Warner v. State

OK CR 40 WARNER, Aрpellant Frederick Charles Oklahoma, Appellee.

STATE

No. D-2003-829. Appeals Oklahoma. of Criminal

Court

Sept.

842

848

851

856

¶ Appellant charged was and convicted of rape degree the first and murder of 11 old The victim month Adrianna Waller. and mother, Waller, Appel- with her Shonda lived children, year six old lant and two Char- year year and five old Vonnita. Two von old Dashja, daughter from another relationship, stayed with them on occasion. early August Appellant left On city morning pay a traffic fine at court. approximately He returned home at 10:00 to prepared a.m. lunch 10:30 Ms. Waller for of Okla- Appeal An from the District Court Appellant older and fed and the children Black, County; Virgil Honorable C. homa noon, baby approximately food. At victim Judge. District grocery for the store. All Ms. Waller left Walker, Spradlin, Assistant Tamra Gina Appel- children at four remained home OK, Defenders, City, Coun- Public Oklahoma left, At Ms. lant. the time Waller victim Appellant at Trial. sel for jumpsuit. was dressed in a Ms. Waller re- approximately turned at 2:00 to home 2:30 Lane, Keel, Wesley Attorney, Lou District glanced in the p.m. She master bedroom and Swartz, Attorneys, District Robert Assistant lying saw the victim bed. The victim OK, City, for the at Oklahoma Counsel State appeared sleeping. to be Ms. Waller noticed Trial. only diaper. victim in her was dressed Sutton, B. De- Wendell Assistant Public afternoon, Appellant Later that and Ms. Wal- OK, fender, City, Ap- Oklahoma Counsel ler decided to take all children with them Appeal. pellant on get to run intended to errands. Ms. Waller ready Appellant stopped the victim but her Edmondson, Attorney Drew General W.A. victim volunteered to retrieve the from Oklahoma, Whittaker, Assistant Of Robert Appellant the bedroom. returned to the liv- General, OK, Attorney City, Oklahoma Coun- ing holding saying room the victim and Appeal. sel for the State on breathing. she was not When Waller, handed victim to Ms. the victim OPINION began limp. screaming was Ms. Waller emergency told to take them to the LUMPKIN, Judge. Vice-Presiding room. drove Ms. and all Waller ¶ Appellant Warner Charles Frederick emergency the children to the room. On the by jury tried and convicted of Fust way, gave the Ms. Waller victim CPR. (21 (Child Abuse) (Count I) Degree Murder 843) O.S.1991, They Degree hospital approxi- §§ First at the 701.7 and arrived (Count (21 II) O.S.1991, mately Emergency §§ Rape p.m. personnel 1111 and 3:40 took 1114), CF-97-5249, Case in the District the victim and continued resuscitation ef- No. I, County. In forts. All failed the victim Court Oklahoma Count efforts aggravating pronounced p.m. Emergency found dead at 4:07 the existence two punish- charge cleaning circumstances and recommended the nurse Robin Justice was II, ment of In recom- victim saw her when death. Count before Ms. Waller she (75) seventy-five years bright mended noticed red blood around the victim’s sentence imprisonment. ac- and The trial court sentenced rectum tears to rectum. Ms. Justice cordingly. judgment injuries appeared at that the From this and sentence testified trial Appellant police has this fresh perfected appeal.1 be and recent. She called and Appellant’s Appellant's 1. in Error was filed in ted to the December 2004. Petition Court January Appellant’s January Court on 2004. reply argu- brief brief was filed 2005. Oral July was filed The 2004. State's brief was September ment was held filed December 2004. The case was submit- аttending physicians complained notified the Drs. to officers that the knuckles on McCreight and Hill. right hand were sore. ¶4 McCreight bright Dr. observed red In subsequent Appellant’s search of staining the blood skin around the victim’s home, officers sexually explicit discovered a X-rays rectum and tears around the rectum. videotape in the VCR located the master fractures, indicated two skull one of which bedroom, jar and a of Vaseline and a bottle depressed, was and two fractures to the left jel nearby. of aloe vera

jaw. McCreight Dr. inju- testified that the trial, Appellant’s 8 At son Charvon testi- recent, ries were consistent with a violent Appellant only fied was the adult with the shaking and inconsistent with a fall from a children when Ms. Waller went to the store. carpeted bed to a floor. He also testified He said that day died, on the the victim upon sustaining injuries, that he such the victim Appellant eat, saw in the would not be able to master bedroom play. drink or His shak- diagnosis ing physical Appellant was sexual her. He said angry and abuse. was often with the victim because of crying her conducting subsequent 5 In autopsy, general noisiness. Charvon admitted that he Choi, the medical examiner Dr. determined previously had testified the victim died be- injuries the cause of death to multiple be cause up”. she was “beat head, chest, the victim’s and abdomen. She determined the manner of death to abe defense, 9 In his Appellant presented homicide. Dr. Choi testified the victim suf- eight witnesses. These included medical ex- crushing type injury fered a to her head and perts who testified that the victim would injuries internal to her brain. The victim’s immediately have lost upon consciousness jaw fractured, and three ribs were her liver sustaining injury, injuries the head her were lacerated, spleen lungs and her .were consistent with hitting her head on a wooden bruised. There were bruises on the victim’s frame, injuries bed and the to her chest could chest the size of fingertips. adult She also have during occurred CPR. Defense wit- hemorrhages observed retinal in the victim’s nesses also testified that Charvon had said eyes, which she testified were consistent with he had lied when Appellant he said he saw being the victim violently shaken. Addition- victim, hit the that originally Ms. Waller had ally, Dr. Choi observed six different tears said drove her to the store and she rectum, around the victim’s which she testi- home, waited for him to take her Appel- that fied were pen- consistent with blunt force handed, lant was left good and that he took etration. Dr. Choi also that upon testified care of the victim. receiving injuries, her the victim would not eat, have been play. able drink or ¶ During trial, stage the second addition to incorporating all evidence from ¶ 6 Interviewed first at hospital, Appel- stage, presented first the State victim, lant brought told officers he her showing year four old mother, and the children emergency daughter physically Vonnita had been abused room. He said he had been in the master by Appellant, Appellant physically pun- year bedroom with the victim and two old ished Charvon and whipping Vonnita Dashja. Dashja gave He said the victim cord, them awith belt or electrical and that something to drink. After while he left the physically abused his ex-wife room. When he returned to the bedroom mitigation, Warner. In Vonricca approximately between p.m., 2:00 and 3:00 presented thirteen witnesses. The lying the victim crying. on the floor He found the alleged aggra- existence of the two picked up her and noticed she had hit her circumstances, vating “continuing threat” head. He said she seemed be dazed. He heinous, “especially atrocious or tried to cruel” comfort her and laid her on the bed sleep. penalty. recommended the death get When he returned to her approximately p.m., 3:30 trial accordingly. Appellant she was not breath- court sentenced Later, ing. arrested, Appellant when was eighteen propositions he raises of error in his

858 sentencing, judge will formal the trial noted he propositions be addressed appeal. These presented been for New Trial. they had a Motion at trial.2 the in which arose in order she to Defense counsel indicated wanted Therefore, argu- no stand on the motion. ISSUES JURY SELECTION support in of presented ment evidence was as- in 11 contends his second The trial court the the motion. overruled juror oc- signment error that misconduct of motion comment. Id. without failed Scales to advise the curred when Juror affidavits, Appellant’s parte 14 ex during voir that she knew second court dire subjected not been to cross-ex which have stage Marcella Andrews. defense witness amination, properly are not before this Court argument supported by affida- Appellant’s is State, for review.3 See v. 1983 OK Stafford his for a New Trial vits attached to Motion ¶86, 15, 1205, 1211, 665 P.2d vacated on CR affida- filed with the District Court. These 1212, 2651, grounds 467 104 other U.S. S.Ct. it not until Andrews’ allege vits that (1984) (this Court found it 81 L.Ed.2d testimony Juror rec- stage second did Seales improper permit litigation factual to of sister, ognize as someone her Annette her parte affidavits and attachments issues ex Williams, years. affi- known These for State, appeal). Dewberry on See also pres- allege that Seales was davits also Juror ¶10, 9, 774, 776; CR 954 P.2d Brown v. OK her had with during ent conversations sister State, 56, 75, 871 P.2d Thompson, and the Michelle Andrews’ sister denied, 1003, 115 517, 130 cert. S.Ct. Dashja Appellant’s daughter War- mother of State, (1994); L.Ed.2d 423 Anderson v. ner, Appellant’s about ease. ¶ 7, 1282, 57, OK CR P.2d 1284. While during voir record shows The were presented the affidavits to trial witnesses, judge a list dire the trial read of of to court virtue their attachment judge name. Andrews’ Trial, which included for a New failed Motion they recognized if panel then any any asked argument offer evidence or even in any made of the names. Juror Scales no support hearing the affidavits at the on dire, judge Therefore, response. Later on in voir Appel motion. are left we record, if specifically unsupported allegations asked Ms. Scales she knew lant’s and any objection anything the case or knew of the which about contains neither Juror people replied any in witnesses or involved. She Scales’ service nor mention she may negative. Nothing further have known is contained one witnesses. This only. transcript concerning any knowledge requires plain record for in the review error ¶40, State, Simpson v. OK may had of a witness or See CR Juror Scales have any objection 694-95. service on the Ms. Scales’ jury. ¶ The purpose of voir dire exam Initially, argument is ination is to ascertain whether there are gained post- upon based information from grounds challenge jurors prospective for parte out in implied verdict interviews and set ex either actual or bias and to facilitate supporting The claim error intelligent peremptory affidavits. and chal exercise of lenges. included as the twelfth of affidavits were Mitchell OK CR ¶ 16, part Motion for allegations sixteen raised affirmed part grounds, New Trial filed with the District Court. At and reversed in on other originally Supplementation 2. tried 3. record with and convicted for affidavits rape support request evidentiary hearing victim's and murder in This of a an for claims, Court and reversed remanded conviction pursuant Amendment to Rule Sixth death trial. Warner v. sentence a new See 3.11(B)(3)(b), Rules Court Oklahoma A second 2001 OK 29 P.3d 569. (2006) Appeals, App. Ch. Criminal Title However, shortly trial was held in March 2003. However, permitted. re- these affidavits are opening prior after the State’s statement they only viewed if determine contain clear evidence, presentation a mistrial was convincing evidence of counsel’s ineffective- judg- appeal declared. The instant concerns the evidentiary hearing. ness so as to warrant an occurring ment sentence from trial June 2003.

859 (10th Gibson, ease, v. 262 F.3d Cir. Under Mitchell the facts this if the alleged State, 2001); Enriquez relationship Perez v. 1987 OK CR between Juror Scales and wit- ¶ 164, 7, 1204, Depriving known, 740 P.2d 1206. ness Andrews had been a no basis for challenge O.S.2001, 660, counsel of that could § defense information for cause under 22 intelligent perempto presented. lead to exercise of a would have v. been See Allison ¶ State, right 169, 58, ry challenge appellant’s 142, is a denial of an 1983 OK CR 675 P.2d impartial jury. Enriquez, Perez to a fair 152. 164, ¶ 7, OK CR at 1206. 740 P.2d ¶ is 18 It well established that all State, Appellant, citing 1985 OK Tibbetts v. juror regarding impartiality doubts must be 43, 942, argues 698 P.2d Juror CR that of the resolved favor accused. v. Hawkins withholding pertinent deliberate Scales’ State, 58, 5, 1156, CR 1986 OK 717 P.2d was “not with the information consistent However, 1158. when an appellant requests principles of fundamental fairness.” The juror misconduct, a on new trial based argues also on State relies Tibbetts but appellant showing bears burden of both relationship between and wit Juror Scales juror prejudice harm as a result of the Andrews was not should type ness that juror’s State, service. Edwards v. 1991 OK response a have elicited from Ms. Scales 71, 12, 670, CR 815 P.2d 674. Defense questions. the court’s speculation counsel’s mere is surmise ¶ Upon a of the review record which upon insufficient to cause reversal. Court, properly before this we find there is State, 7, 13, 1993 OK CR Woodruff deliberately no indication Juror Scales with 934, cert. denied 510 U.S. information a held that she defense knew 349, 126 114 S.Ct. L.Ed.2d 313 any The

witness. attenuated nature of rela case, In this we have no doubts tionship between Juror and witness Scales impartiality. as to Juror Scales There no is Andrews such that Ms. could not Seales indication on the record that she did not expected have been infor volunteer such honestly questions posed answer to her response question. mation court’s may on voir That she dire. have known ¶¶ State, 62, 5-6, See Howell v. witness is not Andrews sufficient to warrant denied, 882 P.2d cert. A reversal. criminal defendant is not enti (1995) 1968, 115 S.Ct. 131 L.Ed.2d jurors nothing tled to who know about his (this rejected argument Court appellant’s guarantee case. constitutional a Id. The juror’s that under Tibbetts with deliberate impartial fair and trial does not exclude ser holding pertinent information not con by juror knowledge vice a of facts and principles with the sistent of fundamental case, involving only circumstances but fairness). Further, the record reflects no persons who use knowledge those questions by additional were asked defense concerning opinions form the merits of the regarding knowledge counsel Ms. Scales’ case, a negative opinion or who form duty witnesses. It defense knowledge. defendant on that based Id. investigate counsel to those mat voir dire compe record reflects Ms. Scales was ters, qualifications which affect venireman’s juror, tent to she express serve did not as juror. to sit as Peters v. any unwillingness to consider all available ¶9, 9, 712 P.2d 801. That would which punishment express any nor options, did she diligence have been disclosed reasonable prejudice against or in favor of the during voir dire be made cannot later prosecution case. in this has failed grounds with which to attack the verdict. to show that was denied a fair trial he Ms. Id. jury. Accordingly, on the Scales’ service distinguishable This ease is from those assignment is denied. of error requiring reversal when a venireman fails to pertinent inquiry disclose information when STAGE ISSUES FIRST Enriquez, is made. See Perez OK CR 1206; 740 P.2d at assign- Manuel contends his third ¶¶ 4-8, trial court OK ment of error the erred admit- 860 (1996). 151, 136 L.Ed.2d 96 Admis testimony. Specifical- 117 S.Ct. opinion

ting improper 1) expert testimony is within the trial of testimony from Dr. sion ly, refers he State, 1995 discretion. v. OK physi- court’s Cannon regarding diagnosis of McCreight his 89, 103, denied, 45, 33, Price, 904 P.2d cert. abuse; 2) CR child sexual Rebecca cal and 1176, 1272, 134 116 L.Ed.2d 516 U.S. S.Ct. vouching bolstering and supervisor, welfare (1996). 219 credibility and of Warner the Charvon techniques for in- Willy Edwards’ Detective McCreight’s diagnosis 23 Dr. Hatlelid, children; 3) Kathleen terviewing physical victim suffered that the assistant, opinion her regarding physician’s upon experience his abuse was based sexual physically abused Warner that Vonnita was emergency physician for over ten as an room occasions”; many different “probably diagnosis upon also based years. His was Mullinex, 4) in the detective lead Detective injuries. the victim’s his observations of opinions the victim case, regarding testimony was Kathleen Hatlelid’s based injuries of her while Shonda all sustained years experience eleven of as a upon her store, at the whether was Waller specializing in the physician’s assistant area Appellant was the person, that an honest was testimony suspected child Her of abuse. injured vic- the only person who could have upon and exami also based her observation Ap- injuries while the occurred tim and that opinion The testi nation of Vonnita Warner. with victim. pellant was alone mony experts assist of both these medical opinion improper argues admission jury understanding in the cause of the ed the un- bolstering was testimony improper injuries found on children. This Court both improperly speculative, and fairly prejudicial, testimony previously properly has found such jury what result to reach. told the § under 2702. See Revilla v. admissible State, 24, 20, 1143, ¶21 P.2d testimony 1994 OK CR 877 of certain witnesses The denied, 1096, 1150; 115 subject a Motion cert. 513 U.S. S.Ct. was the listed above 764, (1995); The trial court 130 L.Ed.2d 661 Roubideaux v. by defense counsel. Limine ¶ 23, State, 105, 35, CR 707 P.2d Appellant was 1985 OK the motion but overruled Further, pretrial opinions were not continuing objections on all witnesses’ granted (Tr.Vol.III, testimony improper opinion Portions on an ultimate pg.538). motions. opinions challenged jury did not tell the testimony above were issue since State, met to reach. Welch v. subject Limine or with what result See of the Motion in 356, 369, 23, these fail- CR 8 2 P.3d objection trial. To the extent 2000 OK cert. 665, review, denied, 1056, Appel- 121 object 531 U.S. S.Ct. 148 appellate waive ures to (2000). alleged trial ineffectiveness. L.Ed.2d lant has counsel ¶22 Price, scientific, for Rebecca a “If technical or As twenty-one year Depart knowledge employee assist specialized will other Services, Appellant or to of Human fact to understand the evidence ment asserts trier of issue, qualified improperly bolstered and vouched for the a fact a witness she determine skill, credibility by knowledge, experience, of Charvon Warner Detective expert anas testify Willy Argument or evidence is training may the form Edwards. or education O.S.2001, only jury if impermissible vouching could opinion or of an otherwise.” evidence, reasonably may prosecutor, em believe that the or in Opinion § 2702. which witness, indicating personal a issue, admissi case a is generally an ultimate brace O.S.2001, credibility, § also Marr v. witness’s either 2704. See belief ble. State, 173, ¶ 8, 884, explicit personal through 741 P.2d assurances veracity suggest by implicitly indicating expert can witness’s 886. “While witnesses inferences, to the presented information not jurors which should draw that knowledge testimony. Cargle See supports the witness’s application specialized from the State, 806, merely facts, testimony OK 909 P.2d opinion v. CR denied, 100, cert. S.Ct. what reach is inadmissi U.S. tells result to ¶74, In Lawrence 136 L.Ed.2d ble.” Romano denied, we addressed cert. 1990 OK redacted, testimony concerning veracity generally argues a witness’s but that the insuf- ficiently tape a child abuse victim. We found that a redacted should not have been worker that had interviewed child admitted into social evidence. record shows testify tape pursuant victim as to abuse could not whether was redacted to a list of objectionable lying telling child victim and or comments raised defense 56, ¶ 4, Id. specific truth. 796 P.2d at argument counsel. Absent a more by Appellant, 1177. we find neither Detective Mul- testimony lenix’s trial nor videotape the of ¶25 Here, Price that when testified she his interview with Ms. Waller contained im- he interviewed Charvon was six Warner proper opinion testimony. See Cannon v. years gave old. on the opinion She no truth- fulness of his As for her statements. testi- mony Edwards, regarding Detective she tes- she had Having Appellant’s tified observed Detective Edwards reviewed claims of way suspected improper the expert opinion testimony, and he interviewed child we find thought warranting abuse victims. She said she he used no error or reversal modification. techniques trying get to

proper fully jury informa- The instructions informed the toas from testimony wеight expert opinion tion children. Ms. Price’s the use and testimo improper vouching ny. Any not was Detective Ed- to failure trial counsel raise an objection as it only procedures testimony wards addressed the he discussed above used, veracity not credibility any the not does constitute ineffective assistance of responses he received in his interviews. as any counsel has failed to show Black See resulting prejudice. ¶ Appellant’s Motion in Limine ¶5, 65, 1047, 1070-71, cert. OK sought improper to redact comments and denied, 534 U.S. S.Ct. opinions expressed by Detective Mullenix (2001) (the L.Ed.2d prove failure to ei during interrogation his of Shonda Waller. ther of the Strickland4 required elements is objected also the admission of claim). appellant’s fatal to an entire Accord videotape Exhibit State’s the of Ms. Wal ingly, assignment of error is denied. interview, contempora ler’s and asked for a instruction the advising assignment neous that the 29 In his fourth of er ror, having detective’s comment about the victim he contends was denied his leg rights confrontation, a broken During process, was a mistake. a to due pres conference, defense, fundamentally bench Detective Mullenix ad ent and a fair trial the misunderstanding vised court it was a the presentation on when trial court limited his part his that the victim had suffered a regarding bro of evidence Waller’s credi Shonda leg. prosecution bility. The court Specifically, Appellant ken directed the asserts he bring that out the upon present before and should have been allowed testimo so, any open ny failure to do court give left the that Ms. Waller offered to had possibility giving up adoption; may an instruction to that victim for the victim direction, jury. during Per rape; the court’s direct have been that conceived Ms. examination, may days Mullenix was partying Detective asked Waller have out been death, videotape prior day about comment on the con to the victim’s after her cerning funeral; leg. night victim’s broken and the Detective death whether mistakenly thought away testified give Mullenix he the Ms. Waller tried to arrest; doctors had said the property victim suffered a after his whether Ms. Wal leg. Therefore, any failing provided broken error in ler a headstone for the victim’s videotape to redact from the grave; provided detective’s and whether Ms. Waller concerning leg good including taking comment the broken was care for the victim care diaper cured. her rash.

¶ Appellant specify support argument, Appellant does not what 30 In other of his portions of videotape stating should have been ease law cross-examination cites Washington, 4. Strickland v. S.Ct. 80 L.Ed.2d 674 inquire Sammy victim allowing the defendant club left the with McKin- includes bias, credibility ney; McKinney she not when at- motiva- home into a witness’s night tempted return the later that always victim testifying, is tion for bias get and she back until 10:00 didn’t victim Appellant also cites case law stat- relevant.5 n .m. the morning; she next when ing exposure of a witness’s motiva- that the changed diaper Thursday night, victim’s proper tion function of constitutional Appel- area red. the victim’s anal When cross-examination,6 right of right and the sought lant to admit further information сon- process an in a trial to due accused criminal cerning McKinney the ad- trial court denied is, essence, opportunity to a fair right finding mission of the evidence it did against accusations.7 to defend the State’s McKinney show did act in furtherance of Appel- disagreement no While we have As the murder. evidence showed law, lant the basic he has failed to over time, rape close in murder occurred challenged argument how the include in his trial court did not its in abuse discretion bias, to Ms. evidence was relevant Waller’s excluding Cipriano the evidence. See v. credibility testifying. In our or motivation State, 25, 40, 869, 2001 OK CR 32 P.3d 878 record, fail to how review of the we see concerning relevancy (questions partic- of have it challenged evidence would made more ular are within evidence the discretion of testify- probable or that Ms. Waller less was trial court and the determination that (rele- O.S.2001, ing truthfully. § See 12 2401 evidence be as will should excluded irrelevant vant is that which makes a material evidence showing be affirmed unless there is a clear of fact probable more or less than it would be accompanied by prejudice). Accord- abuse evidence). quali- without the Evidence of the ingly, assignment this of error is denied. ty of to gave care Ms. Waller the victim and ¶33 error, Ap- fifth give up assignment In his whether she intended her sufficiency adoption pellant challenges the of the evi- purchase or to for her headstone support grave dence conviction for first de- collateral to the issue of whether was gree rape and asserts the State failed to testimony her was truthful. penetration. prove Appellant element of ¶31 excluding In evi the above against entirely claims the evidence him was dence, prevent Appel not the trial court did required circumstantial and thus to ex- credibility lant challenging from Ms. Waller’s every hypothesis except clude reasonable deny as a and did him truthful witness not See, State, guilt. e.g. that of v. 2001 Hooks ability put Appellant aon defense. (“circumstan- 1, 8, 294, OK CR 19 P.3d 305 thoroughly cross-examined Ms. Waller every tial evidence must exclude reasonable prior concerning inconsistent statements hypothesis guilt.”) Appellant other than day murder. timetable events the pass claims the evidence cannot test. cross-examination, Through this Appellant recognizes this abolish- Court’s injuries set out his defense that the victim’s hypothesis ment of the reasonable standard did until not occur Ms. returned home Waller State, 21, 4, in Easlick v. 2004 OK CR 90 grocery from the store. 556, 557, argues applying P.3d but Easlick to post his case be a violation of ex would ¶ Appellant sought present 32 also facto, equal protection process due and/or that the victim sexual abuse of the provisions of the United States and Okla- custody occurred when she was homa constitutions. McKinney. end, Sammy To testimony through post only elicited Waller’s analysis Ms. 34 Ex facto 20, August days 2 applies legislative cross-examination that on v. enactments. Selsor death, Turnbull, 579, the victim’s she out to 947 before went P.2d VanArsdall, 673, 678-79, 227, 480, Kentucky, 5. Delaware v. 475 6. Olden U.S. v. 109 S.Ct. State, 1431, (1988); 1435, (1986); Wing OK L.Ed.2d 513 S.Ct. L.Ed.2d 674 1383, CR State, 68, 15, P.2d 1385. Livingston v. OK CR 1093. Mississippi, U.S. 7. Chambers S.Ct. 35 L.Ed.2d 297 However, by judicial changes graphs injuries. the law of her Spеncer Dr. testified construction, overturning prior such as case she observed lacerations around the rectum. law, implicates the Due Process Clause injury She said that kind of indicated “some requires post princi- consideration ex shortly sort of force to that area” before facto ples. only change Id. Easlick involves death and that the condition of the area the standard of review used this Court indicated that the amount of force used was appeal. statutory It not a change. It does considerable, as that area does not tear easi- change the crime for which ly. She also testified that the rectal muscle charged, punish- it does not increase the appeared to be through transected or cut prescribed therefore, ment or increase the injury that such an type was not the normal- quantity degree proof necessary or ly associated with hard stools. On cross- Therefore, guilt applying establish at trial. examination, Spencer Dr. admitted she could Easlick to case does not violate not tell for sure what caused the victim’s post the Due Process Clause ex injuries. facto principles. See Garrison v. 2004 OK ¶ 38 Dr. Chai Choi of the Examin- Medical ¶35, 42, Tidmore v. er’s performing office testified that while ¶26, 3, 95 P.3d 176-177. autopsy she observed several tears around ¶ 35 Under apply Easlick we the standard the victim’s rectum. She said the tears indi- State, Spuehler of review set forth in v. 1985 cated the skin around the rectum had been 132, 7, 202, 203-204, OK CR 709 P.2d pressure “overstretched” from being placed “whether, reviewing after in the evidence against the area. Dr. Choi said there was no light prosecution, any most favorable way for her to determine what caused the rational trier of fact could have found the injury, but she could not exclude an adult essential of charged elements the crime be- penis cross-examination, as the cause. On yond a reviewing reasonable doubt.” A court injuries Dr. Choi said the to the victim’s reasons, inferences, accept must all and cred- rectum were all external. ibility support choices that tend to the ver- ¶ Although not a expert medical wit- State, Washington dict. See v. 1986 OK CR ness, Taylor, Elaine forensic chemist with the ¶ 8, 729 P.2d City Department, Oklahoma Police testified ¶ 36 A rape conviction for re in analysis, her examination for DNA she quires proof penetration. O.S.2001, of diaper found no evidence of semen in the or 1111(A). § any penetration, Proof of howev the victim’s clothes. State, slight, Vaughn er is sufficient. v. ¶40 The is the exclusive 29, 7, OK CR 697 P.2d 966. As the judge weight credibility of of the infant, victim in this case was an we have no State, evidence. Robedeaux v. personal testimony pen on the element of ¶57, 43, denied, cert. rely only etration and on the medical evi U.S. 115 S.Ct. Justice, L.Ed.2d R.N., dence offered. Robin testified (1994). Although may there be conflicts examining that in emergen the victim in the the evidence and different inferences drawn cy bright room she observed red blood her therefrom, this Court will not disturb the diaper, injury. which indicated a recent She jury’s if competent verdict there is evidence also observed tears around the victim’s rec support Viewing it. Id. evidence McCreight, tum. Dr. examining physi light cian, most favоrable to the we find testified he also observed blood in the there was sufficient evidence from which diaper victim’s and that the skin around her juror penetration. rational could find Ac rectum was stained with blood. He was also cordingly, reversal is not warranted and this opinion the blood indicated a assignment of error is denied. injury. Additionally, recent he observed tears in the rectum. ¶41 Appellant eighth contends in his as-

¶37 M.D., Ann Spencer, Morie pediatric signment of error the trial court erred in emergency physician at Hospital, failing suppress Children’s his statements to Detec- did not examine the photo- Willy victim but viewed Specifically, tive Edwards. he claims 1) period, expiration of the the burden 48-hour the statements violated:

admission of prop- as not a demonstrate proof there was shifts to the State to Fourth Amendment emergency determination within probable cause of a fide er “the existence bona Arizona,8 2) arrest; circumstance,” Miranda hours of his extraordinary to rebut other Ap- prosecution failed to demonstrate as the presumption of unreasonableness. Id. fully rights his pellant had informed jail been longer the a defendant sits “The time 3) statements; making his custodial prior probable cause hear without some form of right to silence as the his Fifth Amendment ing, likely more the detention will become right in- his to remain silent invocation of oppressive likely he will to him and more after first interview with Detective voked his giving be into evidence he otherwise coerced 4) honored; scrupulously was Griffin 4, ¶ 7, give ...” Id. 1994 would not OK CR right to counsel be- Amendment Sixth 871 P.2d at 39. he Detective Edwards cause mentioned ¶44 proba The concedes State attorney ques- an but he had several times in this case was ble cause determination claims tioning not ceased. The above hours made more than 48 after Suppress part a Motion to filed were However, the that un arrest. State asserts hearing After thé trial court. with ¶ 17, der Darks the motion. argument, the trial court denied trial, gathered admission During punishment stage Detec- (48) forty-eight hours his interview after of detention is tive Edwards testified about videotape analysis. Appellant. subject the inter- to harmless error trial, over view was admitted defense Although probable cause determi- objections objections. Appellant’s counsel’s timely, in this was not made it nation case re- properly preserved the issues for have prior Appellant’s made interview with view. Further, Detective Edwards. interview ¶ Addressing Appellant’s first 42 Fourth with concerned the abuse Detective Edwards claim, the shows Amendment record Vonnita, Appel- of not the homicide victim. homicide, 22, 1997, day August to lant claims his statements Detective Ed- by dur- Appellant was interviewed detectives suppressed as wards should have been he August ing he was arrested. On which time by atmosphere. was influenced the coercive 1997, information, 26, felony charging Ap- explain does claim. Our Appellant not his degree first pellant with the murder and Appellant of the record shows was not review victim, was rape of filed and an arrest giving into coerced evidence he otherwise 1997, August 28, On warrant was issued. given. not have The trial court found would Appellant оn Detective Edwards interviewed knowingly his made statements were daughter possible his abuse of his Vonnita. Therefore, voluntarily. to failure have 4, 1997, September Appellant made his On timely the probable cause determination was magistrate appearance initial before a on the Appellant’s harmless error as statements charges. degree rape murder and first product illegal not a of an detention. were ¶ A criminal defendant is con 43 complaint Appellant’s 46 second is stitutionally probable to a cause entitled that his statements were admitted viola hearing 48 hours after his arrest. See within tion of Miranda v. Arizona as Detective County McLaughlin, v. Riverside 500 U.S. of fully failed inform him of Edwards to his 1661, (1991), 44, 49 111 114 L.Ed.2d S.Ct. videotape rights. Appellant us to the directs 103, 854, Pugh, v. 420 95 Gerstein U.S. S.Ct. of interview where Detective Edwards his (1975). delay than 43 L.Ed.2d 54 A of more him an form of Mi read abbreviated presumptively hours unreasonable. 48 warning. randa 6, 4, v. 1994 OK Black 871 ¶47 35, 39, 57, hearing, v. McLaughlin, at 111 At Jackson Denno9 citing 500 U.S. 1670, Edwards testified that before he at 114 L.Ed.2d at 63. After Detective S.Ct. 694 9. U.S. 84 S.Ct. 12 L.Ed.2d 908 86 S.Ct. 16 L.Ed.2d (1964). (1966). for inter- Appellant police out his cell was violated the failure took view, rights Appellant scrupulously his honor he read Miranda his decision to cut off at pocket. questioning a card he carried his Ed- the end the first from interview Appellant pursuant Michigan Mosley, he testified that indicated v. wards U.S. (1975). speak rights and wanted to understood S.Ct. L.Ed.2d 313 Five days Edwards then with the detective. said he before interview with Detec- Appellant jail, him checked out walked tive Edwards about possible abuse of Vonnita, an Appellant interview room at the across street was interviewed De- police department, ‍‌‌​​​​‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌‌​‌​​​​​​‌​‌​​​​​‌​​‌‌‍videotape, started the tective about Griffin the victim’s homicide. proceeded Appellant. to interview Edwards ¶ 51 Once an accused asserts his Appellant testified he told he was there counsel, right police ques cannot resume Yonnita, interview him about abuse to tioning attorney appointed until an been has anything related to the homicide of Adrianna him, for until or he initiates further conversa Appellant Edwards said once he and Waller. police. tions with v. Robinson room, at the interview he over arrived went 86, 5, 419, 421, citing OK CR Appellant’s rights again, although him Arizona, Edwards U.S. give warning did not him full he the Miranda S.Ct. 68 L.Ed.2d 378 “On again. hand, questioning suspect the other aof who cross-examination, 48 On ad- Edwards right has asserted his to remain silent can police report mitted it not noted in his suspect’s if the resume initial assertion of the Appellant complete that he had read right ‘scrupulously by police.” honored’ jail. warning at the said Miranda He also Id., Michigan Mosley, citing U.S. at rights prepared he had a waiver form 103, 96 at 326. United S.Ct. States forgot but he to have Supreme Mosley Court indicated in that the sign it. question “right of whether an accused’s questioning” cut “scrupulously off had been brief, appellate In his com- case-by- honored” should be on a determined pares testimony Detective Edwards’ to his approach, applying case the so-called “totali testimony given Appellant’s first trial and ty question the circumstances” test asserts Edwards’ rendition of the Miranda interrogation of a valid renewal of after ini warning was different the two trials. tial In right. Mosley, assеrtion Id. may may not have What occurred at the Supreme Court found that where there awas first trial is not issue in appeal, an nor (2) period questioning two hour time between it an the was issue in Jackson v. Denno crimes; unrelated two where the defen hearing Although Ap- before the trial court. transported part dant a was to different of pellant contradicted Detective tes- Edwards’ building; police the same where the honored timony, the trial court considered the evi- question the defendant’s refusal to to submit properly and dence concluded Edwards had ing; interrogations pre both and where were Appellant warning, full given the Miranda by warnings, the ceded Miranda admission Appellant’s that and statements made were Mosley’s incriminating in of state knowingly voluntarily. In our of review not principles ment violate the of did Mi record, sup- ruling the we find the court’s is randa. evidence; ported by sufficient therefore ad- prop- of mission statements was ¶ case, 52 In present the the moment ¶ Romano, er. See 1995 OK CR 909 Appellant told Detective he not Griffin did (where at trial P.2d court determines in police, questioning want to talk to ceased. hearing v. a Jackson Denno that a statement Appellant again was ap not interviewed for voluntarily made in response was and not to proximately days five and the second inter police questioning this Court will not disturb by view was conducted a different officer. ruling trial supported the court’s when it is by While second Detective Ed the interview evidence). by sufficient wards conducted in same interview was the claim, Appellant Appellant questioned 50 In his third asserts room where had been Griffin, right given his Fifth silent Appellant Amendment to remain Detective in- the time of interview At warning before the second full Miranda Edwards, charges until waived had been filed It not Detective terview. murder rape checked for the rights against that Detective Edwards his police Waller, him the jail ap and took to him out of and counsel had been Adrianna Further, sec- interrogation. for Charges station case. had not been pointed that entirely sepa- a crime interview involved ond filed for the abuse Vonnita Warner. homicide, was the sub- from the which Therefore, rate Amendment Appellant’s Sixth interview. ject of the first only rape to the and murder right attached attorney charges. Any request during for an totality the circum- 53 Under per with Detective Edwards the interview case, police “scrupulously in this stances taining to the abuse of Vonnita Warner was right of his Appellant’s invocation honored” Appellant’s right an invocation of to not silent, the trial court did not remain to case. present counsel suppress. to See denying the motion err ¶ 9, 82, v. Storm ¶ Appellant argues further that because Robinson, 86, 1002; Miranda, scrupulously police did not follow P.2d at 422. distinguishable. Appellant v. Texas Cobb complaint assign- In his final in this notwithstanding majority asserts that error, Appellant that his asserts ment Cobb, adopt opinion this Court should right to had at- Amendment counsel Sixth II, §§ for 7 and 20 stricter standard Article prior the interview Detective tached to the Oklahoma Constitution and hold that right he invoked that dur- Edwards right to counsel attached to un- argues fail- ing the interview. He Edwаrds’ previously charged child offense. As abuse right honor invocation of his to ure to addressed, police sufficiently found the we violation which counsel was a constitutional by reading of Miranda followed dictates of his suppression warranted statement. warning at Appellant the entire Miranda jail transporting Appellant across the before right Amendment II55 The Sixth police station to record his street arraignment at and a counsel attaches Therefore, necessary it is statement. not any post- right to counsel defendant has adoption to even consider of a stricter us arraignment questioning. Miller in this standard review case. 17, 9, 29 2001 OK Jackson, Michigan citing U.S. Additionally, L.Ed.2d 631 ar 106 S.Ct. if police interrogation gues If after a that even this Court finds the Sixth initiate assertion, right arraignment at an or Amendment counsel had at

defendant’s ease, counsel, proceeding, right of his tached the Vonnita Warner Fifth similar right coun right defendant’s Amendment counsel was invoked waiver of the interrogation requested during he counsel is when inter police-initiated sel for However, right The Fifth to have invalid. Id. Sixth Amendment view. Amendment Valdez, specific. present during interroga right to case 1995 counsel custodial counsel is ¶ 374, 18, 33, 363, suspect clearly P.2d cert. tion is not invoked unless a CR 900 OK Valdez, denied, 967, 425, unambiguously asserts it. 516 116 133 and 1995 U.S. S.Ct. ¶18, 30, (1995) citing citing CR 900 P.2d at 373 Davis 341 McNeil v. Wiscon OK L.Ed.2d States, 452, sin, 175, 2204, 2207, 114 171, 111 v. 512 S.Ct. 501 U.S. S.Ct. United U.S. (1994). (1991). 2350, Only 129 362 right The attaches L.Ed.2d those 115 L.Ed.2d 158 “reasonably is that can be con only charged offenses and there no statements expression for factually to be an of a desire exception for unrelated offenses. strued attorney” Cobb, 162, 168, 121 of an are considered Texas v. 532 U.S. S.Ct. assistance (2001). 1335, 1341, right 321 See actual invocations of the to counsel. Id. 149 L.Ed.2d also ¶ 13, 19 existing pur State, 3, prior to the v. 2001 OK CR P.3d All circumstances Pickens 866, 874, denied, 961, help ported 122 can be deter cert. S.Ct. invocation used U.S. Valdez, 2668, (2002); unambiguously mine whether an accused 153 L.Ed.2d 842 ¶18, 33, unequivocally requested presence at an 900 P.2d 374. OK Id, 18, 30, 3) adults; attorney. 1995 OK CR 900 P.2d duet testimony between from right Fifth Amendment at 374. The have Rebecca Price that Charvon Warner had during present interroga counsel custodial Appellant whipped said him several non-offense-specifie. it in tion is Once Appellant times with a belt and his hand. voked, may police interrogation not initiate argues admission of this evidence violated offense, past concerning present, or prohibition on admission of evidence of Id., 18, charged uncharged. 1995 OK CR pursuant other crimes or bad acts to 12 ¶ 28, citing 900 P.2d at McNeil v. Wis 2404(B). O.S.2001, § Appellant’s objections consin, 176, 501 U.S. at 111 S.Ct. at 2208. at trial properly preserved have this issue appellate review. in-camera, hearing 59 At the Suppress, the Motion to Detective Edwards 2404(B) O.S.2001, § Title 12 during testified on cross-examination that prohibits the admission of evidence of “other said, Appellant lawyer I interview “do need a crimes, wrongs, prove or acts” to the charac present at this time?” testified person ter of a in order to show action in counsel, say that he tried to he wanted but conformity spe therewith absent one of the doing was cut off from so the detective’s cifically exceptions. listed An act that is not questions. judge The trial stated he had a violation of the criminal law is nonetheless times, tape listened to the three different 2404(B) governed by § where it carries a he did not hear the defendant ask for a stigma unduly prejudice could an ac lawyer. judge noted that eyes cused in the jury. of the Freeman v. said, “I’d like” and then continued to talk State, 192, 3, 1354, 1988 OK CR 767 P.2d detective. Our review of the record 1355. When the State seeks to introduce supports finding. Appellant the trial court’s evidence of a crime other than the one unequivocal request did not make a clear and charged, comply it must procedures with the Valdez, 18, for counsel. See 1995 OK CR State, 10, 2, in Burks v. 1979 OK CR ¶¶ 31-32, 900 P.2d at 374. See also LaFevers P.2d part overruled in on other ¶¶ State, 6-7, 897 P.2d grounds, Jones 1989 OK CR 772 denied, cert. P.2d 922. See Holt v. S.Ct. 133 L.Ed.2d 763 While ¶ 4, point videotape there is a on the interview where both and the de admissible, 63 To be time, at Appellant’s tective talk the same uncharged offenses or acts bad must be continued conversation with the detective probative disputed aof issue of the crime finding request confirms the that he did not charged, there must be a visible connection assistance counsel and that he wished crimes, between the evidence of the other to talk Accordingly, with the detective. ad erime(s) necessary support must be mission of statements did not proof, proof State’s burden of of the other right Fifth violate his Amendment to counsel. crime(s) must convincing, be clear and ¶ Having thoroughly Appel- reviewed probative value of the evidence must out allegations lant’s regarding of error the ad- weigh prejudice to the accused and the mission of his statements from the interview contemporaneous trial court must issue Edwards, with Detective we find no viola- Welch, limiting final instructions. See Fourth, Fifth, tions of the or Sixth Amend- ¶ 8, OK CR 8 365. When other Accordingly, assignment ments. of er- prejudicial crimes evidence is it so denies a ror is denied. right only defendant to be tried for the his. assignment error, 61 In charged, his ninth offense or where its minimal rele Appellant trial vancy suggests possibility contends the court erred in the the evidence is 1) admitting following the being acting evidence: that to a offered show defendant is character, during conformity the two weeks before the victim’s with his true the evi murder, Appellant requested suppressed. had and been dence should be Id. None of the 2) Waller; denied anal sex from challenged Shonda a evidence in this case was other most, videotape containing sexually explicit con- crimes evidence. At it was bad acts admitting Appel- The trial court did not err Ms. unduly prejudice that could evidence testimony. eyes jury. of the Waller’s in the lant ¶ further she 67 Shonda Waller testified she stated that 64 Shonda Waller videotape called watching a “The had been relations had “normal” sexual Appellant and when she for the store and that murder. Crow” left the victim’s until two weeks before tape had left the in the VCR when she period, she had she During that two week time waiver, relations, exception a search the house. Pursuant to all sexual with left ceased time, Appellant. During videotape found a in the police with different of one to videotape her three The found in the VCR was period, asked VCR. time sexually explicit and she up to have anal intercourse tо a behav- five times cued scene of felony in this case information Also The ior between men and women. near the refused. rape degree TV, jar first charged Appellant police a and found Vaseline VCR The evidence jar anal intercourse. gel. the victim a of aloe Waller testified vera injuries to had the victim sustained normally kept showed were in the those items bath- care, Appellant’s her while rectum videotape room. The was admitted into evi- from injuries pressure were caused those contempora- as 44. No dence State’s Exhibit object. Appellant’s defense was force objection blunt neous defense was raised. innocence, committed and that someone else ¶ 68 Evidence is considered res rele were rape. Ms. Waller’s statements gestae, and not crimes or acts other bad intent to Appellant’s motive and vant to show a) closely when: evidence it is so connected victim, attempt anal intercourse with part charged as to form of the to offense identity one who as the show b) transaction; necessary give entire it is injuries to the victim’s rectum. caused the complete understanding of the requires give Burks State c) crime; or when it central to the chain of is crimes or bad pre-trial notice other State, Rogers v. events. 1995 OK CR introduce. The it intends to acts evidence 971, denied, 959, 919, 890 P.2d cert. U.S. pre purpose requirement of the notice (1995). 312, The S.Ct. 133 L.Ed.2d part surprise on the of the defense and vent sexually explicit tape evidence indicated the time for the to be heard allow defense put was into the while Ms. was VCR Waller prior being placed before to the store and home at the was with the State, jury. McClendon videotape, along victim. The with the Vase 948, 952; 777 P.2d Scott gel, line and aloe was relevant to show what ¶58, 6, 17, 19. A notice OK CR 663 P.2d thinking was watching and when appear in the record of this case. does not just prior with the he was victim and heard both Arguments on evidence were videotape The commission the offense. pre-trial during a lack of notice trial and chain of was therefore central to the events by the de surprise was never raised and/or leading up to crime and its admission appeal Ap The asserts on fense. State jury a gave complete picture of the entire testimony pellant notice of Ms. Waller’s properly videotape crime. As the was admis However, as we since his first trial sible, specifically object counsel’s failure to trial, we do have the record of that are its admission not ineffective assistance if the Burks notice was unable to ascertain counsel. time. filed at that trial, stage During the second Proof of the evidence was clear and Price, defense, testifying for the Rebecca it cumulative but convincing, and was not her recounted interview with Charvon War necessary to sustain the burden of State’s day after murder. She ner stated proof evidence case. in this circumstantial evidence, Ap cross-examination told her that Charvon prejudicial effect of the while whipped hand and probative pellant him with his a belt. significant, outweigh did not its response argued counsel Bryan v. Defense value. See denied, beyond scope getting and “was of direct cert. Burks The trial court 139 L.Ed.2d 299 into notice stuff.” 118 S.Ct.

869 testimony year boy of a a 5 McKinney found the was not evidence or 6 old and that objection. “got act and overruled the counseling bad some of kind and that was prosecutor the end of it.” The stated there trial, During stage 70 the first of evi- any no “of adjudication any- was evidence or Appellant discipli- dence showed that was thing else.” The court asked defense counsel Appellant narian of the children. That any if she had evidence to that show McKin- whipped a form of spanked Charvon as ney murder, acted in furtherance of the that discipline was neither a crime nor a bad act way, participant any he was a that he expected for which the could have been State acts, any committed any overt or if there was file a has to Burks notice. failed evidence to connect him to the case on trial. prejudiced show how this testi- to he was replied Defense counsel that to the mur- as mony. point The the State’s cross-exami- der, evidence; there was no but as to the testimony nation of Price to elicit that rape it was relevant to show that someone yelled said at the victim. Charvon than Appellant other could have committed punishment corporal of Charvon rape. trial court sustained the again. to Accordingly, Ap- was not referred objection finding proffered State’s evi- to pellant has failed meet his burden of es- not as rape dence relevant and murder in any tablishing prejudice that from the evi- contemporaneously. the ease occurred substantially probative outweighed dence its court value. The trial did not err admit- ¶ We publicly 73 state now what ting the evidence. previously have unpublished we stated in error, assignment 71 In his Ap- tenth opinions tending that evidence to show that pellant rights asserts he was his denied someone besides defendant committed equal protection, trial, process, due relevant, may clearly the crime may be as it present evidence, mitigation defense and probable make it less that the defendant confront witnesses trial court’s O.S.2001, himself committed crime. 12 party perpetrator exclusion of third evidence State, § 8, 2401. In v. Romano Sammy McKinney previously that com- ¶ 45, 847 granted part P.2d cert. sodomy mitted oral on a child. affirmed, 1, 2004, 114 S.Ct. 129 evidence, along asserts that the excluded (1994), L.Ed.2d 1 this Court stated that evi with Waller’s “inconsistent and discredited per dence offered to show that some other testimony” regarding always whether she charged son committed the crime must con checked the victim’s bottom and whether she fact; person nect such other with the that is bleeding, saw tears or evidence part some overt act on the of another to McKinney babysat Wednesday the victim wards the crime itself. commission It night afternoon, through Thursday showed enough possible show a is motive on than possible According more motive. another; part there be must Appellant, the excluded evidence showed a clearly acts or circumstances that tend legitimate tendency to create a reasonable another, point to rather than the accused. guilt degree rape doubt of his to the first State, 31, Id. See also OK Dodd 2004 CR charge. ¶ 42, 1017, 1032-33; Dennis v. 72 The during State, 34, record shows that 15, 1227, P.2d OK CR Mullenix, testimony of 1232; Detective the defense CR 1993 OK Woodruff sought question denied, as to detective wheth- P.2d cert. U.S. during investigation er the course of his he S.Ct. L.Ed.2d McKinney victim learned was with ¶ Appellant argues “overt act” death, Thursday before her and whether requirement “too strict” violates inquired Grissom, McKinney’s he of Estella rights. argument constitutional This re mother, history whether her son had a of sex jected in Gore v. OK prosecutor crimes. The informed the court we wherein stated: report the detective’s indicated that when McKinney years determining was 14 old were alle- As our there test for the admissibili- gations sodomy ty that he had party perpetrator committed oral of third evidence is ¶76 Further, finding of the evi single the exclusion upon more than

based hamper Appellant’s ability of the to an act in the commission dence did not overt crime, is not too strict is present the standard or to a de cross-examine witnesses principles. with constitutional simply consistent from fense. was barred prevent the defendant from what, It not does trial discre presenting the court’s presenting evi- presenting a or defense determination, tionary did not tend to be person may have com- another dence that fact, probative any fact in issue. In Wal long as is the crime as there some mitted testify did on that the ler cross-examination evidence, quantum which is more than McKinney with victim had been the Wednes innuendo, that con- suspicion and mere day night her She also testi before death. the party the third to commission nects she checked the victim’s bottom Thurs fied directly It not control the the crime. does diaper day changed when her and the she argument defense counsel’s scope of Thus, Appellant anal area was red. was jury argue any allowed to and counsel is Evi permitted, parameters the of the within fairly from the that can be drawn inference Code, sup attempt to advance and to dence reject Appel- we Accordingly, evidence. a port his claim that reasonable doubt existed suggestion we abandon our test. lant’s perpetrator rape.11 that he of the was 14, 24, 119 at 1276.10 P.3d OK CR ¶77 record there no evi- shows was present evidence in the 75 The excluded dence of acts or circumstances that tended possible showing case far short of falls McKinney, clearly point to than to rather actions, McKinney’s part or con- motive on Appellant, rapist. as the Nor was there duct, by McKinney toward opportunity or McKinney any linking evidence of overt act By rape. time of of the commission rape has to victim. trial, sodomy allegations the oral showing therefore failed to make a threshold McKinney eighteen years against were old. suspect evi- for admission alternative no he committed that There was evidence Accordingly, the trial court did dence. Id. again. Further, any crime or similar crimes excluding not its the evi- abuse discretion rape case shоwed the assignment dence. This of error is denied. occurred at most and murder of the victim injuries on apart. The and blood moments clearly rectum were visible when victim’s FIRST JURY STAGE INSTRUCTIONS hospital emergency she at the was examined ¶78 Appellant asserts in his sixth Assuming arguendo, room. the victim was assignment trial of error the court erred afternoon, Thursday McKinney it

with until refusing give requested jury instruc to prior was 26 hours to her death. still over defining requiring tion “willful” as an intent testimony According to the of the medical Instead, injure. gave the court a defini injuries experts, “fresh” the victim’s were informing tion that “willful” did not only Combining hours the excluded old. require injure. Appellant recog an intent in Shonda evidence with inconsistencies nizes that in Fairchild v. testimony point not does connect Waller’s ¶¶ 622, denied, cert. Ap- McKinney rapist, as than rather 1039, 121 fact, U.S. S.Ct. L.Ed.2d allegation pellant. In it shows the (2001), this that child mur McKinney nothing Court held abuse against more than mere not general der is intent crime and does speculation objectively supported by and not However, injure. require legal specific intent to provide evidence that would founda- required recognize tion for relies Hockersmith this Court ¶ 1996 OK instruct the on an affirmative defense. Gore, suspect prior 10. we evidence of the con- sufficient to connect the alternative In found requirement. act” suspect the crime and met the "overt viction of the same alternative committing, charged de- crime Gore However, spite explanation fact the overturned conviction been we note has been no why McKinney not upon application based of scientific technolo- and Grissom were offered trial, gy prior available at time of the called as witnesses. charged that in 1997 when he was with that the argue agree Fairchild decision to with murder, required “certainly victim’s this Court the Workman was light the defensible in prove statutory language O.S.2001, to of the of State the defendant acted with a '21 701.7(C) § specific injure support long history intent to in order to and Oklahoma’s a of statutory interpreting requirement for child murder. the conviction abuse of general ‘willful’as a requirement intent argues applying that 1999 Fairchild deci- rath- the specific er than as a intent post requirement”. princi- to his case violates ex sion facto Accordingly, Id. was no post there ex ples incorporated as in the Due Process facto Similarly, violation. find no post we ex Amendment. Clause Fourteenth facto in applying violation Fairchild to Fairchild, In 79 this Court overruled 1997 crime. required spe- Hockersmith to the it extent injure finding Alternatively, cific intent to it inconsistent 81 ar gues by the law that being with established case set forth in convicted of a crime that 125, possess 22, v. did not an of implied Workman element either Fairchild, malice, express P.2d or has been 824 383. he denied due by 49, 45, process liability a strict offense. In 998 P.2d at 621-22. This Gilson Court 2000 previous by stating OK CR 8 opinions clarified “that denied, injure’ cert. U.S. ‘intent to in 121 the mentioned those cases S.Ct. (2001), only general intent L.Ed.2d 381 we stated meant included with- the ” the child abuse ‘willfully’ ‘maliciously.’ in terms murder statute should be inter ¶49, 51, preted in felony OK the same manner as 998 P.2d at 622-23. the law, proof murder as did the doctrine. Just of change Fairchild not and the under its lying felony provе application Appellant’s case is needed the is not viola- intent necessary murder, felony proof for post prohibition. of the ex of tion the facto underlying act of child abuse is needed to (10th 80 In Ray, Evans v. F.3d necessary prove the intent for a child abuse Cir.2004), Appeals the Tenth Court of Circuit murder conviction. Id. Because there is an application addressed whether of the Fair- abuse, requirement intent child for child to a post child an ex murder was facto abuse strict liability murder is not a crime. The violation. Tenth Circuit stated that the Accordingly, assignment this of error is de prohibition post application the ex facto nied. judicial decisions is extensive than less the prohibition post of ex statutes. facto SECOND STAGE ISSUES Tennessee, Rogers Quoting F.3d 1251. ¶ Appellant assign- asserts his first 121 S.Ct. “ ment of error was that he denied a fair (2001), L.Ed.2d 697 Court said the ‘due sentencing proceeding in violation of the process applica- limitations on retroactive jury Fourteenth when Amendment judicial interpretations tion of criminal separate commingle allowed to with non- only apply statutes’ to those decisions ‘that jurors during stage second deliberations unexpected are and indefensible reference without notice to defense counsel. In re- expressed law which prior to the had been ” sponse, argues the State there was no evi- conduct in issue.’ Id. The Tenth Cir- jury any improper dence contact found cuit that as did not Hockersmith over- non-jurors, therefore is not Workman, injure rule intent to law on entitled relief. conflicting child abuse murder was at the time Hockersmith was handed down. day Id. at 83 The record shows that on the fifth Therefore, (who decision, trial, jurors Fairchild one of the was later attempted foreperson jury) which Court to resolve as chosen broke her law, clarify only juror conflict and was not try “not foot. The she stated would unexpected in light jury judge indefensible continue her service. The trial not, plain language of the statute and Oklahoma advised her if could she there was “eminently ...” predicta- juror case law but also an alternate it available. When came Further, deliberations, Id. juror ble”. the Tenth Circuit stage found time first smoking. post- also states that in the stairs to room. bers She could climb jurors into Therefore, questioning was converted commented that the courtroom verdict they go foreperson’s room. courtroom not want makeshift did materials, locked, doors morning. were appointment cleared of the next doctor’s in the courtroom glass windows echoed lead de- This last statement was Defense counsel was doors covered. were Spradlin counsel Tamara her sworn fense arrangement did aware not ob- of this affidavit. ject. ¶ these were included in 88 While affidavits ¶ trial, jury the day the last of On Trial, the for defense counsel Motion New to prior beginning for lunch allowed to recess merely stood on the motion and did jury on The punishment. its deliberations support argue offer in of the evidence for its de- again used the cleared courtroom The trial court overruled the motion motion. again no Defense counsel raised liberations. without comment. objection. ¶ The record this Court indicates before relief, request of support 85 In his for objection no was raised defense counsel to (6) on Appellant relies six sworn affidavits any separation by jury during the breaks or his Motion for New Trial filed attached to brief, appellate Appel- In deliberations. his prior with to formal sen- the District Court argument lant the alternative that de- raises from tencing. The first affidavit is an inves- failing counsel was ineffective in to fense County tigator the Public with Oklahoma steps necessary whatever were to make take who states she conducted Defender’s Office However, objection Appel- an and record. jurors. post-trial three Ac- interviews with lant of did not include this claim ineffective- affidavit, jurors the cording to the the stated to Supplement ness in his Rule 3.11 Motion

jury during delibera- took several breaks Appeal Direct Record With Attached Exhib- tions; case, the who the lead detective on Evidentiary Hearing its For An And/Or witness, was in prosecution a seen also contemporaneously which was filed with the where a judge’s the trial outer office number appeal direct brief. jurors upon returning and smoking; of were brief, break, jurors appellate from the told the that In its re- a bailiff the State they night, sponded Proposi- if allegations did not reach a decision raised in they go foreperson’s argued have the would all to to tion I and was no in there morning. appointment support finding doctor’s the next the to record a there improper separation an the been of attorney Legal interns and another during stage second deliberations. County from Public the Oklahoma Defend- argued the case should be remanded to State (3) er’s other prepared Office three affidavits. reception the court of relevant district for during These affidavits state that delibera- hearing. evidentiary affidavits or for an tions, jurors smoking were and observed contemporaneously appellate Filed with the staff, judge, and talking the his the lead with Supplement brief was a Motion to Record chambers; judge’s jurors in the detective New Response Defendant’s Motion for go during were cars allowed their delib- Trial. Attached to the Motion are eleven erations; they the overheard bailiffs com- (11) affidavits. These affidavits are from one accompanying ment about (9) bailiff, prosecutors, nine and foreperson appointment; to her doctor’s and jurors stating in in the case effect there was juror during one talk- was observed break jury’s no break deliberation. ing they telephone explaining on and deliberating they proba- were still would relating 91 The claim of error to an bly spending night be somewhere. separation jury during improper delib- any resulting prejudice also prepared Co-counsel Gina Walker erations and was ad- an she As argument. affidavit which she states observed dressed at oral a result jury’s separation during stage questions argument, Appellant raised second at oral jurors deliberations and she a Motion to Amend Rule saw some filed judge’s motion seeking lead in the cham- 3.11 Motion to amend 3.11 detective 4) statement; incorporate by the affidavits at- reference verdict whether the de- Appel- to his Motion New Trial. tached for sufficiently fense had the presumption raised Supplemental File lant also filed a Motion to prejudice pursuant O.S.2001, § seeking Brief to address concerns raised at Mooney OK CR argument concerning “jury the oral coercion 5) 875, 892; and whether defense sequestration”. counsel was aware of break in jury’s deliberations and whether defense counsel thorough upon 92 Based review of the opportunity timely had the objec- to raise properly us and the record before relevant tion on the record but failed to do so. law, statutory and we case determined the was not record sufficient this Court to ¶ 94 In findings its fact and conclusions alleged Essentially, review error.12 we stated, law the pertinent District Court presented “dueling were affidavits” part, testimony (7) it received from seven from both the State and defense which Appellant. witnesses behalf of These wit genuine raised fact issues of which had not judge13; nesses bailiff; included the trial his been examined the court below. We counsel; first and second chair defense therefore remanded the ease to the District attorney, intern, legal an and law student evidentiary hearing for an Court on the issue from the Public Defender’s Office.14 The jurors sepa- of whether the allowed to were testimony court also received from fifteen non-jurors commingle rate and during with (15) State, witnesses for including the all deliberations, any if and what effect this had (12) jurors Appellant’s trial; twelve from the 3.11(A) 3.12(E), the verdict. See & Rules judge’s trial court reporter; Detective Mulle- Rules the Oklahoma Court Criminal of of nix, case; the lead detective in the and an (2006). Appeals, Ch.18, App. Title attorney. assistant district ¶ 93 The District Court was ordered to ¶ 95 After thorough a recitation determine, of the 1) upon based time of the trial: facts, upon testimony based given the at the in stage whether there was a second break hearing, the findings court set forth its jury jury deliberations and the was allowed 2) questions posed by Essentially, this Court. separate; jurors to whether were allowed 1) the District non-jurors Court found: there commingle with was no during any to in deliberations, stage in break second deliberations point they during the and whether 3) jurors 2) influences; separate; exposed any to which were allowed to were outside jurors were not to jury commingle whether the bailiff the allowed informed that if they non-jurors evening, during did not reach a nor verdict the deliberations were jury they 3) accompany exposed influences; would have to the to outside fore- person to her appointment jury they doctor’s the the bailiff did tell that if next the did not morning, verdict, and if such a a they statement was made reach have to accompa- would jury ny the reaching foreperson whether was coerced into appoint- a the her doctor’s to appeal only by provide any 12. The record on argument is formulated for new trial and did not during pro matters which have admitted been support, or evidence in not clear it is whether the 3.11(B)(3), ceedings in the trial court. Rule affidavits had been examined the trial court. Appeals, the Rules Oklahoma Court Criminal Therefore, of of the this Court affidavits before were 22, Ch.18, Items, (2006). App. Title documents merely parte any supporting ex and lacked evi- pleadings, Designation the included in of adequate dence. This is not record an for this part appeal. are a Record 2.5(A)(1)(2), of the record on Rules alleged Court to review an error. 3.2(B), the Rules Oklahoma of 22, Ch.18, Appeals, App. Court Criminal Title of Black, Virgil judge 13. The Honorable trial C. Designation Record in this of case matter, evidentiaiy hearing the recused from the part original states in that the record shall con necessary because he was a witness. The Honor- motions, applications, tain "all notices and re Elliott, Ray Judge, able District conducted the quests filed on behalf State or the of the Defen evidentiaiy hearing. State, documentary dant” and "all exhibits of Defendant, Therefore, Court”. as the and/or Designation 14. These last five were the witnesses same indi- of Record the includes Motion for affidavits, provided viduals who affidavits New Trial and its sworn attached attached those affi However, properly to davits are Motion Trial filed before this Court. for New with the merely as defense counsel stood on the District Court. motion jury, court, in the the statement did not coerce the discretion of merit but the 4) verdict; reaching may may jury jury permitted separate, into defense to “or be sufficiently presumption raised kept charge proper had not Before be officers.” 5) counsel was aware prejudice; and defense jury a case final submission of to during deliberations and recesses held proof is on defense to show burden impro- counsel believed the extent defense necessary prevent sequestration is occurred, opportunity had an prieties counsel exposure jury’s reports to media which could objection timely pre- to raise otherwise prejudicial be the defendant. Price v. record, fail- the matter and the serve CR 1989 OK object strategic ure decision. 147; Matricia OK Supplemental following In Brief evidentiary hearing, al- Appellant raises two present though In case First, legations he error. contends rever- sequestration are not with the we concerned jury required sal because the was never ease, jury before submission of the but sentencing properly sequestered for delibera- only after ease in second submission O.S.2001, § pursuant 857. This tions stage during stage second deliberations. failure, Appellant argues, him denied a ver- O.S.2001, § permits keeping Title meaning of the Amend- dict within the Sixth deliberations, jury together for in a private right explains ment trial. officers, charge “after place, of court judge the trial he took that while testified hearing charge”.15 This section has been steps to shield the courtroom where the requirement jury a not construed as that the influences, per- from outside he deliberated “separate” hearing be allowed to between the jury separate the to for various rea- mitted charge returning Bayliss and a verdict. testimony at the sons. asserts ¶ 795 P.2d evidentiary hearing judge that the showed Mooney, 1080. See also jurors acknowledged staff that while and his ¶ 63, jury 990 P.2d at 892. “If has the been оffice, many present were in his outer other to is to sent deliberate and then allowed including attorneys people, court staff and separate commingle people and outside with coming going. Appellant argues were and group, prejudice to is their the defendant assuming judge trial no that even the had presumed.” Id. This Court has found “Sec among participation direct in conversations important statutory provision an tion jurors non-jurors, “jurors inappro- and were to, ‘designed preserve right to the inviolate atmosphere priately exposed to an of cama- purity jury and the ”. trials’ Johnson judge, the raderie and conversation between staff, 47. OK lawyers, the court and State’s chief deliberations, witness, going through such testimony evidentiary If99 The from the jurors sequestered that the never to were hearing jury the began shows deliberations punishment required by as state decide law”. just p.m. and it before 3:00 continued until contends the bailiffs conversa- also p.m. at reached a unanimous verdict 11:15 jury foreperson concerning tion her with the time, During jury stop that the not to eat did appointment § doctor’s violated 857 as well require overnight stay a and did not an in O.S.2001,§ as 22 894. in hotel. Recesses were taken deliberations jurors to use the or to jury sequestered 97 A be at restroom smoke. can any infrequent and in during proceedings. trial 22 These recesses were short time Title O.S.2001, provides any jury § time duration. The bailiff to that after admonished the try jurors the have been to the infor make each recess short and the bailiff was sworn juror the any mation before submission of case to to monitor the movements of able O.S.2001, § provides: permit any person speak 15. and not to to to or Title them, themselves, communicate with do so nor hearing charge, jury may the After the either court, court, by unless ask it be order the or to may decide in or retire for deliberation. verdict, agreed they upon they agree retiring, them whether have If do not without one or they keep and to when return them into ‍‌‌​​​​‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌‌​‌​​​​​​‌​‌​​​​​‌​​‌‌‍court have more officers must be sworn to them agreed, together private place, by so or when ordered the court. in some convenient any objections from the restroom or to and from the 104 The record is void of to and (the by perceived smoking jury improprieties area usual defense counsel to deliberation room). surrounding jury’s deliberation. It was after until the verdict was received did Testimony concerning whether the defense counsel ask to make record. At jurors commingle were with non- allowed time, counsel was the trial judge told conflicting. jurors during was recesses hour, objections that due to the late should team Members of the defense testified be raised at motion for new trial. jurors smoking judge’s were outer supports 105 This record the District staff, chambers while court Detective Mulle- finding that Court’s the recesses were so nix, possibly present. others were How- infrequent and short in duration that such ever, jurors only each of the testified their separation jury did not constitute a juror contact was with court staff. Each also during meaning deliberations within the they any testified did not have communica- Further, § jurors while or tion contact with Detective Mullenix. commingling non-jurors with conflicting, was Testimony either shows he excused himself assuming commingling even there was jurors when were about enter room he non-jurors, adequately State rebutted judge’s private or he waited any presumption prejudice as the testimo- office. ny jury exposed any showed was not ju- 101 A recess was also taken for the prejudicial during outside or influences delib- closing rors move their cars due to the erations. parking day. Testimony garage for the O.S.2001, 894, § pro 106 Title accompanied by showed hibits communication with the deputies moving bailiff when their cars. judge except person open third According testimony com- this was a Testimony evidentiary court. hearing juries in mon occurrence for Oklahoma Coun- foreperson sought shows medical advice ty evening. that deliberated into the for her foot and broken reschedule a record reflects that either defense counsel appointment doctor’s on one occasion due to informed not was when occurred and did length subsequently the of the trial. She notified, object, specifically or if not were might became concerned that deliberations closing well aware of situation as the time of require rescheduling ap a second doctor’s parking garage knowledge the was common pointment inquired and the of bailiff what in the courthouse. might respond bailiff be done about it. The ¶ Requests for recess or were snacks foreperson worry ed that the should not by jury knocking made the on the to door appointment necessary about if the because the bailiff alert to the existence of a note jurors go all could her to the with the doc pushed underneath the door. bail- When the appointment. tor’s The comment was made responded, iff communication was made at by jest. in any the bailiff did not take She doorway. provided were the Snacks to the arrange steps transportation of the entire by jury handing either the bailiff them off jury panel appointment to the doctor’s the jury doorway by the at the or the bailiff Further, jurors day. next not all of the taking during them room in into the a recess heard the comment. Of those who did hear deliberations. it, they jest in understood it was made laughed Every juror it. at familiar with the Testimony concerning of the use comment testified it did not affect their delib by jurors telephones conflicting. was Two erations or verdict. members of the defense team and the court reporter seeing jurors testified to use tele- every 107 Not communication However, phones during each deliberations. jury pres between court and the the outside juror phones testified prohibited. Perry their cell were confis- is ence of counsel prior using 20, ¶ 26, cated to deliberations and denied 1995 OK 528. phone during any jury seeing regarding or deliberations Communications the juror give phone. simple housekeeping other use a do not rise matters “Rather, testimony concerning preju- subsequent their statutory violation. Id. rors’

to a the court de- sentencing trial communi- decision. The record reflects dice when arises parameters the of jury outside issue at the eviden- cates with the fense counsel raised this hearing, judge Id. testi- tiary statute.]” but the excluded [the concerning “debriefing” finding it mony the in its the District Court noted 108 As was any not of the issues he relevant foreperson asking findings, the bailiff “the by this Defense ordered to address Court. appointment next doctor’s the about her of permitted to make a record counsel was ‘housekeeping’ quintessential morning is allegedly the made the trial comments Therefore, inappropriate it not matter”. was “debriefing”. judge during the As to several matter with her. the to discuss the for bailiff jurors, of counsel an offer defense made response not to the The did relate bailiffs permitted testify, proof that if so case, process or merits deliberative jurors briefing post-verdict would state that proceedings it nor did alter verdict her made him or feel better about the ver- way. Mooney, 1999 any OK CR Contra dict. ¶ 65, response P.2d at 893. The seems levity attempt not have an does been support argument, Appel- 111 In of his prejudicial or unauthorized com- constitute on law which states that lant relies case § under munications jurors from protected must be extraneous However, Having thoroughly reviewed the rec- these address influences.16 cases ord, § provisions preventing exposure were we find issue terms of during stage potentially prejudicial during de- properly adhered to second de- influences however, separated Appellant argues, The was from liberations. liberations. charge just as non-jurors, placed reasoning prohibition under behind the officers, jurors private present to a room in the court taken relevant case. or Any disagree. contact communi- We deliberations. jurors may non-jurors had with cation have purpose evidentiary hear- The during was recesses deliberations inciden- determine, ing part, in this case was to outside, expose jury to tal and did exposed influ- whether the to or upon prejudicial influences. Based the testi- by any de- enced circumstances outside the evidentiary hearing, mony we find from room or liberation contact communica- statutory or constitutional violations. no non-jurors. testimony tion with of each assignment juror upon In the based his or her second recollection brief, during surrounding supplemental occurring error of events in the rely jurors’ stage has asserts this Court cannot second deliberations. shown, evidentiary opinions hearing authority at the re not nor find for the given do we argument, personal feelings garding impact juror’s of that a the outside influences testimony judge, sentencing Appellant their as their toward the or the decision about verdict, by “debriefing” upon any occurring after the trial court’s based event tainted verdict, delivery including the the trial jurors Appellant of the after the verdict. the testimony jury, any explains “debriefing” that after the court’s of the rele- showed case, juror’s veracity ability jury was released from service this vance or judge testify regarding any an informal existence of outside trial conducted discus jury upon Appellant trial influences or her verdict. sion with the and counsel. The shown, judge practice support a regular was a for has not nor does the reсord testified it in- jurors finding, jurors improperly him in after trial. that the were order to comfort a testimony Appellant so as render their dur- asserts comments and discus fluenced ing hearing a “debriefing” evidentiary sions created and inadmissible and at this bias ju- prejudice him tainted the on the District Court’s toward which this Court’s reliance States, 227, (1950). Eisenberg, Appellant See v. 347 74 also cites to 16. Remmer United U.S. 183 Wells, 450, (1954), Garvey, Jury Responsibility Capital S.Ct. Farese Sen- 98 L.Ed. 654 v. United 339, States, Cir.1970). (5th Empirical Study, tencing: 44 428 F.2d 178 also An Buff.L.Rev. See Jacobs, 266, (1996). N.J.Super. v. 10 77 A.2d 372 Palestroni

877 ¶ record, inap- upon this agree of fact and conclusions of law 115 Based we findings the conclusion District Court that propriate. object counsel’s not to a decision strate upon foregoing, and after Based 113 gic upon support decision based the lack of us, thorough review of the record before Further, ing facts case law. based and/or including transcripts, supplemental upon any objection foregoing discussion Court, brief,17 findings of we the District and Therefore, would overruled. have been is not entitled to relief on his Appellant find object counsel’s failure at trial does assignment clearly of error. The record first render of the trial the result unreliable jury separate during sec- did not shows State, Phillips render ineffective. v. counsel meaning within stage ond deliberations 38,¶ 104, 1017, 1044; 989 P.2d any exposed § were not outside 857 and State, 19, 125, v. 1991 Workman OK CR prejudicial communication or with- influences 378, Accordingly, Appellant’s meaning §§ 857 and 894. assignment first of error is denied. Appellant contends in his sev Further, the record de shows assignment enth of error that his death sen objection any counsel’s failure to raise fense disproportionate tence is to the crime of child did not constitute ineffective assistance as there finding abuse murder was no he under counsel the dictates of Strickland harm, intended let alone In caused death. Washington, U.S. 104 S.Ct. 22, 40, Wisdom v. testi L.Ed.2d Defense counsel denied, 384, 395, 1020, 120 P.2d cert. evidentiary hearing they at the learned fied (1999), S.Ct. 145 L.Ed.2d 410 held we commingling jurors alleged between that a convicted of Degree defendant First non-jurors and the between communication actually Murder Abuse who killed Child foreperson and the regarding the bailiff eligible the victim own hand was his/her appointment prior doctor’s to the return sentence, for the death and that an En- The record reflects counsel had verdict. analysis apply does not in the mund/Tison18 opportunities objection. an several raise case of killer. the actual acknowl observing testified that Counsel after edges ruling urges but reconsideration. during time, they deliberations for a left offer. We decline the See Abshier v. the courthouse their offices where 60819; OK CR each took time to research the issue of Gilson, 919; 8 P.3d at OK separation attempted other Fairchild, to contact OK CR 998 P.2d at 631. Mullin, of the Public Office. members Defender’s See also Workman 342 F.3d Cir.2003) (10th (Enmund/Tison attorneys also for the The record shows both 1114-15 lawyers. experienced analysis required were Eighth defense trial is not under the Further, upon previous based trial involv Amendment in child abuse murder convic issue, actually essentially tion where the defendant killed his ing the same trial the same victim). Here, supports the evidencе a find judge, the same first coun chair defense ing actually killed the victim. sel, pro process counsel understood the certainly This evidence renders eli preserve necessary record. cedures gible Accordingly, for the death sentence. objection, it counsel did make an When of assignment the error is denied. only through paragraph one in motion for the new trial and attached affidavits. Counsel CIRCUMSTANCES AGGRAVATING opportunity argue take the the did not to ¶ error, specifically atten assignment motion or draw the court’s 117 In his thirteenth issue. his death sentence should tion to the asserts da, 782, 3368, response Appel- State did not 102 S.Ct. 73 17. The file 458 U.S. L.Ed.2d evidentiary supplemental (1982). hear- lant's brief after 1140 ing. State, grounds, other Jones v. 19. Overruled on Arizona, 137, v. 481 107 S.Ct. 18. Tison U.S. 17, 2006 134 P.3d 150. OK CR 1676, (1987); v. Flori- 95 L.Ed.2d 127 Enmund 878 relating ag- aggravating the circumstance existed. error the that

be vacated because ¶ State, 27, 116, v. violated his constitu- CR P.3d Lott gravating circumstances 2004 OK 98 denied, 950, 348, cert. Initially, Appellant 318, addresses rights. 544 U.S. 125 S.Ct. tional (2005); Abshier, this applied 1699, Court 2001 review 161 L.Ed.2d 528 standard ¶¶ sufficiency 13, 156-157, Stem reviewing 610; evidence OK P.3d CR 28 ¶ State, 4, 64, 61, circumstances. ple supporting aggravating v. 2000 OK CR 994 P.2d denied, this 905, 247, that on occasion Court cert. 73, asserts 121 531 U.S. S.Ct. State, “any incorrectly competent Pennington applied (2000); has v. L.Ed.2d 178 148 ¶ requests He we use the 79, 63, 1370; standard. 1356, evidence” CR P.2d 1995 OK 913 v. Virgi- Jackson test of State, fact finder” 20, ¶ 53, “rational Perry v. 1995 OK CR 893 nia, 2781, 2789, 307, 319, 99 61 State, S.Ct. 521, 443 U.S. 533; Bryson v. 1994 CR P.2d OK (1979). denied, ¶ 560 240, L.Ed.2d 52, 259, cert. 32, 513 876 P.2d 1090, 752, 115 S.Ct. 130 L.Ed.2d 651 U.S. ¶ “rational fact finder” test 118 The State, 8, v. (1995); Romano 1993 OK CR in, of Jackson adopted this Court ¶ 368, (Okl.Cr.1993), cert. 79, 387 847 P.2d ¶ State, 132, 7, Spuehler v. OK 709 1985 CR granted aff'd; and case Romano v. Okla 203-204, 202, reviewing challenges P.2d homa, 1, 2004, 512 114 S.Ct. 129 U.S. sufficiency supporting evidence State, (1994); Brogie v. L.Ed.2d 1 1985 OK test, that we review conviction. Under ¶2, 10, 542, 538, CR 695 P.2d modified light in the favorable to the most 160, grounds, 1988 OK other 760 P.2d CR any prosecution to whether ration determine al fact have trier of could found essential beyond charged a rea of the crime elements ¶ phrases 121 two have been combined doubt. sonable State, v. in several cases. Malicoat OK 2000 ¶¶ 383, 1, 16, 20, 397, cert. CR 992 P.2d ¶ Similarly, 119 to determine wheth denied, 888, 208, 531 121 S.Ct. 148 U.S. proving er an has met its burden State State, v. (2000); Alverson 146 L.Ed.2d 1999 circumstance, aggravating Court this reviews ¶ 21, 498, cert. 49, 515, OK 983 CR P.2d favorable light the record in the most denied, 1089, 820, 528 120 S.Ct. 145 U.S. whether rational trier State determine State, v. (2000); Salazar 690 L.Ed.2d 1996 necessary of fact could found the facts have Valdez, 25, 1120, 7, 1123; OK 919 CR P.2d support aggravating circumstance be ¶18, 69, 1995 OK CR 900 P.2d at 382. State, v. yond a reasonable doubt. Lockett 418, cert. 30, ¶ 39, 430, 2002 OK CR 53 P.3d phrased ways, 122 While two different denied, 982, 1794, 538 S.Ct. 155 U.S. 123 consistently only has we find Court used State, v. (2003); Washington L.Ed.2d 673 Salazar, See of review. 1996 one standard 960, Le 22, 44, 974; 1999 OK CR 989 P.2d ¶25, 7, OK CR 919 P.2d at 1123. cases Our ¶55, State, 32, 535, 947 of the show this Court’s review sufficien denied, 551, 930, cert. 524 118 S.Ct. U.S. cy supporting aggravating of the evidence State, (1998); Fields 2329,141 L.Ed.2d 702 has been circumstances consistent with 624, cert. 637, 923 P.2d guarantee Eighth against Amendment’s denied, 1216, 1704, 137 S.Ct. arbitrary capricious imposition (1997); Medlock v. L.Ed.2d VIII, penalty. death U.S. Const. amends. 1333, cert. 1348; OK CR 887 P.2d Jeffers, XIV; 781-83, Lewis v. 764, U.S. denied, 918, 310, U.S. S.Ct. 3102-3104, 110 S.Ct. L.Ed.2d (1995); Fisher v. L.Ed.2d 213 1987 OK (1990). Therefore, we 623-24 continue (Okl.Cr.1987), differing phraseology as stan treat one denied, rt. 108 S.Ct. U.S. ce apply dard review standard 2833, 100 L.Ed.2d 933 in the instant review case. phrased the 120 We have also standard any compe- ¶ as next several review whether there was 123 raises charge challenges “continuing ag- support tent evidence threat”20 State’s O.S.1991, 701.12(7) ("the probability § of a the defendant would commit 21 existence

879 First, State, gravator. argues 79, ¶ 98, it 651, he was error for 1997 OK CR 951 P.2d unadjudicat- present 677, denied, the State to evidence of 884, 195, cert. 525 U.S. 119 S.Ct. Further, ed crimes and bad acts. he asserts (1998); State, 142 L.Ed.2d 159 Hamilton v. uncharged vaginal rebanee on the State’s 14, ¶ 47, 1001, 1012, 1997 OK CR 937 P.2d rape fundamentally unfair and violated denied, 1059, S.Ct. 716, 139 cert. 522 U.S. 118 right process to due on based insufficient (1998); Pennington, L.Ed.2d 657 1995 OK consistently upheld notice. This Court has ¶79, 85, 1373; 913 at P.2d Walker v. unadjudicated prove the use of crimes to ¶ State, 66, 66, 301, 1994 OK CR 887 P.2d “continuing aggravating threat” circum 320, denied, 859, 116 166, cert. 516 U.S. S.Ct. State, 9, stance. v. Williams 2001 OK CR (1995). 133 L.Ed.2d 108 The United States ¶ 70, 702, 720, denied, 22 P.3d cert. 534 U.S. Supreme Court and the Tenth Circuit Court 836, 1092, (2002); 122 S.Ct. 151 L.Ed.2d 716 Appeals consistently rejected have also ¶ Malicoat, 1, 18, 2000 OK CR 992 at Tuilaepa California, contention. See v. 512 ¶ 397; Salazar, 70, 46, 1998 OK CR 973 P.2d 967, 976-977, 2630, 2637-2638, U.S. 114 S.Ct. 328-329; State, 121, Berget v. 1991 OK CR (1994); Gibson, 129 L.Ed.2d 750 LaFevers v. denied, 53, 364, 377, 824 P.2d cert. 506 U.S. (10th 705, Cir.1999); 182 F.3d 720 Nguyen v. 841, 124, (1992). S.Ct. L.Ed.2d 79 (10th Reynolds, 1340, 131 F.3d Cir. Appellant’s request We decline to revisit the 1997). Appellant’s argument for reconsider issue. persuasive ation is not and we find no reason prior to overturn our case law. ¶ 124 In the Second Amended Particulars, Bill alleged State Finally, Appellant chal “peteehiae victim had around the urethral lenges sufficiency sup of the evidence to opening object pen ... consistent with blunt port aggravator support this case. To etration”. While the notice need not contain aggravator threat”, “continuing detail, every “it must contain the essential present showing State must evidence the de fact(s) point(s), statement(s), or and the main fendant’s behavior demonstrated a threat element(s) of the evidence the State intends society probability and a that threat would prove aggravating introduce to circum continue to exist the future. Bland v. alleged prepare stances so the accused can State, 11, 135, 702, 735, 2000 OK CR 4 P.3d present explanation.” defense or Litt denied, 1099, 121 832, 148 cert. 531 U.S. S.Ct. State, 6, 16, lejohn v. 2004 OK CR 85 P.3d (2001). finding L.Ed.2d 714 A that the de 287, 295, denied, 947, cert. 543 U.S. 125 S.Ct. fendant would commit criminal acts of vio 358, 160 (2004). brief, L.Ed.2d 261 Although lence that continuing would constitute a language put Appellant this was sufficient to society appropriate threat when the present notice that the would State evi participat evidence establishes the defendant attempted vaginal rape. dence of the See ed in other unrelated criminal acts and the Williams, 9, ¶ 52, OK CR P.3d at nature of the crime exhibited the calloused 717; ¶59, 65, Miller v. prove nature the defendant. Id. To denied, 977 P.2d cert. 528 U.S. circumstance, aggravating this Court has 120 S.Ct. 145 L.Ed.2d 192 may held present any the State relevant Further, By this was third trial. evidence, in conformance with the rules of proceedings, Appellant this time evidence, including evidence from the crime well aware of the evidence to be used in itself, crimes, evidence of other admissions support aggravators. unadjudicated the defendant of offenses Appellant requests we reconsider our other relevant evidence. Id. prior rejecting vagueness decisions chal Williams, lenges aggravator. 127 The State’s that in See evidence showed ¶9, 82, 722-23; rape 22 P.3d at addition to the Short victim, physical- OK CR murder of the denied, ly attempted cert. vaginally rape S.Ct. abused and (2000); Douglas 145 L.Ed.2d shortly the victim before her death. The continuing society”). criminal acts of violencе that would constitute a threat to 880 prove aggravator, the Appellant aggravator. ‍‌‌​​​​‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌‌​‌​​​​​​‌​‌​​​​​‌​​‌‌‍To this had evidence also showed

State’s Warner; that murder of the on State must show the that physically abused Vonnita preceded by victim torture serious had was one occasion more than abuse, physical may which include the inflic Vonricca his ex-wife Warner choked and beat Vonnita; anguish great physical or ex and tion of either pregnant with she was while Lott, 27, cruelty. 2004 OK CR his treme mental had thrown ex-wife other occasions he ¶ State, 172, 358; at v. 2002 up against in 98 P.3d Banks her a wall ground, thrown ¶ 400-401; 36, 390, 9, home, OK 43 P.3d cert. her to have sexual CR forced their 898, denied, 1126, 154 against her will. This 537 U.S. 123 S.Ct. with him relations State, (2003); 2001 escalating L.Ed.2d 811 Black v. OK pattern a violent shows evidence 1074, denied, 5, ¶ 79, 1047, jury’s 21 P.3d cert. finding of CR supports that conduct 1004, 122 483, L.Ed.2d dangerousness, 534 S.Ct. 151 396 future U.S. probability ¶ 99, Short, 15, (2001); 980 continuing 1999 OK CR P.2d threat to soci- constitutes a which State, 26, 1109; 36, at Hain v. 1996 OK CR ety. 1130, 1146, denied, 919 519 P.2d cert. U.S. Appellant argues victim’s death 128 (1996). 1031, S.Ct. 588, 117 136 L.Ed.2d 517 altercation. He the result a domestic was requires physical Serious abuse evidence aggravator “continuing threat” contends physical suffering. DeRosa v. conscious only apply supporting not where should State, 1124, P.3d 2004 OK CR 89 comes from a domestic situation evidence 1157, denied, 1063, 125 543 cert. U.S. S.Ct. from once he is which he will be removed 889, State, (2005), 793 Hooks v. 160 L.Ed.2d support argument, Appel- prison. As for his ¶1, 39, 2001 P.3d cert. OK CR 19 State, part v. OK lant relies on Lewis 1998 denied, 963, 371, 122 S.Ct. 151 534 U.S. State, 24, 1158, Cheney v. 1995 970 P.2d CR State, (2001); Spears 1995 L.Ed.2d 282 v. OK State, 72, 74, Hogan 909 v. OK CR P.2d 431, 448-449, 36, 78, CR 900 P.2d cert. 41, P.2d 1157. These cases 1994 OK CR 678, denied, 116 S.Ct. present case as distinguishable from are L.Ed.2d 527 al- “continuing aggravator was threat” those leged not found but Appellant argues the evidence argues that in cases Appellant also trials. prove was the victim’s insufficient “con aggravator, found the where physical suffering” as the medical scious ex upheld finding relying that on other Court could not determine in which order aminer compelling more evidence.21 injuries were inflicted and because the to others comparison of his case does injury head would have resulted immedi “continuing ag- us that threat” convince consciousness, ate and there noth loss apply in this gravator should not case. consciously ing the victim to indicate suffered sufficiently in this “com- case Further, pain. he the absence of asserts pelling”. This more than a mere case was in pain evidence that the victim cried out Appel- Evidence domestic altercation. supports argument. his raped and an month old lant murdered concerning 131 The medical evidence infant, past and that in the he beaten when victim would have lost conscious- year his four old child and choked beaten conflicting. ness was Dr. Choi testified the support finding ex-wife was sufficient to shaking autopsy revealed violent “continuing is a threat” inju- force victim’s crushing-type caused the society and that violent nature escalated cross-examination, ries. she said On she from assault to homicide. injury, to the could not determine which vic- abdomen, head, chest, hap- challenges next tim’s liver or heinous, injury pened said “especially atrocious or cruel”22 first. She the head would State, ¶ 84, 821, 836-837; Robedeaux, Nguyen CR CR v. 1988 OK 21. See OK 167, 174; Darks, ¶ 35, 16-19, ¶¶ 436; Malicoat, 769 P.2d at P.2d ¶¶ 40-41, 954 396-398; P.2d 163. Hooper 992 P.2d at 1997 OK 43-44, 1090, 1107-08; ¶¶ Cum O.S.1991, 45, ¶ 52, 701.12(4). § mings OK CR

881 in not result the immediate loss of conscious- 4-73. an in Such omission the uniform in impression stated her overall ness. She struction has been found error but harmless injured rapidly that the victim was then she as it does not alter the proof, standard of Dr. lost consciousness. Choi said she could impact thus could have had no on the sen put not an exact time frame on occur- State, tencing decision. See Johnson v. 1996 cross-examination, ¶ rence of the events. On 36, 42, 309, 318, OK CR 928 P.2d cert. Appellant’s previ- Dr. Choi admitted at denied, 832, 99, 522 U.S. 118 S.Ct. trial, likely ous she testified that it was more (1997). L.Ed.2d that the victim lost consciousness at the same ¶ 135 The record reflects no ob injuries time the were received. jection was raised to given the instruction in ¶ Spencer 132 Dr. in testified that review- regarding heinous, this case “especially ing photos injuries, inju- of the victim’s aggravator. atrocious or Appellant’s cruel” baby syn- ries were consistent with shaken object failure to all plain waives but error. injuries drome. She said the victim’s “In capital this sensitive area sentencing, object anal area were firm consistent with a we are constrained to find deviation from the being violently placed there. She did constitutionally well-established and firm in give opinion an as to whether the victim lost However, struction is error”. Id. as in John consciousness. Charvon Warner testified he son, persuaded we are not “that the error day saw shake the victim the she lessened, dramatically or indeed lessened at Appellant, died. Seared of Charvon said he proof all the standard of jury which the Additionally, then hid his sister’s room. apply aggravator” to find this Id.See also Ballard, Appellant’s interview with Officer ¶¶ State, Myers 25, 75-78, 2000 OK CR store, said while Shonda atwas 1021, 1037-38, denied, P.3d cert. 534 U.S. he was in the bedroom with the victim and 900, 228, (2001); 122 S.Ct. 151 L.Ed.2d 163 Dashja. only He said he left the room ¶ State, 59, 68, Miller v. 1998 OK CR lying return to find the victim on the floor 1099, 1112-1113, denied, P.2d cert. 528 U.S. Nowicki, crying. Phillip Defense witness 897, (1999); 120 S.Ct. 145 L.Ed.2d 192 professor pediatrics at Ohio Univer- State State, Turrentine 1998 OK CR sity, reviewing testified that after the victim’s 955, 975; denied, 965 P.2d cert. 525 U.S. records, medical he believed she would have (1998); 119 S.Ct. L.Ed.2d 562 immediately lost upon consciousness sustain- 67, ¶ 43, Richie v. ing injury. the head 268, 278-279, denied, P.2d cert. 133 The is the exclusive 117 S.Ct. 136 L.Ed.2d 64 judge weight credibility of the Having thoroughly Appel- reviewed Robedeaux, evidence. 1993 OK CR challenges aggravating lant’s to the two cir- Despite 866 P.2d at 429. conflicts in the case, cumstances found this we evidence, this Court will not disturb the aggravates pass find both constitutional jury’s finding competent if there is evidence supported by muster and were sufficient evi- support it. Reviewing Id. Accordingly, assignment dence. of error light most favorable to the is denied. support jury’s evidence is sufficient to finding consciously the victim suffered assignment 137 In his fourteenth of er- pain rape shaking from the anal and violent ror, Appellant asserts his death sentence Appellant’s prior at hands to her death. See must be vacated under the Court’s mandato- Revilla, 24, ¶ 44, ry O.S.2001, sentence review of 21 701.13(C). Specifically, § argues he his sen- argues further that con- imposed tence was under the influence of tributing invalidity aggravator passion, prejudice, factors; of this arbitrary is the erroneous “physi- mitigation omission of the word outweighed aggravation; cal” phrase from the “serious physical abuse” his Eighth execution would violate the in the last sentence of Oklahoma prohibition against Uniform Amendment un- cruel and (2d) (OUJI-CR) Jury punishment. Instruction —Criminal usual ¶¶ 5-6, 602-603. support Appel- of his first claim 138 In argument imposed persuasive. is not argues sentence was under reconsider lant passion, prejudice, or other the influence of ¶ Further, 142 we find no error in to arbitrary including but not limited factors jury to the trial court’s refusal instruct I, V, in Propositions raised VII— the errors “presumption on of life”. This has Court IX, XI-XIII, appellate of his and XV—XVII required not such instruction. Fred an See propositions of in these brief. As discussed ¶ State, 34, 174, 37 P.3d erick v. herein, allegations not do error 951, State, 908, 13; fn. v. 1995 OK Duckett judg- of or modification his warrant reversal denied, ¶ 63, 23-24, 61, 7, CR 919 P.2d cert. certain did While errors ment and sentence. 1131, 117 991, 136 519 L.Ed.2d 872 U.S. S.Ct. case, in when individu- occur this considered ¶ 49, (1997); State, 51, v. Fox cumulatively, they egre- not ally or were so denied, 1060, 779 P.2d cert. U.S. 494 Appel- or as to have denied gious numerous 1538, (1990). 110 777 The 108 L.Ed.2d S.Ct. lant a fair trial. concerning given in this instructions case Next, mitiga- Appellant asserts 139 recognized sentencing presump and legally outweighed aggravating cir- tion evidence adequately jury ap tions advised also the trial court cumstances. He finds propriate law. jury failing in to that its erred instruct outweighs aggravation determination Turning mitigating 143 evi mitigation beyond a must be reasonable (13) dence, Appellant presented wit thirteen doubt, failing instruct the and to in his behalf. These witnesses includ nesses presumption of life. mother, father, sister, brother, and ed his aunt, mother, Additionally, and cousin. Specific standards for bal grandmother daughter Dashja of his testified mitigating ancing aggravating circum and people as as two who them well described constitutionally required. stances are not friends, they others as two who said selves State, Romano v. OK CR neighbors who had were and one said he 392, 368, citing Stephens, 462 Zant v. Essentially, Appellant. a house rented to 2733, 77 U.S. 103 S.Ct. L.Ed.2d they and these witnesses testified loved “beyond a reasonable doubt” meaning life cared for and his analysis proof strictly appli is not burden of them; loving significance and he a son weighing process cable to of the second type and and father wanted to be the Id., stage. the State must “While have; that he did he father not read books prove beyond a reasonable doubt the exis taught alphabet; his children and them the ag one tence at least enumerated responsible he tried to teach his son to be circumstances, the determination gravating homework; helped him his he and aggravating weight of the to be accorded the sought custody by and was default awarded a fact mitigating and circumstances not Vonnita; he his children Charvon proved beyond which a reasonable must be handicapped daughter his worked with Von- Instead, balancing process.” doubt. it is a nita, taught her walk and took her to State, v. 1987 OK citing Id. Johnson CR easily appointments; medical he was not an ¶ 44, 993, 1005. 731 P.2d gered; grandmother cared after he for his Further, surgery; prior felony v. 2002 OK her he had no convic Torres ¶¶ denied, 6-7, 214, 215, cert. CR tions and had never been trouble with tickets; 1082, 119 826, 142 except 683 law for traffic he not use 525 U.S. S.Ct. L.Ed.2d does (1999), alcohol; drugs or children procedure we found satisfied his were observed him; requirements Ring forth in not he let his constitutional set to be scared of would first; Arizona, and sister remembers S.Ct. brother eat he (2002), responsibility birthdays holidays; a family L.Ed.2d as it is the and he was good player encouraged and unanimously aggrava find football who ting beyond younger play his foot supported circumstance a reasonable doubt. brother Id. 2003 OK ball. See also Pickens mitigation Appeals rejected challenge Additional to Califor- loyal Appellant was a friend protocol,

showed who nia’s which involved the pan- use of work; good gave a friend rides to he was a curonium protocol bromide. The California tenant; neighbor good kept he his house used two other chemicals in combination with good repair; trying improve he was his pancuronium bromide.23 The Ninth Cir- school, by job, making plans life cuit found that guar- there can no “[w]hile be tapes; had borrowed some motivational he occur, antee that error will Cooper falls children; was never seen to hit or his abuse showing subject short of that he is to an caught daughter Dashja he in the street unnecessary pain risk of unconstitutional car; she was run over crimi- before no suffering such that his execution lethal charges nal against have ever been filed him injection protocol under California’s must be any allegations by for made Vonricca War- restrained.” 379 at F.3d 1033. ner; emergency he took the victim to the ¶ case, present 148 In the Appellant has attention; room to obtain medical and he is provided this Court with a sufficient rec- capable making society. a of contribution to legal ord argument and appro- to allow us to twenty- This evidence was summarized into priately 3.5(C), address the issue. See Rule (22) two factors and submitted to the Rules the Oklahoma Court Criminal of evidence, mitigating their consideration as as Appeals, Ch.18, App. Title See well as other circumstances the also Standridge v. (O.R. might existing mitigating. find ¶ 18, (appellant 701 P.2d duty has 1078-1081). record). supporting include in facts He Upon our review the record and has injection not set out protocol the lethal weighing aggravating careful of the circum- by used this State. The record does not (previously supported by stances found suffi- reflect whether protocol Oklahoma’s is simi- evidence) evidence, mitigating cient and the lar or different to in that used California. factually we find the sentence of death to be Eighth claim of an Amendment appropriate. and substantiated upon violation pancuroni- based reference to argues next his execution um bromide and drags” sup- “two other and would be cruel punishment and unusual as ported by media, articles from the news pan- “Oklahoma’s use of the muscle relaxant speculative at Accordingly, best. this claim may person curonium bromide help- render of error is denied. dulling less without pain”. Appellant further in states that “used about 30 states combi- VICTIM IMPACT TESTIMONY death, nation with drugs two other that cause drug may leave inmates awake as other asserts his fifteenth as- drags slowly”. cause them to suffocate In signment of impact error that the victim support argument, of his Appellant relies on unduly emphasized statement and addressed articles from CBS News and the New York only impact the emotional of the victim’s Times attached to his Motion for a Rule 3.11 probative death and that its value was sub- hearing. stantially outweighed by danger of unfair injection prejudice. Lethal has been an argues also the trial authorized method of procedures execution Oklahoma court failed to follow the for ad- O.S.2001, § since 1977. See 1014. impact testimony This mission of victim set out in ¶¶ previously 65-81, Court has not Cargle, addressed on direct 909 P.2d at appeal challenge injec to this Finally, argues State’s lethal 824-830. he im- the victim protocol. yields tion pact Research few chal Eighth evidence in this case violated the lenges protocols to other by states’ for lethal and upsetting Fourteenth Amendments injection. Rimmer, Cooper In v. aggravating 379 F.3d mitigating balance (9th Cir.2004), skewing the Ninth Circuit Court evidence and the results of Okla- bromide, 23. blocking California uses a combination of three chemi- ronium a neuromuscular chloride, cany injection: agent; cals to potassium stops out an execution lethal which sedative; pentothal, pancu- Cooper, sodium a barbiturate heart. 379 F.3d aggravators scheme, sufficiency of the hearing the evi- on the sentencing and that homa’s impact admission the victim testi- “super aggravator”. prior He as a operated dence testimony put mony. agreed also The court but Shonda impact victim contends process rights under first. on witness stand his due Waller violated Amendments and Fourteenth Fifth portion A of Ms. Waller’s 152 substantial II, Article Constitution United States testimony impact addressed emo victim as the § the Oklahoma Constitution 7 of victim’s mur psychological toll the tional not meet the of death does jury’s verdict However, caused in her life. this is der reliability required heightened standards of given the victim was understandable capital cases. at the time of her only eleven months old in this impact is con The victim impact evidence death. 150 Victim the scales unduly weighting so comes close to too stitutionally acceptable unless “it is case prosecution it the trial funda far on the side so renders prejudicial impact Phillips intensely focusing mentally unfair....” on the emotional However, quoting taken victim’s death. as OK CR Tennessee, whole, Payne testimony was within bounds 720, 2597, 2608, 115 Cargle 735 L.Ed.2d forth in S.Ct. of admissible evidence set ¶¶ 77, 67-71, 909 Cargle, In 1995 OK CR not § The focus emotion did have on 827-28, analysis we out the the pres P.2d at set the prejudicial or so skew such effect to Supreme utilized find Court jury duty United States from its as to divert the to entation by not violated Eighth Amendment the on whether reach a reasoned moral decision Four impact and that the DeRosa, evidence victim impose penalty. the See death ¶¶ potential the be 19, 78-79, 1151; teenth Amendment has at 89 P.3d 2004 OK CR ¶ are appropriate if restrictions not implicated 24, 46, 876, 47 P.3d Murphy, 2002 OK CR impact In Le dbet ¶ 100, on victim evidence. placed 885; 38, Phillips, 1999 OK CR 989 ¶ State, 5, 53, 933 P.2d 1997 OK CR ter objectionable P.2d at 1043. The most com 880, impact this Court victim 889-90 held counsel’s re ments were deleted at defense long admissible as as it is restricted brief, evidence testimony quest. Ms. was Waller’s financial, emotional, psychological, and to the pages of comprising approximately two the effects, impact, of the crime itself physical transcript. transcript trial the indi While survivors; as victim’s as well some on the point, that at one Ms. Waller cried cates victim, citing the personal characteristics of during testimony, able to her she was com Short, § O.S.Supp.1993, 22 984. See also testimony. pose herself and her Fur finish 15, ¶ 53, P.2d at 1100. CR 980 ther, 1999 OK jury was in their the informed second stage appropriate weight instructions the on case, present In the Shonda 151 given impact and consideration to be victim only impact the witness. was victim Waller ¶77, 77, CR Cargle, evidence. See 1995 OK testimony impact was a statement Her victim these circum 909 P.2d 828-829. Under had written and read at first she stances, prevented the from was Although trial in 1999. the statement had making fulfilling its function of a reliable by counsel at scrutinized court and been despite the sentencing determination emo trial, attorneys first because different were impact focus of victim evidence. tional trial, judge in the re involved current in the objections. 153 finds error trial the statement and asked for also read finding of the argued fo court’s failure make a exis- Defense counsel the statement aggravating at least circum- impact the emotional to the exclu tence of one cused on factors, prior presentation to the of the victim all other and therefore the stance sion of pursuant Cargle, During judge impact and all evidence Cargle. violated statement hearing impact the victim over line line the in-camera on counsel went the statement evidence, specific requested pointing counsel out defense counsel such defense agreement hearing. agreed The trial hear- objectionable Upon court statements. counsel, on put Ms. ing all certain delet but wanted to Waller statements were testimony, first. After counsel moved to have a stand Ms. Waller’s ed. Defense then

885 error, assignment In hearing his sixteenth does not reflect the record Appellant asks Court reconsider held. adjudicated previously issues whether violat trial Cargle, court Under trial, right impartial jury, to a fair an ed aggra of at least one must find process sentencing pro and a rehable due present circumstance is before admit vating Sixth, ceeding Eighth, under the and Four impact ting evidence. victim teenth Amendments United States ¶ 76, However, 77, 909 P.2d at 828. II, 7, 9, 19, §§ and Article Constitution specifically of a state trial court to failure 21 of Appel the Oklahoma Constitution. finding error. such a is not reversible See first error lant raises as the trial court’s ¶ 35, Hooks, 1, 19 P.3d at 313. OK CR parole” without failure to define “life jury. Appellant recognizes this Court has Here, Shonda Waller rejected arguments. Murphy, similar See prosecution presented witness the last (this 24, 52, 47 P.3d at OK CR 886-888 during stage of trial. Evidence second has, instances, Court numerous stated that supporting alleged aggravating circum meaning parole without life is self- already presented. been As dis stances explanatory an instruction its and that above, pre sufficient evidence was cussed meaning required). is not See also Powell to find existence of sented 510, 2000 OK 995 P.2d aggravators beyond a each of the reasonable denied, cert. U.S. S.Ct. The trial court’s admission of the doubt. (2000); 148 L.Ed.2d 258 Howell v. impact implicit victim evidence was an admis ¶53, aggravators sufficiently were sion that denied, 120 S.Ct. cert. U.S. impact of victim supported to allow admission (1999); State, L.Ed.2d 79 Hamilton v. 1997 testimony. practice While the better is for 1011-12, cert. ¶14, 44, 1001, CR P.2d OK 937 finding of the trial court to make its the denied, 1059, 716, 522 118 S.Ct. 139 U.S. record, Appellant aggravators on the has State, (1998); L.Ed.2d 657 McCracken v. prejudiced by show failed to how he was the 68, ¶ 49, 1994 OK CR 887 P.2d cert. Accordingly, in court’s omission this case. denied, 859, 166, 516 116 S.Ct. 133 U.S. explicitly the we find trial court’s failure (1995). However, of light L.Ed.2d 108 aggravating of at one find evidence least ¶¶6, 4-11, Littlejohn, at 2004 OK 85 P.3d CR admitting impact victim circumstance before Mullin, 902, 291-294 and Mollett v. 348 F.3d was evidence harmless error. (10th Cir.2003), Appellant for 905-12 asks reconsideration of the issue. ¶ Further, Appellant’s 156 claims that vic impact operates “super ag- as tim ¶ possibili 159 about the Concerned always present in gravator” that will ev be misconception ty recurring of a within repeatedly rejected ery capital case has been juries ap regarding the effective Oklahoma DeRosa, 19, by this Court. See 2004 OK CR imprisonment of a of life plication sentence ¶ 1152-1153; Hooks, 83, P.3d at 2001 OK 89 parole, possibility the of and wheth without ¶ 38, 313-314; 1, Douglas 19 P.3d at v. CR premise that casts our that the er doubt on ¶ 82, State, 79, 651, 951 1997 OK CR P.2d options self-explanatory, are punishment denied, 884, 195, 675, 525 119 S.Ct. cert. U.S. attempted Littlejohn give Court in this (1998); Cargle, 142 L.Ed.2d 159 responses guidance trial courts their the ¶ 75, 77, 909 15. P.2d at 828 fn. We see no law, jury. prior Consistent case reason revisit the issue here. this Court stated: during Appel- jury ... in future where the Having thoroughly reviewed eases 157 asks, in some form challenges impact deliberations or fash- lant’s to the victim evi- ion, dence, who is sentenced prevent we find its admission did not whether an offender possibility imprisonment to life without the jury making from a reasoned moral deci- the parole parole eligible, the trial court imposition penalty. the death of sion on of the jury Accordingly, of should the back to the assignment this error is de- either refer instructions, jury punish- that the tell the nied. 886 character, explanatory, prior ad- record or the circum are self or options

ment jury punishment options of the offense.” See Al-Mosawi the stances vise the ¶¶ State, 59, 77-78, plain P.2d in their and 1996 OK are to understood CR be 270, Chaney quoting and that the defendant will 612 P.2d literal sense denied, (Okl.Cr.1980), 269, if cert. eligible parole sentenced 279-80 be 1731, possibility imprisonment life without 101 S.Ct. L.Ed.2d U.S. parole. Evidence the cost effectiveness sentence does not bear on a defen death ¶ 11, at 293-294 character, prior record or circum dant’s omitted). (internal citations Accordingly, of the Id. we stances offense. respons above 160 This Court found the present prop the motion in the case was find accept plain mean es forced erly denied. sentencing impose ing options Next, Appellant finds appropriate deemed under error sentence it Id. This Court trial court’s denial his motion for allocution law and facts of case. argument fully have the responses argue said such did not effect and to last. This was ¶¶ Duckett, creating false dilemma addressed choice addressed 1995 OK 54- CR Mollett, Appellant Circuit in F.3d Tenth 919 P.2d at 20-21. has not 916. Id. at 292.24 persuaded us to Fred revisit issue. See fn. erick v. 2001 OK case, prеsent out 161 In the sent question concerning whether if prison released were could ever be from he requests further parole. life The court sentenced to without rejection prior argu- Court reconsider its requested denied the defense’s instruction challenging the of victim ments admission replied, “you all the law and evi- have “super aggravator” impact evidence as a (Tr. necessary to dence reach a verdict.” negates impermissibly which diminishes Vol.VIII, pgs.1550-1551). The court’s re- narrowing aggravating function that cir- Littlejohn sponse appropriate under constitutionally required are cumstances prior law. case provide Eighth under the and Fourteenth argument previous- Amendments. This trial next asserts the XV, ly in Proposition raised addressed pre-trial overruling court mo erred Appellant anything herein. does not add tions to on the present evidence cost-effec argument, new to his and has therefore not tiveness and lack of value of the deterrent persuaded tous revisit the issue. State, penalty. In 1995 death Smallwood ¶ ¶ 217, 60, 62, 233, Lastly, Appellant OK CR 907 P.2d cert. 166 finds in the error denied, 980, 431, rejection pre- 519 U.S. 117 S.Ct. 136 of his trial court’s motions (1996) found arguing L.Ed.2d 330 this Court a similar vent the State from lack of remorse motion is properly denied as such evidence when has maintained his inno- relevant, qualify mitigat not does as argument and This and cence. addressed evidence, ing having bearing appel XII, no the rejected Proposition Appel- herein. character, record, prior lant’s circumstances argu- present lant has failed to additional appellant’s of the the offense committed or authority revisiting warrant ment or our conduct, citing Skipper future v. South Car Accordingly, assignment the issue. this of olina, 1669, 1, 106 90 L.Ed.2d S.Ct. error is denied. ISSUES RELEVANT TO BOTH ¶ 701.10(C) O.S.2001, § has Title TRIAL STAGES OF been construed to “that a mean defendant evidence, may present any Appellant argues in his relevant within evidence, assignment photo- bearing the eleventh of error that limitations of rules of Littlejohn, separately jury ability 24. In this wrote the the to commute author of of Governor 6, "giving jury any pursuant § as to to Art. 10 of the the additional information the sentence J., (Lumpkin, ¶2, meaning parole concur of life is at best a Oklahoma Constitution.” without 6, 303.) result, fully half it 2004 OK CR 85 P.3d at truth because does not inform size, injuries improp- largement, original victim’s were over twice the graphs of the photograph. light In erly The admissibili- Polaroid of her testi- admitted into evidence. mony identifying photograph as an ty is a matter within the trial accu- photographs representation, jury rate and as the and absent an abuse of that court’s discretion clearly enlarge- informed the discretion; exhibit was an will not reverse the this Court original photograph, ment of the we find ruling. Phillips, 1999 OK CR trial court’s any prejudice. has failed to show 38, 47, Photographs at are 989 P.2d 1032. if and admissible their content relevant In reviewing prejudicial impact substantially out- probative their value is not said, photographs of the this Court has weighed by prejudicial their effect. Id. The probative photographs “where the value of probative photographs value murder outweighed by prejudicial slides is their im- ways, manifested in numerous victims can be is, pact jury on the the evidence tends to nature, including showing lo- extent and judg- elicit an emotional rather than rational wounds, establishing corpus cation of de- they ment then should not be licti, scene, depicting the crime and corrobo- Short, into admitted evidence.” testimony. rating the medical examiner’s Id. ¶15, 27, 1094, President, quoting 980 P.2d at 222, Apply- OK CR 602 P.2d 168 State’s Exhibits Nos. case, ing that standard we find the 8, 9, 11, depict injuries all 13 and 69 photographs solely were not introduced region. photos ap anal to the victim’s The response. photo- elicit an emotional The pear injuries to show different bruises and graphs probative probative were and that angles. Appellant argues from different outweighed by any prejudicial value was not cumulative, photos unnecessarily these were impact. Appellant has failed to meet his duplicative, graphic inflammatory, prejudice, burden of and we find no error in unfairly prejudicial. photos were rele photographs. admission showing vant in the nature and location of injuries. argues the victim’s some While there is also he was harmed body by comments, duplication prosecution’s in the areas of the victim’s apologies, injuries depicted, Appellant emphasis graphic has failed to and undue on the nature of showing repetition photographs during stage meet his burden the first inflammatory. during stage was needless or Barr v. See trial. He asserts second closing argument, prosecutor improperly OK photographs, pleaded jurors forget to look 1187. Certain such as State’s to not stating graphic. pictures, Exhibit No. were rather How the victim’s “we don’t have ever, alive, required downplay pictures the State is not of her a few of her after particular the visual effects of a crime. the defendant committed his acts. Don’t for- well”, pictures get McCormick to look at those as Additionally, improperly 898-899. cer that he while showed the State’s may photos during tain have been cumulative to Exhibits and 59 final the Nos. 8 his sec- Choi, testimony stage closing argument. of medical examiner Dr. we ond they properly find were admitted as corrobo ¶ During photo- 172 the admission of the testimony. rative of her graphs through stage testimony the first of ¶ Justice, prosecutor apologized No. 69 an State’s Exhibit was en- Robin the largement photograph. jury graphic of the actual Polaroid for of the the nature certain trial, objected Appellant argued photo photos. arguing At the was not Defense counsel properly enlargement apology improper admissible as the was the was an side-bar com- objec- representation distorted and not an actual of ment. The trial court sustained the request image photo. grant the in the The trial court tion but did not the defense’s sponsoring jury. explained overruled the motion as the wit- admonish court the The ness, Justice, photograph prosecutor improperly directly Robin testified the he was representation inju- addressing jury examining a wit- was an accurate of the the while Further, region. prosecutor ries to the victim’s anal to save his Ms. ness. The was told photograph apologies closing argument. Appellant Justice testified the an en- for was dеspite sustaining the of dressed in connection the admis- complains now that above prosecutor improperly re- objections, photographs his the and no sion the error war- placed peated apology empha- and undue his ranting was found. relief photographs. graphic sis on nature the ¶ Additionally, Appellant complains Initially, Appellant not will during stage closing argument first complain prose because the now heard to be 1) prosecutor improperly: sympathy invoked cutor the court’s directions and followed 2) victim; on Appellant’s for the commented argument. for apologies closing saved his 3) silent; right person- resorted remain challenged in context Reading comments 4) emotion; opinion appeal al an cast and closing argument, we find com of the entire 5) counsel; aspersions on defense misstated prop photos ments were based on about 6) evidence; credibility bolstered erly graphic The nature admitted evidence. Willy Charvon and Detective Ed- Warner mentioned, photos was but not certain wards; 7) improper relied on comments or pho unduly emphasized. References to the Mullenix; 8) opinions of Detective and en- only portion tos minor the first were gaged gesturing during argu- in pointing and light stage argument. In the evi closing ment. Appellant, against pros presented dence deny Appellant did not ecutor’s comments Appellant’s allega review 177 We guilt stage fair of trial. tions under the well established rule that ¶ 174 The record shows no ob require error insufficient to alone is reversal. jection stage closing to the second was raised Bland, 11, 89, 4 2000 OK CR P.3d at 727. Therefore, argument. only we review for only not must show that error error, plain Reading find none. occurred that the resulting prejudice but also context, they were on the comments based from the error was such reversal pleas sympa mere and were not for warranted. Id. thy victim. for the asserts photos inflammatory prosecutorial com prosecutor’s The comment deny rights ments to a fair combined concerning pain amount of the victim sentencing proceeding pro and therefore the feeling must have been met with an ceedings heightened not meet the stan did objection. objection The was sustained and reliability required in capital dards cases disregard admonished to the com pursuant Eighth Amendment to Lock Any ment. error was therefore cured. See Ohio, ett 438 U.S. S.Ct. Romano, 909 P.2d at (1978). Appellant’s L.Ed.2d 973 reliance on 116. misplaced. While miti Lockett is substantial, gation evidence was the evidence Next, it is improper in aggravation great. would concerning at trial comment to be made guilt have come to the same conclusion of following silence of a defendant a Mi photographs the death sentence Ohio, warning. Doyle randa Accordingly, Appellant been admitted. is not to a new trial or new sentenc S.Ct. 49 L.Ed.2d also entitled See Romano, ing proceeding due to the admission' of the assignment

photographs. However, case, This of error is present Appel ‍‌‌​​​​‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌‌​‌​​​​​​‌​‌​​​​​‌​​‌‌‍ denied. rights voluntarily spoke lant waived his circumstances, police. with Under these ¶ error, assignment In his twelfth prosecutor may properly any comment on he was a fair trial contends denied statements or refusals to made answer by prosecutorial in misconduct both the first Romano, by Appellant. See OK CR Initially, Appel- and stages second of trial. ¶ 14, 108; State, 909 P.2d at Stout v. 1984 OK lant complains apologies prosecu- about ¶94, 617, 624, denied, CR 693 P.2d cert. stage argu- tor during closing made first 1022, 105 graphic ment nature of U.S. S.Ct. 87 L.Ed.2d 623 for the some of the photographs introduced. This ad- claim was

¶ beginning of there 180 At the the sec said was no evidence Shonda Waller stage closing argu portion ond of his first was mad when she returned home from the objected prosecutor part: stated in store. Defense counsel tri ment the and the responded, jury al court “the heard the evi jury, gentlemen and when Ladies dence”. The record shows Shonda Waller eases, they’re you try these kinds of al- testified she was mad when she arrived home ways tough participants on all of the emo- grocery from the store because she had way jurors, tionally. no that—as There’s However, part soap opera. missed of her you tough how it is—but there never know prosecutor’s when the comment in is read life, your you a in if care comes time about trying point context he is to make the there justice, you care about that children and was no evidence Shonda Waller was “hot and going through pictures like in this we have “blowing mad” and going came home case, through going evidence that involves fussing being angry anybody” at young baby, there never comes time angry to the extent that she could have vio you get point you to a when where look lently shaken the victim and caused her pictures happened the worst has where Any death. misstatement of the evidence baby young you and it doesn’t hit emo- was minor and not cause reversal. See tionally. you get you point, If to that then ¶ 141, 5, Hartness v. stay need to out of this kind of business. 193, 194-195. (Tr. VoLVI, pgs.1211-1212). objected Defense counsel to the com Appellant complains pros “staying concerning ment out of the busi improperly testimony ecutor bolstered the improper personal opinion, ness” as and an Charvon Warner and Detective Edwards. appeal sympathy. for emotion and The trial Argument impermissible or evidence is agreed court but found the rest of the state vouching only jury if reasonably could Any in right. ment all error this comment prosecutor indicating believe that the is only by was cured not the trial court sustain personal credibility, belief the witness’ ei objection ing jury the defense but also as the through explicit personal ther assurances specifically jury instructions informed veracity by implicitly the witness’ indicat their verdict on the and the base law evi ing presented that information not sympathy. Ap dence and not emotions and jury supports testimony. the witness’ Car pellant has not shown the did not follow gle, 1995 OK CR 909 P.2d at 823. Turrentine, their instructions. See 1998 OK challenged We have reviewed the comments 33, ¶ 26, (juries 965 P.2d at 968 are they permissible and find were comments on instructions). presumed to follow their presented, improper the evidence not vouch ing. Next, during defense Appellant’s prosecutor claim that the closing argument, argued counsel’s counsel improper opinions relied on comments and inconsistencies the State’s evidence. The supported Detective Mullenix is not turn, prosecutor responded stating properly record. The trial court overruled playing pursuit” games defense “trivial objection prosecutor the defense as the jury making major points with the out of merely relating place during what took Comments, minor ones. which were “invit Appel- interview between the detective and respond than ed” and did no more substan Further, videotape lant. saw the scale”, tially “right in order to not do compare the interview and was able to reversing warrant a conviction. Teafatiller prosecutor’s argument. There was warranting no error reversal. prosecutor 1010-1011. We find the did defense, improperly aspersions cast on the complaint final merely responded but comments de stage closing argument about first fense counsel. gestured. prosecutor improperly pointed and complains arguments, ¶ 183 next the At the close of defense counsel objected prosecutor stating misstated the evidence he for the record the defense when impose the death only moral course was to argument to the objected throughout shaking. were well within the gesturing penalty. and The comments prosecutor’s pointing, support closing argument defense coun- and permissible not bounds of The record does objected throughout the opinions appropriate as to the personal claim that she sel’s nothing in there is the closing argument and sentence. prosecutor’s actions concerning the record ¶ claims the Appellant next after the fact asser- counsel’s except defense appeal the record to prosecutor went outside object timely and failure to tion. Counsel’s jurors’ commented emotions when he court has left the trial raise the issue before victim must have pain on the amount of the record to re- with an insufficient this Court rape, what was taken from during felt the appeal. view on Waller, experiences tak and the life Shonda prosecutorial also contends Appellant away improper It for en from the victim. stage during the second misconduct occurred jurors sympa prosecution ask to have the prosecu- argues the Specifically trial. he thy Tobler v. for victims. 1) ways that the in various tor: commented However, 90, 16, only appropriate pun- penalty was the death case, those met with a comments 2) ishment; ap- the record to went outside not, timely objection that were fell and those 3) improperly sympathy; and peal to emotion prosecutor’s range permis within the wide 4) evidence; ju- mitigation told denigrated Bland, argument. See sible Vonnita Warner’s Appellant caused rors ¶ 97, comments were 4 P.3d at 728. The 5) problems; premature and medical birth and were reasonable based on the evidence improperly to show asked inferences that could be drawn from mercy [the victim] he showed to “the same month old infant. None death of an eleven 6) out”, day screaming and as she is egregious so as to of the comments were Appellant’s lack of remorse. commented on error. have risen to the level of reversible times, ways, in various 188 Several prosecu- next contends the prosecutor stated that under the evi- denigrated mitigating by tor dence, pun- only appropriate death was stating re- mitigation that no evidence could pointed out the six instances ishment. Of Appellant’s culpability “raping for duce Appellant, met with defense ob- three were baby” you up “if beating to add death jections. objection, defense coun- In the first you multiplied it times mitigation ... and equiv- prosecutor’s comment was sel said the heinous, outweigh ... it atro- ten would justice requires death saying alent to cious, way that this defendant treated cruel defense counsel penalty. The court advised minutes, the last 20 30 minutes [the victim] argument. closing it in to talk about her v. of her life”. relies Lockett also ob 189 Defense counsel Ohio, 2954, 57 L.Ed.2d 438 U.S. 98 S.Ct. stated,

jected prosecutor “how does when the (1978) Lynaugh, Penry penalty any punishment other than the death L.Ed.2d 109 S.Ct. (Tr. Vol.VIII, memory”. do honor to her (1989) States Su- wherein United pg.1545-46). The trial court sustained the sen- preme persuading Court stated that objection jury to and admonished the disre ignore mitigating evidence is error. tencer to Any gard error was therefore the comment. objection 192 Of the two comments The third and final cured. only prose challenged by Appellant, the second properly by the court as overruled objection comment was met with an and the cutor stated the evidence warranted the (Tr. Vol.VIII, objection Reviewing the other com was overruled. penalty. death Reviewing comment for objections plain pg.1535). er the first ments not met with ror, instance, only, prosecu plain error we find none. The we find none. In each during right prosecutor’s appropriate tor has the to discuss evidence comment about appropri stage arguing for an preceded sentence was the second ness the death Bland, aggravation. punishment. ate 2000 OK summary of the evidence 727; jury’s Mayes 1994 OK suggest that the P.3d at The comments did not

891 ¶ ¶ 164, 1288, 1322, 44, de 196 Lack of is an 887 P.2d cert. remorse CR 1260, nied, 1194, appropriate jury 131 for 513 U.S. 115 S.Ct. consideration (1995). may prosecutor capital stage L.Ed.2d 140 The second of a trial. Pickens v. State, 15, ¶ 35, 328, attempt minimize the effect of properly 1993 OK CR 850 P.2d denied, 337, 1100, presented by the defense. the evidence cert. 510 U.S. 114 S.Ct. ¶15, 77, (1994). Short, 980 P.2d at 1105. 1999 OK CR 127 L.Ed.2d 232 Evidence of Further, jury appropriately instruct pertinent finding was lack of remorse is to a mitigating and was not continuing ed as to the the defendant is a threat to soci any way precluded considering any ety. Appellant distinguishes from Id. Pickens and Accordingly, mitigating and all evidence. we cases where defendant admitted commit ting expressed find no error. the murder a lack then present from

remorse cases such as the case ¶ where the defendant maintains his innocence. 193 Defense counsel raised an ob However, lack jection Ap of remorse has been found prosecutor’s comment that proper subject for premature comment the second pellant had caused the birth and stage of a trial even problems of The murder when the defen medical Vonnita Warner. objection dant had not confessed to the crime. and ad See trial court sustained Powell, 5, ¶ 145, 2000 OK CR 995 P.2d at jury disregard monished the the comment. 538; 7, 70, Further, court, Woodruff, 1993 OK CR 846 P.2d at the direction of the Accordingly, at 1141. we find no error in the prosecutor clarified that there was no medi prosecutor’s comments. showing cal evidence actions premature caused Vonnita’s birth. This “Allegations prosecutorial 197 any cured error. warrant misconduct do not reversal of a con viction unless cumulative effect was such ¶ 194 also Defense counsel deprive the defendant of a fair trial.” [as] complains asking about comments Short, 15, 80, at 1105 OK CR 980 P.2d mercy show the same he showed Duckett, quoting OK CR objection the victim. Defense counsel’s thoroughly P.2d at 19. We have reviewed regarding mercy overruled. have Comments Appellant’s allegations prosecutori each of interpreted requesting sympathy been as may al misconduct and while some comments victim. Wilson v. 1998 OK CR propriety, have tested the bounds of we find ¶¶ 99-102, 448, 470-471, 983 P.2d cert. de deprived none of the comments nied, 528 U.S. 120 S.Ct. trial, fair prejudicial impact or had (1999); Le, L.Ed.2d 205 judgment Accordingly, and sentence. ¶ 53, 554; 947 P.2d at Trice v. 1993 OK assignment of error is denied. ¶19, 32, denied, cert. CR 1025, 114 638, 126 S.Ct. L.Ed.2d CLAIMS OF INEFFECTIVE encourage The State should not ASSISTANCE OF impose penalty sym the death out of COUNSEL Le, pathy for the victims. assign In his seventeenth ¶ 53, 947 P.2d at 554. such While comments error, Appellant challenges ment of trial condoned, are not to be we do not believe the counsel’s effectiveness in both the first and present gross comments case were so analysis stages of trial. An of an second ly improper to warrant reversal or modifica begins assistance of counsel claim ineffective tion. presumption that trial counsel guiding Finally, Appellant competent provide finds error in the hand that needed, the bur prosecutor’s comment on his lack of remorse. the accused and therefore objection Defense counsel’s was overruled. den is on the accused to demonstrate both (Tr. Vol.VIII, resulting preju pg.1541). prosecutor’s performance deficient Bland, 11, 112, 4 comment came after a review of the evidence dice. 2000 OK “continuing aggrava- citing Washington, supporting the threat” at 730-731 Strickland tor. 466 U.S. 668. 687. S.Ct. 2052. 2064. (1984) initially play tape the for Taylor, not intended to and Williams L.Ed.2d 674 1495, jury. The trial court informed defense 362, 120 146 L.Ed.2d 389 the S.Ct. U.S. tape played she a for counsel the next time transcript for jury, bring a a she needed sets forth the 199 Strickland juror. resolving some initial After each applied to deter two-part which must be test tape, playing in the it was electronic issues has been denied a defendant mine whether jury. entirety the The played in its for First, the of counsel. Id. effective assistance objections complaints contains no record perform that counsel’s must show defendant tape after it was quality of the about deficient, second, he must show ance was played. prejudiced the de performance the deficient Appellant has failed to show he was makes both the defendant fense. Id. Unless prejudiced by provide counsel’s failure to said that the convic showings, “it cannot be juror transcript with a written each a in the ... from breakdown tion resulted jury’s taped Appellant argues the interview. the result adversary process that renders question during deliberations rehear the Strickland, at quoting Id. unreliable.” videotape transcripts “suggests with must demon Appellant at 2064. 104 S.Ct. if quality questionable of the audio was not un representation was strate that counsel’s support unreliable”. The record does not professional prevailing reasonable under tape argument. getting In set to challenged action could norms and that play jury, judge noted the “buzz” for the strategy. sound trial Id. not be considered him from tape prevented “hum” on the Appellant with to show that The burden rests However, clearly hearing he direct- Waller. that, probability for is a reasonable but there if be used to see ed that another television counsel, any unprofessional errors objec- any No further the sound was better. proceeding have been of the would result videotape. were to the tions raised probability A reasonable is a different. Id. probability sufficient to undermine confi jury’s argues questions 202 The State Id., Strickland, citing in outcome. dence tape transcripts concerned to rehear the 698, 104 at S.Ct. at 80 L.Ed.2d (State’s Ex- Appellant’s videotaped interview counsel exer at 700. The issue is whether 48) provid- No. for which the State had hibit skill, judgment diligence of a cised the argues transcripts. ed written The State attorney in reasonably competent defense jury’s question to trial court understood the performance. Id. light of his overall 48, not refer to State’s Exhibit No. Defense taped Exhibit Waller’s interview. The alleges videotape not to which record is clear as trial, ineffective stage first counsel was jury questions. referring its How- provide failing timely prepare and for ever, the record is clear that no further videotaped in transcript of Waller’s Shonda objections to the or comments were made as During his cross-ex police. terview with quality No. 4 after audio of Defense Exhibit Waller, Appellant offered amination of Ms. record, jury. played it was for the On this videotaped Defendant’s Exhibit No. argument quality audio that the object to its interview. The State did pure speculation. was unreliable is tape played for the admission if the (Tr. Vol.IV, arguendo entirety. pgs.781- Assuming there were audio its 82). problems tape, Appellant has not agreed, counsel and indicated with the Defense pre transcript prepared that a written they transcript of the interview shown had objected, arguing listening questionable tape from would pared. prosecutor tape they had known that the be more reliable than the itself. that was the first interview, Accordingly, Appellant failed to transcript had a has show defense pub transcripts provided be been to each transcript and that the should not had juror that the outcome of his trial would have lished to the because the State had it. Defense counsel been different. has failed to es- not had time to review in- responded transcript prepared counsel’s ineffectiveness in this had been tablish ¶11, 113, trial, Bland, solely preparation thеy stance. See as (when having produced just relied on as result.” a claim of ineffectiveness at 731 Strickland, disposed ground quoting of on the 466 U.S. at can be Id of counsel prejudice, that course should be at 2064. has failed to meet of lack of S.Ct. Strickland, followed, citing at 104 S.Ct. showing probabili- his burden of a reasonable 2069). that, ty any unprofessional but for errors counsel, trial the result of the would have ¶204 trial, stage of As for the second by or been different as errors omissions argues counsel was inef- Appellant defense jury’s the determi- counsel did not influence medical failing for to use available fective guilt impose or nation of decision the suggesting premature that birth records the Accordingly, we that death sentence. find may the Warner have been re- of Vonnita Appellant was not denied effective assistance laser sur- prior laparotomey of a and sult assignment of counsel and this of error is or the effects of gery for endometriosis denied. endometriosis, than progressive rather the alleged domestic abuse of Vonricca Warner. sup- allegation of ineffectiveness is

This APPLICATION FOR EVIDENTIARY Appellant’s ported by affidavits attached to AMEND- HEARING ON SIXTH Supplement Ap- Direct Rule 3.11 Motion MENT CLAIMS peal Record with Attached Exhibits and/or 3.11(B)(3)(6), 207 Rule Rules the Okla- Evidentiary Hearing, For an filed contem- Appeals, Title homa Court Criminal appellate poraneously with the brief. (2000), 18, App. appellant an Ch. allows support in 205 The affidavits filed evidentiary hearing request an when it is request evidentiary hearing a an are for alleged appeal on that trial counsel was inef- considered, by filing not reason of their with failing fective for to “utilize available evi- Court, Bland, part of the trial record. dence which could have been made available ” ¶11, 115, 4 If P.3d at 731. during appli- an the course of trial.... Once record, existing not within the then items are properly along cation has been submitted only they properly if are introduced at the affidavits, supporting with this Court reviews evidentiary they part of hearing will be a if application to see it contains “sufficient Here, appeal. trial court record on Id. as by to show this clear and evidence Court in affidavits the information contained these possi- convincing strong there is a evidence time, properly not before the Court at this failing bility trial counsel was ineffective for develop Appellant and as has failed to his identify complained-of or evi- to utilize brief, arguments appellate without cita 3.11(B)(3)(b)(i). dence.” Rule affidavits, effectively he has tion to Appellant asserts his motion is relat- arguments. waived review of those We have (B) (C), X, Propositions XVII and ed to XIV consistently held that we will not review alle (C) appeal'brief, raised in his direct XVII supported in gations of error that are neither failure trial counsel to which involve a authority. by legal Id. The the record effectively all use available and/or will be considered when we address affidavits obtain, identify, adequately investigate, and evidentiary hearing application for on effectively use evidence which was available claims. sixth amendment presented have or otherwise and should been ¶206 having thoroughly Accordingly, re- utilized at trial. record, allega- viewed the ¶209 ineffectiveness, support of the Attached in we have considered tions of copy as Exhibit 1 is a of document challenged conduct on the facts of motion counsel’s Report” Supplemental and have entitled “Standard the case as viewed at the time Sammy McKin un- to an interview of professionally if the conduct was and refers asked and, so, ney by Detectives Griffin and Mul- if the error af- conducted reasonable whether in concerning death. The jury’s lenix the victim’s judgment. Id. Defense fected Report is not contained performance in this case did not “so formation counsel’s presented at functioning much than evidence proper of the ad- different undermine Basically, report states that process that the trial cannot be trial. versarial argues in his Mo- Wednesday night further victim McKinney kept the subject to Thursday; trial counsel failed to tion her to Ms. Waller and returned testing prosecu- meaningful adversarial victim was in the emer- notified the he was responsi- tion’s contention he and his mother went gency room and premature for the birth of Vonnita War- McKinney waited outside the ble hospital; problems. lifelong her severe medical Appellant; Appel- ner and he victim’s room say they Appellant argues that available medical rec- an officer were lant overheard homicide; very had a Appellant became showed that Vonricca Warner working ords say anything history laparotomy until an significant medical nervous and did McKinney question prior surgery by which endometriosis asked and laser officer interrupted prevented premature of Vonnita point Appellant birth Warner. McKinney answering; Also, McKinney from contends there is no claim the he family prema- room at the stayed Warner that her records Vonricca police by they delivery brought were escorted about hospital until ture labor and was questioning. any by Appellant. alleged station for domestic abuse prejudice Appellant asserts is demonstrated in details contained 210 While certain by post-verdict revealing that sev- interviews jury, report not made known were jurors that was re- eral believed in the re- of the information contained bulk a sponsible for the birth defects of Vonnita as Further, jury. to the port presented was Vonricca, physical violence to and result any nothing report in relates to overt act strongly weighed punishment “this into the McKinney’s part in furtherance of the decision”. Any failure on trial coun- victim’s murder. report at trial does not part support argument, Appel- to use this In sel’s of this strong possibility of ineffectiveness copy raise a offers Exhibit a of a “Declaration lant report present- had even if the been from because of Custodian of Medical Records” Lom- California, jury, there is no indication it would poc Hospital, Lompoc, ed to the re- District Warner, trial. impacted the outcome of the garding have Vonricca with attached in- medical records. These medical records Discharge Summary, copy a of a memo clude a Obstetric Ad- 211 Exhibit is Record, History Physical Exami- Sammy mitting with McKin concerning an interview nation, History Summary, Initial ney by Investigator Jack Health conducted OIDS Profile, Delivery Pregnancy Labor and Sum- Stringer. memo is addressed to OIDS The Record, McKinney mary, Surgery Operative Re- attorneys. The interview with Waller, essentially that relationship port. with These records state covered his Waller’s January knowledge gave Warner birth on relationship Appellant, his of Vonricca baby a surrounding the victim’s cesarean section to female the circumstances death, gestational age The conduct after the victim’s whose was 26 weeks. and Waller’s very prema- infor records indicate the birth was death. with Exhibit none of the As baby weight only pound contains evidence of an overt act ture and mation connecting McKinney death. ounces. The records also indicate that Von- to the victim’s past surgeries laparoto- A in the memo is ricca Warner had lot of the information McKinney’s Appel my surgery for endometriosis. perception of Waller and and laser him 4 contains medical records from relationship, lant’s and what Waller told Exhibit Hospital Lompoc That District for Vonnita War- about the victim’s death. information ner, These to an issue in the case and whose birth is referred to above. was not relevant Summary, Initial only have served to confuse the issues records include Transfer would Profile, jury. Discharge, Newborn Ob- presented if consid Newborn Whether Record, Admitting and Labor and De- separately together with Exhibit stetric ered livery Summary. repeating In Appellant has failed to show Exhibit would addition much of the information included impact have an on the outcome of his records, these records indicate Vonni- presented trial if it admissible and above were extremely prema- at 26 weeks was jury. ta’s birth birth, failure to upon 217 Defense counsel’s ture, “poor condition” she trial oxygen mask. use the attached medical records at required an sufficient to show clear and convinc not affidavit from 214 Exhibit 5 is sworn strong possibility of ing evidence a ineffec Collett, investigator an with OIDS. Sandra say tiveness. The medical records do request at the states that Ms. Collett premature what caused Vonricca Warner’s counsel, obtained, via she appellate defense premature labor or Vonnita’s birth. order, relating to medical records Von- court say that records do not endometriosis will delivery premature labor and ricca Warner’s Further, premature cause birth. Vonricca Ms. Collett also states Warner. Vonnita testify did not that caused Warner records, she in her review of the medical that premature her labor. While inference indicating any notations did not find undoubtedly Appellant’s there that labor, specifically premature cause of the physical assault of contributed Vonricca allegations contained no that the records birth, presentation premature labor and by Ap- domestic abuse of Vonricca Warner records that did not attribute the of medical However, medical records did pellant. premature labor and birth to past Warner has indicate that Vonricca рhysical assault would not have rebutted history significant laparotomy for a surgical Further, light inference. of the substan Ms. surgery for endometriosis. and laser aggravation, Appellant has tial evidence excerpts copy attaches a of relevant Collett of the medi failed to show the omission Diagnosis and The Merck Manual from determinative. cal records was sentence (17th ed.1999) addressing endome- Therapy premature triosis and labor. ¶218 Further, Vonricca Warner testified a affi- Appellant also relies on sworn reported or never to law enforcement she Moon, legal in the from Lewis a intern davit personnel medical she suffered domestic County Public Defenders Office. Oklahoma Therefore, Appellant. abuse at the hands of present during Ap- states he was Mr. Moon report no of domestic records that included after the trial pellant’s trial. He also states merely cumulative to abuse would have been Frey who stated that he interviewed Juror testimony. her jurors Appellant was other believed he and contained in the medical 219 Evidence as a responsible for Vonnita’s birth defects to an issue in was either not relevant records physical violence committed result of the only to con trial and would have served Warner, and that such be- against Vonricca jury, or it was cumulative to trial fuse the punishment into strongly weighed lief Therefore, testimony. presentation we find (O.R.1158). affidavit is at- decision. This not question records in would of the medical Trial filed with tached to the Motion for New ap jury’s significantly influenced “the have the District Court. culpability. Appellant’s moral praisal” of Cf. continuing prove Appellant was a 216 To Smith, 510, 123 Wiggins v. 539 U.S. S.Ct. society, presented evi- the State threat (2003) quoting L.Ed.2d 471 Appellant physically assaulted dence that 362, 398, 120 Taylor, Williams hitting by her about her Vonricca Warner 1495, 146L.Ed.2d 389 S.Ct. body with his hands and fists head ¶220 copy 6 is a of a CBS news throwing ground know- Exhibit forcefully her to the (Tr. 7, 2003, entitled, Vol.VII, article, Exe- dated October ing pregnant. that she was (O.R. 25-28, Suffering. Exhibit Drug May Cause Second cution pgs.1310-1317) State’s article, Times copy of a New York Definite and Certain State- 7 is Amended More by Liptak and dated October Allegations in the Bill of written Adam of Set Forth ment Punishment). Drug Say Execution Additionally, entitled Critics in re Particulars copy May Suffering. Exhibit 8 is that it was imme- Hide Vonricca Warner testified page Ne- trauma, the web began to an article taken from diately following this she Penalty, entitled Against the Death pregnancy and Von- braskans problems have with her Electric Chair is born, Alternative to the prematurely, two months la- The nita was Life (Tr. Vol.VII, Parole. pg.1318). Without ter. supports jury’s finding ag- fail to see how counsel dence We gravating in 21 failing to obtain and use circumstances as enumerated ineffective O.S.2001, sufficiently Turning § counsel 701.12. to the second articles. Defense these mandate, penal application portion of the death of this found the challenged the (2) by filing pre-trial aggravating mo circum- ty Appellant’s case existence of two 1) penalty sentencing especially stances: the murder was hei- tions to “strike the death 2) unconstitutional”, nous, cruel; “quash an procedure and to atrocious or there was as рen particulars probability and declare death existence of a that the defendant the bill (O.R.415-516, alty 438- commit criminal of violence that unconstitutional”. would acts 440). continuing one of the articles mentions two would constitute a threat to soci- While 701.12(4)(7). O.S.2001, by ety. § As dis- executions carried out the State Okla homa, above, explain, aggravators not and it is does cussed each these readily apparent, supported by how the articles are sufficient evidence. procedures used in Oklahoma. relevant to the XIV, Proposition In out the we set ¶222 application Upon review of the by mitigation presented affidavits, supporting we find stage Upon thirteen second witnesses. our convincing not shown clear and evi- has weighing review of the record and careful strong possibility that defense coun- dence a aggravating circumstances and the miti- failing request was ineffective for sel evidence, gating we find the sentence of Accordingly, of the trial. we continuance factually ap- death to be substantiated and grant Appellant’s application for an decline propriate. Under the record before this evidentiary hearing. Court, say we cannot was influenced prejudice, arbitrary passion, other ACCUMULATION OF ERROR CLAIM O.S.2001, 701.13(C), § contrary factor to 21 finding aggravating that the circumstances eighteenth assign 223 In his outweighed mitigating evidence. Accord- error, that, ment of contends even ingly, finding warranting no error reversal or reversal, if no merits individual error modification, the JUDGMENT and SEN- cumulative effect of such errors warrants Degree AF- TENCE First Murder is or a either reversal of his conviction modifi FIRMED and the APPLICATION FOR A cation of his sentence. cumulative error EVIDENTIARY HEARING ON SIXTH argument has no merit when this Court fails AMENDMENT CLAIMS IS DENIED. any other to sustain of the errors raised 3.15, Pursuant to Rule Rules the Okla- Bland, 11, 132, 4 Appellant. 2000 OK CR Appeals, homa Court Criminal Title However, when there have been P.3d Ch.18, (2005), App. the MANDATE is OR- irregularities during numerous the course of upon delivery DERED filing issued rights prejudice a trial that tend to of this decision. defendant, required if the reversal will be deny cumulative effect of all the errors JOHNSON, J., C. concur.

the defendant a fair trial. Id. certain While case, errors did occur in this even considered JOHNSON, J., specially A. concur. together, they egregious so or nu were not merous as to have denied a fair CHAPEL, P.J., LEWIS, J., concur Therefore, trial trial. no new or modification result. assignment of sentence is warranted and this CHAPEL, Presiding Judge, concur in of error is denied. results. MANDATORY SENTENCE REVIEW 1 I concur in this decision reason of O.S.2001, my separate writings Pursuant stare decisis. See (1) State, 701.13(C), 14, 119 1268; § we must determine whether Gore v. 2005 OK CR State, imposed the sentence of death was under the Fairchild v. 992 P.2d passion, prejudice influence of other 350 and Easlick v. (2) factor,

arbitrary whether the evi- P.3d 556. JOHNSON, J., Specially concurs.

A. opinion, but write I in this concur limiting our rule again address

specially intended of defense evidence

the admission person committed the that another

to show 2005 OK charged. See Gore

crime (A. Johnson, 1278-79 results).

J., concurring in prof- upon 2 Limitations the admission guilt are neces- third-party

fered evidence criminal

sary and fair to assure balanced hand, defining rules

trial. On the other rationally related to

those limitations must be keep out evidence that ‍‌‌​​​​‌‌‌‌‌‌‌​‌​​‌‌​​​‌​​‌‌​‌​​​​​​‌​‌​​​​​‌​​‌‌‍is purpose their —to probative value and that

without sound only confuse the issues before the

serves

jury. the Oklahoma rule re- 3 To the extent to show an “overt act” on

quires the defense third-party perpetrator part alleged an admitted, may it is the evidence be

before arbitrary of exclusion

arbitrary. An rule denying a criminal defen- the risk of

creates meaningful opportunity to right to a

dant

present complete defense.

LEWIS, Judge, concurs results. opinion I there were am of the handling in the of this trial.

several errors

However, overwhelming in view of the evi- guilt, I concur the result.

dence CR 41

2006 OK Petitioner,

Anthony WARNICK, Harold BOOHER, Warden, Respondent.

Glynn CQ-2006-566.

No. Appeals of Oklahoma.

Court of Criminal

Sept.

Case Details

Case Name: Warner v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: Sep 26, 2006

Citation: 144 P.3d 838

Docket Number: D-2003-829

Court Abbreviation: Okla. Crim. App.