Williamson v. State

speaker HODGES, V.C.J., complete to have been the truth. part concurs in and doing part. so we find that Mothershed violat- dissents in 1-102(A)(4) provides ed DR which that a DOOLIN, J., disqualified. lawyer “engage shall conduct involv- fraud, ing dishonesty, misrepre- HODGES, deceit or Justice, Vice Chief however, appears, sentation.” It that his concurring part, dissenting part. attorneys’ procedures office and behavior filing events that lead to the explain, in the divorce case to considerable disciplinary complaint two-count against degree, Respondent’s posi- inconsistent respondent grew out of a bitter divorce impos- tions. We take that into account in years ago. case several While that certain- ing discipline here. As to I Count we find ly does not excuse part misconduct on the Rule, Respondent in violation of the attorney, of an it is a factor for considera- hereby publicly reprimand Respondent. against tion where the respon- evidence weak, suspect, dent is unconvincing. In these matters the Bar must Therefore, I dissent to disciplinary ac- prove allegations its of misconduct clear imposed by tion majority in Count I. convincing 6.12(c), evidence. Rule complaints Both should be dismissed. Governing Disciplinary Proceedings, Rules 1-A; App. O.S.1981 Ch. rel. State ex Braswell, Oklahoma Bar Ass’n. v. (Okla.1983). We have care

fully the testimony concerning examined

Count II. We conclude that the inconsist

ent statements on whether or not a bribe

had been WILLIAMSON, Appellant, widely solicited were the result of Ronald Keith varying statements made to him attor neys representing him at the time. We Oklahoma, Appellee. STATE of likely find it most Respondent actually changed opinion No. F-88-501. subject by on that rea representations. son of those We note that Court of Appeals Criminal of Oklahoma. nothing suggests in the record that he ever paid anything May for a bribe or that the trial 1991. judge anything knew about the statements Rehearing Sept. Denied 1991. subject which are the of Count II. The making of inconsistent statements actuated

by an change opinion honest do not

constitute violation of the Code Profes By

sional Conduct. the standard of Bras-

well, supra we find the evidence insuffi discipline

cient to merit as to Count II.

That Count is ordered dismissed.

Respondent’s request post-hearing

discovery is moot.

LAVENDER, SIMMS, HARGRAVE, WILSON,

ALMA KAUGER and

SUMMERS, JJ., concur.

OPALA, C.J., part concurs in and dis- part.

sents in dismissing “I concur in imposing public

Count and dissent from

reprimand in I Count 1. would administer

private reprimand.” Luker, Appellate

William H. Asst. Public Defender, Norman, appellant. for Gen., Henry, Atty. Robert H. David Wall- Gen., ing, Atty. City, Asst. Oklahoma appellee.

OPINION LUMPKIN, Vice-Presiding Judge: Keith Ronald Williamson was jury and tried convicted of Murder (21 O.S.1981, 701.7), Degree the First § CRF-87-90, No. in the District Court Case County. found the of Pontotoc aggravating three existence of circum- punishment stances and recommended according- The trial court death. sentenced ly. judgment Ap- and sentence From this pellant perfected appeal. has this 8, 1982, twenty-one December On year old Debbie was found dead in Carter Ada, garage apartment her Oklahoma. father, She was discovered her who had come to check on her at her mother’s re- quest, fearing something might wrong. Walking up the stairs to the sec- apartment, Mr. ond floor Carter observed glass covering landing and the screen standing open. door and front door wide bedroom, Walking through to the he found body laying Debbie’s face down floor with a washcloth stuck her mouth. police investigation The were called and the began. the murder into Smith, Detective Dennis Ada Police De- partment, among was the first to at arrive the scene. He testified at trial that the apartment signs struggle. showed of a glass Broken was found on both the inside living and outside of the front door. In the room, nightgown the sofa cushions and a wall, were on the floor. On the written fingernail what was later determined to be polish, were the words “Jim Smith next will top die”. of the kitchen table was On written “don’t look fore us or ealse” [sic]. bedroom, Approaching he saw bed blocking entry The into the room. complete disarray room was with cloth- sheets, ing, and stuffed animals blankets body, nude on the floor. Debbie Carter’s socks, except pair of white was on the- (1) part relevant that: Car- and the wall. Writ- showed Debbie floor between the bed A; (2) type was was catsup were the words ter blood on her back in ten type non-secretor; (3) her in blood and a Dennis on chest O “Duke Graham”. Written non-secretor; type Fritz and a word “die”. A was blood O fingernail polish was the (4) the from the decedent’s con- was stuffed into sheets bed blood soaked washcloth blood, A, human type her throat. tained semen and but her mouth down Under- antigen activity indicating cord no was body an electric and a found neath the was bathroom, donor could have been a non-se- The connected bed- belt. cretor; (5) room, vaginal yielded anti- signs showed disturbance. swabs no no immediately gen activity. that he Detective Smith stated fingerprint scene. began to Hett, OSBI, Melvin forensic chemist with procedures testified on also in detail to Detective Smith further testified analysis Appel- interviewed the results of hair and fibers March he retrieved the crime scene. His re- lant at his mother’s home. When shown a from decedent, (1) (2) hairs stat- sults showed: two found on photograph thought microscopically knew her washcloth consistent ed that he he but he was were (2) (2) scalp Appellant; His said that she was with hairs from two not sure. mother nothing bedding do hairs the decedent’s were sure had to with the found on night by with hairs microscopically pubic as he home that 10:00 consistent murder (3) (2) two p.m. Appellant; The was asked for hair and from hairs found samples. underwear micro- cooperated, voluntarily saliva He on decedent’s were pubic appearing comply scopically station to with hairs from police consistent Fritz; (4) (7) request. Dennis with the seven hairs found microscopically bedding were consist- Fred Jordan of the Medical Examiner’s Fritz; (5) pubic with hairs from ent Dennis performed testified he the au- Office on the two hairs found washcloth were topsy on the decedent on December 1982. microscopically scalp with hairs consistent He stated that numerous bruises were from Dennis Fritz. face, on the found decedent’s arms Peters, body, Jerry specialist several were crime scene with of which defensive OSBI, puncture finger- wounds. Small wounds were also testified that he conducted a piece of print analysis discovered on her nose and cheeks. The on a blood stained lips her from the wall of inside of and mouth were cut and a sheetrock removed south ligature He unable to semi-circular mark was found on the bedroom. decedent’s An prints her neck. internal examination re- match the discovered in blood or the bruising Appellant, internal and a small Dennis Fritz vealed metal stain cap body inside rectum. Dr. decedent. of Debbie Carter bottle her Jordan The 1987, and set of May testified that the of death was exhumed in a new cause suffo- prints print found on cation as a result of the washcloth in her were taken. of tightened prints the matched the ligature mouth and around blood stained wall her neck. the decedent. the Long, that she and

Mary forensic chemist with the Gina Vietta testified Coachlight Club of at the Investigation Oklahoma State Bureau decedent worked and Dennis Fritz (OSBI), concerning Appellant testified the and that the in detail frequented Ms. Vietta testified procedures analysis and of her the club. results approx- the body that she re- to a with decedent fluids. She stated had conversation imately murder samples from two weeks before the body approxi- ceived fluids felt Ap- had stated that she mately twenty subjects, including which decedent Fritz,1 Appellant. Ms. other items around pellant and Dennis and uncomfortable phone call that she received a to Her conclusions in Vietta stated of evidence test. convicted, imprisonment. life charged and received Fritz also with the mur 1. Dennis separately, Debbie He was tried der of Carter. Appellant er kill her. approximately at 1:30 had to described from decedent asking stating her to crime that “he shoved a coke bottle a.m. on December pick up. up panties and her apartment come to her her ass and her down her (Tr. 575) occasion, that someone was there and she She said throat.” On another Ms. Vietta told telephone did not feel comfortable. Ms. Holland overheard a conver- her; get that she would come Appellant the decedent sation between and his mother later, however, couple mother, of minutes Appellant wherein threatened his decedent called and told Ms. Vietta back telling her if she did not do as he said “didn’t need to bother to come that she he would have to kill her like he did Debbie pick up. decided over and her She had to Carter. (Tr. 357) stay there.” The decedent would Agent Gary Rogers OSBI testified that was there asked not tell Ms. Vietta who but Department he assisted the Ada Police morning her in the to wake her her to call investigation. the criminal He testified up morning, for work. That Ms. Vietta that arrest warrants were issued for the not call the was late for work and did Appellant approximately and Dennis Fritz did, decedent until later. When she all she days bloody palm print four after the dis- phone could hear over the were muffled covered on the wall was matched to the put if someone had their hand sounds as decedent. over receiver. Agent Rogers stated that he interviewed preliminary hearing testimony Appellant May on 1987. After read- Gore, declared to be unavailable to Glen ing warning the Miranda trial, testify jury. was read to the Mr. receiving rights, Rog- and a waiver of his Gore testified that he saw both the dece- questioned Appellant ers about the Carter Coachlight at the dent and Rogers homicide. told that he during early morning hours of Club Coachlight was at the Club on December up December 1982. When he went pretty girl when he saw a and decid- drink, get Debbie asked bar Carter Rogers ed to follow her home. stated that him if he would “rescue” her. She told him Appellant started to continue his tale but (Tr. “bugging” her. just stopped paused then and for a few Later, 331) time, closing around when the minutes. He resumed the conversation on, lights being were turned Gore saw the talking topic, Agent another about but Appellant talking to the decedent. Rogers brought subject him back to the Country Donna Walker worked at Love’s the homicide. said he had a Ap- Store and testified that she saw both killing dream about Debbie Carter. pellant and Dennis Fritz in the store often. her, top dream he was with a cord They regular were customers until Decem- neck, repeatedly, around her stabbed her date, they disap- ber 1982. After that pulled rope tight around her neck.

peared Upon for several weeks. their re- Appellant paused and then stated that he changed drastically turn men had both what this would do worried about appearance personality. They ap- family. long pause, Ap- After another unshaven, peared unkept dirty wore pellant said that Dennis Fritz was there clothes, belligerent, and acted nervous and him, apart- with and that he went to the paranoid. killing ment with the intention of the dece- Ap- Terri Holland was an inmate of the Pon- dent she had made him mad. because 1984, County jail pellant totoc from October until then looked to the floor and said my god, you expect January 1985. She testified that she had “oh ... cannot me to _ Appellant, periodi- got my family; who confess.” “I’ve I’ve overheard the time, cally jail during got sister_it’ll nephew protect, my a mother and talk about the sister, up my murder of Debbie Carter. Ms. Holland tear them —or Appellant up.... my re- it’ll tear them it can’t hurt stated that she overheard dead, know, mother, you prisoners other that if Debbie .. she’s it’s been mark to Car- (Tr. 450) cooperated my happened.” him on mind since it ter had with he would nev- attorney Appellant requested then an and sister. He denied all conversations about ceased. except the interview the murder for Agent Rog- one with ers when he said he had a dream about the Tenney, employee county Mike an in the However, murder. he Rogers said that Appellant made jail, testified that several misunderstood what he had told him and remarks to him about Carter and Debbie actually that he had said that in his dream Tenney Ap- Mr. the murder. testified that acting investigator. he was as an On pellant just told him that he ar- because cross-examination, Appellant admitted to gued with Debbie Carter did not mean that prior felony convictions escape and Later, Appellant he killed her. commented driving under the influence intoxicating “nobody sneaking up saw [him] liquor. Appellant also stated that he had apartment stairs to knock and [her] been friends with Dennis Fritz since 1981. open.” Appellant front door then re- that; marked “I shouldn’t have said I’m During stage, the second the State incor- now”, going quiet to be and he started to porated stage all first evidence. The State (Tr. 601) sing. presented then the testimony of four wom- en who Christian, threatening described violent and County John Pontotoc Sher- Appellant. acts testimony The Department, iff’s that he testified 22, 1987, concerning detailed in the section working May alleged jail in the on when during stage. Appellant errors second Appellant up struck did conversation present any Appellant evidence in the with him. told Christian that he second stage. living had a dream wherein he was in Tulsa taking drugs

and had drinking been day. beer all He drove to Ada to the I. PRE-TRIAL ISSUES Coachlight Club met Debbie Carter. error, assignment Ap- his seventh night, house, “Later went to her pellant delay bringing contends that the door, just knocked on her and she said rights his case to trial violated his to due minute, then, phone. I’m on the And he process speedy and a trial under both the in, stated that he raped broke the door United States Constitution and the Consti- (Tr. 619) and killed her.” tution of the State of Oklahoma. Debbie Cindy McIntosh was an inmate in the 8, Carter was murdered on December 1982. County July Pontotoc Jail 1987. She Felony charges Degree of First Murder Appellant testified that both and Dennis against were filed and co-defen- go Fritz left the same time to to their 8,May dant Fritz Dennis 1987. On preliminary hearings. Appellant was re- 14, 1987, Appellant pre- December filed a turned to his cell first and then later Den- speedy trial motion lack to dismiss for nis Fritz. McIntosh testified that she over- Ap- trial. The motion was overruled and heard Fritz tell that he had seen pellant’s April trial was commenced on pictures of Debbie Carter. 1988. if asked Fritz “she was still on the floor or (Tr. 596) was she on the bed”. right The Sixth Amendment to a (8) Appellant presented eight speedy apply prior witnesses trial to the time does not in his defense. Seven of the witnesses that a defendant an accused. becomes employees Marion, were County jail of the Pontotoc v. United States they who testified that had never heard the 30 L.Ed.2d 468 (1971); make Cooper statements about the 671 P.2d (Okl.Cr.1983); murder of Debbie Carter. McFatridge killing the final witness. He denied Debbie He protection

Carter. testified that he did not re- of the Sixth Amendment is acti only prosecution member her and had never been to her vated when a criminal has apartment. only persons begun He stated that he was at home and extends to those night with his mother the accused in the course of murder who have been Marion, 314, prosecution. and first heard crime 404 at about the from his that U.S. 394 to, might any

92 S.Ct. at 459. The Sixth Amendment has have testified fail to raise period prior presumption prejudice. to the Although not been extended the Id., 322, arrest. 92 at delay speedy U.S. S.Ct. was that of a Johnson trial filing charges, 463-464. after the of criminal the principles helpful process are in the due Appellant became the accused when analysis required examining an investi- felony information filed. There gatory delay. only The record of what fore, year lapse the five time between the Appellant's mother would have testified to filing charge offense and the of the did not transcript. During the trial the testi- Appellant’s right speedy violate to a trial. Smith, mony of Detective Dennis the State Supreme noted Marion Court brought Appellant’s out that mother had of the Fifth that the Due Process Clause been interviewed in her home on March require Amendment could dismissal of Ap- and had told the Detective that charges if it criminal were shown pellant by p.m. night was home 10:00 pre-indictment delay in the case caused (Tr. 394-395) the murder. Id., prejudice substantial to the defendant. cross-examination, On Detective Smith 404 U.S. at at 465. This was S.Ct. again testified that Mrs. Williamson said expanded upon in United States v. Lovas she knew that did not commit the co, 52 L.Ed.2d p.m. murder because he was home at 10:00 (1977), Supreme stating with the Court (Tr. 430) Appellant also testified that his process inquiry that a due must consider mother he night knew was home the of the delay the reasons for the as well as the (Tr. 430-431) murder. The State did not prejudice leaving to the accused. While object hearsay to either of these state- application the lower courts the of the set argues ments. that “hear- now principles process, Supreme tled of due say testimony living is no substitute for a prosecute Court determined that to a de jury.” witness who could have faced the following investigative delay fendant does (Appellant’s 53) pg. Brief deprive process, not him of due even if his might preju defense have been somewhat Although may it have been more desir- Id., lapse diced of time. atU.S. able for to have his mother actu- 796, 97 S.Ct. at 2052. ally testify take the witness stand and be- jury, fore the dowe not find that he suf- Appellant argues that the reason for the any prejudice by inability fered to so delay present negli- in the case was the present jury testimony her. The heard the gence processing of the State in certain separate of Mrs. Williamson-on three occa- evidence, specifically palm print. items of a testimony put sions. This before the alleges prejudice by delay He as his being subjected rigors without witness, mother, only alibi his died in 1985. Further, Appellant of cross-examination. possible preju- This Court addressed the allege if does not his mother had been dice to the defendant death personally testify able to that her state- witness in Johnson any ments would have been different or pur- stated that We that she would add information to that poses determining whether defendant previously provided. We would also note right speedy was denied his to a trial be- below, and refer to our discussion that the delay filing cause of a between not State did have sufficient evidence to trial, charges criminal the death of a charge Appellant with the murder until prejudice. an witness is obvious If a defen- earliest, very at the after the death of presumption dant prejudice, raises the Therefore, Appellant’s mother. under the burden is on the State to rebut. If the circumstances, Appel- these we find that disprove prejudice, State fails to prejudiced rights lant was not to a presumption However, must stand. we fair trial the death of his mother. preju- stated further that bald assertions of dice, unsupported by either the record or determination affidavits as prejudiced by delay to what the deceased witness does not end may dence which fall far short of the next look into the inquiry. We must our delay filing necessary support in the criminal to a criminal reasons for the amount 1985, December, By States, the State’s charges. conviction. See v. United Hoffa Appel- hairs from the 293, 408, evidence showed that 17 L.Ed.2d 374 U.S. microscopically consistent with lant were (1966), quoted as in v. Mar United States body decedent’s and on hair found on the 18, ion, 404 U.S. at 235 n. 92 S.Ct. at 465 n. (O.R. 69-75) The result of blood her bed. 18. tests showed that the and saliva present in delay The case was not a non-sec- assailant were and the decedent’s delay designed impair the “tactical” to abil- 98-101) (O.R. this evidence While reters. ity an effective to mount guilt, might other evidence corroborate Supreme defense. Indeed as Court alone, to standing it insufficient war- Lovasco, investigative delay in “an stated degree murder. charge first rant a fundamentally delay unlike undertaken 1986, Terri Holland in- February, In solely gain tactical Government to Attorney District of admissions formed the advantage over the accused.” 431 U.S. Appellant while in the Pontotoc made Here, prosecutor 97 S.Ct. at 2051. palm print A latent had been County jail. properly refusing acted to file a criminal splattered on the south discovered blood charge completely of murder until he was por- bedroom. That wall of the decedent’s prosecute satisfied that he could and that the wall was removed and sent to tion of guilt beyond he would be able to establish analysis. print for The did not OSBI a After full considera- reasonable doubt. Fritz, Appellant, match those of the or the delay tion of the reasons for the and the Believing identity decedent. prejudice Appellant, we find that the print important, prosecutors could be pre-accusation delay deny did not print to wait until the could be decided Therefore, process assign- due of law. this filing charges. identified before criminal ment of error is denied. Fingerprints of Debbie Carter had been however, autopsy, taken at the time of the error, assignment In the eleventh good print palm a of her had not been Appellant alleges that he was denied due body obtained. The decedent’s was subse- process by the trial court’s failure to of law quently May, and a exhumed new grant pre-trial for State funded motion palm print print was taken. This matched expert comparison in hair witnesses bloody print on the wall. Arrest war- serology. The reflects that record rants for the and co-defendant adopted pre-trial hearing, Appellant motion approximately Fritz were issued four Fritz, by co-defendant all the motions filed days later. request experts for which included a circumstances, Under these we do not knowledgeable comparison and ex in hair process find that was denied due saliva, typ amination of semen and blood delay. delay of law the was caused 1987) (M.Tr. explanation ing. Sept. No proof Appellant’s guilt. by a need for request argument supporting or Although physical no further evidence was made to the court. possible subjects taken from and submitted on Ake v. Appellant now relies Okla- analysis Agent Rogers after testi- for homa, investigation by he continued the fied that argument (1985), support his L.Ed.2d 53 conducting those numerous interviews with process is denied when access that due having any knowledge of the crime. The necessary the de- expert witness an Holland, provided by Ms. information However, Ake has provided. fense is not evidence, physical which corroborated the expert include assist- not been extended to did not come to the State’s attention until Munson v. psychiatrist. ance other than a then, 1986. Even the State was not obli- gated investigation halt criminal (Okl.Cr. State, 753 P.2d 359 they Rojem moment had the minimum evidence to 1988), similarly cause, relied Ake probable quantum of evi- the defendant establish insufficient to return a ver- funds for evidence was in the denial of argue error to guilt. dict of criminologist including a experts several defendant’s rejecting In the chemist. and 63, In v. 555 P.2d 67-69 Jones request for funds found that the claim we (Okl.Cr.1976), adopted we the rule stated in properly denied because: had been Opper that corroborative evidence need not sufficient, independent of the defen- First, undeveloped assertions the mere statements, corpus the dant’s to establish experts are of these the services prosecution necessary It is for the delicti. qualify to not sufficient needed is independent evi- to introduce substantial Mississippi, 472 U.S. funds. Caldwell tend to establish the dence which would 2633, 1, 320, 323-24, 2637 n. n. 105 S.Ct. of the defendant’s state- trustworthiness 231, (1986). n. 1 Sec- 86 L.Ed.2d formulating In our own rule we ment. ond, previously held that has this Court substantial evidence of decided that once ordinarily not vul- is scientific evidence introduced, the confes- corpus the delicti is inaccurate resolution and nerable admissible, provid- sion of the defendant ordinarily call for a de- not itself does together they furnish the basis for a ed State, 719 expert. Plunkett v. fense cert, finding guilt and the corpus of the delicti (Okl.Cr.), denied 479 U.S. P.2d 834 defendant, beyond a reasonable of the both L.Ed.2d 725 S.Ct. applied This standard was doubt. Stout There, here, (1986). defense counsel as (Okl.Cr.1984), a experts by called the cross-examined the case, capital wherein we found that to elicit the limita- State and was able of the crime and the defendant's existence per- tests and examination tions of the proved beyond a reasonable guilt both were process Due was not endan- formed. by conjunction the evidence in with doubt a set of gered by the absence of second admissions; thus the ad- extrajudicial experts. 753 P.2d at 364. properly trial. were admitted at missions request properly for funds was de- case, Appellant made present In the Appellant failed nied in the instant case. admissions, in addition to a confes- certain establishing to meet his burden of the need sion, by corroborated the ex- which were experts by neglecting explain for the We find that substantial trinsic evidence. in mo- undeveloped assertions contained corpus and evidence of the homicide delicti Further, Appellant preju- not tion. Appellant’s guilt were established to by experts the absence of his own as diced and the con- properly admit the admissions only opportunity to cross-ex- he not had fession. experts by called but amine advantage opportunity Christian, he full of that took al- The statement to John inquiring dream, of the by thoroughly into details though related in the form of a eliciting testimony performed and by testimony tests wit- corroborated of other the limitations of those which illustrated nesses which showed that knew Accordingly, Appellant tests. de- by and evidence which showed the decedent process assign- of law and this night nied due entry apartment breaking ment of error is without merit. made the murder had been door, the front and that the decedent down night. The phone calls that had made two II. GUILT-INNOCENCE ISSUES by Cindy McIntosh statement overheard error, that the de- assignment was corroborated evidence In his first found on the floor and that that the evidence was cedent was Appellant contends place in the bedroom. struggle had taken to sustain a conviction for first insufficient Tenney also to Mike were degree Opper murder. relies on The statements States, corroborated evidence v. United decedent, struggle had (1954), that a argues that as his knew 99 L.Ed. 101 night that the decedent nor occurred that were neither corroborated admissions evidence, apartment. floor physical lived a second consistent with the stopped just sufficiently justify jury short of confess- admitted infer- ing Agent in his ence of their to the crime statement to truth.” 348 U.S. Here, statement, at 164. Rogers. part Appel- the essential facts were killing despite inconsistency corroborated lant said he had a dream about decedent, pulled type gag type cap. he stabbed her and the of bottle where object her A cloth in rope tight the around neck. Without was found stuffed the dream, Appellant describing it as a also decedent’s and a small metal mouth bottle Coachlight cap at the was in stated that he was Club discovered her rectum. Hair 8,1982, placed he pretty Appellant on when saw a evidence at the December decedent’s home, girl apartment type to follow her Appellant’s and decided and and blood was Fritz admitted that Dennis was with him shown to be with that of consistent the if he night. that When asked went to the decedent’s assailant. was shown frequented Coachlight the to have the Club apartment decedent’s with intention of and her, come into Appellant replied contact with the decedent. The killing “probably”. home, decedent was killed at her why, When reason he second asked the stated “she apartment strangled floor (Tr. 450) and she was me This made mad”. statement Many with a cord. of facts these were testimony corroborated the details of the had not offense which been medical examiner that the decedent suf- press released to the and were not known ligature fered marks on her neck and that general to the public. part by her strangula- death was caused in tion. upon foregoing, Based we find the independent substantial evidence was

Appellant’s confession was introduced presented directly which established both through testimony of the Terri Holland. corpus and the truthfulness delicti Ms. testified that Holland stated Appellant’s admissions and confession. bar, that he met the decedent at a that “he Appellant’s presence The evidence of at the Carter, go tried to with Debbie and she apartment night decedent’s of the mur- nothing to do wouldn’t have with him. his relationship der and with her consti- And if would just he said that she went extrajudicial tutes ad- corroboration of his him, he’d ahead and went with never had to missions. was free therefore to The (Tr. 574) kill Ms. her.” Holland also testi- consider the confession admission and in Appellant say fied that she overheard “he connection all the other evidence in with up shoved a coke bottle her and her ass guilt and ease to decide whether (Tr. 575) panties her throat”. down Ms. beyond had been established explained that Holland further she was not They a reasonable found it doubt. sure if had said he a coke used sup- finding and is we feel that such catsup since bottle or a bottle it had been Opper, ported evidence. substantial years four she had heard state- since According- 348 U.S. at 75 S.Ct. at 165. (Tr. 576) ment. assignment ly, this of error is denied. Appellant argues that the statement was Appellant contends in the third as sufficiently corroborated because of signment of error that the trial court erred Specifi- errors and omissions. factual admitting the hair evidence obtained cally, these errors omissions are bedding from washcloth and the as an a washcloth her mouth decedent had adequate custody chain of had not been panties, and that a lid to a not her established. and not a coke catsup bottle bottle rectum, inside her and that no discovered cus purpose of the chain of ligature, made of the the writ- mention was tody guard against rule is to substitution ing presence another the wall or the tampering of or the evidence between with person. the time it and the time it is found analyzed. lay a Supreme United States The State must foundation Opper, showing that offered is it was if the the evidence Court stated that “sufficient substantially as facts the same condition when supports essential corroboration challenges chain of custo- was committed. Driskell the crime (Okl.Cr.1983). Initially, dy for numerous reasons. he ar- See 436 gues that the record does not reflect exact- Middaugh v. also evidentiary bedding value ly To have which officer recovered the at original preserved upon procedure pre- its the article must be the scene. Based against described, contamina protected viously and as testified to condition However, Driskell, trial, 659 P.2d at 354. sup- tion. the evidence Detective Smith possibility necessary that all it is not ports the conclusion that he collected the as to negated, and doubt alteration be bedding. Appellant correctly notes that surrounding preser the circumstances gap in the date of the there is a time from goes weight of the evidence vation bedding collection of the from the scene admissability. rather than its such evidence Mary Long. it over to until was turned 580, (Okl.Cr. State, 735 P.2d Fixico v. clearly The record does not state when Ms. 1987). evidence, Long received this but she did items evidence receive numerous other of Addressing gath- hair first the evidence 16, Agent Rogers on December 1982. from bedding, the the record reflects ered from bedding specifically Although the was not Agent Rogers, that Detectives Dennis during period, the time the accounted for gathered Mike the Smith and Kiesewetter supports record an inference that it re- The hair evidence from the crime scene. Department. mained with the Ada Police placed envelopes in or hairs were individual not render the evidence inadmis- This does paper and marked with the exact bindles sible as has failed to show that found, they of location where were the date in the same condition the evidence was not and the name of the officer who collection as when it was collected or that there was The discovered the evidence. decedent’s possibility bedding alteration. The the sheets, bedding pillow case and bed- —two remained in the box and there is no evi- gathered up put in a spread were also bedding dence that the was ever removed bedspread tag to the was a box. Attached Long. it reached from the box before Ms. item, the the date the item which described Further, any preservation doubt as to its was collected and Detective Smith’s name. goes to the until it reached the OSBI The same items of authentification were evidence, weight of the not its admissibili- pillow placed on the sheets and case. State, 10, 11 ty. Minter v. 756 P.2d See later, days A few evidence collected scene, including containing the the the box bedding, transported Turning of- to the washcloth discover OSBI mouth, City by Agent Rogers in the State ade fice in Oklahoma ed the decedent’s pre Mary quately OSBI Criminalist showed that the evidence was Detective Smith. reasonably cer Long received the evidence and searched served under circumstances integrity. bedding for traces of hair to maintain its This show the evidence. tain through testimony the the ing recovered numerous hairs from the was made She Examiner, initially bedding. the differ- Medical who removed Hairs removed from bedding placed sepa- during autopsy, and the ent items of were the washcloth subsequent testimony Long, rate containers. These containers were Criminalists specifically stated to Criminalist Land on Land and Hett. Hett transferred Susan washcloth, 17, 1983, 17, January analysis. that Item No. hairs from the were received from Susan Land and were Ms. Land mounted the individual hairs on with hairs from microscopically consistent microscopic then slides. These slides were Appellant. Melvin turned over OSBI Criminalist pre- Appellant further contends that no September Hett on 1983. Each slide prevent contamina- assigned an item number for identifi- cautions were taken to analyzed before it reached purposes. cation Hett the hair tion washcloth Although the record samples from medical examiner. compared it to known issue, directly this it does Appellant. does not address defenses, right as to body that was taken from election several reflect home. There it was the stand as a witness and makes to the funeral scene takes theory to render storage every until it was transfer- such admissions as placed cold one, during the of defense save he will be to the medical examiner unavailable red Newby December 1982. deemed have elected that one. v. early evening of kept storage until 188 P. body again cold Okl.Cr. (1920), citing autopsy day. Sayers next The record does 10 Okl.Cr. body 233, (1913). support allegations 135 P. also any that See (Okl.Cr may Seegars have come into contact with other 1983). Appellant acknowledges might hair altered scien- rule fibers or have this Assuming sup- urges capi this arguendo tific test results. but Court to abandon it existed, cases, Alabama, port allegations arguing for such the alle- tal that Beck v. 625,100 solely weight gations go would 65 L.Ed.2d admissibility. (1980), requires the evidence and not its the trial court to instruct lesser offenses evi included when the argues hair Appellant further support dence would such a verdict. inadmissible, Melvin Hett evidence was as Beck, specific Supreme recognized hairs he found Court never identified Appellant’s of an consistent with the hair or the risk unwarranted conviction jury deprived on which the hairs were is created when the is of the individual slides convicting reflects tes- a option located. The record that Hett of the defendant of receiving microscopic tified to the slides of lesser offense. The con- included Court analy- and that hair evidence from Land that his cluded such a risk cannot be tolerated (2) Florida, capital Spaziano of those revealed hairs In sis slides two a case. 447,104 3154, microscopically pubic consistent with hairs 82 L.Ed.2d 340 468 U.S. Appellant. (1984), of the the Court refused to extend Beck to cases where the lesser included offense Although testimony have been the could statute of limitations. by was barred the to developed, better there is no evidence that “Beck not re- The Court stated does that or show the hair evidence was altered believing quire jury that the tricked into be there tampering. that was The State to that it has a choice of crimes for which adequately that to showed hairs found if in guilty, reality find the there defendant from consistent with those the 457, no choice.” U.S. at 104 S.Ct. is 468 taken were from the washcloth and 3160. bedding. of possibility multiple The sam- 152, prohibits hair 22 ples O.S.Supp.1989, of on the evidence not such that Title § degree manslaughter analysis prosecution it would alter the result of the hair for first years three after since the essence of such tests is identifica- commenced more than Here, comparison Ap- by distinguishing tion and vari- commission of the offense. State, years Devooght pellant charged ous sources. 722 five after See 705, Therefore, Therefore, (Okl.Cr.1986). P.2d we of Carter. 713 death Debbie solely custody only support chain did the find that sufficient of evidence charge, pursuant the dic- primary established the trial did not but court Spaziano, Appellant hair was not enti- admitting its tates of abuse discretion degree first man- to an instruction on evidence. tled an offense for which slaughter as it was error, assignment In his fifth him guilty. not find could that trial court contends error, assignment give an on In his failing erred instruction sixth trial, Ap in the admission Degree Manslaughter. Appellant alleges At error First Appellant argues he pellant photographic took the stand and testified that evidence. relevant, as nothing photographs were not had to do with the murder. 202, (Okl. concerning cause State, dispute was no Spuehler v. 709 P.2d 204 there Cr.1985), by the prejudiced we of death that he reiterated well established photographs. defendant, of the repetitive rule that when a who has nature 400 admissibility tablishing

It is well settled that the corpus of the delicti crime. photographs is a matter within the trial Id. at 171. court’s an discretion. Absent abuse present case, (12) In the twelve 5x7 discretion, this Court will not reverse the photographs black and white of the crime State, trial ruling. court’s Nuckols v. 690 scene and the victim as discovered at the cert, 463, (Okl.Cr.1984), denied, P.2d Appellant objected scene were introduced. 1030, 2050, 471 U.S. 105 S.Ct. 85 L.Ed.2d photos to four of these on the basis that (1985). photographs For to be admissi- they probative (Tr. 376-377) had no value. ble, their content must be relevant and disagree We with and find the probative value substantially their must photographs probative are of the crime outweigh prejudicial their effect. Smith v. and the they scene victim as were discover- cert,

State, (Okl.Cr.), 737 P.2d ed law enforcement officers. Three of denied, 484 U.S. photographs objected the four (1987); L.Ed.2d 383 Oxendine v. 335 Appellant pictures are of the decedent’s (Okl.Cr.1958). angles, bedroom taken from different with body the decedent’s in increasing visible pictures grue fact that the are degrees. Despite repetition, some we do photo some does not of itself cause the not find an abuse of discretion in admitting graphs to be probative inadmissible. The them into evidence. President v. Cf. photographs value of of murder victims 602 P.2d can be manifested ways, numerous includ ing showing nature, extent, and loca Ten polaroid pho color 3x5 wounds, scene, tion of depicting the crime tos taken the medical examiner of the corroborating the medical examiner’s victim were also introduced at trial. The testimony. Moore v. Appellant objected to the admission of each cert, (Okl.Cr.), denied, photos grounds they 212, (1987); 108 S.Ct. 98 L.Ed.2d 163 (Tr. 539) partic were not relevant. These State, 780, Thompson (Okl. v. 724 P.2d 782 photographs ular by were taken the medi Cr.1986), vacated, judgment case remand cal beginning autop examiner at the of the 815, grounds ed on other 487 U.S. 108 sy. photograph Each illustrates a differ 2687, (1988); S.Ct. 101 L.Ed.2d 702 Robi ent area of body the victim’s and the marks State, 1080, (Okl.Cr. son v. 1087 and photos wounds thereon. As the cor cert, 1984), denied, 1246, 467 U.S. 104 S.Ct. roborate the medical testimony examiner’s 3524, (1984). 82 L.Ed.2d 831 Relevant evi and illustrate the by wounds received may dence if probative excluded its val victim, probative we find their value out ue substantially outweighed is by the dan weighs any prejudicial effect. ger of prejudice unfair or presen needless Also introduced were six (6) 5 7 X tation of cumulative evidence. 12 See O.S. photographs color of isolated areas of the 1981, 2403. § body showing body’s victim’s reaction

Appellant’s argument pho that the designed to a chemical to reveal latent fin tos are not relevant if (4) the cause of death is gerprints. Appellant objected to four of not contested rejected was addressed photos and having probative as no value State, in Nguyen (Okl.Cr. v. (Tr. 628) 769 P.2d 167 being repetitive. trial, and as At cert, 1988), denied, 925, 492 U.S. 109 repeatedly S.Ct. attacked and belittled 3264, 609, denied, 106 L.Ed.2d reh. 492 the investigation proce criminal and 938, 27, U.S. 110 106 L.Ed.2d 639 dures used. These photographs six il (1989). Relying Newbury attempt v. 695 lustrate the of the law enforce 531, (Okl.Cr.1985), P.2d 534 we stated that ment finger officers to search for latent every prosecution, criminal prints it body. Although devolves on the victim’s no upon first, prove, discovered, the State to corpus prints photographs were these delicti, second, represent repeated crime was the State’s endeavors to committed the accused. such, Pictures of the solve they the homicide. As rebut always murder victim probative lackluster, are Appellant’s theory slip- es- of a

401 Therefore, not denied a fair trial photo- ly, Appellant was investigation. shod preju- prosecutor of the probative than the conduct or remarks more graphs remain assignment is without merit. and this dicial. Further, Appellant not was error, assignment In his ninth of repetitive nature of by the prejudiced alleges deprived that he was of a has held that This Court photographs. in both the first and unanimous verdict display in the of relevant point there is a stages trial. second of photographs are so where the photographs Degree First Malice Afore charged with repetition can that a needless duplicative O.S.1981, pursuant Murder to 21 thought Presi jury and result error. inflame the alternative, 701.7(A), De in the First § P.2d at 226. The burden 602 dent v. 21 Felony pursuant Murder O.S. gree he was prove on the 276) 1981, 701.7(B). (O.R. jury was The § v. by the error. Barr injured unani that their verdict must be instructed 1184, (Okl.Cr.1988); v. Harrall did provided a verdict form which mous but 581, State, 674 P.2d alterna distinguish between two failed to demonstrate Appellant has 329). (Supp.O.R. O.R. tives. prejudiced in substantial he was opinion in issue was settled our This photo- slight repetition of rights by the (Okl.Cr State, 637 P.2d James Accordingly, we find no abuse graphs. cert, 1981), denied, 108 S.Ct. 484 U.S. photo- in the admission discretion (1988), and reaffirmed L.Ed.2d 406 assignment deny this graphic evidence State, 720 P.2d Newsted error. cert, denied, (Okl.Cr.1986), eighth assign- in his Appellant contends (1986), where L.Ed.2d 599 was denied a fair ment of error that he jury to indi held that the failure we Appel- by prosecutorial misconduct. trial finding guilt cate the basis of the numer- this attention to lant directs Court’s murder the offense of not error. Whether during trial wherein “the ous instances aforethought, malice committed with facts, brought out irrelevant prosecutor felony goes commission of a during or either misstated arguments which made of the crime. to the factual basis misleading re- very were the evidence or unanimous that the verdict was law, evidence, misstated the garding the a verdict satis the crime. Such committed counsel, encouraged and defense criticized process. fies due duty it was its civic jury to believe that the position in acknowledges our Appellant.” (Appellant’s to convict the it contends that and but Newsted James 56) carefully Brief, have reviewed pg. We review be- constitutional not survive will allegations. As we have found each of the a has held that Supreme the Court cause reversal, find it unneces- cause for we no when it set aside jury’s verdict must be separately. allegation each sary to address grounds. on alternate supported may be Having Appellant’s alle reviewed ruling ap- However, Supreme Court’s misconduct, we prosecutorial gations of jury may where the those cases plies to not complained of remarks did find that the improper its verdict on rested have this trial and affect the outcome of Maryland, 486 U.S. ground. Mills v. cumulatively separately nor they neither 1860, 1867, 384 100 L.Ed.2d 108 S.Ct. a or reversal. From warrant modification prima Here, presented a (1988). the State standpoint, every slight excess practical aforethought mur- of both malice facie case require that a ver prosecutor does not felony murder. and der a trial be and that new dict be overturned prob the same Appellant contends States, 393 Aiuppa v. United ordered. stage when during the second lem arose Cir.1968). (10th The record re F.2d 597 make written required to jury was not attempt faith to showing of a bad veals no partic Appellant’s regarding findings em jury an intentional prejudice the nor alleges in murder. According- ipation phasis upon collateral matters. this was error because possibility exist- together this instruction with jury’s jury ed that the may not unanimously death, have recommendation of is sufficient to agreed required on one of satisfy criteria nec- constitutional standards. Cabana Bullock, v. essary eligible to be penalty for the death 474 U.S. Arizona, (1986). Tison v. as established in L.Ed.2d 704 See also Ruffin Dugger, 1676, 1688, (11th Cir.1988). U.S. S.Ct. 848 F.2d 1512 L.Ed.2d Ac- (1987), (a cordingly, assignment defendant this cannot be sen- of error is de- nied. displayed tenced to death unless he disregard

reckless for human life implicit Appellant contends in assign- his tenth knowingly engaging in criminal activities ment of error that the introduction of hear- carry great death) known to risk of say testimony deprived right him of his Enmund, Florida, confrontation under the constitutions of the (1982), (a 73 L.Ed.2d 1140 defen- United States and the State of Oklahoma. dant cannot be sentenced to death unless Appellant complains first that it was error death). he intended the victim’s to allow into evidence the preliminary hear- ing testimony of Glen jury Gore as the State instructed to consider the failed to establish his unavailability as a Appellant’s participation in the crime in witness. Instruction provided No. 9 which perti- part:

nent Glen Gore was called to the wit ... In determining person whether a ness stand prosecution gave guilty found of Murder in the First De- only his name stating, before “I refuse to gree punished by shall be death or any answer questions more whatsoever. If imprisonment life, imprisonment or the Court wishes to find contempt, me in for life parole, without it required you can do so at this time and dismiss me.” you give (Tr. individualized 306) consideration to The trial court examined Gore degree participation and focus on and informed him that the court could or culpability individual of a defendant der him testify to refusal testify the homicidal act. subjecting would be himself contempt proceedings by the court.

You are Gore further indicated instructed this re- that he understood gard but remained jury that a adamant in the State of Okla- in his refusal to testify. The may trial court homa imposition consider the declared Gore unavailable as pur a witness penalty death unless the first O.S.1981, suant to 12 2804(A)(2), and determines, beyond doubt, § a reasonable preliminary hearing testimony was read to person, defendant killed the or jury. that he attempted kill person, such intended that such killing place, take O.S.1981, 2804(B)(1), Title 12 provides § major participant felony in the commit- that testimony given as a witness at anoth- ted combined with a reckless indifference hearing er of the same proceeding is not to human life or that lethal force should excluded hearsay the if rule the declar- employed. 27). be (Supp.O.R. ant is unavailable as a witness. Title 12 O.S.1981, 2804(A)(2), provides that a wit- § This instruction enables the give to ness is if persists unavailable he in re- individualized Appel- consideration to the fusing testify to despite an order of the culpability lant’s required by as the Su- However, court to do so. a declarant is not preme instruction, Court. Under this the refusal, unavailable as a witness if his or jury could not recommend the penal- death inability testify to is due to an act of the ty making without finding Appellant a proponent of his purpose statement for the t, either killed the attempted decede: to kill preventing the attending witness from her, killing intended that her place take or testifying. or major participant was a felony in a commit- ted, combined with a disregard reckless Appellant for presents a two fold ar her jury’s life. The implicit finding Ap- gument why rely the State cannot on this pellant’s participation in the support murder under introducing pre- section as for the intentionally commit acts cal- Initially, Ap- did not transcript. State hearing

liminary testify. to refuse to to cause Gore estab- culated did not argues that the State pellant as it did was unavailable lish Gore suggests that the State why refused reason he the exact ascertain him providing for with suffi- responsible Further, argues that testify. to testify him to protection to enable cient record that from the it can be inferred However, Appellant has not without fear. of fear of re- testify to out Gore refused not take measures that the State did shown Department of inmates at the prisal from testimony just Mr. to have to ensure Gore’s Therefore, as the the State Corrections. minute. testify him refuse to at the last testimony had an af- proponent of Gore’s Moreover, if the could it is doubtful State steps to remove duty to take firmative subjective adequately comply with such a testimony. Appellant from obstacles Appellant suggests. Appel- request as authority support to any legal fails to cite place unrealistic argument would an lant’s argument. either which is not on the State. One burden Therefore, supported in the law. we find stating that the Appellant is correct properly declared to be Gore was Glen demonstrating has the State burden testify preliminary to and his unavailable unavailability of the witness. Ybar actual testimony properly admitted hearing (Okl.Cr. ra 73.3 into evidence. 1987). But has failed to show did not meet that burden that the State in the alleges next error 2804(A)(2)does ease. Section the instant made admission of two statements that the court must ascertain not state present The first statement was decedent. testify to specific reasons behind a refusal testimony of Gore who through ed Glen may declared un before the witness hearing that preliminary at the testified available, provide this section nor does morning Decem during early hours of only may a be declared unavailable witness 8, 1982, closing shortly time ber before showing good and valuable reasons upon approached Coachlight, Carter Debbie Further, the sec refusing testify. to him rescue her because him and asked to interpreted placing as an tion has not been “bugging her”. When Appellant was duty on the to elicit the affirmative State jury, de testimony read to the this testify. a witness’ refusal to reasons behind objected to the statement as fense counsel or the on the court place To such burden re hearsay. prosecutor inadmissible purpose of contrary to the State would be to was offered sponded that statement applies it to witnesses like as Subsection mind and that decedent’s state of show the testify and refuse Mr. Gore who refuse presence in the the statement was made explain further. The trial court overruled Appellant. objection and admitted the defense refusal Assuming that Gore’s 330-331) (Tr. statement. upon what the testify was based correctly The trial court allowed from “institutional anti-snitch bias terms mind ex testimony under the state of incarcer prison system in which he was O.S.1981, hearsay rule. 12 71), Appellant ception to the (Appellant’s pg. ated” brief 2803(3). antecedent declarations refusal to testi Such to show that his has failed § admissible in a case of homi a decedent are upon an act of State. fy was based state of mind prevent cide to show the decedent’s narrowly drafted to 2804 is Section supply the mo unavailability toward the defendant or to relying party from State, 761 P.2d killing. Moore v. proponent has com tive where the of a witness State, 866, (Okl.Cr.1988); Rawlings v. preventing 870 purpose of acts for the mitted 153, (Okl.Cr.1987); Spuehler 162 agree 740 P.2d testifying. We witness from the State, (Okl.Cr.1986); P.2d 204 sec v. interpretation of this the with State’s (Okl. State, 568 P.2d proponent’s the Stedman a nexus between tion that Cr.1977); State, 544 P.2d Sallee v. the refusal act and witness’ intentional Here, Here, (Okl.Cr.1976). testimony con the established. testify must be cerning apprehension Ap the decedent’s (1967). of 17 L.Ed.2d 705 Accord- pellant provided insight ingly, an into her assignment state of this of error is denied. mind. The decedent’s state of mind is rele In the assignment error, twelfth proving vant to identity of her assailant Appellant alleges error in the admission of in Appellant as much as the denied know expert witness Melvin testimony Hett’s ing meeting or ever the decedent. In addi calling it unreliable and an invasion of the showing tion to that was at the jury’s province to decide the ultimate is Coachlight 8, 1982, Club on December sues fact. testimony also reflects the decedent’s re Melvin Hett testified at trial that hairs buff of which is in prov relevant bedding found on the analyzed were ing killing. Therefore, a motive for the determined to be microscopical- “consistent testimony explaining why Gore’s the dece ly and could have the same source as the help dent properly asked for his admit Appellant’s pubic known hair.” He also ted. testified that hairs removed from the wash- compared cloth were Appellant’s hair statement, The second admitted and found to be “consistent microscopically over objections, defense counsel’s came and could have the same scalp source” as through testimony of Gina Vietta. Ms. Appellant. (Tr. 733) hairs from the Mr. Vietta testified that Debbie Carter had explained Hett later that the term “micro- asked her to trade work stations at the scopically consistent and could have the Coachlight Club because the decedent did same source” are terms of art which mean not feel comfortable Appellant; around the that “the hairs originate did from that that he had pass made a at her. The State source, or there might could be or be an- concedes that under rulings our in Moore v. other individual in the world somewhere (Okl.Cr.1988), 761 P.2d might that have the microscopic same char- Wadley 524-525 words, acteristics. In other hairs are not (Okl.Cr.1976),this is an inadmissible hear identification_” (Tr. absolute 735) On say referring declaration to the defendant’s cross-examination, again Mr. Hett testified past However, acts. argues the State that personal hairs are not absolute identi- prejudicial error was not as isolated (Tr. 767-770) fication. mention of making pass a Appellant compares this testimony to the decedent could prejudiced not have in condemned McCarty v. jury against in light of the In McCar- other overwhelming evidence. ty, testimony improper that was held agree We that it was error to have ad- opinion expert witness that the mitted the statement. In Moore we ex- defendant in “very possible close and plained: violent contact with the victim” to have left testimony should have been exclud- the hair evidence body. on the And testi- ed. The rationale behind the exclusion of mony that the defendant “was fact there testimony about antecedent acts is that crime This was found to [the scene].” the declarant’s state of mind is so inter- improper expert opinion beyond as it was twined with the act only itself that present state of the art of forensic superhuman effort can unravel the de- beyond personal science and knowledge clarant’s state of mind from the truth of expert of the witness. testimony Hett’s the matter asserted in the act. 761 P.2d the distinctly instant case is different as it at 871. present scope was well within the of scien- tific capability merely personal However, Moore, as we also found in expression guilt. Reading testimony light strong guilt, evidence of we entirety, clearly its it left the ultimate say cannot there was a reasonable jury. issues of fact with the possibility that the complained evidence might have contributed to the conviction. questions validity of this Chapman California, 18, v. 386 however, U.S. 87 scientific argues evidence and

405 face, puncture the most unreli- and small analysis is one of arms wounds on that hair face, lips. tests. her cuts inside her all scientific ac- mouth able of knowledges previous acceptance vagina our of hair also She was bruised around her urges this Court to reconsider analysis cap but and rectum and a metal bottle light mounting position indications its found inside her rectum. All of these does not meet sufficient that such evidence wounds were inflicted while Debbie Carter reliability. sup- of scientific To standards was still alive. port argument, Appellant cites to the argues that under our decision approximately results of four scientific Nguyen, degree of the victim’s suf- studies. fering support ag- is not this sufficient persuaded Appellant’s ar- We are not gravating In circumstance. Nuckols v. gument or authorities. We remain commit- 472, State, 690 P.2d at we stated that the position expressed ted to our as Driskell killing, manner of as the cir- evidenced State, 343, (Okl.Cr.1983), 356 v. 659 P.2d surrounding cumstances the murder and compari-

which the use of hair sanctioned attitude, the killer’s is a relevant considera- son evidence and the determination that suffering tion as well as the of the victim. any question procedures and con- about State, 1025, 702 See also Liles v. P.2d 1032 clusions drawn therefrom should be raised cert, (Okl.Cr.1985), denied, 1164, 476 U.S. Accordingly, on cross-examination. this as- 2291, (1986), 106 90 L.Ed.2d 732 on S.Ct. signment of error is denied. cert, denied, 933, post-conviction 484 U.S. 308, (1987), 108 S.Ct. 98 L.Ed.2d 266 reh. III. ISSUES RELATING TO 1021, 738, denied, 484 U.S. 108 S.Ct. 98 PUNISHMENT (1988). L.Ed.2d 685 thirteenth as- contends case, present In the forced his signment of error that insufficient evidence home, way breaking the decedent’s into presented support penal- the death door, glass her around the front overcame ty. found the existence of three advances, raped attempts to resist his circumstances; aggravating that the mur- evidence, Upon killed her. this we find heinous, especially der was atrocious or especially murder that Debbie Carter’s cruel; probability there existed a that cruel; heinous, atrocious or that she suf- would commit criminal acts torture; serious, physical or fered abuse of violence that would constitute a continu- jury’s finding particu- of this ing society; threat to and that the murder aggravating lar circumstance was based on purpose avoiding was committed for the substantial uncontradicted evidence. preventing prosecution. or lawful arrest or probabil supporting evaluating whether there is a The evidence find heinous, ing especially ity will commit acts of that the murder was defendant continuing requires proof atrocious or cruel that the violence which will constitute a society, have held that preceded death was torture or serious threat we 562, State, defendant was con physical abuse. Fox v. 779 P.2d murder for which the (Okl.Cr.1989); State, supporting evi Fowler v. 779 victed can be considered as 576 Fox, 577; Fowler, 580, (Okl.Cr.1989); 779 dence. 779 P.2d at Nguyen 588 v. 1025, 174; 589; State, State, State, 702 P.2d Rojem 769 P.2d at v. 753 P.2d at Liles v. 369; (Okl.Cr.1985); 742 P.2d Robison v. 677 P.2d at 1031 Stouffer cert, 1080, (Okl.Cr.), denied, 562, (Okl.Cr.1987) 467 (Opinion on Rehear P.2d 1088 563 cert, 3524, denied, L.Ed.2d ing), 484 U.S. S.Ct. U.S. (1988). (1984); 98 L.Ed.2d 779 Debbie Carter Stafford vacated, (Okl.Cr.1983), ligature tight 467 U.S. died from a combination of a (1984), 81 L.Ed.2d 359 ened around her neck and a washcloth af remand, (Okl.Cr.), P.2d 223 her mouth. The evidence down stuffed firmed cert, denied, 865, 106 S.Ct. fought that she for her life as she shows (1985). addressed body, These cases suffered numerous bruises on her L.Ed.2d 157 drinking He was of callousness as re- beer and wanted her to the characteristic stop her work and by flected the defendant’s actions. visit with him. When refused, Appellant grabbed by she her aggravating circumstance This wrists, up against and threw her the side unadju- may proved also be evidence of struggle, of the house. After a brief she dicated criminal acts. Johnson v. was able to break loose and run inside the (4) wit 731 P.2d 993 Four house. prior nesses testified to acts of violence A.H. Appellant testified that she met the Appellant. that one eve B.S. testified through evening, Appel- a friend. One p.m. ning 10:30 and 11:00 she between visiting lant was at her house when he heard someone outside her son’s bedroom decided Coachlight to leave for the Club. out, Looking Appel window. she saw accompany He asked A.H. to him but she he staring lant the window and he said Appellant refused and the left. He re- going to knew she was in there and he was however, turned a asking few minutes later call get living her. B.S. ran to her room to cigarettes for his which he had left on her help when she heard the screen back get table. When she turned ciga- being jerked on. A friend soon ar door rettes, Appellant way forced his into them help rived to B.S. and the two of Telling “girls her home. her like Appellant [her] to where the had walked outside guys should share themselves with and not there, standing. been No one was but the themselves”, keep it to he knocked her to ground underneath window cover (Tr. rape the floor and threatened to her. footprints. Footprints ed in were also dis 987) began during This a five hour assault surrounding covered the back door and the raped which time A.H. was and would re- pulled door had latch on the screen been eyes, ceive two black numerous cuts and from the wooden door frame. puncture bruises and small wounds to her L.B. that in June testified she was Appellant repeatedly face. told her that if Norman, Holiday at Inn in the club him, cooperate she did not with he would Oklahoma when she met the kill Appel- her. A.H. was able to calm the Fritz. Dennis Fritz asked L.B. if she time, lant down for a short but he soon join would like to him in his car where he angry proceeded bang became her Refusing request, had his own bar. his she against promised head the wall. She not to visited with friends in the band until clos- anyone tell about the assault if he would club, ing leaving time. As she was approximately Ap- leave. At 3:00 a.m. the again Fritz asked if she would like to see pellant finally left her house. A.H. never private Leaning bar. in the window of reported police the incident to the because car, Fritz told her she would have to only lived two houses down actually set the car to see the bar. from her and she was afraid that he would did, began slowly When she Fritz to drive come back and kill her. away. going L.B. When asked what was Appellant’s prior unadju- The evidence of on, sped up. Fritz When she asked to be dicated acts of violence as testified to out, sped up again. began let Fritz L.B. B.S., L.B., A.H., together with the L.C. repeat request her to be freed. Her con- callous nature in killed which requests upset Appellant, riding stant Carter, support jury’s finding Debbie seat, passenger repeatedly in the and he continuing aggravating threat circum- (Tr. 973) up.” told her to “shut After a stance. began while the car to stall the rain opened soaked road and L.B. the door and Finally, aggra the existence of the

jumped out. Fritz and the vating circumstance that the murder was ways chased her for a but then drove off. prose arrest or committed to avoid lawful evening by looking kill L.C. testified that one late cution is determined at the 576; Fowler, early Fox, working 1982 or 1983 she was in her er’s intent. 779 P.2d at 588; garden flower when the walked 779 P.2d Stouffer (Okl.Cr.1987); up porch. to her house and sat down on her 1349 at 1361-1362 Moore v.

407 interpretation was a of the narrowed of tion In the absence State, P.2d at 165. 736 intent, post evidence clause. We such violation of ex his own statements facto evi- narrowing ag- circumstantial from of the may be inferred determined that 368; v. Banks P.2d at Rojem, post 753 gravating dence. was not an ex circumstance cert, de- (Okl.Cr.1985), P.2d 418 701 it did not criminalize con- violation as facto 100 nied, 108 S.Ct. 486 U.S. done, nor duct which was innocent when (1988). 611 L.Ed.2d than it was when greater make the crime committed, punishment to change nor that Debbie indicates The evidence Rather, procedural meted it was out. could have Appellant knew Carter capital sentencing change “statutory in our Holland rapist. Terri her him as identified simply alter ‘the methods that he scheme which stated that testified Carter, she determining whether the death employed Debbie in go “tried to with do with him. nothing to imposed.... though have even penalty wouldn’t was to be just would went that if she And he said disadvantage of a defen- may it work to him, he’d never had to and went with ahead ”, viola- post it not an ex dant.’ facto 574) that (Tr. A.H. testified kill her.” 1150, quoting Dobbert v. tion. 749 P.2d at her, upon during his assault 293-294, Florida, kill her going to have to he was stated that (1977). 2290, 2298, L.Ed.2d 344 53 only It after cooperate. if she did not case, we find it is present Likewise in the not that she would assurances repeated apply to the narrowed not unconstitutional left her rape that report heinous, atro- interpretation “especially that prove tends to This evidence home. aggravating circumstance or cruel” cious to sought to leave no witnesses fact, In this restricted Appellant. conduct, especially ones his violent ensures individual consideration application him and that cooperate with would not pre- Appellant’s in case and the facts suf identify him. This evidence was could unsupported imposi- arbitrary or cludes an circum support aggravating ficient to penalty. tion of the death Appellant killed Debbie Carter stance that or to avoid lawful arrest with the intent assignment of er the fifteenth In prosecution. ror, narrowed claims that our of er assignment In his fourteenth heinous, “especially interpretation ror, that his death sen Appellant alleges circum aggravating atrocious or cruel” at the be vacated because tence should physical abuse focusing on serious stance murder, aggra Carter’s time of Debbie unconstitutionally vague be or torture heinous, “especially vating circumstance juror could believe a reasonable cause unconstitutionally atrocious or cruel” killed means person was the mere fact that on was murdered vague. Debbie Carter physical abuse. serious aggravat 1982. In 1987 December heinous, was instruct- “especially jury present in the case ing The circumstance overly to be Uniform and cruel” was held from the Oklahoma atrocious ed verbatim vague Maynard Instructions-Criminal, v. The Cart No. 436. Jury broad (10th Cir.1987),aff’d F.2d 1477 wright, given 822 instruction was identical Stouffer. U.S. Maynard Cartwright, 486 interpretation discussing narrowed In (1988). L.Ed.2d 372 giv- objective guidance “the we stated that interpretation of narrowed the This Court is that jury by this instruction en to the aggravating circumstance particular limiting applica- its paragraph the second P.2d at 562-563. v: by tor- preceded instances of death tion to Stouffer The interpretation was judicially restricted Otherwise, physical abuse. ture or serious in 1985. applied a murder committed many murders.” include language could persuaded by are not P.2d at 563. We Castro posi- change our arguments to Appellant’s (Okl.Cr.1988), rehearing) we (Opinion tion. applica- retroactive whether the considered instruction, entirety, required give

The when read in description its a detailed adequately jury’s channels discretion of the evidence that will be offered in order specific may justify class of murders which statutory to meet the notice of Section 701.- penalty. the death The is instructed 10. espe- determining that in if the murder was by provided notice filed in State heinous, it cially atrocious or cruel must part: evil, shockingly find that the murder was Testimony from testify A.C. who will vile, outrageously pitiless wicked or or de- that in January of 1981 Ronald Keith pain signed high degree to inflict a Williamson came to her house with a only then limit that definition to a further man she knew who lived across the by physical preceded murder serious abuse They stayed street from her. thirty min- Accordingly, assignment or torture. this utes and left. An hour later Ronald merit. of error is without Keith Williamson returned and said he in Appellant contends his sixteenth cigarettes. left his She left him outside assignment provid of error that he was not slightly door with the door open. adequate stage ed of the second notice While she cigarettes went to find the he testimony Specifically, Appellant of A.H. in, little, then came talked with her a argues that he was not informed that the grabbed tearing then her her shirt off. testify during witness would an attack going rape her, He told her he was punc she suffered small grabbed her and threw her face down on ture her wounds on face as a result of the up the floor. He beat her and fondled Appellant’s ring. horse-head her. He took his clothes off and told her Appellant has waived consideration quit if she didn’t screaming fighting allegation except of this for fundamental he would kill her. For a while she could error review object his failure to at trial. calm him down then he would attack her object notice, The failure to to lack of ei again. This went on for 4 hours until he pre-trial hearing ther at a or time at the (O.R. 319) left her home at 2:00 a.m. challenged evidence is offered will result in adequately complied This notice with the statutory a right. waiver v. Green requirements of Section 701.10 and afford- State, 1032, (Okl.Cr.1985), 713 P.2d 1038 opportunity ed the prepare denied, 871, 241, cert 479 U.S. 107 S.Ct. 93 details, his defense. The failure to mention (1986). L.Ed.2d 165 puncture wounds, such as the cause of the O.S.1981, 701.10, provides Title 21 § Accordingly, assignment is not error. this during penalty phase only of trial such of error is denied. aggravation evidence in as the State has eighteenth assignment In made prior known defendant to his error, Appellant contends the trial court statute, trial shall be admissible. This to- erred instructing jury not to allow Const, gether II, 20, with Okla. art. con- § sympathy, sentiment, prejudice or to enter templates that a defendant in a murder into its Appellant argues deliberations. given summary case be of the evidence giving this improperly instruction lim support intended to alleged aggravat- jury’s mitigating its the consideration of circumstances, ing and a list witnesses evidence responses and emotional to it. might the State call. Walker v. 723 cert, 273, (Okl.Cr.), P.2d 285 479 denied argument This identical rejected by 995, 599, U.S. 107 S.Ct. 93 L.Ed.2d 600 Supreme the United States Court Saffle (1986). purpose prior The of notice to trial Parks, 110 S.Ct. 108 is to allow the present defendant time to (1990). affirming In L.Ed.2d 415 the use of explanation defense or an alleged crimi- anti-sympathy instruction the Court stated nal misconduct. Johnson v. constitutionally permissible, that it is if not constitutionally required, for the State to In Wilson v. 1245 insist that “the individual assessment (Okl.Cr.1988), fn. 1 we said appropriateness penalty that the State is of the death culpability applies a whole and not in isolation. inquiry into the This a moral defendant, response stage and not an emotional to the second instructions of a bifur- mitigating evidence.” cated trial as well as the instructions in a Brown, quoting trial. non-bifurcated California 837, 841, L.Ed.2d U.S. case, present addition to the (1987). cut off “The State must not instruction, jury above in- was also mitigating full and fair consideration of structed that the law sets forth “certain evidence; grant jury the but it need not mitigating you minimum circumstances sentencing ac- choice to make the decision guidelines determining shall follow as Id., caprice.” cording to its own or whims impose. which sentence” to 110 S.Ct. at 1263. “you further informed that shall consider argument rejected This also this Court any or mitigating all of the minimum cir- State, v. Relying Fox 779 P.2d at 574. on you apply cumstances which find Brown, we stated that what v. California facts and circumstances of this case.” The instruction, prohibited by the and what was jury they was told that need not limit their by juror understood a reasonable would be specifically consideration to the miti- listed being prohibited as were “emotional re- gating may factors and consider additional aggravating sponses not rooted in the and mitigating Eight specific evidence. mit- mitigating during evidence introduced igating including: factors were then listed Id, 542, penalty phase.” 479 U.S. at 107 1) the significant history defendant has no at 840. S.Ct. 5) prior activity; criminal the defendant The instruction in the instant case was accomplice was an in a murder committed in Fox. There- given identical to the one person participation another and his in fore, for the v. in reasons stated Saffle minor; 6) the homicidal act was relative Parks, Fox, and we find it was not error to defendant acted under the duress or under give See anti-sympathy instruction. 7) person; the domination of another at the State, also Moore v. 387, 788 P.2d 401 murder, capacity time of the of the (Okl.Cr.1990). assignment This of error is appreciate criminality defendant to denied. or conform conduct to his conduct to In assignment his nineteenth of er requirements impaired of law was as a ror, Appellant jury contends that result of mental disease or intoxication. ignore any mitigat instructed that it could 25-26) (Supp.O.R. ing jury evidence. The was informed in Reading stage the second instructions as Instruction Number 7: whole, jury it is clear that Mitigating Circumstances are those disregard any mitigating told to evidence. which, in mercy, may fairness and be fact, they specifically In were directed that extenuating reducing considered as or evidence of Dennis Fritz’ involvement degree culpability of moral or blame. the murder and evidence that determination mitigating of what are only that he committed the mur- dreamed you jurors circumstances is for as to mitigating der must considered evi- be as resolve under the facts and circum- Therefore, jury we find the dence. 24) (Supp.O.R. stances of this case. adequately mitigating instructed on the evi- “may claims that the term be assignment dence and this of error is de- jury disregard considered” allows nied. mitigating disagree. evidence. We contends his twentieth must note that

We first counsel assignment of error that his death sentence objection an instruc failed to enter this must be vacated because the trial court’s tion and has therefore waived all but fun State, concerning Nealy v. instructions the manner damental error review. jury weigh Nealy 378, aggravat which the was to 636 P.2d 382 ing mitigating circumstances set forth this Court reiterated the well established proof. jury improper instructions must read as an Title 21 O.S. rule that burden 410

1981, 701.11, provides constitutionality the State tional manner. The § prove aggravating up must the existence of at least one this has circumstance been beyond aggravating Supreme circumstance a reason held the United States Court Estelle, 880, 896-899, able doubt before the is authorized to v. 463 U.S. Barefoot However, 3383, 3396-3397, penalty. death we 103 consider the S.Ct. 77 L.Ed.2d 1090 (1983), expand by establishing State, this have refused this Court in Fox v. 576; balancing State, specific standards for the 779 P.2d at Munson v. 758 P.2d 335; aggravating mitigating State, circumstances. at Castro v. 745 P.2d 394 at 407 573; State, (Okl.Cr.1987); State, 779 P.2d at Walker v. Fox v. Smith v. 737 P.2d State, 284, State, 1206, Brogie (Okl.Cr.1987); State, 723 P.2d 695 1215 Fisher v. (Okl.Cr.1985); 538, 1003, Cartwright (Okl.Cr.1987), 544 v. 736 P.2d 1009 affrm’d 548, (Okl.Cr.1985); State, (Okl.Cr.1987), 695 P.2d rehearing, 739 P.2d 523 cert, State, 818, (Okl.Cr. denied, 1061, 2833, 610 P.2d Jones U.S. S.Ct. 1980). (1988), Federal denied, constitutional considera 100 L.Ed.2d 933 reh. require tions do not a different result. U.S. 109 S.Ct. 101 L.Ed.2d 955 (1988); Lynaugh, 285; Franklin v. 487 U.S. Walker v. 723 P.2d at (1988); 739; 101 L.Ed.2d 155 Zant v. Newsted v. 720 P.2d at Van Stephens, 77 Woundenberg v. cert, (1983). Therefore, assign (Okl.Cr.1986), denied, L.Ed.2d this (1988); ment of error is denied. 108 S.Ct. 98 L.Ed.2d 780 Ross State, (Okl.Cr.1986); v. 717 P.2d twenty-first assignment In his State, v. 669 P.2d 285 at 299 Stafford error, Appellant alleges it was error for the (Okl.Cr.1983); State, v. Stafford jury trial court to fail to instruct the that it at 1218. life, option had the to return a verdict of reviewing applica- In these cases notwithstanding finding aggra a that the particular aggravating tion of this circum- vating outweighed circumstances the miti stance, phrase we find that the “the exist- gating evidence. In Walker v. probability ence of a that the defendant “jury P.2d at we discussed nullifica would commit criminal acts of violence that power tion” jury or the inherent of the to continuing would constitute a threat to so- bring acquittal in a verdict “in the teeth ciety” require is clear and does not further Quoting of both law and fact.” Horning v. phrase jury definition. The directs the to Columbia, 135, 138, District U.S. Appellant’s examine the conduct the of- 53, 54, (1920). S.Ct. 65 L.Ed. 185 We stat just fense for which he was convicted as cases, capital ed that in an instruction on well as other relevant statements and this jury issue would inform the of its safety conduct in relation society right to return a sentence of life no matter Accordingly, assignment as a whole. this great weight support how of evidence of error is denied. ing aggravating circumstance. We however, noted that the courts have almost

uniformly held that a criminal defendant is IV. ISSUES RELATING TO not entitled to such an Al instruction. EFFECTIVE ASSISTANCE though judge may, a trial in the exercise of OF COUNSEL discretion, give his sound such an instruc error, assignment the second In tion, it is not error for him to refuse the Appellant alleges that he received ineffec request.. See also Fox v. 779 P.2d at during tive assistance of counsel both Therefore, 573. find that we the absence stages of trial. It is well established that of such instruction does not constitute er right an accused has a fundamental ror. counsel, reasonably effective assistance of Appellant alleges in regardless appointed his seven of whether counsel is Const, VI, assignment XIV; teenth of error that the “con or retained. U.S. amend. Const, tinuing II, aggravating threat” circumstance Okla. art. 20. The standard § applied arbitrary evaluating an and unconstitu- an accused whether received set wherein assistance of counsel was Simmons confessed to the murder effective Washington, video-taped 466 of Debbie Carter. The confes- forth Strickland rambling, confusing 80 L.Ed.2d 674 sion is a and often U.S. (1984). provided contradictory a Supreme The Court two- narrative in which Simmons applied breaking must to deter- confesses to part test which be into the decedent’s apartment, has denied raping killing mine whether a defendant been her and her. He First, gives of counsel. several different effective assistance versions of how he per- got that counsel’s apartment defendant must show into her and of how he killed deficient, second, he her. heavy formance Simmons admitted that he is a performance preju- drug explained must show the deficient user and that his belief that the defense. Unless the defendant he killed the diced decedent could have a been showings, “it drug makes both cannot be said induced illusion or a dream. that the conviction ... resulted from a prosecution tape made the available adversary process in the that breakdown prior to the defense to trial. Defense coun- renders the result unreliable.” Id. attempt sel did not to introduce the confes- applies at 2064. This same test sion into evidence but utilized it on cross- capital non-capital a case as well as case. A examination. review of the trial tran- 702 P.2d at 1034. Liles script shows that counsel’s defense strate- hearing a claim of ineffec gy investigation was to discredit State’s counsel, reviewing tiveness of court homicide and Carter leave the indulge strong presumption must in a impression poorly with the such con- counsel’s conduct falls within the wide investigation possi- ducted could not have range professional of reasonable assist bly produced reliable results. Witnesses ance. The defendant must overcome presented, including Ap- would then be that, circumstances, presumption under the pellant, testify had no challenged might action considered part in the murder and never confessed to Strickland, strategy. sound trial the crime. The Simmons confession was 694-696, at 104 S.Ct. 80 L.Ed.2d at at theory used to bolster the defense that the Appellant The 699. burden rests with the investigation poorly State’s was conducted probabil to show that there is a reasonable and unreliable. that, ity any unprofessional for but errors Agent During the cross-examination of counsel, by proceeding the result of the Rogers, inquired counsel as to statements have different. A

would been reasonable suspects in agent had taken from probability probability is a sufficient to un Rogers in case. stated that addition to Id., dermine confidence in the outcome. taking statements from the and 466 U.S. at 104 S.Ct. at 2070. This Fritz, Dennis he had also taken a statement Court has stated that the issue is whether Ricky September in 1987. from Simmons skill, judgment counsel exercised the and It noted that the statement video- was was diligence reasonably competent of a de in taped, approximately two hours attorney light per fense of his overall length presented and could formance. 736 Fisher v. P.2d objected men- verbatim. State (Okl.Cr.1987), Cotton introduced, tape tion that the could be stat- P.2d ing polygraph at a exami- that it was made

Appellant argues that and therefore could not be intro- he was de nation trial sus- during nied effective assistance of counsel duced into evidence. The court 485-486) (Tr. stage objection. the first trial counsel’s failure tained to introduce into evidence the confession of cross-examination continued his Counsel Simmons, Ricky counsel’s failure to procedure used in by inquiring as to the fully investigate Ap and utilize evidence of re- taking Appellant’s statement. It was pellant’s mental illness. that, capability although he had the vealed statement,

During video-tape Appellant’s investigation, Agent Rogers Rogers pencil paper Ricky Agent took a used statement from Simmons argument, de- trial and closing reports In numerous it down. and letters take the differ- from mental again highlighted professionals health fense counsel concern- why ing in- questioned history. mental health procedures ence in his affi- tape one statement but davit defense vestigators would counsel states that he delib- poten- erately person pursue who had been chose not to not that of issue of Appellant’s for four and one suspect in the case mental health for in- tial either an (Tr. 881-883) sanity years. mitigation punish- defense or for half upon ment based information he received The evidence to be introduced and professionals from mental health and the theory of defense are matters of trial Appellant. conduct of the Counsel further guess not trial strategy and we will second requested stated that he had that he be strategy appeal. Smith representa- allowed to withdraw from his (Okl.Cr.1982). Here, the trial tion of Appellant’s unpre- due to any attempt by court blocked defense coun behavior, dictable and often violent but the actually sel to introduce the confession into request was denied. Counsel noted that he ruling product it was the of a evidence being given was aware the polygraph examination and therefore inad Snow, prescribed by thorazine Dr. a local missible. psychiatrist. He stated that videotape A review of the does not re- usually during behaved well his visits to polygraph flect that it was made at a exam- county occasions, jail. aOn few how- Assuming arguendo ination. that it was ever, appeared drowsy he and counsel be- prepared conjunction poly- with a came concerned that was over graph, potentially it was admissible as a requested dosage medicated and that his party third confession under Chambers v. thorazine be reduced. Mississippi, 410 U.S. profes- Information from mental health (1973). Regardless L.Ed.2d 297 of whether upon sionals part which counsel relied in videotape properly admissible at making his decision is also included trial, failing counsel was not ineffective for supplemental record. This information During to seek its admission. the inter- Garcia, from Dr. Psy- comes Chief Forensic investigators, listening ap- view after Hospital; chiatrist at Eastern State Mental proximately story, one hour to Simmons’ Oklahoma; Health Services of Southern opinion him it told was their that he did not County and the Depart- Pontotoc Health participation kill the decedent and that his ment. Keeping in the crime was all in his mind. rambling investiga- narrative and the The information from Dr. Garcia was in jury gave tor’s comments from the 1, 1985, the form of a letter dated October credibility might confession more than it Appellant’s competency and concerned to have had otherwise and allowed the de- stand trial another case from Pontotoc argue that fense to someone other than County, Case No. CRF-84-218. The letter Appellant Further, committed the murder. reflects that Dr. Appel- Garcia found the Appellant prejudiced by was not the ab- competent appreciate lant and able to introducing of the confession as sence charges against nature of the him and able confession would have allowed the State to assist his counsel. opportunity present to evidence that Walker, Norma a worker social with Ricky Simmons had been excluded as a Mental Health Services Southern Okla- suspect upon based the results of hair responded homa to defense counsel’s in- analysis. quiry Appellant. In a about letter dated alleges 16, 1987,

Appellant July further that Appellant’s she summarized fully investigate failed to counsel and uti treatment the Health Ms. Service. history. In Appellant’s lize his mental health his mo stated Walker first contact supplement appeal, the record on tion to with the clinic was in November an voluntarily includes affidavit from de when he appeared for treat- concerning counsel drug fense conduct at ment for alcohol and Over the abuse. years Appellant periodically viewing next seven re- judge court must the reasonable- seeking turned to the clinic assistance. ness of counsel’s conduct on the facts of time, Appel- Each the clinic would counsel the case at hand and evaluate the conduct lant and recovery program. formulate a 'perspective counsel’s the time. from However, Appellant would not abide the Strickland, 466 U.S. at 104 S.Ct. at programs provided repeatedly failed to Every 2065. effort must be made to elimi- keep follow-up appointments with counsel- distorting nate the hindsight. effects of ors at the clinic. Ms. Walker added that whether, We are to determine light of all suspected by had been each case, the circumstances of the the identi- “shamming, counselor who saw him of ma- fied acts or omissions were outside the lingering, attempting manipulate to range wide professionally competent as- system”. Although there could be neuro- Id., sistance. 466 U.S. at 104 S.Ct. at logical damage organic syndrome, or brain 2068. she added that may know “[Strategic choices made after feign thought how disorder. As an out- thorough investigation of law and facts patient facility, the clinic equipped was not plausible relevant options virtually are to rule out those conditions. unchallengeable; strategic choices Defense possessed psycho- counsel also a complete made after less than investigation logical report prepared by the Pontotoc precisely are reasonable to the extent that County Department Health which reflected professional judgments reasonable support the results of an evaluation conducted on investigation.” the limitations on Id. at 22, 1987, September Ray, Claudette 690-691,104 words, S.Ct. at 2066. In other Director, Clinic Guidance Clinic. The re- duty counsel has a to make reasonable port indicated Appellant possessed investigations or to make reasonable deci normal intelligence and sufficient skills to sions particular that make investigations ordinary life, meet the daily demands of unnecessary. case, effectiveness a including care, personal interaction, social particular decision not to investigate must job performance money management. directly assessed for reasonableness un Ray Ms. added that was con- circumstances, der all the applying heavy sciously stress, anxious due to situational measure of deference to judg counsel’s may and that he inappropriately, behave ments. Id. attending such as not preliminary hear- ing which would benefit him. Trial counsel lawyer, was a seasoned well versed the criminal At law. Also included in supplemental record trial, opinions time of he had the of three are affidavits from nine health care professionals mental health professionals who treated Appellant at var- competent malingerer. and a Counsel ious times from 1979 until the time of trial. appointed represent Appellant had been The affidavits also state that the authors approximately year one Al- before trial. would have testified at trial if they had though personal the number of consulta- been called. Trial counsel was not aware Appellant tions counsel had with is not of information contained in the affida- documented, the record does reflect numer- at vits the time of trial. Appellant county jail ous visits with in the important It is to note that this is not a and several visits with members of his fam- proceeding to determine Appellant’s compe- ily. Appellant’s Counsel was aware of well tency. Appellant challenged has not his past present mental condition. competency to Appellant stand trial. has alleged that he was denied a fair trial information, upon Based this coun present counsel’s failure to this evidence to failing sel was not ineffective for to investi jury. Therefore, this strictly a re- gate require further. We will not counsel of performance. view defense counsel’s investigate to continue to and collect medi assessing Appellant’s an reports claim cal until reports he finds one that counsel, of ineffective assistance of Appellant incompetent. the re- Counsel’s re- upon posses- liance the information in his the defense so as to create a reasonable given probability totality sion was reasonable of the result of the trial have the circumstances and when counsel’s would been different. strategy represents a reasonable choice important It is to remember that upon assumptions, counsel based those law, presumed under State an accused is to investigate need not lines of defense that competent to stand trial and the burden employ at trial. he has chosen not to prove is on the accused to otherwise. Strickland, 466 U.S. at 104 S.Ct. at O.S.1981, 1175.4(B). State, Doyle See § facts, 2061. Under these counsel’s strate- Although upon gic forego choice to a defense based Appellant often violent exhibited and abu range his mental health was well within the behavior, sive we do not find that conduct professionally judgments, reasonable incompeten sufficient to raise the issue psycho- not to seek more and the decision cy. If position, we were to take such a already logical evidence than was hand every person then accused who acted in a

was likewise reasonable. violent or abusive manner would be auto matically a respect prejudice component, hearing entitled to to determine

With competency his to stand trial. failed to show that has there is a probability that reasonable the outcome of Reviewing per counsel’s overall the case would have been different. A trial, during stage formance the first review of the information contained specific alleged by Appel and the errors (9) previously presented nine affidavits lant, say we cannot that he was denied one, reports, that all the reveals save de- during effective assistance of counsel competent scribe the as but im- guilt-innocence phase of trial. We now personality mature with a disorder turn to whether was denied ef history drug and alcohol abuse. The fective during assistance of counsel only report which finds awith penalty phase of trial counsel’s failure capacity diminished mental is from Norma present any Appellant’s evidence of men Walker at the Mental Health Services of previously tal condition. As we stated report directly Southern Oklahoma. This incorporated stage State all of its first evi report provided contradicts the earlier presented dence testimony of three presented trial counsel. Had counsel evi- concerning specific women acts of vio Appellant’s dence of mental condition Appellant. lence The defense trial, opportu- the State would have had the presented no evidence. nity to show that was a ma- apply We per have refused to se rule lingerer competent and had been found pre- that the present mitigating failure to evi viously. stage capital dence in the second of a case Further, trial counsel’s decision forego constitutes ineffective assistance of coun upon Appellant’s a defense based mental State, 1014; sel. P.2d at Fisher v. deprive Appellant health did not only (Okl.Cr. Coleman v. trial, Appellant’s defense, defense. At as 1984). 669 P.2d at 296. Stafford presented through testimony his own as case, As in the instant the defense Fish witnesses, well as that of several other stage present er chose not to second that of “I did not do it.” finding evidence. In that was not ineffec counsel, signif tive assistance of we held it In Fisher v. 736 P.2d at this icant that the court had instructed the Court it appropriate stated that would take specific mitigating evidence. pretrial action when defense counsel’s preparation investigation and are case, so woe- present jury In the the was not fully inadequate as to undermine confi- prevented considering from miti- relevant in dence the outcome of the trial. In the gating by the evidence offered defense as case, present Appellant Appellant’s stage has failed to show all the first evidence was investigation incorporated stage. that further would have led to the second Fur- into ther, (8) materially jury eight evidence which have would aided the was instructed mitigating Accordingly, circumstances. These counsel s conduct. we find minimum to, included, Appellant the that was not not limited that denied effective as- but were sistance of counsel and this assignment committed while the defendant of murder was mental or emo- error is denied. the influence of was under disturbance; the time of and that at tional V. MANDATORY murder, capacity the defendant the of SENTENCE REVIEW criminality of his conduct appreciate the requirements or conform his conduct O.S.Supp.1987, Pursuant to 21 impaired as a result of mental of law was 701.13(C), (1) we must determine whether § jury or intoxication. The was disturbance imposed the sentence death of under limit also informed that it need not its passion, prejudice the influence any or mitigating the minimum consideration to factor, (2) arbitrary other and whether the listed, any may circumstances but consider supports evidence jury’s finding of an they mitigating. evidence determine to be aggravating circumstance as enumerated (O.R. 25-26) O.S.1981, in 21 Having 701.12. reviewed § record, Any Appellant’s say jury con- we cannot evidence of mental by passion, prejudice, trial could have influenced dition which counsel or presented arbitrary contrary would have been cross-examined other factor O.S. reports Supp.1987, 701.13(C). was a § deter- malingerer previously and had been jury found the existence of three competent. strategy actu- mined Counsel’s (1) aggravating circumstances: the murder ally Appel- in for the resulted a windfall heinous, cruel; especially atrocious or lant, jury as the to consider his was able (2) pur- the murder was committed for the hearing mental health without the evidence pose avoiding prosecu- arrest or lawful malingering of his tendencies. tion, probability and existence of review of the record shows that trial Our that the defendant would commit criminal deliberately partic- counsel limited his acts of violence that would constitute a ipation sentencing stage in the a matter as continuing society. threat to We find that strategy. of trial has failed to aggravating sup- each circumstance was presumption that the conduct of rebut O.S.1981, ported by sufficient evidence. 21 might trial counsel be considered sound 701.12(4), (5) (7). and § strategy. Appellant has trial failed to Accordingly, finding warranting no error that, in show absent trial counsel’s conduct modification, judgment reversal or and sentencing stage, have would Degree AF- sentence for First Murder is aggravating concluded that the balance FIRMED. mitigating did circumstances not war- Strickland, rant death. 466 U.S. at LANE, P.J., BRETT and 104 S.Ct. 2069. JOHNSON, JJ., concur. Our evaluation defense counsel’s over- PARKS, J., specially concurs. performance all leads us to the conclusion PARKS, Judge, specially concurring: strategic that counsel made certain choices upon professional judg- opinion based reasonable It continues to be the of this Oklahoma, strategic ruling ment. These decisions resulted writer that the Ake v. jury receiving evidence beneficial to the 84 L.Ed.2d 53 U.S. (1985), being necessarily extended without state afforded “must opportunity any expert ‘necessary to dilute or for an contradict include which ” Despite request adequate the denial of defense.’ Ake evidence. an representation Before a to be removed from the of P.2d 464 n. assistance, coopera- despite the lack of defendant is entitled to such however, requisite Appellant, competently tion from counsel he must first make the case, present represented showing his client. has of need. Id. In the agree “[ajppellant I majority failed to show that his sentence was ren- with the establishing dered unreliable breakdown failed to meet his burden adversary process experts by neglecting to ex- caused deficiencies the need majority’s I to address the dec- undeveloped assertions contained also wish plain the However, agree I cannot laration that “Pictures of the murder vic- in his motion.” majority’s always probative establishing additional assertion in tim are with expert cross-examination State’s corpus Majority delicti of the crime.” by the cures error caused witnesses agree, 400. While I it should be at expert for the defense. lack of witnesses photographs may stressed that before such evidence, proponent into be admitted not extend to holding In that Ake does they must demonstrate that are relevant psychiatrists, majority experts other than probative substantially and that their value State, in 719 P.2d of this Court Plunkett v. outweighs prejudicial their effect. Ma- See (Okl.Cr.1986), explained that without jority 400. inaccurate such assistance “the risk of an extremely sanity issues is resolution Finally, my I wish to reiterate view that majority then as- high.” Id. at 839. The “anti-sympathy” instruction in the so-called serted: stage unnecessary the second and con in scientific a risk other areas of Such fusing jury mitigating to the evi where necessarily present evidence is not be- introduced, has dence been see Fox v. expert cause the scientific is often able State, (Okl.Cr.1989) 779 P.2d explain jury how a conclusion to (Parks, P.J., concurring part/dissenting in reached, the counsel can defense part), “continuing ag that the threat” conclusion, and the can attack that gravating circumstance should be more the conclusion has a decide whether defined, State, clearly see Boltz v. 806 P.2d sound basis. 1117, 1126-27, (Okl.Cr. 62 OBJ 156-57 general This observation was trans- Id. 1991) (Parks, P.J., specially concurring), ruling in formed into a much more broad heinous, “especially and that the atrocious (Okl.Cr.1988), Rojem v. 753 P.2d 359 aggravating or cruel” circumstance is un majority where the same stated that “scien- constitutionally vague both on its face and ordinarily tific evidence is not vulnerable to applied, as see Foster v. inaccurate resolution and itself does not (Okl.Cr.1989)(Parks, P.J., specially ordinarily expert.” call for a defense Id. at decisis, concurring). As a matter of stare 364. however, yield majority I must view regarding general I these issues. Although do not find the re- objec- marks announced Plunkett to be se, per my opinion it is that the

tionable

holding Rojem, upon by major- relied herein,

ity subject is over broad and application. erroneous To illustrate this FLEET REAL FUNDING ESTATE further than the point, one need look no CORPORATION, Appellee, appellant’s trial of co-defendant. Fritz (Okl.Cr.1991), 811 P.2d 1353 chemistry expert forensic testified State’s FRAMPTON, Harry Medford (12) that twelve hairs found at the crime Jr., Appellant, microscopically scene were consistent with However, hairs from Fritz. Id. at 1362. expert the defense’s hair examined the Frampton, Elaine J. Defendant. only concluded that same evidence and two No. 74100. those from hairs were consistent with Furthermore, regard- Fritz. at 1362. Id. knowledge attorney less of the of a defense Oklahoma, Appeals Court of particular subject scientific or the Division No. 3.

thoroughness of his of a cross-examination April 1991. expert, reasonably State’s such cannot replace testimony from a de- said ex-

fense witness who is deemed to be an

pert in his field.

Case Details

Case Name: Williamson v. State

Court Name: Court of Criminal Appeals of Oklahoma

Date Published: May 15, 1991

Citation: 812 P.2d 384

Docket Number: F-88-501

Court Abbreviation: Okla. Crim. App.