VanWoundenberg v. StateVanWoundenberg v. State
Lead Opinion
OPINION
The appellant, Sammy VanWoundenberg, was convicted in the District Court of Mus
The evidence shows that Mark Allen Berry was strangled to death around 4:30 a.m. on February 6, 1983 in the Muskogee City-Federal Jail. Berry, Dennis Brown and Terrance James had been arrested for a federal charge of theft of government property, and were incarcerated together. Brown and James believed that Berry was responsible for their arrest, and so on February 5, 1983, they were discussing beating up Berry when the appellant joined the discussion. Brown testified that the appellant urged them to strangle Berry and hang him to make the death appear to be a suicide. He then provided a wire from a broom and demonstrated how to use it to strangle Berry. Early the next morning the appellant entered the cell of Brown and James and asked if they were ready; he then stuck a piece of paper over the lens of the surveillance camera. Brown then got Berry to play cards with him, and when they were playing, James walked up behind Berry, wrapped the wire around his neck and strangled him while Brown held the victim’s feet, and placed his hand over Berry’s mouth.
Another inmate testified that he heard the appellant warn James and Brown that someone was coming. So James pulled Berry into that inmate’s cell and continued the strangulation. After Berry appeared to be dead, James, Brown and the appellant hung Berry’s body in a shower stall.
As his first assignment of error, the appellant alleges that insufficient evidence was presented at the preliminary hearing to show probable cause that he committed first degree murder. A preliminary hearing does not require evidence sufficient to warrant a conviction. The evidence need show only that an offense has been committed and there is reason to believe the accused committed the offense. Edwards v. State,
As his next assignment of error, the appellant argues that the trial court erred in refusing to grant his motion for severance. Granting or denying such a motion is discretionary with the trial court and its ruling will not be disturbed on appeal unless the appellant makes a clear showing of abuse of discretion resulting in prejudice. Cooper v. State,
The appellant contends as his third assignment of error that he was denied a trial by a fair and impartial cross-section of the community due to the exclusion of potential jurors solely because they were opposed to capital punishment. Relying on Grigsby v. Mabry,
In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.
Lockhart, — U.S. at —,
As a fourth assignment of error, the appellant complains that the trial court improperly excused a prospective juror in violation of Witherspoon v. Illinois,
THE COURT: Mr. McGraw, you and the other jurors in the back have been very patient. Have you heard anything so far that you think might cause you a problem with this case?
JUROR MCGRAW: I think I have, sir.
THE COURT: Does it have to do with my question about the death penalty in a case where the law and the evidence so provided?
JUROR MCGRAW: Yes, sir.
THE COURT: Do you feel like if you were on a case as a juror and you found beyond a reasonable doubt that the defendant on trial in that case was guilty of Murder in the First Degree, are your reservations about the death penalty such that you just simply couldn’t sit down and agree to do or even seriously consider a death penalty?
JUROR MCGRAW: I don’t think I could. (Tr. 354).
Mr. McGraw was then excused over the objection of defense counsel. The rule is clear that a prospective juror who is irrevocably committed, prior to trial, to vote against the death penalty may be properly excused. Dutton v. State,
The appellant next complains that the trial court erred in refusing to allow defense counsel to rehabilitate prospective jurors who were excused for cause when they indicated that they were unwilling to consider the death penalty. We addressed this same issue in Banks v. State,
In Jackson v. Virginia,443 U.S. 307 ,99 S.Ct. 2781 ,61 L.Ed.2d 560 (1979), the United States Supreme Court held that due process requires a reviewing court to determine “whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt.”
Spuehler v. State,
All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.
“Aiding and abetting” involves acts, words or gestures encouraging the commission of the offense, either before or at the time of the offense. Rounds v. State,
The appellant next asserts that the testimony of Dennis Brown was insufficiently corroborated. Title
The appellant claims in his eighth assignment of error that he was given inadequate notice of Dennis Brown’s testimony to prepare for trial. Two weeks before trial, the State gave notice of its intent to endorse Brown as a witness, and gave the appellant a copy of Brown’s statement. Over the objection of the appellant, the trial court refused to remand the case for further preliminary hearing. Brown had been a codefendant through the preliminary hearing. Under these facts, the issue to be decided is whether further preliminary hearing is required when a codefend-ant decides after preliminary hearing to become a witness for the State. The appellant cites Beaird v. Ramey,
As a subproposition to this assignment of error, appellant further claims that his defense counsel was unable to question Brown concerning evidence of aggravating circumstances until cross-examination during the second stage of trial, and therefore counsel was unable to properly prepare for the second stage of trial. The appellant acknowledges we have held that a preliminary hearing on a bill of particulars is not required. See Jones v. State,
In a ninth assignment of error, the appellant argues that the trial court erred in allowing excessive security measures to be conducted in the courtroom in view of the jury. He complains that five uniformed officers were present in the courtroom during the trial. The record reveals that at the beginning of the fourth day of trial, counsel moved for a mistrial because of the presence of the officers and that three were sitting behind the defendants. Although appellant states that the officers were present for security reasons, the record does not reflect this. The trial transcript is not clear why the officers were present. The statements of the judge and prosecutor imply that due to a miscommu-nication, police officers were present on the wrong day to relieve deputy sheriffs who had been subpoenaed by the defendants, and that the deputies were present, among other reasons, to escort incarcerated witnesses to and from the jail. The trial court stated that the police chief should be advised that the police officers would not be needed.
The record is unclear concerning the reason for the presence of the five officers, or which ones were deputy sheriffs, and which ones were police officers. Nor is it clear who, if anyone, left after the court’s instruction. Presenting enough of a record to allow review by this Court is the responsibility of the appellant. Vaughan v. State,
As his tenth assignment of error, the appellant alleges improper comments of the prosecutor. These comments were not preserved for review because counsel failed to object or when he made an objection, he failed to request an admonition to the jury. Banks v. State,
The appellant next assigns as error the trial court’s failure to give certain instructions. Two of those instructions concern the testimony of Dennis Brown. He argues first, that the trial court should have instructed that Brown was an accomplice, and second, that the jury should have been given a cautionary instruction on the weight to be given Brown’s testimony. Defense counsel for the appellant objected to the wording of one instruction, and requested another instruction, neither of which concern the two instructions which appellant now claims should have been given. After his objection was sustained, and the wording changed, and the request for an additional instruction was refused, defense counsel stated that those were the
The appellant also argues that the court erred in refusing his requested instruction that the appellant was an accessory after the fact. The trial court correctly ruled that being an accessory to a felony is a separate substantive offense, and is not a lesser offense included within the felony. Williams v. State,
We find this assignment of error to be without merit.
The appellant contends as his twelfth assignment of error that failing to separate his sentencing stage from that of his codefendant was error. However, the appellant cites no authority for this contention. A defendant must cite relevant and specific authority to support his assertions on appeal. Kennedy v. State,
The appellant next alleges that error was committed when the trial court allowed the introduction of pointed and sharpened air conditioner vent blades which he made, as evidence of the aggravating circumstance that the appellant was a continuing threat to society. Relevant evidence is defined in
The appellant next argues that the State failed to prove that the appellant intended that Mark Berry be killed, or that he knew that his codefendants planned to commit the murder. He argues that the imposition of the death penalty would be in violation of the holding of Enmund v. Florida,
Since the appellant did not in fact kill the victim, we are required to find whether he attempted to kill, intended that a killing take place, or intended that lethal force be used. See Cabana v. Bullock, — U.S. —,
The appellant next contends that the aggravating circumstance that the murder was especially heinous, atrocious, or cruel is being applied in an arbitrary fashion. We addressed this same argument in Liles v. State,
As his sixteenth assignment of error, the appellant maintains that the Constitution requires that the trial court give the jury particularized guidelines for considering mitigating circumstances. Title
The appellant asserts as his seventeenth assignment of error that the State failed to provide sufficient notice of the aggravating circumstances to be proved at trial. Title
The appellant claims next that the aggravating circumstance of continuing threat is being evaluated in an arbitrary manner, and the trial court should have specifically defined the elements of this aggravating circumstance. We have held that this aggravating circumstance is specific and readily understandable. Chaney v. State,
As his last assignment of error, the appellant claims ineffective assistance of counsel. He complains that defense counsel failed to request accomplice instructions in both stages.
A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
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The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland v. Washington,
Although the trial court erred in failing to give accomplice instructions concerning the necessity of corroboration, we must observe that the evidence is strong, even apart from the testimony of Dennis Brown, that the appellant was a principal in this offense. The other inmates testified concerning the warning the appellant gave during the strangulation of the victim, and his behavior afterward. Furthermore, the record reveals that the trial court gave an instruction on the believability of the witnesses, requiring the jury to consider the bias, prejudice or interest any witness may have in the outcome of the trial, and all other facts and circumstances affecting the believability of the witness. Federal cases have emphasized three factors in determining whether the failure to give such a cautionary instruction was prejudicial. Where accomplice testimony was corroborated by other evidence, the courts have uniformly held either that a cautionary instruction concerning accomplice testimony was unnecessary or that the omission of such a cautionary instruction was not prejudicial. E.g., United States, v. Williams,
Finally, we are required to make two determinations relative to the imposition of the death sentence.
Accordingly, the judgment and sentence is AFFIRMED.
Concurrence Opinion
specially concurring:
I believe the application of