*1 OK CR 19 WOOD, Appellant, Stephen Edward Oklahoma, Appellee.
The STATE No. F-95-759. Appeals of Oklahoma. of Criminal Court March 1998. April 1998. Rehearing Denied
FACTS Brigden, 2 John an inmate at the Okla- Granite, Reformatory
homa State Okla- homa, was stabbed to death his cell on 12,1994. Brigden serving June time for rape by lewd molestation and instrumenta- following testimony tion. The sets forth the presented in the order at trial.
Inmate Robert Boulet 3 Robert Boulet testified that approached him at 6:30 a.m. on June Jones, Cordell, Ray for Defendant at trial. 1994, asking Appel- whether he knife buy. lant could Boulet told did Deaver, Attorney, Dan Assistant District thereafter, Shortly not have one. David Attorney, Versteeg, District Pat Assistant approached Chatham Boulet asked him. Dugger, Attorney, Mangum, District Richard thing gave same and Boulet him the for the at trial. State *5 same answer. ¶ Moore, Counsel, Appellate Anne Defense day, Later in the while downstairs in Norman, A), Appellant appeal. building (Building for on the victim’s Boulet scream, heard someone “Assault! Assault!” Edmondson, General, Attorney W.A. Drew upstairs. upstairs from Boulet went and ob- Whitaker, Attorney Assistant Gener- Robert standing served David co-defendant Chatham al, City, Appellee appeal. on Oklahoma big in near the victim’s cell front of a win- Appellant dow. He also observed come out Appellant of the victim’s cell. After and OPINION left, Chatham Boulet looked into victim’s lying cell and observed the victim on the JOHNSON, Judge: coming floor with from his chest. blood ¶ Wood, Stephen hereinafter Edward Appellant, to as was tried and con- referred Inmate Michael Hendricks by jury victed of the crime of Murder ¶ Ap- that Michael Hendricks testified (MAlice Degree Aforethought) in viola- First Chatham, inmate, pellant, and another Thom- O.S.1991, 701.7(A), § tion of Case No. Brumly themselves the ‘White Su- called CRF-95-03(B) in the District Court of Greer preme Supreme Brotherhood” “White County before the Honorable- Good- Charles Chatham, Appellant, Power.” He heard and win, jury Judge. District The found four Brumly brag taking things about from the (1) aggravating circumstances: the defendant They being a contract victim. also discussed (2) prior felony; had a conviction of a violent out on the victim. Hendricks testified knowingly great a risk the defendant created Chatham, Appellant, Brumly on June and (3) person; of death to more than one they going him kill the victim. told were while serv- defendant committed murder Hendricks did not believe them. Around imprisonment felony ing a sentence of on p.m., Ap- 6:00 saw Chatham and Hendricks conviction; probabili- there and existed pellant They in their cells. told Hendricks ty that the defendant would commit criminal they going to kill the victim. were that would constitute a con- acts violence knife, they Hendricks realized When tinuing society. pun- The set threat building. he to the victim’s followed them injection. ishment at death lethal The Appellant go saw and Chatham Hendricks judge Appellant stairs, in accordance trial sentenced building, up the and into the victim’s jury’s with the recommendation. From this into the cell. He then heard loud victim’s Sentence, per- Judgment Appellant thumping. Appellant, has then saw Hendricks Chatham, running out of the appeal. fected this and others run As started down from building. Hendricks observed Chatham Officer New roof, Appellant Hen- he saw a knife bounce on the one direction and another. ground place and saw him throw near the where he had seen the dricks followed Chatham man, Crawford, paper garbage pacing. sack into a truck. After man The David lock-down, knife, emergency pick up announcement of an but when knelt he heard keys jingling Hendricks observed and some oth- Officer-New’s as the officer hit nervously standing and heard ground, ers around threw the knife at Officer New “Well, say, got he what he de- them picked up ran. Officer New the knife. _” served Appellant running He observed out of the New,
building. When saw Officer New, stopped, looked at Officer threw his David Inmate Crawford up, running hands took off in the other Crawford, a.m., 9 or 10 6 Around David direction. cell, next to while Chatham’s which was cell, discussion, part took in a 10 Officer New then entered build- Chatham, mostly instigated by killing about ing. Officer Janet Alexander let him into the gave victim. that he Crawford testified control room he left the knife where carry the knife to out the crime. asked Officer Alexander to it. Officer watch building The three men went to the victim’s New, Simons, along with Lieutenant later but could not- kill him at that time because reclaimed the knife. Simons took the knife partner present. his cell custody into it over to turned OSBI Agent morning. Joe the next No Ferrero dinner, they eating 7 While Craw- fingerprints were found the knife. ford heard and Chatham insinuate evening would kill the victim that *6 everyone while was at dinner. The three Officer Janet Alexander building men went back to the victim’s at ¶ 11 in Officer Alexander was the control p.m. 6:30 around Crawford testified he panel building of the victim’s when she heard position by took his a window downstairs yelling begin p.m. the at 7:10 around She Appellant up while went to the victim’s cell. pod walked to the victim’s and noticed lot go Crawford saw into inmate Chatham prisoners yelling running and around. Of- (next dopr Murphy’s James cell to the vic- pod, ficer Alexander intended to secure the tim’s) and shut the door. Crawford testified closing but had trouble the control room Appellant go that he into the saw victim’s By got door. the time the control she room away began cell. then to move Crawford closed, “3-pod.” door all the inmates left window, from the and as he did heard inmate, only She observed one a white male yell, victim “Assault!” and scream several mustache, with brown hair and about 6 thereafter, Shortly times. the knife came feet, “3-pod.” run down stairs and out of window, out the but Crawford did have pick up chance to it because a correction Jimmy Rodriguez approaching.
officer was Officer ¶ 12 Rodriguez Officer noticed David Terry New Officer standing Chatham near the victim’s cell as he approached Upon Officer New testified that before he and Officer New it. enter- cell, up top building, ing went on of the victim’s the officers observed the victim p.m., kneeling around 6:30 he observed that the vic- between the wall the toilet. n open, tim’s cell door was which was unusual. There was blood on the floor around But, victim, every- in when he looked on the victim from the toilet to the door of the cell. thing nothing in seemed fine. The victim said No one else was the cell at that time. arrived, they Officer New time. Officer New After the nurse tried to admin- up top building went of the and observed ister victim CPR. The was then taken nervously. infirmary, finally by pacing man below He then sent ambulance to coming building. Hospital, heard screams from the Hobart where he died.
^ Murphy Inmate Inmate James John Crosson Appellant, John Crosson' saw Murphy Chat- 13 James was a friend of ham, building and Crawford the victim’s custody protective victim in on a conviction p.m. around 2:00 He Murphy’s asked them what for molestation. cell was lewd doing replied they there. Chatham Murphy next to the victim’s. testified that some, were there to do collecting and showed friendship David knew of his with Chatham recognized Crosson a knife. Crosson the victim and would come to his cell and ask bought knife as one he had from Chatham a questions him about victim. Chatham month p.m., earlier. Around 7:00 Crosson go then over to cell and would the victim’s Appellant saw Murphy and Chatham in- the victim’s leave. Chatham told that he and building again. “top Chatham was on the things others would take from the victim walking run” again back and forth. Murphy fun. testified that came Crosson Chatham why asked Chatham hie days was there and was frequently two to three before the given the same always attempting answer. While go murder and would the victim’s room, get in the control Crosson observed cell. Appellant Chatham hand day the knife in the murder, day 14 On the Chatham room. Appellant came to his cell around 6:30 ’ Appellant up- and Chatham went p.m. telephone, The victim was on the so the Murphy’s stairs. Chatham went to cell and two men walked and out of his cell. 'The Appellant put the knife his waistband and victim got walked back to his cell when he off past Murphy’s walked cell to that of the phone. Appellant made a comment to open. Appel- victim. The victim’s door was Chatham that he hear. could not Chatham pulled lant the kihfe out then turned and pulled gave Appel- then out a knife and it to directly looked at Crosson who was still lant. then told to make Chatham watching. Crosson heard the victim scream Murphy stayed sure in his cell. like a n ¶ Murphy woman as entered the cell. stood with Chatham at his Appellant exited the cell and threw the knife cell door where he saw walk over passed cell, out the Murphy’s window. As he stop by Murphy a window. then went he hit the door with his fist. Crosson left the back into his cell and Chatham told him to sit building saw running. outside down, Murphy down. sat but láter started to *7 get up. pulled up back Chatham his shirt Hollenbeck, Inmate James Jr. Murphy where he had another knife and told ¶, business, there, 19 James Hollenbeck testified he was in stay mind his own and sit building the obeyed. victim’s when he heard the first Murphy Murphy down. then heard upstairs cry, the scream. He rushed and looked into victim “Praise God!” two three or Appellant the cell Murphy up victim’s where he observed got times. and went to his cell Chatham, pounding on the victim. Looking past Murphy door. Hollenbeck did not saw . away see a knife. Hollenbeck the victim turn towards his own walked from door and the cell Appellant standing Appel- towards a rail. He observed Appellant behind him. lant run but of “slinging” was his knife the cell. The victim then at the victim. Mur- out, phy up holding then stumbled his get backed so that he would not chest. When the fell, victim caught looking, but Hollenbeck went back to his cell Appellant did observe once, back, guard pull coming. stab the victim because begin stab second time. Haynes Officer James
¶ door, Returning Murphy 16 to his cell cell, Appellant Haynes saw leave the victim’s throw a Sgt. Officer testified he and window, past knife out the run Appellant’s approxi- him. Maddux searched cell at Appellant ran mately p.m. then down the stairs and out 9:08 A shirt with on it was blood Murphy the door. top walked to the victim’s cell found the mattress the bunk. under [Haynes after Chatham left lying initially Appellant and saw the victim assumed that oc- on the floor cupied top where there was blood all over. bunk because his cell mate always occupy began. Appellant sub-proposi-
was known to the bottom sets out five sub-propositions proposi- The then all bunk.] officers confirmed with the tions. As interrelated, they top Appellant’s. bunk tion one are will be cell mate consid- together. Agent The shirt was later turned over to ered Ferrero. ¶ 24 Appellant’s argument The thrust of potential jurors’ knowledge is that the of the Eisenberg, Dr. Marsha Roche past activity, victim’s criminal intertwined Laboratory Biomedical by qualifying” questions with “death asked Eisenberg, Dr. Marsha a forensic prosecution, impossible made it for the testing specialist at Roche Biomedical Labo- panel to differentiate their overall views ratory in North Carolina testified that utiliz- penalty possible applica- the death from their ing analysis, the PCR method of DNA it was penalty specific tion of the death in this case. determined that the blood-stain on the shirt words, that, In Appellant urges other for but found under bunk matched knowledge their of the victim’s criminal be- victim. havior, potential jurors some would not have they been excused for cause because had no Teddy Inmate Graham general objection application to the January 22 Graham testified that on penalty, objection applying death an but it 1995, in a Appellant, conversation with specific in this case. Appellant why gotten asked he had involved Appellant relies on the standard for Appellant with Chatham in a murder. told juror pro dismissal of a for cause that was pointed Graham that Chatham out had Court Wain mulgated Supreme target robbery. Appellant victim as a Witt, wright v. 412, 105 469 U.S. gone gold to rob the victim of a watch (1985). Witt, Supreme L.Ed.2d 841 wedding Appellant ring. told Graham in Adams v. holding Court reaffirmed its that Chatham watched someone another Texas, 448 U.S. keep coming cell to him from to assist the (1980), L.Ed.2d 581 and laid out the standard
victim. told Graham that he asked prospective juror of exclusion of a for cause watch, the victim for the but the victim re- juror’s ‘prevent “whether the views would give fused to it to him. then add- substantially impair performance played ed that the victim into his hands juror his duties as in accordance with his people anyway, because he liked to kill so he Witt, instructions oath.’” victim stabbing leg killed the him in the S.Ct. 844. all and then over. told Graham yelled, the victim crying screamed and like a asserts baby. questions Prosecution’s prospective ju to the improper rors were direct *8 JURY SELECTION ISSUES specific to present ed circumstances in this ¶ contends, State", 23 prop- in his first case. The after a from comment one osition, juror that the trial court committed revers- who stated that she would not be able dire, when, voir during panel apply ible error penalty to the death in this case be members disregard were instructed to cause knowledge the of her of the victim’s crimi past past, circumstances of the criminal began query panel victim’s as nal to the of rest the irrelevant sentencing to the determination. to ascertain whether some of them had the Panel members who considered the victim’s same reservation. We do not find this was status as a mitigating improper questioning child molester be a considering the notori victim, factor jury. ety were excluded for cause from the of probability the and the that Thus, Appellant urges, by jury he was sentenced most of the was aware of the circum jury composed of surrounding men and women who stances the victim. Further more, prohibited considering from standard as set out Witt allows mitigating in had, fact, agreed evidence and in not to for dismissal for cause in situations where mitigation juror’s consider the before “prevent the trial even views would substan-
9 ¶ proposition In his second of 29 of his duties as performance tially impair the error, the trial court Appellant avers that his instructions in accordance with juror case, jurors denying in his Motion its Id. In this abused discretion his oath.” expressly stat- Dire of Concern for cause Voir Jurors for Individual who were dismissed Penalty of the victim’s Publici considering ing the nature the Death and Pre-Trial that ed result, crime, able to consider he was a trial they ty, would not be and that as a denied his' killer. punishment impartial jury. for There is no penalty as a fair and death before clearly prevented and substan- position v. voir dire. Fontenot right individual jurors (Okl.Cr.1994). in the prospective 69, tially impaired the Fur P.2d 75 881 in accordance their' duties performance ther, within the discretion of the trial it is they in that and oath with their instructions to allow individual voir dire. whether court the State’s re- impartially 203, (Okl.Cr.), consider could not 209 v. Trice Thus, penalty. impose 638, 126 the death quest to 510 U.S. cert. prospective (1993). of the the trial court’s dismissal Appellant has not dem L.Ed.2d 597 the standard laid jurors cause survives for trial court abused its dis that the onstrated Supreme Court Thus, States out the United denying his motion. cretion above Witt. of error must fail. See proposition Proposition I. discussion Appellant’s contention 27 As to impaneled process which proposi In third evidence, mitigating deprived him of relevant tion, error occurred argues that reversible agree. Appellant relies Lockett do not we po not two the trial court did excuse when Ohio, 438 U.S. jurors automatically vote who would tential Supreme in which the L.Ed.2d 973 However, .penalty. the two for the death held that: Court Thompson jurors question, potential respect capital the fundamental cases [I]n Scott, they consider both stated would Eighth humanity underlying the totality options punishment all the requires ... consideration Amendment In Stewart the evidence. of the individual character and record (Okl.Cr.1988), held that this Court par- of the the circumstances offender juror required of a is sponte dismissal no sua constitutionally indis- offense as a ticular potential juror unequivocally not does when process inflicting part of the pensable unwilling follow the law. that he is state death, added) (emphasis penalty of case, only no was there In the instant Lockett, 98 S.Ct. at statement, ju potential but the unequivocal omitted). (citations findWe L.Ed.2d at 989 fol affirmatively would rors stated misplaced. on Lockett Appellant’s reliance addition, counsel law. defense low the any aspect of his character Rather than offer cause, waiving thereby jurors for passed the any the circumstances or record and of error is any proposition Id. This error. charged, Appellant which he is offense with meritless. the offense character and offers the victim’s was convicted. (cid:127)for which the victim of er In his fourth ror, court’s the trial authority Appellant claims Appellant cites no jury questionnaires preserve to conclude that failure this Court which would -lead Eighth deprived him of his victim, part of the record which has no bear past activity of a Appel rights. any Fourteenth Amendment fact ing “the existence whatsoever on *9 State, 752 P.2d on v. lant relies Van White consequence to the determination that is of (Okl.Cr.1988), in which this Court 821 probable proba or more less of the action of v. “the failure White ble,” Id. held that Van mitigation evidence. is relevant dire reporter transcribe voir court to Further, prece to set a State this Court declines grounds ...” was for reversal. as-requested vigilante justice endorse dent that will transcript was neces that the morally reasoned lives are We against whose individuals mandatory sen to effectuate sary in order proposition of error must repugnant. This tence review. fail.
10 evidence, proposition fifth Appellant’s
¶ rating is reliance on Van White Appellant’s 32 fail. case, error must was no of there misplaced because proceedings. dire of the voir record at all proposi Appellant contends 34 review, impossible to deter- Thus, it was admitting court erred six that the trial tion being penalty was the death mine whether hearsay At issue are evidence. inadmissible arbitrary capricious man- in an imposed Hendricks, by Michael made statements to deter- way no in which There was ner. Crosson, Murphy. Howev and James John asked, or what were questions what mine er, preserve to this issue Appellant failed to evaluate given in order were answers object to the appeal by failing to review on issues. claims as related defendant’s State, 554 trial. v. Wilson statements case, trial the failure of the In the instant (Okl.Cr.1976). proposition This P.2d 809 is jury questionnaires maintain court to is denied. transcript no having comparable jury question- seven, The proceedings. dire Ap voir proposition In 35 jurors potential out were filled naires Fourteenth argues that his First and pellant where proceedings dire prior to the voir by the rights violated Amendment were fur- were questionnaires in. The sworn were evidence. of other crimes introduction State’s guide and to attorneys as proper to the However, gave nished we find that the State completed State, were not expedite process v. 594 required Burks notice as which Any questions or issues (Okl.Cr.1979), under oath. other overruled on 771 P.2d (Okl. a result of during State, voir dire as arose P.2d 922 v. 772 grounds, Jones record preserved for the Cr.1989). questionnaire Thus, adequately Appellant was transcription. There the voir dire part as introduce intended to apprised that State question- by trial counsel request Further, no Appel of other crimes. apparently there preserved and naires be object this evidence was lant failed to when is waived and objection. This issue was no object Failure to to the at trial. introduced Thus, we find that plain error. we find no crimes evidence waives introduction of other adequately preserved for the record v. 705 appeal. Thompson the error on mandatory sentence review. purposes (Okl.Cr.1985); Brogie v. 191 P.2d fail. of error must proposition (Okl.Cr.1985). Finding no P.2d error, assignment is denied.
plain STAGE ISSUES FIRST proposition, Ap eighth In his error, introduction pellant asserts that the State’s fifth Appellant belonged to a Teddy evidence that urges that his confession supremacist group violated his First white admitted be not have been Graham should rights. Appel Amendment corroborating indepen and Fourteenth no cause there was fact that was a urges lant by Fontenot required dent evidence supremacist group was agree. member of a white do not at 77-81. We (18) prejudicial. relies wit irrelevant and eighteen other presented The State Delaware, on Dawson Appellant to the crime. Six nesses who tie (1992), sup Appel L.Ed.2d either saw of the witnesses State’s In Dawson the United crime, by Ap port his contention. were told lant commit a conviction Supreme reversed of States Court the crime. One pellant that he committed the defendant’s member Appellant when evidence of officers observed the corrections group was intro ship supremacist in a white crime building where the fleeing from the proceed during stage second duced lab identified place. The forensics took distinguishable from the is ing. Dawson shirt as that blood on Graham, holding applies to at bar in that its Teddy case confession to victim. In his evidence, during the second the victim introduction that he stabbed stated irrelevant as where the evidence'was stage, examiner confirmed leg. in the The medical *10 case, mitigation. In this aggravation or leg. in In stabbed that the victim was to character issues was relevant independent corrobo- the evidence foregoing light of the
H
¶39
plan
Daubert,
and to establish a
for the crime in the
Under
several fac
stage
tors are to be
proceeding.
proposi
first
of the
considered to determine if new
scientific
State,
sufficiently
evidence is
reliable to
tion of error must fail. Robison
677
v.
1)
be admissible.
Included are:
1080,
(Okl.Cr.),
whether the
denied,
P.2d
1085-86
cert.
theory
technique
subjected
has been
3524,
467 U.S.
S.Ct.
12
State,
(Okl.Cr.1989) (A);
v.
793 P.2d
Shelton
issue and
this
specifically addressed
Court
State,
(Okl.Cr.1990) (B); Bryson
876
v.
prob-
866
that admission of statistical
determined
(Okl.Cr.1994),
denied,
240,
cert.
513
256
necessary
P.2d
to the admis-
ability
was
evidence
752,
13
aggravating
is
injured,
of one or more
circumstances
beside the murder victim is
it must
already present in the record. The
perpetrator
aforesaid
be shown that the
at least seri-
pronouncement
to
ously
was not intended
dictate
killing people
considered
other than the
presentation
during
However,
Valdez,
the order of
of evidence
victim.
the individual
stage,
to
the second
but
insure that the trial
allegedly
“great
was at
who
of death”
risk
court was
there was
satisfied
evidence of one
acquaintance
was an
of the defendant’s.
In
aggravating
Validez,
or more
circumstances before
although the defendant threatened to
allowing
impact
victim
to
evidence
be intro-
kill this
if
help
individual
he told or did not
during
stage.
duced
second
We intended
dispose
him
body,
of the
the individual knew
such information to
ascertained in an in-
be
anger
that
defendant’s
was not directed
hearing
camera
held to determine the admis-
him,
but at the victim.
sibility
proffered
impact
victim
evidence.
case,
50 In the
Appellant,
instant
case,
In
hearing
this
an in-camera
was held
Chatham,
through
accomplice,
his
created a
and the trial court determined there was
“great risk of
Murphy.
death” to
The evi
sufficient
four aggravating
evidence of
cir- dence
Appellant
showed that Chatham and
cumstances.
Murphy’s
entered
cell.
Ap
Chatham handed
Further,
pellant
Appellant
Murphy’s presence.
a knife in
Appel
48
asserts the
lant
jury
not
then told Chatham to
Murphy
was
instructed on the use of victim
make sure
stayed in
impact
place
Appellant
or
the cell. As
sentencing
evidence
its
in the
went down
victim,
specific
decision. A
the corridor to kill
instruction on
Chatham
victim
told
Murphy
impact
prescribed by
displayed
to sit
He
Cargle,
evidence as
909
down.
then
828,
given
Murphy
P.2d at
knife and told
was not
in this ease.
mind his own busi
However,
State,
117,
In
ness.
Ross v.
case was tried before
717 P.2d
(Okl.Cr.1986), affirmed,
81,
Cargle
Cargle,
In
decision.
as in the
U.S.
case,
2273,
(1988),
present
specific
S.Ct.
den
Moreover,
clearly
position.
distinguished
between
previous
abandon our
paranoid schizophrenics, in
what
aggravator covers a different
other
because each
history,
likely
criminal
there
to commit
aspect Appellant’s
made him more
murder
However,
*13
aggravating circum
overlapping
right
dysfunction.
is no
since
his
brain
State,
qualified
stances. See Green
his statement with
the Prosecutor
(Okl.Cr.1985),
remember,”
overruled in
1039-1041
“the
I
we find the misstate-
best
fart
Brewer v.
grounds,
on other
Additionally, the
ment was not intentional.
(Okl.Cr.), cert.
testimony
365-66
Dr.
jury
Murphy
heard the
(1986).
245,
agree
Appellant misper-
(Okl.Cr.1987).
with the State that
P.2d
As no error was
“continuing
aggravating
ceives the
threat”
found,
is denied.
*14
aggravator
circumstance. This
seeks to de
¶ 59 In his
proposition
nineteenth
termine whether the character of the defen
error, Appellant urges
of
that he was denied
protec
dant is such that there is a “need for
right
his Sixth Amendment
to counsel when
society
tion of
from
probable
the defendant’s
defense
guilt during
counsel conceded
first
State,
future conduct.” Pickens v.
850 P.2d
stage closing argument, resulting in a total
328,
(Okl.Cr.1993),
denied,
336
cert.
510 U.S.
of
adversary process
breakdown
and a
(1994).
1100,
942,
114
Whether
can
a measure of
closing argument
entire
is set out below:
protection
against
for itself
him not
is
would,
gentlemen,
Ladies and
I too
like to
issue. This
is without merit.
you very
thank
being
much for
I
here.
¶ 57 In
proposition.
his seventeenth
say
want to
Iwhat
said earlier this week
error, Appellant
this
asks
Court to .-vacate
way,
when we
it’s nice to
talked —
his death sentence and remand for resen-
you
talk
again
days,
to
after
few
we can’t
tencing
aggravating
because two of the
cir
talk in between times. But I would like to
[“continuing
“great
cumstances
threat” and
sincerely say
very sorry
that I’m
you
person”]
risk
death to more than one
are
pulled away
your everyday
from
lifes
unconstitutionally vague. This Court has
and thrust
into such a serious situation.
repeatedly rejected arguments on the un
here,
we have
gentlemen
What
ladies and
constitutionality
“continuing
threat”
evidence,
is
the instructions and the
aggravating circumstance and we are not
argument
Attorney,
of the District
and
persuaded
prior position.
to alter our
See
gotten.
that’s how far we’ve
State,
(Okl.Cr.
Cooper
293,
v.
889 P.2d
315
1995);
707,
Malone v.
715-
you
If
understand
DNA stuff and think
(Okl.Cr.1994),
therein;
16
and cases cited
it’s
my
reliable —it’s so far over
I
head
(Okl.Cr.1994),
Walker
320
I
don’t know what
think about it.
ifBut
denied,
rt.
it,
U.S.
you
reliable,
S.Ct.
understand
think
and
it’s
ce
166,
(1995). Likewise,
with.
suppress eyewit-
Failure to move to
E.
said,
say,
always
and will continue
I’ve
pre-
and ask for a
ness identifications
person makes a decision
long
as a
unreliability out-
hearing on their
trial
right,
truly
in his heart
is
feels
that he
hearing of the
and to
side the
any regrets.
not ever have
then he will
at trial.
object to their admission
again.
Thanks
merits of the claims set
The
C,
coun-
agree
A, B,
that defense
D
60 We do not
are discussed
forth
eleven,
six,
three, five,
to a conces-
re
closing argument
propositions
amounted
sel’s
E,
subproposition
Addressing
counsel’s decision
guilt.
spectively.
Indeed trial
sion
any
raise
may
nothing in the record to
argument
well
there is
not to make an extended
extra-judicial
an unconstitutional
issue of
strategic one. This Court will
have been a
Thus,
being used.
procedure
identification
strategy. Cargle, 909
guess trial
not second
Having
no error in
no merit.
found
we find
Here,
downplayed
counsel
at 832.
*15
P.2d
claims,
Appellant was
any of these
we find
not
complicated and
DNA evidence as too
right
to
deprived
not
of his constitutional
understood,
him. Trial coun-
easily
even
counsel.
assistance of trial
effective
only
other
pointed out that
sel then
by convicted fel-
was that offered
F,
in
subproposition
Appellant,
63 In
ons,
credibility
jury.
to the
was left
whose
of the Rules of the
accordance with Rule 3.11
overwhelming evidence
light of
Appeals, as
Court of Criminal
Oklahoma
may have
against Appellant,
1, 1995,
trial counsel
filed a
effective November
amended
his case lest he lose
not to overstate
evidentiary hearing
decided
on Sixth
motion for an
stage where he
credibility
unsupported by
for the second
claims
matters
Amendment
lawyer
trial
Specifically, Appel-
it the most. A fine
would need
outside the trial record.
guilt
properly
not be
to
may
that
could
lant claims defense counsel faded
well decide
mitigation
in
and to
saving his life. utilize available evidence
and save the best for
doubted
competency
present
and
an
raise a
issue
performance defi-
do not find counsel’s
We
29, 1997,
insanity
April
defense. On
circumstances.
cient under the
remanding this case
entered an Order
Court
County
of
for an
to the District Court Greer
ASSISTANCE
INEFFECTIVE
evidentiary hearing
investigate Appellant’s
to
OF COUNSEL CLAIMS
assistance of coun-
allegations of ineffective
13, 1997,
the Honorable
August
sel. On
final
61 In his twentieth and
Goodwin,
Judge,
District
issued
L.
Charles
error,
ineffective
Appellant raises claims of
of
Law.
Findings of Fact and Conclusions of
his
of counsel as follows:
assistance
[Appellant filed his Brief After Remended
jurors for
challenge
to
cause
A. Failure
28,
Evidentiary Hearing
August
1997.]
on
they
automati-
when
stated
would
that
coun-
“[t]rial
the trial court found
While
penalty convic-
cally impose the death
spend
great deal of time and
sel did
tion;
develop
“sanity”
de-
attempting to
effort
alleged
suppress
to
confession
B. Failure
drugs”
an
the influence of
fense or
“under
request a
for lack of corroboration and
evi-
though
even
there was some
defense
corroboration;
instruction
defenses,
support
the trial
to
those
dence
counsel was not
concluded that
trial
court
cautionary
request
to
instruc-
C. Failure
ineffective,
part:
in
reasoning,
on other crimes evidence
tions
prior rulings2
of the
testimony by accomplice David Craw-
Trial counsel knew
client,
suspect
Graham;
had no reason to
Teddy
against his
informant
ford and
developed
investigator
Murphy
with
aid of an O.I.D.S.
“Dr.
2. The trial court found that
to
competence
competency
lack of
to his
1. Failure
determine
his client’s
due
ability
to converse and
stand trial
demeanor
a conscious decision to concentrate
made
¶ 66 Defense counsel
testified
closing argu-
on voir dire and
his efforts
investigation
no
conducted
into facts relat
light
overwhelming testi-
in
of the
ments
Appellant’s competency.
ed to
Defense
mony
his client.
against
Appellant
counsel was aware
was found
give
findings
will
the trial court’s
Court
competent
trial
to stand
on two counts
record,
suppdrted by
if
strong
deference
County
murder in Lincoln
more than two
issue
but we shall determine the ultimate
years prior
trial in
the instant case. De
counsel was
Rule
whether trial
ineffective.
fense
nothing Appellant’s
counsel observed
3.11(B)(3)(b)(iv), Rules
the Oklahoma
during
meetings
behavior
their
that would
Appeals,
Ch.
Court
Title
Criminal
him
lead
to believe that
could not
(1997).
App.
adequately respond
questions.
Defense
average
prevail on a claim ineffective
counsel found
to be of
64 To
counsel,
intelligence
capable
understanding
must over
assistance
strong
answering
questions,
information and
re
presumption
come the
that counsel’s
spectively, presented
within
reason
to him.
coun
range
conduct falls
the wide
Defense
able
professional
assistance
by showing:
[1]
sel related that
aided
trial
by, among
things,
se
performance
assisting
defi
other
trial counsel’s
was
cient;
[2]
that he
was
prejudiced
lection
jury.
Based- on the
aforesaid,
Appel
we
counsel’s
performance.
Wash
find defense
belief that
deficient
Strickland
668, 687,
competent
lant
ington, 466 U.S.
reasonable.
(1984).
Spears
80 L.Ed.2d
See also
(Okl.Cr,),
P.2d
cert.
present
insanity
2. Failure
an
*16
516 U.S.
voluntary intoxication defense-
(1995).
alleging prejudice
L.Ed.2d 527
One
Appellant
contends defense
“that
must
counsel’s errors
so
show
investigation
counsel
to conduct an
into
failed
deprive
to
of a
serious as
the defendant
fair
Appellant’s
facts which would have revealed
trial,
whose
a trial
result is reliable.” Strick
paranoid schizophrenic
mental
of
condition
land,
687, 104
at
466 U.S.
S.Ct. at 2064. See
damage
history
organic
with
brain
with a
of
Fretwell,
also Lockhart
auditory
command hallucinations. De
and
(1993).
n counsel’sfailure to determine his competency and that he overwhelming there was little trial, present insanity to to an or other stand against could do to defend the murder defense, voluntary in mental state such as Thus, charge. strategic the deci made toxication, testimony and to introduce the of sion to on voir dire and concentrate second Sally Rettig Church Dr. as Dr. and Richard reveal, par stage.. facts As the mitigation. ticipation planned and in murder was ¶65 attorney “The fact that a defense auditory any not the result of calculated and investigated thor- could have an issue more Thus, hallucination. find or command we not, itself, oughly in does and constitute strategy to reasonable defense be counsel’s Fontenot, assistance.” 881 P.2d ineffective under the circumstances. at 86. have reviewed the record of the We hearing very Again, appellant de evidentiary carefully and find as contends investiga- presented: failed to follows to the issues fense counsel conduct an sanity. Craig accepted pleas Judge file on the That an extensive Defendant’s when Defendant’s persuade jury Coun- prior defense did a in Lincoln some four to the nolo contendere months . prior ty [sic] time to the case at Bar and short Brigden.” of John brutal murder position adversely determined to that been testify, ruling Dr. to that testi- “[h]er would revealed Church tion into facts which have mony not in existence at the time of trial marijuana was positive for Appellant that tested if and not have been admitted offered would taken from him at 5:45 sample when a urine qualifications expert in due as an to failure morning after the Fur- a.m. on murder. areas affect The trial that Defendant.” murder, ther, prior to the three months testify refusal to allow Dr. Church court’s Psychological tested Services may Salazar v. have been erroneous. See psychological evalua- recommended “further (Okl.Cr.1996). tion,” “support therapy,” and “substance However, proof we have reviewed the offer of Again, facts abuse treatment.” based on the ap- on and Dr. Church’s Affidavit submitted presented Hearing, Preliminary as at psychologi- peal find that more detailed was sufficient to raise a there no evidence cal would not affected the evidence have concerning Appellant’s abil- reasonable doubt We because the sentence rendered. so find ity specific to form intent. See Crawford aggravation strong in State’s case (Okl.Cr.1992). great presented defense counsel because Thus, strategy we counsel’s find defense psychological mitigation. in deal of be reasonable. trial court to allow 70 The also refused reopening evidentiary hearing 3. Failure to introduce evidence taking testimony Dr. purpose from mitigation in Rettig who suffered heart attack and ¶ 69 Appellant defense contends Hospital. Emergency Mercy in Room any Appellant’s fami counsel failed to call Rettig The trial court that Dr. reasoned ly testify personal members to say thing would “the similar that the Court background family history of abusive Calley against testifying ruled Jack to.” [sic] by his father alcohol alcoholic behavior Sixteen, Proposition supra. See daily abuse basis since the proof Rettig has made an offer of that Dr. age years. of seven counsel Defense testify capital been eases as a qualified Dr. expertise Murphy. relied on How specialist prison that Dr. subcultures and ever, Appellant Dr. contends because only hope persuading the Rettig was his clinical, Murphy psychologist is a forensic safely that he could be incarcerated. psychology focuses individ who on the reveals filed While the record *17 ual, tests, performs diagnoses, motion, and arrives at proof the brief offer of with his explain qualified Appellant’s he was motion was not to this Court as submitted history perspective part evidentiary hearing. life the theoretical from of the record Nonetheless, proof specialists drug based on the offer of of in the areas of and alcohol abuse, disorders, evidentiary hearing, made the families, at the we find learning additive to be of the ilk as that which evidence same Ap psychology, prison social and cultures. rejected proposi- we sixteenth pellant history of claims that evidence his life Accordingly, Appellant’s tion claim of error. the and external constraints determined of failure ineffective assistance of counsel for prison his behavior and of inside outside present to investigate and otherwise this evi- mitigated against would have sen death dence is without merit. presented tence and have been to his should ¶ jury. Appellant attempted present this Having thoroughly reviewed the is- testimony through Sally Dr. of presented evidentiary hearing, sues at the we Rettig.4 Appellate and deny Church3 Dr. Richard Appellant’s claim of ineffective assis- counsel Dr. Church and an offer tance According, called made of counsel. proof. permit The trial court refused to error is denied. assessments,
3. Dr. a licensed Counsel- and has in criminal cases Church is Professional testified family therapy marriage or in ally and and a nation- on at least 50 occasions. Psychologist, holding certified school Psychology Ph.D. in Educational and has been in Rettig sociology 4. is a Professor and crimi- Dr. (20) private practice twenty years. her ca- Edmond, University, justice nal at Central State reer, performed Dr. has 85 fo- Church least Oklahoma, specialty prison with a subcultures. psychodiagnostic child rensic and adult crime MANDATORY SENTENCE REVIEW 1. The Ap- murder was committed while pellant was under the influence of ex- ¶ O.S.1991, 72 Pursuant treme mental or emotional distur- (1) 701.13(C), § we must determine whether bance. imposed the sentence of death was under passion, prejudice murder, 2. any influence of or other At the time of the capacity factor, arbitrary whether the evi- appreciate the criminal- to. supports jury’s finding dence aggrava- ity (wrongfulness) of his conduct or to ,0.S. ting in 21 circumstances enumerated conform require- his conduct to the 1991, § 701.12. We shall first determine impaired ments of law was as a result whether the sup- evidence was sufficient to of mental disease. port imposition penalty. of the death Upon carefully considering reviewing supports evidence which following The found the circumstances, aggravating aggravators: as well as the may evidence which be mitigat considered previously 1. The defendant was convict- ing, this Court finds the'sentence of death felony involving ed of a the use or factually appropriate. substantiated arid person; threat of violence to the Furthermore, we find that the sentence of 2. knowingly The defendant created a imposed death was not under the influence of great risk of death to more than one passion, prejudice any arbitrary other fac- person; Finding tor. warranting no error reversal or 3. The murder was per- committed modification, Judgment and Sentence is serving son impris- while a sentence of AFFIRMED. onment felony; on conviction of a 4. The of a probability existence DECISION defendant would commit criminal acts Judgment The and Sentence of the trial violence would constitute a con- court is AFFIRMED. tinuing society. threat In reviewing presented by the evidence STRUBHAR, V.P.J, LUMPKIN, J„ we find that previously concur. felony involving convicted of a the use or CHAPEL, P.J., LANE, J., concur in threat of person prior violence to the in his results. commission two murders stabbing his victims. We find that knowingly LANE, Judge, concur in results: great created a risk of death to more than though I disagree Even with the ma- person Chatham, by ordering one David who jority respects," some I still concur in the knife,
was armed with a to make sure James results reached. Murphy stayed in his cell. We find that the Five, 2 In Proposition its treatment of murder was by Appellant committed while *18 Appellant’s serving imprisonment contention that the statement sentence of con- felony Appellant, viction of a made to a fellow as at the inmate was not corroborat- time ed, crime, majority he committed serving ignores the the the sen- fact that the tence for a Appellant’s double-murder. We further main thrust argument goes find of that the callous nature of the crime and the fact there was no corroboration for a Appellant’s disregard blatant impor- the portion of the statement. He claims that the tance of human life render him a continuing State contended from the inmate’s account of society. threat to The substantially evidence the statement stated the supports finding the of aggravators. the four purpose murder was committed for the of robbing ring. the victim of watch He Besides'testimony from Philip Dr. Murphy, asserts that the psychologist, statement was not admissi- regarding Appellant’s ble, incapacity, mental the trial because there no court the evidence that there found following robbery minimum was a mitigating Bridgen even circumstances provided by [as law] which were watch or a I ring. agree majority submitted to with the jury: plenty there was general- evidence s an- All of Valdez gravating circumstance. point and would
ly
the statement
corroborate
person killed and not
all
at the
necessary
ger
to corroborate
was directed
it
not
out that
is
State,
See,
threat-
Fontenot v.
claimed to have been
person
who
parts of
statement.
¶
69,
42, 30,
present
79.
here.
881 P.2d
situation is
CR
The same
1994 OK
ened.
Brig-
anger was directed
Appellant’s
All of
majority
disagree with
3 I also
threats to
Murphy. The
not toward
den and
membership in
it finds that
when
pre-
only
purpose of
Murphy
for the
group is admissible
supremacist
a white
the mur-
interfering with
venting him from
stage
the trial. The
in the first
danger
der,
in immediate
he was never
issues
it as relevant to
majority would admit
stayed in his cell.
long as he
being killed as
motive for the
to establish a
of character
I
proceeding.
stage of the
crime in the first
I
However,
mean that
this does not
majority that
issues
would remind
IWhen
the death sentence.
would reverse
guiltdnno-
in the
are not admissible
character
circumstance and
aggravating
discount this
puts
trial until a defendant
stage of a
cence
as autho
remaining aggravators
reweigh the
§ 2404.
in issue.
O.S.1991
his character
¶79, 5,
State,
v.
1991 OK CR
rized
Castro
this at the time
had not done
158, cert.
502 U.S.
addition,
I fail to
admitted.1
evidence was
947,
I
conclude
its admission
majority in
disagree with the
4 I next
testimony of the victim’s
approval
its
OK CIV APP 58
appropriate
opinion
her
wife as to
RAGSDALE, Jr.,
Bobby
my
that because
punishment.
It
is
belief
Plaintiff/Appellant,
only authorized
punishment
as to
is
opinion
v.
§
O.S.Supp.1997
984 it is
admissi-
of the trial. See
during
stage
second
ble
SYS-
CLEAN WATER
WHEELABRATOR
5,
1997 OK CR
my
in Ledbetter v.
vote
Division,
INC.,
TEMS,
Bio-Gro
d/b/a
¶¶ 1-6,
(Lane,
J. concur
where we held that when April 1998. Denied Certiorari he would telling another him that threatened cooperate, kill not to inter him if he did not
fere, after the help up and to clean the blood ag- justify
murder was not sufficient membership Appellant's and the upon record between majority Robison v. 1. The relies (cid:127) denied 467 U.S. OK CR cert. murder. justify 831 to 82 L.Ed.2d finding In Robison the evidence is admissible. must have a ten- relevant the evidence 2. To be testimony commit there was ted a probable dency a material make more or less amphet robbery to build an to obtain funds State, 1979 OK CR President v. fact in issue. laboratory. does establish motive. amine 222. is no connection in In our current case there