defen act partisan should for the defense ca insanity implicate dant’s defense does not Later, pacity. Supreme Court refused to Fifth Kentucky, Amendment.” Buchanan v. grant certiorari in Lynaugh, Granviel v. 881 402, 423-424, 483 U.S. 107 S.Ct. (5th Cir.1989), denied, F.2d 185 cert. Gran- (1987). case, present In L.Ed.2d 336 the Texas, viel v. S.Ct. bоth doctors testified as to their examination (1990). Granviel, 109 L.Ed.2d 758 In the purposes competency of for the upheld prosecution’s Fifth Circuit the access diagnosis. The examination did involve them any reports generated by court-ap to the asking Appellant questions and his answer pointed psychiatrist. Furthermore, defense However, ing questions them. none of the raising insanity the Court determined that an incriminating response called for an and none defense constitutes waiver of the defendant’s given. testimony any Nor did the relate protection against self-incrimination with re Therefore, incriminating statements. the gard psychiatric testimony. to Id. at 190. privilege was not violated. Finally, the Fifth also held that Circuit Tex appointing expert 55 Section 1175.4 states that no state- as’ method of a neutral conjunction competency ment made in awith satisfied the Fourteenth Amendment. Id. at may against examination be used defen- 192. Justices Marshall and Brennan dissent dant, except that if a argued defendant is found to be ed from the denial of certiorari and competent, the can used Fifth statements be for that the Circuit’s decision was inconsis Here, impeachment. Appellant’s statements tent with Ake. objected acting Dr. Defense counsel to Goodman re- as an advocate for the defense. porting to the trial court rather than directly need for all do so on the the information recеntly, States Su the United 58 More sanity and on the issue of relevant evidence between clarified the distinction

preme Court psychiatric evidence. completeness of the Amendment Fifth and Sixth a defendant’s information on the testimony protect the Other courts respect psychiatric rights with to chilling 680, 684-865, 109 it have Texas, notion that otherwise would 492 U.S. in Powell v. (1989). candidly speak 3148-50, on the defendant to effect 106 L.Ed.2d 551 psychiatrist. Powell, Supreme Court their In the United States inequity permit recognized the inherent applied in balancing test was 61 This insanity an defense ting a to raise defendant (Fla. Florida, 640, 641 Pouncy v. 353 So.2d psychiat objecting while to disclosure Dist.1977). Pouncy, the court held App. 3 In Supreme Court noted ric evaluations. attorney-client privilege that the doctrine of Buchanan, be no violation occurred calling deposing and the from bars State any psychiatrist did not reveal cause the by hired an accused psychiatrists witnesses concerning his the defendant admissions of purpose aiding for the sole or his counsel Kentucky, 483 U.S. crime. Buchanan v. See prepara- in the and his counsel the accused 2917-2918, 402, 422-423, 107 S.Ct. defense, insanity except where the tion of an respect With L.Ed.2d 336 effectively deprived so trier of fact would be attorney-client privilege the violation the witnesses as to undermine of valuable case, psychiatrist’s the instant jus- interest in the administration public insanity de introduced rebut holding thе partly The court relied on tice. fense. Francisco v. City County San Court, Superior Cal.2d on the issue courts are divided 59 Lower (1951), physician when a is which held that prosecution should have ac of whether the attorney exam- agent an used as psychiatric experts. Some cess defense aiding purpose the sole ines the client for deny grounds of the access on the courts attorney purpose the of treat- and not for the privilege, on the work attorney-client others client, any information obtained the v. Alva product In United States doctrine. privileged. Pouncy physician the (3d Cir.1975), rez, 1036, 1046-47 the 519 F.2d attorney the defense court reasoned a conviction in which Third Circuit reversed judgment make an informed must be free to court-appointed government the called the respect client’s best defense with- with to the psychiatrist. The Third Circuit held defense gov- creating potential out inhibition of attorney-client privilege protected Pouncy, at 642. ernment witness. 353 So.2d However, reports. in United expert’s Also, Supreme Court held Colorado Smith, F.Supp. Edney rel. States ex. counsel to psychiatrist defense retained (E.D.N.Y.1976), with 1054-1055 affd. preparation of defense to be assist (2d Cir.1977), cert. opinion, F.2d 556 out attorney assert agent of the and thus could denied, attorney-client privilege. See Miller v. (1977), attorney-client privi L.Ed.2d 276 City in and and Coun- District Court Smith, qualified. In lege to be was found (Colo.1987) Denver, 834, ty 737 P.2d to call suсh an ex prosecution was allowed (en banc). ground that the defense had pert on the attorney-client privilege offer waived the ¶ foregoing, light In we testimony insanity ing expert on the issue. attorney-client ap privilege the is hold that ¶ provided a plicable where defense counsel is deciding the issue of whether 60 When court-appointed expert to aid in his client’s attorney-client privilege protects client the privilege maintained wheth psychiatric experts, defense. This to courts communications expert at the defense calls that balancing balance er or not use a test. courts Therefore, prosecu the representa- we find that trial. counsel’s need for assistance testimony at trial potentially pro- tion’s use of Dr. Goodman’s court’s need for tion and the However, subject error. under the refusing protect to was bative evidence.11 Courts Psychiatric by Non-testifying Maringer, Defense Witness for the Prose- Generated 11. Elizabeth F. Discovery Experts, 669-671. of Information cution: Prosecutorial facts, Here, right-to Allegations the error was harmless. even a fair trial. prosecuto- psychiatrist say rial the defense’s own could not misconduct do not warrant reversal of a any certainty legally conviction unless with was the cumulative effect was murder, deprive at the time of the or such-as to the insane of a defendant fair State, anytime. Langdell trial. v. testimony Dr. 1982 OK Goodman’s was used CR 162,164. in rebuttal and the nature of the testi- corroborative, mony part, of the de- was. Appellant’s 66 In the first of seven expert testimony, fense as well as cumula- sub-propositions, complains pros that the tive. improperly attempted ecution to define “be ¶ Additionally, contrary Appellant’s yond a jury reasonable doubt” for during the assertions, provided the copy defense was Essentially voir dire. passages none of the report Dr. day Goodman’s on the same as sub-proposition referred to in this were met day the State. This was one after the trial objection. Therefore, with an plain all but begun. It had was at this time that error Vaughn has been waived. v. State then endorsed Dr. Goodman as own its 1985 OK CR 697 P.2d Consequently, witness. the defense was ¶ Upon complained review of the notice that this witness would be called and passages, the Court fails to see where the provided copy findings to which prosecutor attempted to define “reasonable trial, testify. this witness would At there simply doubt.” The poten State asked the overwhelming evidence of jurors they tial if would hold the State guilt very meaningful and little put evidence higher that burden and not a burden. It has alleged legal insanity on of his intoxication or previously by been held this Court that this (cid:127) n at the time of the murder. type argument impermissible is not an Finally, Appellant contends that attempt to define “reasonable dоubt.” Diaz ¶¶ report relied on Goodman’s 18-19, 1986 OK CR 728 P.2d testimony and the State’s characterization of 503, Therefore, sub-proposition penalty. it to assess the death He asserts fails. that, result, prod the sentence was the ¶ Next, Appellant argues uct of ambush and arbitrariness in violation prosecution improperly sought to invoke rights.12 of his constitutional disagree We victim, Mann, sympathy Shirley for the Accordingly, for the reasons outlined above. throughout the course of trial. Once proposition we find that this of error is with again, many of the statements now com Furthermore, out merit. we hold that plained contempora of were not met with a attorney-client privilege prohibit pros- should objection. neous It is settled law that coun discovery ecutorial and use of information sel for both State the defense have generated by psychiatric experts non-witness right fully discuss the evidence from experts such

when are consulted criminal standpoint, their inferences or de preparing defendants the course of arising ductions from that evidence. The capital sentencing trial or a proceeding. prosecution is entitled make reasonable protection applied prospec This should be interpretation comments on evidence. tively. Holt v. 1981 OK CR proposition 1170, 1171; In his tenth of er Glidewell ror, throughout asserts that 1353. The remarks proceedings prosecution’s merely conduct was so verified earlier and the inappropriate as to affect supported by the outcome of the statements were the evidence. trial, thereby denying him his Upon alleged improper constitutional review of the com Oklahoma, 926, (10th note, Appellant argues Cir.1985). 12. that under Akev. F.2d 929 But a simi- 83, 1091, 470 U.S. at at Dr. Goodman Appellant's appeal lar issue was raised in first psychiatric should have not conducted a case, then, distinguish- and his was found to be examination of but also assisted in State, able from Ake. Van White v. 1988 OK CR evaluation, preparation presentation and 8,¶ 814, at 752 P.2d 818. Sloan, defense. See also United States v. 776 272 ¶

ments, they prosecu- 71 has held that a find that were reasonable This Court we quality of upon the tor’s comments on the the defense inferences based evidence. See ¶ 18, State, 240, jury the 769 case and an exhortation to to return Nguyen v. 1988 OK CR denied, 172, 925, 109 167, guilty 492 a verdict were reasonable inferences P.2d cert. ‍‌​​​‌​​‌‌​‌​​​‌‌‌‌‌​​​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‍of 3264, 106 (1989), the v. L.Ed.2d 609 and comments on evidence.' Dean overruled ¶ State, 40, 11, 476, State, v. 1989 CR 778 P.2d grounds, on other Green OK OK ¶ 1271, 30, 9, 478-479. Even ill advised to de- CR 862 P.2d 1273. This sub- comments fense do not warrant a mistrial. proposition without merit. counsel is ¶ State, 41, 16,

Leigh v. P.2d 1985 OK CR 936, subject ¶ 939. We find the remarks were next claims that evidence, proper the comments on prosecutor improperly the invoked societal jury duty alarm the had a and insinuated ¶ Appellant him next that

sentence to death. These statements asserts thеrefore, trial, objected any prosecution it was for the were to at reversible error not lay opinion four their with error waived. See LaFevers v. ask witnesses has been ¶ State, 97, 37, 1362, respect Appellant’s sanity. P.2d Most of the 1991 OK CR Furthermore, alleged arguments jury improper passages complained are of 1370. to the Therefore, they “obligation” appeal. back for the time on all have an to come first plain guilty verdict have to be but error has been waived. The testi with a been held proper argument mony lay of is in a based the evidence. witnesses admissible 13, State, 140, sanity. CR Kiser v. Lawson v. 1987 OK 739 determination ¶ 19, prosecutor P.2d CR P.2d 1008-1009. has OK 407. The every right weight credibility must and to set forth his contention that determine the lay guilty expert sanity the as both witnesses in a charged. is Mills defendant determination. Clark v. 1986 OK CR grounds, Langham Lay other 378.13 overruled on witnesses 9, ¶6, they Appel CR testified to what 1990 OK as observed may prosecution argue period expert, 1281. lant of time. An that life over a at times, imprisonment enough. Nguyen, may given misleading inaccurate or be ¶ 21, therefore, OK CR 240 at 769 P.2d at 172. In information from an accused and event, may lay prosecution may be far better recommend witnesses than punishment given. expert. testimony Accordingly, to be this find the elicited here We argument proper sub-proposition fails. is with

out merit. sub-proposition, 70 In his fourth Appellant complains prosecutor sub-proposition, Ap dе 73 In his sixth nigrated pellant prosecution gave per improp a defense witness contends that the erly testimony opinion credibility. Spe sonal witness Dennis’ about bolstered Geraldine cifically, Appellant prosecution’s implying expert. asserts the was an she Yet testimony again, contemporaneous objec comments on Dr. Donica’s consti there were no impermissible denigration testimony. tuted plain of a de tions made to this All but witness, province Vaughn, fense and invaded error has been waived.14 1985 OK jury by “providing personal CR 29 own as 697 P.2d at Ms. Dennis veracity.” Again, during but was also left for sessment of witness all attacked and dead waived, incident, plain subject alleged testimony been her cer error has objected tainly improper passages proper respect were not with to at relevant and LaFevers, Appellant. trial. her 1991 OK CR 97 at own find observations We P.2d at 1370. no error here. Perhaps questions could have been word- 14. It should noted that the affir- also be defense However, matively inquiries upon complained relied the same appropriately. ed more background psychi- of Ms. Dennis’ as a permissible elicited was within the realm. atric nurse in their own examination of her. State,

¶74 Appellant’s Finally, we address sev- 1991 OK CR 808 P.2d and is as follows: sub-proposition relating to enth and last Here, he prosecutorial misconduct. asserts ... photographs the decision to admit into improperly prosecution that the referred evidence is within the sound discretion complete Appellant’s first trial. After a re- only the trial court and will be disturbed record, upon view of the we find no such reference. showing of abuse of discretion. State, sub-proposition is without merit. This Lamb v. 1988 OK CR 767 P.2d Further, photographs 891. are admis- 75 In eleventh they proba- sible -if are relevant and their error, proposition of that he was he contends outweighed by preju- tive value is not their a fair trial because of the denied introduction dicial value. Id. prejudicial testimony regard other-crimes ¶78 prejudice We find that no attempted rape of the decedent dur case, was created here. In the one instant ing the fatal attack. Evidence as to the photograph color and four color slides of the . always scope of the crime is relevant if for no subsequent murder victim made to her death purpose help jury other than to assess jury. Appellant were shown to the claims appropriate punishment considering pictures unfairly gruesome were State, seriousness of the crime. Aumiller v. should not have been admitted into evidence. 90, ¶5, 1986 OK CR However, “[g]ruesome grue crimes result Furthermore, forming an inte “[occurrences McCormick, pictures.” some 1993 OK CR 6 transaction, gral part formerly called ¶ 12, only 845 P.2d at 898. “The consider gestae, complete the res are those that pictures ation to be made whether are picture сharged.” of the offense v. Gaines hideous, unnecessarily impact such that the 1986 OK CR 724 P.2d on the can be said to be unfair.” Id. stated in his confession that pictures depict were used to the crime .The rape he started to Mrs. Mann but did not scene and the location and the nature of the complete the act because he was afraid that Further, wounds to the victim. the four hung shop, might if he around the be post-autopsy slides her head and neck statement, apprehended. This and not the only, autopsy show no stitches or work and itself, attempted rape fact of crucial are, up. the wounds are cleaned The slides premeditation. to the proof State’s therefore, more clinical in nature and less properly 76 The sexual attack was admit- gruesome photographs. than crime scene A part gestae ted into evidence as of the res of photograph’s probative may value be mani overempha- the murder. The did not ways encompassing State fested numerous during wounds, closing, size the sexual attack but character and location of the crime scene, respect corroborating used the defendant’s statements with medical examiner rape testimony. to the to rebut claim v. Fritz OK CR attempted 1353, 1365. insanity premeditation. lack of 811 P.2d This proposition of error fails. case, In79 the instant the trial court did properly not abuse its discretion and admit- ¶ Aрpellant’s proposi twelfth single photograph ted the and the four slides. rights tion of asserts that his to a fair error overwhelming Appel- Given the evidence grue trial were violated the admission of guilt, prejudice lant’s we find that no resulted victim, photographs Shirley some from this admission. Mann. It is well settled law Oklahoma that photographs Appellant, admission or denial of lies in his thirteenth discretion, proposition, within the trial court’s and that asserts that the trial court com upon by admitting discretion will be disturbed mitted reversible error letter showing parents of abuse. See to his while incar McCormick wrote ¶6, 10, 896, 898; county jail. argues Tibbs cerated in the He 115, ¶24, improper this letter rebuttal and constituted 1379. The rule of law which continues was obtained violation of the Fourth and Lampkin be followed was set down v. Fourteenth Amendments. letter was 274 Appellant’s intoxicating far influence of an personal all of under the

confiscated when liquor, jail drug, or other substance that belongings were removed from his cell his/ passions visibly her attempt [were] at excited or alleged after suicide. his his/ ” impaired.’ her judgment [was] ¶ Supreme has 81 The United States 1187, quoting Id. at OUJI-CR 736 and Com- that “the Fourth Amendment made it clear mission to OUJI-CR 735. Comment against searches proscription unreasonable apply does within the not confines presented by The evidence the 85 Palmer, v. prison cell.” Hudson 468 U.S. supported finding Ap defense at trial that 517, 3194, 3200, 526, 104 82 393 S.Ct. L.Ed.2d abuser, pеllant a substance not that he was (1984). addition, Supreme In Court has impaired was the time of the In at murder. held the Due Process that Clause fact, conflicting Appel there was evidence of is not Fourteenth Amendment violated when lant’s of intoxication at time of the level employee deprives an state individual supporting murder. evidence intentionally negligently, property, either or Appellant conclusion that was at intoxicated provided meaningful post-depriva there are the time came Appel of the murder from Hudson, tion available. at remedies police day lant’s own statements to the 531, Accordingly, at find 3203. we Moreover, Appellant while murder. after from confiscation letter his high sniffing paint stated that he was from jail improper. not cell was attacks, the time of the murderous re Further, membered the incident detail. ¶ 82 The State used the letter as he recounted actions he took at the time rebuttal evidence to show that un suggest which decision-making coherent on happening derstood what was to him and was part, given his the context events. The Therefore, able in a sane manner. it to act evidence not sufficient to an warrant Appellant’s insanity proper to counter voluntary instruction on intoxication. See State, arguments. DeVooght v. See 1986 OK 296, 14, Lamb v. 1988 OK CR ¶ 39, CR Even if P.2d here, present error were this rebuttal evi According dence was cumulativе nature. part Appellant, propo of this ly, it to harmless. we find be sition, the trial court asserts erred denying request an his instruction on first FIRST STAGE INSTRUCTIONS degree capacity manslaughter. diminished support jury The evidence did not such a ¶83 error, proposition In his second jury instruction. “The is to be instructed on contends the trial court erred every degree which of homicide the evidence jury instructing not on the lesser Id., suggests.” citing reasonable view degree of first included offense diminished v. Lee P.2d 1017. capacity manslaughter, instruct- See also 1993 OK Hooks CR ing jury voluntary on intoxication. The denied, cert. presented support at trial evidence did not L.Ed.2d 490 intoxication, voluntary on nor instruction on degree capacity” first “diminished man- slaughter. ¶87 Finally, Appellant argues that held in Barr the trial This Court failure to instruct court’s on volun tary stage precluded 1187 that in the intoxication first jury considering there error in the trial giving was no court’s failure from effect to jury sponte voluntary mitigation against sua instruct the imposi evidence as following: penalty. Jury intoxication. The Court stated tion of the death instruction following: No. 6 stated the question voluntary “The intoxication should not be submitted to the unless Evidence has been offered as to follow- evidence, presents mitigating the defendant sufficient circumstance: The defen- prosecution or the evidence of the dant influence of raises was under the mental or possibility, that the defendant was ‘so еmotional disturbance. Whether this cir- existed, this cir- proposition cumstance and whether 91 For his fifteenth error, mitigating cumstance is must be decided contends that the trial by you. “anti-sympathy” court’s instruction combined prosecutorial argument incomplete with jury Appellant’s could have considered concerning mitigating instructions evidence alleged mitigating intoxication as evidence if rights. argu violated his constitutional This they had so found. There was little evidence rejected by ment was the United States Su likely support this claim at trial. It is that Parks, preme 484, 494 U.S. Saffle jury simply give did not this claim much 490-492, 1257, 1261-1262, 108 credence, light particularly of some of the (1990). L.Ed.2d 415 This Court has also contradictory testimony. Accordingly, we rejected State, argument. See Fox v. Appellant’s proposition that find second of ¶51, 56, 562, 1989 OK CR 779 P.2d 574-575 error must fail. cert, (Okl.Cr.1989), denied, 1060,110 494 U.S. ¶ (1990). 1538, Appellant’s proposition In sixth 88 of er- S.Ct. 108 L.Ed.2d 777 See also State, ror, 44, 147, argues pro- Mayes he 1994 he was denied due OK CR 887 1288, 1319, denied, sentencing proce- 1194, of law a cess reliable cert. 1260, (1995). by procedure dure 115 131 improper instructions and S.Ct. L.Ed.2d 140 Ac insanity argument cordingly, proposition on his defense. This is this of error fail. must merit. without SECOND STAGE ISSUES Oklahoma, In89 when the de produces

fendant sufficient evidence to raise error, proposition 92 In his first of sanity, a reasonable doubt of his the State Appellant asserts his sentence of death proving sanity beyond then has the burden of must be vacated because trial court’s State, a reasonable doubt. Ballou v. jury sentencing refusal to instruct the all on ¶10, 6, 949, 694 P.2d 951. Whether options provided by agree. Appel law. We proving the State has its burden of carried particularly lant refers to the alternative sen Appellant’s sanity at the time of the tencing option imprisonment of life without question commission of the crime is a of fact parole. The Mann homicide occurred on De jury. procedure for the Id. This has been 22, ‍‌​​​‌​​‌‌​‌​​​‌‌‌‌‌​​​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‍However, Appellant cember approved by this Court. See Brewer v. crime, re-tried for this convicted and sen ¶¶ 55, 17-19, 1986 OK CR 718 P.2d 1989, May eighteen tenced in months after denied, 871, 245, cert. U.S. S.Ct. imprisonment the effective date of life with (1986). L.Ed.2d 169 It is the function of the parole sentencing option out as a for first jury to determine whether the defendant has degree O.S.Supp.1988, murder. See 21 presented evidence sufficient to raise a rea 701.10; Laws, 96, §§ 701.9 and Okla. Sess. sanity sonable doubt as to his at the time of 361, § p. effective November presumption sanity If offense. not the Moreover, light precedent, of this Court’s Lamb, prevails. 767 P.2d at 891. Appellant’s sentence must be vacated. See ¶¶ 31-46, Salazar v. 1993 OK CR ¶ Appellant’s argument prece- fails on 729, 737-741; 852 P.2d Hain v. See also insanity dent. Oklahoma law on and the ¶¶ 48-49, 1993 OK CR shifting proof burden of have been consis- 744, 752-753, denied, cert. tently upheld by on review this Court. 128 L.Ed.2d Maghe, 1980 OK CR 100 at 620 P.2d at 436; Garrett v. 93 Because we find reversible error as to error, jury Appellant’s proposition 755-756. The was cor- first a new rectly by sentencing hearing instructed the trial court on the must be conducted. Furthermore, Therefore, proof. remaining we will burdens discuss effectively that the propositions assertion State was re- of error to the extent that subject may guidance provide lieved of its burden the use of the we to the trial court Accordingly, re-sentencing instructions is for and to avoid further error erroneous. proposition sentencing proceeding. of error fails. a new Stephen absence agree that Vann White’s proposition Appellant’s seventh object error, though failed to or error. competency trial is harmless even from his instruction, may warrant a

request also Oklahoma, guar- In statute defendant argues the failure to He closer look. present at right personally anteed the to be mitigation de give crucial instruction being prosecuted step if he is each of his trial ability properly prived the felony.1 right to be This includes mitigating evidence. consider relevant competency trial.2 present at one’s question is OUJI-CR instruction case, agreed to 2 In this defense counsel mitigating circumstances and which defines day competency trial jury make their own determi the final of the to conduct directs Ironically, mitigating. is nation as to what the verdict in absence and receive White’s has been this same instruction the use of Okmulgee solely for the conveniеnce objected by the defense bar frequently to County Nowhere on the record does Sheriff. permissive rather it is worded with because participated or even it reflect that White mandatory language. In the instant than right his to be acquiesced in this waiver of giv case, mitigating were instructions some Thus, in continuing his trial present. subject would have instruction en. egregious of Okla- violation absence was meaningfully jury more under helped the out, majority points law. And as the homa mitigating may be considered stand what right present at one’s trial is not to be instruction, The failure to use evidence. only statutory, also a constitutional but light that were in of the other instructions Accordingly, I absence right.3 find White’s necessarily a fatal flaw. provided, was not rights Federal to violated his State and also However, remanded for because this case is of law.4 Due Process re-sentencing, the trial court should find appropriate. use of OUJI-CR 438 agreement I in Up point, to this am full occurred, majority. Error both with the CONCLUSION part statutory and constitutional. Where we be sent back for re- 95 This case must ways in that this error is the determination failure to instruct sentencing because of the cursory majority a harmless. The does sentencing op- the Life Without Parole analysis of the issue and decides White tion. The will not have to determine prejudiced. If this were the sole consid- sentencing options: guilt but the three eration, statutory the cоnstitutional and Life, Parole or Death. Life Without present guarantees an accused must be stages critical of trial would be ren- at all STRUBHAR, Y.P.J.: concurs. long meaningless as as there was suffi- dered CHAPEL, P.J., LUMPKIN, J.: support cient evidence to a conviction. part. partydissent in in concur errors 4 While most of the time we deem LANE, in J: concurs results. beyond can “harmless” when it be said CHAPEL, P.J., concurring in they doubt that did not affect the reasonable part: part/dissenting trial, the sole outcome of the this cannot be determining factor in whether relief is war- remand- agree that this case must be However, question the error resentencing. I cannot ranted. The is whether ed for II, 7; O.S.1981, 583; Spain, § Humphrey Rushen v. § 3 Okl. 4.Okla art. Const, 1. 22 453, 455, Cr. 106 P. 78 L.Ed.2d 104 S.Ct. (1983) ("... presence right personal O.S.1991, 1175.4(C) ("The person § whose 2. 22 right stages all critical of the trial and at right competency question is in shall have the rights of each criminal counsel are fundamental ....") added). present (emphasis be Mass., defendant."); Snyder v. Com. (1934) 78 L.Ed. 674 (Okl.Cr.1986) 3. Clark v. (Fourteenth process right due Amendment ("It well settled that a defendant has both is presence). statutory right present to be and a constitutional trial.”). stages at all of his rights” parties.5 psychosis affected “substantial waived. Id. Instead of follow- Otherwise, rules, errors like the one issue here evidentiary established caselaw and harmless, always since the evidence would be majority simply pull seems to a desired presented and thus the outcome of the trial result out оf the air. Accordingly, I do not regardless have would been same find error in Dr. Goodman’s Accordingly, presence. defendant’s I would this case. hold the defendant’s absence without his con- ¶ 2 I dissent to the Court’s decision to deprived right sent him substantial resentencing remand for based on the law as competency

reverse this matter for a new my separate opinions set out in Salazar v. trial. (OM.Cr.1993) 852 P.2d 729 and Hain v. (OM.Cr.1993). 852 P.2d 744

LUMPKIN, Judge, concurring in pari/dissenting part:

¶ 1 I concur in the result of the Court’s affirm

decision to the conviction this case.

However, disagree unsupported I with the V,

holding relating Proposition Doctor testimony. accurately

Goodman’s The Court caselaw, majority sets out the includ- 1999 OK CR 23

ing Kentucky, Buchanan v. (1987), S.Ct. 97 L.Edüd 336 where the Joseph DENNIS, Appellant Jerome Supreme Court held it is not error for prosecution psychiatric to call a defense expert as a rebuttal witness due to the sim- Oklahoma, Appellee STATE of ple privilege fact the defendant’s has been No. F-97-1220. by presentation waived of the defense at prosecution trial. The restriction is the Appeals Criminal of Oklahoma. inquire expert cannot and the cannot relate admissions made defendant as 6,May part of the evaluation or treatment without a right 423-24, waiver to counsel. Id. at However, at the Court then caselaw,

proceeds disregard and with- authority analysis

out or determines “as a attorney-client privi-

matter of law ...

lege prohibit prosecutorial discovery should generated by use of information non- psychiatric experts

witness when such ex-

perts are consulted criminal defendants preparing capital

the course of for trial or a

sentencing proceeding.” (Opinion pg.

271). conclusion, In reaching major-

ity ignored has the doctrine ‍‌​​​‌​​‌‌​‌​​​‌‌‌‌‌​​​‌​​‌‌‌‌‌‌‌​‌​‌‌​‌‌‌‌‌​​‌‌‌‍of waiver the appropriately

federal courts applied have Lynaugh,

this issue. See Granviel v. (5th Cir.1989).

F.2d Once a defen- present insanity,

dant elects to or other defense,

psychological type privilege physician attorney

to both the concern- findings the nature and of the offered O.S.1991, 3001.1; Chapman California, §

5. 20 386 U.S. 18. 23. 87 S.Ct. 824. 827. 17 L.Ed.2d

Case Details

Case Name: Van White v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Mar 10, 1999

Citation: 990 P.2d 253

Docket Number: F-89-566

Court Abbreviation: Okla. Crim. App.