Benjamin Brewer, a white man, was 26 when he was sentenced to death in Tulsa County for fatally stabbing Karen Joyce Stapleton, 20, an accounting student at Tulsa Junior College. He spent 12 years and 6 months on death row and was executed on April 26, 1996.

Old Law Would Let Sheriff Kill Inmate in Cell

The New York Times

October 27, 1991

1982 OK CR 128

650 P.2d 54

BENJAMIN BREWER, APPELLANT,
v.
THE STATE OF OKLAHOMA, APPELLEE.

Case No. F-79-609.

August 18, 1982
As Corrected August 20, 1982.

An Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Benjamin Brewer, appellant, was charged and convicted of Murder in the First Degree, was sentenced to death, and appeals. REVERSED and REMANDED.

Frank W. McCarthy, Deputy Chief Public Defender, Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

¶1 The appellant, Benjamin Brewer, was charged, tried and convicted in the District Court of Tulsa County, Oklahoma, Case No. CRF-78-2137, for Murder in the First Degree, pursuant to Laws 1976, ch. 1, § 1 [1-1], now 21 O.S. 1981 § 701.7 [21-701.7]. He was sentenced to death by the jury.

¶2 The facts in this case are relatively simple. Karen Joyce Stapleton was found dead in her Tulsa apartment on August 17, 1978. Examination of the semi-nude body revealed that death had occurred on or around August 16, 1978, as a result of twenty (20) stab wounds. The appellant was arrested on August 19, 1978, for the murder. He made three separate statements to Tulsa police officers in which he confessed killing Karen Stapleton and directed them to the location of her car, which he had stolen and hidden.

¶3 Unfortunately, the appellant's right to a fair trial was the victim of an overzealous prosecutor. The record is replete with error committed during both stages of the trial, which when considered in a cumulative fashion, necessitates that the conviction be reversed and remanded for a new trial. Because of the result reached in this decision, we need only address those issues pertinent to our reasons for reversal, and to those affecting the re-trial.

¶4 We turn first to the factor contributing the most weight to our decision to reverse the appellant's conviction: the overzealous conduct of the prosecuting attorney. The prosecutor in this case embarked on a campaign of prejudicial theatrics which doubtless resulted in unfair prejudice to the appellant. The following examples illustrate, though certainly do not exhaust, the prosecutor's erroneous conduct at trial.

¶5 1) As he was cross-examining the appellant's expert witness concerning the appellant's insanity defense, the prosecutor stabbed State's Exhibit Number 10 (a 16 inch by 20 inch photograph of the deceased victim's body as it was found at the murder scene) four separate times with the knife used in the murder. Although we recognize that the prosecutor's range of free speech and illustration is wide, Wright v. State,

¶6 2) At another point the prosecutor ridiculed the defense attorney's objections before the jury:

MR. FALLIS; . . . so we know there is testimony in this case now, testimony of your own client —

MR. BURNS: Objection, Your Honor.

MR. FALLIS: It's in this statement.

MR. BURNS: Ask that the jury be admonished to disregard it and move for a mistrial.

MR. FALLIS: So help me God is what he said, so help me God —

MR. BURNS: Mr. Fallis, I have an objection —

MR. FALLIS: That's what happened, he didn't say `I don't know what happened.'

MR. BURNS: I have an objection before the Court.

MR. FALLIS: Object, object, when it gets tight, he starts objecting.

MR. BURNS: Object to his comment now and ask that the jury be admonished to disregard it and move for a mistrial and ask that he be admonished.

THE COURT: Motion denied.

MR. FALLIS: Isn't that interesting. They stood before you during the opening statement, they stood before you during the voir dire, `we are not going to contest that the death was occasioned by Ben Brewer'; and we have been prolonging this trial, running back and forth like a yo-yo to the bench making records, objecting to everything that ever happened in this courtroom.

MR. McCARTHY: Your Honor, we object —

MR. FALLIS: Rather inconsistent, isn't it?

MR. McCARTHY: We object to counsel's comments concerning matters of law. That's up to the court.

THE COURT: I'll sustain the objection, concerning the approach to the bench.

MR. McCARTHY: I would ask that the jury be —

MR. FALLIS: Thank you, Your Honor.

MR. McCARTHY: Would you admonish the jury?

THE COURT: They are so admonished.

¶7 The prosecutor's conduct of not allowing defense counsel an opportunity to be heard on his objections, coupled with the needless ridicule demonstrate a lack of respect for the appellant's constitutional right to a fair trial which this Court shall neither tolerate nor condone. See generally, Chandler v. State,

¶8 3) During the sentencing hearing, the prosecutor twice referred to the possibility that, if acquitted, the appellant would commit similar crimes in the future. This line of argument is highly improper. It is error to comment on the possibility that a defendant may commit crimes in the future. ¹ See, Hager v. State,

¶9 4) The prosecutor told the jury during the sentencing stage that the homicide rate in Oklahoma had increased 28 percent, and that although juries were imposing the death penalty, no one had been put to death since 1966. We have held numerous times that references to the crime rate are improper because they present matters extraneous to the evidence and tend to impose responsibility on the jurors for the rising crime rates. Hager, supra; Coats v. State,

¶10 The above remarks and other similar comments amply support the appellant's contention that he was denied a fair trial.

¶11 The appellant's next contention that certain evidence should have been excluded from the trial pursuant to a motion in limine presents a troublesome issue. In one of his statements to the police, the appellant admitted that he gained entrance into the victim's apartment by first breaking into an adjacent apartment and crawling through a common attic-way. The judge sustained the appellant's motion in limine to delete that portion of the confession. During the hearing on that motion, the prosecutor agreed to the deletion, stating:

When taken as a whole I can see no relevance to the entry into the apartment next door at this time and I can find no exception for its use as evidence in this case, so we have no objection to the court granting that motion and we would join in the motion and the only thing left, of course, is the physical aspect of extracting that from the confession, so however counsel wants to go about that, we'll be glad to join in that.

¶12 During the trial, the State introduced evidence which demonstrated that the appellant may have broken into the apartment adjacent to the victim's. ²³

¶13 The prosecutor complied with the motion to the extent that no references to the deleted portion of the appellant's confession were made. However, the prosecutor accomplished the same result that the motion in limine was designed to prevent by introducing the evidence described above. Thus, although we do not accuse the prosecutor of going back on his word, we urge that the better practice on retrial will be for the prosecutor to either 1) not join in such a motion, and then to follow the procedure outlined in Burks v. State,

¶14 The appellant further complains that the prosecutor improperly introduced evidence of other crimes in his trial. There was evidence which indicated that the appellant stole the victim's automobile, purse, and dog. The presence of semen in the victim's vagina led the prosecutor to infer throughout the trial that the appellant raped her. Because of the manner of disposition of this case, we need once again only remind the prosecutor of the guidelines established in this State for the introduction of other crimes at trial. If the State wishes to use the evidence, the appropriate measures must be taken to ensure the appellant is forewarned.

¶15 We turn now to issues not affecting our decision in this case, but nonetheless pertinent to retrial.

¶16 In his eighteenth allegation of error, the appellant claims the trial court erred in failing to sustain his demurrer to the information. The information adequately met the requirements of 22 O.S. 1981 § 401 [22-401]. The appellant was not misled as to the charges against which he had to defend himself, neither was he exposed to the possibility of being placed in jeopardy a second time for his offense. Holloway v. State,

¶17 The next issue concerns the introduction of photographic reproductions of the victim's body and wounds at trial. We find no error in the introduction of eight color slides depicting specific wounds on the victim's body. The photographs were taken at the morgue after the body had been cleansed. They served to illustrate the testimony of the medical examiner. See, Bills v. State,

¶18 We also find no error in the introduction of a 16 inch by 20 inch black and white photograph of the victim's body as it was found at the murder scene. The photograph is admittedly gruesome in nature, however the occasioned death was a gruesome deed. The photograph accurately and faithfully represented the scene as it was found by Tulsa police officers. Pate v. State,

¶19 We have stated numerous times that the admission of photographic evidence rests within the discretion of the trial court. Collins v. State,

¶20 We find next that the appellant's arrest was lawful, and the evidence and confessions obtained pursuant thereto admissible at trial. At the time of the arrest, the Tulsa police knew:

1. That a homicide had been committed;

2. That the victim's automobile and small white dog were missing;

3. That the appellant had been identified by a security guard as the man who was driving an automobile matching a description of the victim's automobile and who was in possession of a small white dog in the early morning hours of the murder (the security guard had engaged in a short conversation with the appellant, and identified him from several photographs for the police prior to the arrest);

4. That the appellant was well-known in the area of the victim's apartment and had once lived in that vicinity;

5. That a female who was known to one of the Tulsa detectives but wished to remain anonymous telephoned the Tulsa police and informed them they should "look at" the appellant in the homicide.

¶21 This information, collectively considered, would warrant a prudent and reasonable police officer's belief that the appellant committed the offense. Copling v. State,

¶22 Two of the appellant's assignments of error concern his attorney's unsuccessful attempt to enter a guilty plea to the first degree murder charge at the 1978 arraignment. The judge refused to accept the plea and allowed the State to file a Bill of Particulars to enhance the potential punishment to death, pursuant to 21 O.S. 1981 §§ 701.10 [21-701.10] and 701.12. The appellant filed an application for issuance of writ of prohibition and/or mandamus with this Court ordering the judge to accept the guilty plea and sentence him to life imprisonment.

¶23 This Court denied the application on December 7, 1978, reasoning that the judge was not obligated to accept the guilty plea because the appellant did not personally and orally enter the plea as required by 22 O.S. 1981 § 516 [22-516] and Dukes v. Page,

¶24 We now reaffirm our holding, noting that a defendant does not have a constitutional right to have a guilty plea accepted by the court. Stewart v. State,

¶25 In addition, although Dukes, supra, is factually distinguishable from this case in that the appellant was present at the arraignment, whereas the defendant in Dukes, was not, the reasoning behind Dukes is applicable. In Dukes, we held that guilty pleas must be entered personally and orally so the trial court can be satisfied that the defendant understands and appreciates the consequences of his plea, and that the defendant is competent to enter such a plea. This holding applies as well to a defendant who sits mute at the defense table as it does to one who is absent. Since the appellant did not personally and orally enter the plea, the judge could not have accepted it.

¶26 The appellant challenges several instructions given by the trial court to the jury. Instructions concerning murder and reduction to lesser degrees of homicide were properly given. Numerous cases have held that murder may be reduced to manslaughter. Davis v. State,

¶27 The trial court also correctly instructed the jury not to consider sympathy in the second stage of the bifurcated trial. The appellant construes the sympathy instruction to be a barrier to the jury's consideration of any mitigating circumstances presented. We cannot agree that the instruction had such an effect. The jury was expressly instructed to weigh the mitigating circumstances in determination of the severity of the sentence to be imposed.

¶28 In addition, 21 O.S. 1981 § 701.13 [21-701.13](C)(1) requires this Court, in reviewing the death sentence to determine whether it was imposed under the influence of passion, prejudice or any other arbitrary factor. The trial court's instruction against sympathy was designed to prevent "arbitrary" influences such as sympathy for the victim or her family from affecting the jury's decision.

¶29 The appellant's nineteenth assignment of error alleges that a preliminary hearing on the bill of particulars should have been held. The appellant argues that since a preliminary hearing is required in all after former conviction of felony (AFCF) cases, the same requirement should be had in capital cases.

¶30 We reject this argument for two reasons. Initially, title 21 O.S. 1981 § 701.10 [21-701.10], does not provide for a preliminary hearing on a bill of particulars filed in a first degree murder case. If the legislature had intended such a procedure, it presumably would have so stated in the statute.

¶31 Secondly, the leading case which espoused the fundamental right to preliminary hearings in AFCF cases, Carter v. State,

¶32 In addition, 21 O.S. 1981 § 701.10 [21-701.10] specifically states that, "Only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." This provision removes all possible surprise or uncertainty concerning the nature of the potential penalties from the sentencing stage of the trial. It is apparent that there is no need for a preliminary hearing on the bill of particulars in capital cases.

¶33 Lastly, we address the appellant's arguments that the State improperly proved both aggravating circumstances in the sentencing stage of his trial. He first argues that evidence improperly introduced in the first stage was erroneously incorporated into the second stage when the State relied on that evidence to support the contention that the murder was especially heinous, atrocious and cruel. Due to the fact that this case must be remanded for a new trial, we need not discuss all the error alleged concerning this matter. Suffice it to say that we presume the second trial will be conducted properly, thus the error alleged herein should be alleviated.

¶34 We cannot agree with the appellant's second argument that the aggravating circumstance alleging he had previously been convicted of a felony involving the use or threat of violence to the person was improperly proven. The State offered as evidence to prove the aggravating circumstance the judgment and sentence of the appellant's 1976 rape conviction, the information charging him with that crime, and the limited personal testimony of the victim. He argues initially that the State informed him the prior conviction would be proved only by the use of court records. It must be noted, however that during the pre-trial arguments concerning this matter the prosecutor informed the judge and the appellant that he reserved the right to call witnesses to support the allegation, and would provide the appellant with names and addresses should he decide to call them. The appellant later conceded that he had received an endorsed list of witnesses in which the name of the victim was included, and that he knew why her name was listed. Thus, the State complied with the statutory mandate of 21 O.S. 1981 § 701.10 [21-701.10] that, "Only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." The evidence was timely made known, and the appellant was not surprised thereby.

¶35 The appellant additionally argues that the State should not have been allowed to go behind the judgment and sentence of the rape conviction to prove that he had been previously convicted of a felony involving the use or threat of violence to the person. The appellant argues that neither the information charging him in that case nor the testimony of the victim should have been allowed into evidence during the sentencing hearing. He cites Baker v. State,

¶36 The aggravating circumstance in question reads as follows: "The defendant was previously convicted of a felony involving the use or threat of violence to the person." 21 O.S. 1981 § 701.12 [21-701.12](1). Thus, the State is required to go beyond simple proof that a defendant in a capital case had prior felony convictions to establish the aggravating circumstance. The State must additionally prove that the prior felonies involved the use or threat of violence to the person. The fact that the prior felonies were committed and that the defendant committed them are properly and most easily proven through the use of the judgment and sentence. However, the element that the felonies involved the use or threat of violence is not so easily and summarily proven. It is therefore necessary that the State present sufficient information concerning the prior felony convictions to support its contention.

¶37 The necessity for additional information concerning the nature of the prior convictions to be made known to the trier of fact is obviated by two examples. First we take the example of a person who, not unlike the appellant, stands to be sentenced for murder in the first degree with a prior conviction of rape. One might be led to assume from the face of the crime that rape necessarily involves the use or threat of violence to the victim. It is possible, however, that the rape conviction stemmed not from acts or threats of violence on the part of the defendant, but through sexual intercourse with one incapable of consent. In such a case, the rape conviction would not support the aggravating circumstance.

¶38 A second example would be that of a person who stands before the trier of fact in the capital sentencing stage with a prior conviction of murder in the second degree. Once again, as in the above example, the crime seems to imply on its face the use or threat of violence. However, it is possible that the murder conviction may have resulted from the fact that the defendant, while driving under the influence of intoxicants after having been previously convicted of driving under the influence of intoxicants, wrecked his automobile and caused the death of his passengers. The person caused the death of the passengers while in the commission of a felony (i.e. driving while under the influence of intoxicants, second offense, See, 47 O.S. 1981 § 11-902 [47-11-902]), thereby supporting a murder in the second degree conviction, but no one would say that the crime involved the use or threat of violence to the person.

¶39 Thus, in many cases, to allege prior convictions, without more, could very well result in an erroneous finding by the trier of fact that previous felonies support the aggravating circumstance, when, in truth they do not. This would result in a gross miscarriage of justice.

¶40 We realize that the argument might be made that a defendant in a position similar to those described above could simply produce evidence to rebut the implication that his previous felonies involved the use or threat of violence. Such a requirement, however, would amount to a shift in the burden of proof onto the appellant's shoulders to prove the absence of the aggravating circumstance. Although the appellant may rightfully be required to raise any mitigating circumstances he wishes the trier of fact to consider, he certainly cannot be required to disprove the aggravating circumstances alleged. In Mullaney v. Wilbur,

¶41 We therefore hold that the following must be the procedure concerning the State's allegation of 21 O.S. 1981 § 701.12 [21-701.12](1) in this and all future capital cases: First, as mandated by § 701.10, the defendant must be given due notice of all evidence in aggravation the State intends to present; second, the judge must review the evidence proffered by the State in support of its allegation in camera to ensure that the felonies did indeed involve the use or threat of violence to the person; third, upon a finding by the trial court that the prior felony convictions did involve the use or threat of violence to the person, the defendant must be given the opportunity to personally stipulate that the prior felony conviction(s) alleged by the State did involve the use or threat of violence to the person. Counsel for the defendant must not be allowed to so stipulate for him. The judge must satisfy himself that the defendant understands and appreciates the nature of the proposed stipulation and the consequences potentially arising from either an agreement or a refusal to stipulate before he may accept the defendant's decision.

¶42 If the defendant stipulates, the State's proof of the aggravating circumstances must be limited to introduction of the judgment and sentence in the prior felonies along with the defendant's written stipulation that the felonies involved the use or threat of violence to the person. If the defendant refuses to so stipulate, the State shall be permitted to produce evidence sufficient to prove that the prior felonies did involve the use or threat of violence to the person. We emphasize that prosecutors and trial courts should exercise informed discretion in permitting only the minimal amount of evidence to support the aggravating circumstances. We do not today authorize the State to re-try defendants for past crimes during the sentencing stage of capital cases.

¶43 In the present case, we cannot say that the prosecutor overstepped permissible bounds in proof of the aggravating circumstance. The victim's testimony did not provide gruesome details of the violence committed upon her by the appellant. She simply identified the appellant as the man who raped her, and testified that he used a knife to threaten her life during the commission of the crime. Likewise, the information charging the appellant in that case served only to inform the jury that the crime involved the use or threat of violence. Although we hold that there was no error in this aspect, we emphasize that the rules herein set forth shall apply to the re-trial of this case. ⁵

¶44 The remainder of the appellant's allegations of error need not be discussed. They concern issues peculiar to the trial giving rise to this appeal. Due to the fact that the appellant must be afforded a new trial, no opinion on the issues are necessary.

¶45 For the reasons herein stated, we REVERSE the appellant's conviction and REMAND the case for further proceedings not inconsistent with this opinion.

CORNISH, J., concurs.

BRETT, P.J., concurs in part and dissents in part.

Footnotes:

¹ We note that under 21 O.S. 1981 § 701.12 [21-701.12](7), the propensity of a defendant to commit future crimes may be used as an aggravating circumstance to justify imposition of the death sentence, if listed in the bill of particulars. In the present case the State failed to do so. If the prosecutor wishes to properly make such an argument on retrial, the statutory provisions must be complied with.

² The evidence consisted of a portion of the wall of the apartment adjacent to the victim's which contained a fingerprint matching the appellant's; photographs of fingerprints matching the appellant's which were also found in that apartment; testimony concerning those fingerprints; and evidence concerning the possibility he crawled through the attic-way.

³ It should be noted that the judge who allowed the evidence to be introduced was one other than the judge who presided over the motion in limine.

⁴ We emphasize that the motion in limine is not binding on the retrial of this case. We leave to the trial court the decision whether to delete that part of the appellant's confession, should the issue again be raised.

⁵ The record in this case does not reflect that the State proved that the appellant was either represented by counsel or intelligently waived representation in his former conviction. Should the State attempt to prove the former conviction as an aggravating circumstance on re-trial, it has the burden to prove the above. Failure to do so will render the former conviction inadmissible. See, Tucker v. State,

BRETT, Presiding Judge, concurring in part and dissenting in part:

¶1 While I agree with the majority opinion that this case must be reversed due to error present at trial, I find that I cannot agree with the opinion's treatment of the appellant's assertion that the use at trial of photographs of the victim was error. In my opinion neither the eight color slides depicting specific wounds on the victim's body at the morgue, nor the sixteen by twenty inch black and white photograph of the victim at the scene of the crime should have been admitted into evidence.

¶2 The test used by this Court to determine whether pictures of a homicide victim made subsequent to his death are admissible into evidence is that

. . . they are inadmissible unless they are relevant to some material issue and would reasonably assist the jury in the determination of the defendant's guilt, and this relevancy must outweigh the danger that the jury would substitute emotion for reason as a basis of their verdict. Oxendine v. State,

The State argues that the eight color slides were necessary to illustrate the testimony of the medical examiner. However, the medical examiner testified that the wounds depicted in the color slides would not be difficult to describe to the jury without slides and further were not necessary to explain the cause of death. Further, there was no issue or controversy as to the cause of death. These color slides could not aid in the determination of the appellant's guilt, but could only serve to prejudice his right to a fair trial by their gruesome nature and size. The majority opinion mistakenly relies on Bills v. State,

¶3 As for the sixteen by twenty inch black and white photograph taken of the victim at the scene of the crime, there may be some relevance to show the position of the body at the scene. However, I find that because of the large size of the picture, this relevancy is outweighed by the danger that the jury would substitute emotion for reason as a basis of their verdict. Oxendine, supra, at 943.

BREWER v. STATE

1986 OK CR 55
718 P.2d 354

Case Number: F-83-677

Decided: 04/18/1986

Oklahoma Court of Criminal Appeals

Appeal from the District Court of Tulsa County; Margaret Lamm, District Judge.

Benjamin Brewer, appellant, was convicted of Murder in the First Degree, After Former Conviction of a Felony, in the District Court of Tulsa County, Case No. CRF-78-2137, was sentenced to death, and he appeals. AFFIRMED.

Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

[718 P.2d 359]

¶1 The appellant, Benjamin Brewer, was convicted of First Degree Murder (21 O.S. 1981 § 701.7 [21-701.7]) and sentenced to death in Tulsa County District Court, Case No. CRF-78-2137, in 1979. This Court reversed the conviction on appeal because appellant had not received a fair trial. Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982). Upon retrial, appellant was again convicted of First Degree Murder and again sentenced to death. We affirm.

¶2 Karen Joyce Stapleton was found murdered in her Tulsa County apartment on August 17, 1978. She had died as a result of twenty stab wounds. Physical evidence introduced at trial corroborated Brewer's confession that he had killed Stapleton. The main issue of fact at trial was Brewer's sanity at the time of the slaying.

I.

¶3 In his first and second assignments of error, the appellant claims that his motion to dismiss should have been sustained because the intentional overreaching by the prosecutor in the first trial (a) gave rise to an exception to the general rule that retrial is not barred by double jeopardy when the appellant requests the same and (b) denied him his constitutional right to a fair and speedy trial.

¶4 The general rule is that double jeopardy principles do not bar retrial following appellate reversal. United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Under that rule, retrial is clearly not a violation of double jeopardy in this case as the reversal was granted at appellant's request.

¶5 Nevertheless appellant argues that this case falls under another category of cases, namely those in which double jeopardy precludes retrial following a mistrial if the defendant was goaded into requesting the mistrial by prosecutorial overreaching designed to provoke the mistrial. See, United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976)

¶6 Without deciding whether the mistrial rule should ever be applied to reversals on appeal, we find that the retrial in this case was not barred by double jeopardy because in order to invoke double jeopardy as a bar to retrial following a mistrial, the appellant must show not only that there was error but that such error was committed by the prosecution for the purpose of forcing the defendant to move for a mistrial. Divans v. California, 434 U.S. 1303, 98 S.Ct. 1, 54 L.Ed.2d 14 (1977). The record is devoid of evidence that District Attorney Fahis was provoking a mistrial because there was a danger of acquittal or because a retrial would afford the prosecution a more favorable opportunity to convict the defendant. "Only where the governmental conduct in question is intended to `goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Oregon v. Kennedy, 456 U.S. 667, 676, 102 S.Ct. 2083, 2089, 72 L.Ed.2d 416 (1982).

¶7 Appellant filed a supplemental brief urging this Court to modify his sentence to life imprisonment on the basis of a recent United States Supreme Court decision, Morris v. Matthews, ___ U.S. ___, 106 S.Ct. 1032, 89 L.Ed.2d 187 (1986). Inasmuch as his argument is based on the premise that jeopardy bars retrial, a contention we reject, this argument must also fail.

II.

¶8 We also reject the appellant's claim that the lapse of several years between the commission of the crime and the trial because of the reversal denied him his right to a fair speedy trial. We are cognizant of the greater difficulty involved in proving a defense five years after the fact. But at the same time, the State's case is also harder to prove after such a delay. Unfortunately the wheels of justice often turn slowly. It is no more a disadvantage or advantage to one party than to the other that the case was not properly tried the [718 P.2d 360] first time. We have already determined that the errors which mandated reversal of the case were not committed for the purpose of obtaining a new trial at a more favorable time. Thus, we sympathize with the appellant's plight but find no constitutional error. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966) (a defendant who obtains a reversal of a conviction through appeal may be retried in the normal course of events, notwithstanding the delay incident to such legal proceedings).

III.

¶9 In his third assignment of error the appellant contends the trial court erred in overruling his motions to strike the bill of particulars and to accept his plea of guilty. The appellant had attempted to plead guilty in 1978 before the State filed a bill of particulars seeking the death penalty. Appellant has twice urged this Court to rule the district court had to accept the plea and impose life imprisonment. Twice this Court has rejected his argument.

¶10 Appellant's admitted reason for wanting to have his guilty plea accepted is his belief that entering a guilty plea to first degree murder before a bill of particulars is filed precludes the imposition of the death penalty. We find no authority for this theory. It is clear from reading the statutes that imposition of the death penalty is not contingent upon the filing of a bill of particulars.

¶11 A person who is convicted of or pleads guilty or nolo contendere to murder in the first degree is subject to punishment by death or by imprisonment for life. 21 O.S. 1981 § 701.9 [21-701.9]. The death penalty cannot be imposed unless at least one statutory aggravating circumstance is found to exist beyond a reasonable doubt, and the State cannot present evidence in aggravation that has not been made known to the defendant prior to trial. 21 O.S. 1981 §§ 701.11 [21-701.11] and 701.10, respectively.

¶12 The filing of a bill of particulars is not required per se by statute but is simply written notice of which aggravating circumstances the State intends to prove and what evidence will be introduced to prove them. of course if the defendant pleads not guilty, once trial has commenced it is too late for the State to notify the defendant of what evidence in aggravation will be relied upon. Thus, no evidence can be presented on which the judge could instruct and from which the jury could find beyond a reasonable doubt that an aggravating circumstance was present, justifying imposition of the death penalty.

¶13 But when a defendant pleads guilty or nolo contendere to first degree murder, there is no commencement of a trial to mark the deadline for notice by the State. In reading 21 O.S. 1981 § 701.10 [21-701.10] in conjunction with 22 O.S. 1981 § 973 [22-973], it is clear that under these circumstances the court, upon the suggestion of either party that there are mitigating or aggravating circumstances to be considered, may in its discretion hear the evidence at a specified time and upon notice to the adverse party. Unlike commencement of a trial, acceptance of a guilty plea does not preclude the filing of a bill of particulars.

¶14 Even if this Court were to find that the trial court erred in the case at bar in failing to accept appellant's guilty plea, there is no reason to believe that life imprisonment, rather than death, would have been imposed by the court. Error, if any, was therefore harmless.

IV.

¶15 That the trial court improperly instructed the jury on the defense of insanity is appellant's fourth assignment of error. The trial court instructed that the defendant is presumed to be sane until a reasonable doubt of his sanity is raised, but that if a reasonable doubt is raised by sufficient evidence, the State then must prove beyond a reasonable doubt that the defendant was sane at the time of the [718 P.2d 361] commission of the crime. The appellant had requested that the jury instead be instructed only that the State has the burden to prove that the defendant was sane at the time of the commission of the crime, with no reference to the initial presumption of sanity or overcoming the presumption.

¶16 Appellant supports this contention with the Oklahoma Uniform Jury Instruction-Criminal Number 730, which recommends the instruction appellant requested and is followed by a discussion of why the OUJI Commission did not prepare instructions informing the jury of the presumption of sanity or of the defendant's burden to come forward with evidence of insanity, even though instructions on both were routinely being given when the Commission developed the Uniform Jury Instructions. The Commission felt that whether the defendant sufficiently raised a doubt about his sanity was a question of law: if the trial court does not find a sufficient doubt is raised, the jury is given no insanity instruction, but if a sufficient doubt is raised, the jury is instructed only that the State has the burden to prove beyond a reasonable doubt the defendant's sanity. The Commission feared that instructing the jury on the defendant's initial burden would confuse the jury.

¶17 We disagree with the Commission that OUJI-CR 730 does not change the law. Whether the defendant has raised a defense of insanity is a mixed question of law and fact. If any evidence of insanity is raised, the judge must instruct the jury on the defense of insanity. Johnson v. State, 621 P.2d 1162 (Okl.Cr. 1980). But unless the jury determines the defendant has presented evidence sufficient to raise a reasonable doubt as to his sanity at the time of the offense, the presumption of sanity prevails.

¶18 If a defendant presents some evidence of insanity but the trial court refuses to instruct on the defense because he or she deemed the evidence insufficient to rebut the presumption, reversible error would be committed. On the other hand, if the trial court gave the instruction, the error would be against the State, depriving it of a presumption it has a right to rely upon.

¶19 Simply put, whether any evidence has been presented is a question of law for the judge; whether enough evidence has been presented is a question of fact for the jury. We therefore find that OUJI-CR 730 standing alone is an incomplete, insufficient statement of law. The trial court did not err by refusing to give it.

¶20 Nor did the trial court err in restricting both the defense and the prosecution from explaining the burden of proof in this regard to the jury. The trial court is given broad discretion in ruling on the appropriateness of voir dire questions. Nauni v. State, 670 P.2d 126 (Okl.Cr. 1983). The jury would only have become confused if the prosecutor and defense counsel had been allowed to continue their respective arguments on who has what burden of proof.

V.

¶21 The next assignment of error concerns the admission of certain photographs and slides. This Court ruled those same exhibits properly admissible when the case was originally appealed. Brewer v. State, 650 P.2d 54, 59-60 (Okl.Cr. 1982). While this writer still thinks the sixteen by twenty photograph and the eight color slides were inadmissible for the reasons given in my dissent to that portion of the opinion, 650 P.2d at 64, it is a matter of stare decisis which the State and the trial court relied upon. In the interest of fundamental fairness, the Court's previous decision will not be reviewed.

VI.

¶22 The medical examiner testified that spermatoza was present in the victim's vaginal cavity, indicating recent intercourse, but that there were no injuries to the genitalia. The prosecutor asked the medical examiner whether there was any way he could determine "whether or not that individual, Karen Joyce Stapleton, had had intercourse before or after death?" Defense counsel object before the question could be answered, and a bench conference followed.

[718 P.2d 362]

¶23 Defense counsel accused the prosecutor of asking a prejudicial question which he knew could not be answered, clearly an unprofessional tactic. The prosecutor admitted he knew the M.E. could not make such a determination but wanted it to go before the jury "so you don't leave it open to speculation."

¶24 We are mystified by the prosecutor's reasoning. Nevertheless, the objection was sustained and the jury admonished to disregard the question; thus, the error was cured. See Stout v. State, 693 P.2d 617 (Okl.Cr. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985).

VII.

¶25 Appellant's seventh assignment of error alleges that admitting evidence of other crimes was error. The State introduced evidence to show that the appellant gained entrance to the victim's apartment not by being invited inside by the victim as he claimed in a statement to the police but by breaking into the adjacent vacant apartment (second degree burglary), passing through a common attic way, and coming in through the attic opening in the victim's apartment (first degree burglary). The State inferred that the act of sexual intercourse that appellant claimed was consensual was actually rape. The State also introduced evidence that after committing the murder, Brewer took the victim's automobile (larceny), her dog (larceny), and her purse and its contents (larceny).

¶26 We first observe that the State gave proper Burks notice of its intent to introduce the evidence and that the jury was given a limited-use instruction at the close of the evidence. See Burks v. State, 594 P.2d 771 (Okl.Cr. 1979).

¶27 As a general rule evidence of other crimes is inadmissible. Each of these crimes, however, can be properly viewed as part of the entire transaction surrounding the homicide for which Brewer was on trial. There is a logical connection between the burglaries leading up to the murder, the rape occurring about the same time as the murder, and the larcenies after the murder. In addition, the probative value of the crimes outweighed any prejudicial effect. Despite appellant's contentions, the evidence that the crimes were committed was clear and convincing. Admitting the evidence was not error. See Coleman v. State, 668 P.2d 1126 (Okl.Cr. 1983); Blackwell v. State, 663 P.2d 12 (Okl.Cr. 1983).

VIII.

¶28 The appellant next complains that a mistrial should have been granted when a statement concerning the victim's sexual proclivities was admitted into evidence through the testimony of a police officer. The statement was allegedly made by the appellant to the police officer but was not disclosed to defense counsel before trial. No objection was made at the time the officer testified. Later an objection was made and sustained, and the court agreed to admonish the jury. Defense counsel asked the court not to admonish the jury and moved for a mistrial, which was refused.

¶29 Had the appellant made a timely objection the jury would not have heard the evidence. Had the appellant not rejected the court's offer to admonish the jury, the jury would have been instructed to disregard the evidence. By failing to object when the testimony was first elicited the appellant waived any error. See Lavicky v. State, 632 P.2d 1234 (Okl.Cr. 1981).

IX.

¶30 In his ninth assignment of error the appellant alleges that his arrest was unlawful and the fruits of the arrest should have been suppressed. This Court ruled in the appeal of the first trial that the arrest was lawful. 650 P.2d at 60. No new argument or authority is offered. We again hold that the arrest was supported by probable cause and was lawful.

X.

¶31 Next the appellant argues the sentence should be modified because during voir dire the prosecutor told the jury that [718 P.2d 363] the Court of Criminal Appeals has ruled that neither the prosecutor nor the trial court may define reasonable doubt. This statement, according to appellant, indirectly indicated to the jury that if a conviction resulted, the case would be reviewed by an appellate court; thus, an arbitrary factor was inserted into the jury's consideration of both guilt or innocence and punishment, and jurors may have voted for the death penalty knowing that if they were in error it would be corrected on appeal. We find this argument ridiculous. The remark was a proper and correct statement of Oklahoma law. See Vaughn v. State, 697 P.2d 963 (Okl.Cr. 1985).

XI.

¶32 Appellant also alleges it was error to inform the jury during voir dire that if the appellant was convicted, there would be a second stage of the proceeding at which the jury would hear additional evidence and then determine punishment. After an objection was interposed, the court allowed the prosecutor to tell jurors the proceeding was bifurcated but did not allow the prosecutor to mention again that additional evidence would be presented. Although the jury should not have been told that additional evidence would be presented, we do not think the one brief remark was so prejudicial as to require reversal or modification. See 20 O.S. 1981 § 3001.1 [20-3001.1].

XII.

¶33 In his twelfth assignment of error appellant complains the trial court improperly eliminated four mitigating circumstances from the jury's consideration by refusing to instruct the jury that Benjamin Brewer "is a living, breathing, human being"; that he "has a family which is concerned about his future and who are willing to stand by him and give him support"; that he "is not guilty of the crime of First Degree Murder by reason of insanity"; and that he "is guilty only of the crime of Manslaughter in the First Degree." Three of the four alleged mitigating circumstances are not mitigating factors at all. Contrary to appellant's assertion, the trial court would have erred in giving the final two factors as the jury had already determined the appellant was sane and guilty of first degree murder. As for the fact that the appellant is a "living, breathing, human being, " all persons on trial for first degree murder fall into this category; it does not mitigate the crime.

¶34 It is true that a defendant must be permitted to present any evidence in mitigation that may be relevant to sentencing in a capital case. Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978). But in this case no evidence was presented that Brewer had a family that was concerned about his future, willing to stand by him and give him support. The trial court did not err in refusing to instruct the jury accordingly.

XIII.

¶35 Appellant's thirteenth assignment of error claims the trial court erred in failing to appoint expert witnesses for purposes of the second stage proceedings. This Court has held that there is no right to State funds to hire experts to present mitigating factors on behalf of an accused charged with a capital crime. Davis v. State, 665 P.2d 1186 (Okl.Cr. 1983).

¶36 In Ake v. Oklahoma, ___ U.S. ___, 105 S.Ct. 1087, ___, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that defendant Ake was entitled to the assistance of a psychiatrist on the issue of future dangerousness, an aggravating circumstance argued at the sentencing stage of the capital trial. That case, however, is distinguishable in that a psychiatrist testified for the State that Ake did pose a threat of continuing criminal violence. In the case at bar, the only psychiatrist who testified appeared on behalf of the appellant. Thus, the State did not have a strategic advantage over Brewer that would create a risk of error in the proceeding absent a defense witness to counter balance the State's expert testimony. The trial court [718 P.2d 364] did not err in refusing to appoint the requested experts.

XIV.

¶37 The State sought to prove the appellant had been previously convicted of a crime involving the use or threat of violence to a person by introducing certified copies of a judgment and sentence for rape and the docket sheet regarding the case. Appellant stipulated that his prior conviction involved use or threat of violence but did not stipulate that he was represented by counsel. The fourteenth assignment of error alleges that the evidence presented failed to properly prove, as is required by case law, that appellant was in fact represented by counsel at the time of his prior conviction. See Tucker v. State, 499 P.2d 458 (Okl.Cr. 1972).

¶38 Brewer's first argument is that the copy of the appearance docket was not adequately certified in that the copy consists of two pieces of paper taped together, with only the bottom page bearing the court clerk's seal. It is obvious, as the State suggests, that the single docket sheet was reproduced on two sheets of paper and taped together because the docket book was larger than the photocopying ability of the machine used to make the reproduction. The instrument certified was the entire page of the felony docket book, not the one sheet of paper that bore the seal.

¶39 Brewer's second argument is that the only indication on the docket sheet that he was represented by counsel is the upper right hand corner where the name "Dick Lock" is inserted under the label "Attorneys For Defendant", and that that alone is insufficient to prove he was represented by counsel. We cannot agree. The State introduced evidence that Brewer was represented by an attorney, and Brewer has never attempted to refute the evidence. We find the rape conviction was properly admitted. See Collums v. State, 654 P.2d 1070 (Okl.Cr. 1982).

XV.

¶40 The fifteenth assignment of error claims modification to life imprisonment is necessitated by improper comments made by the prosecuting attorneys. The first comment cited as error was actually an argument by defense counsel. The next four occurred during voir dire. Appellant claims the questions posed were designed to invoke sympathy for the victim. We disagree. Attorneys for both sides engaged in an effort to explain that the jury should not allow sympathy for the victim or for the appellant to serve as a basis of their verdict. None of the comments cited were improper or prejudicial.

¶41 Appellant argues that the prosecutor's characterization of the twenty-year-old victim as "this little girl" and "this young girl" during cross-examination was also designed to invoke sympathy. Although "young woman" would have been a more accurate description of the victim, we do not find these two comments to be prejudicial. The jury, having viewed many pictures of the victim, and having heard that she had been married and divorced, knew the victim was not a little girl.

¶42 The next two comments complained of were made during closing argument. Both were met with objection. The first objection was sustained but an admonishment was refused. We do not think one was necessary. In the second comment, the prosecutor remarked that he, being a man, could not imagine how horrible it must be to be raped. We find this comment to be within the permissible range of closing argument, and that the objection was properly overruled.

¶43 Several comments made allegedly cast aspersions on defense counsel and/or castigated defense witness Dr. Gagliano, a psychiatrist. The first occurred when in cross-examination the prosecutor asked Dr. Gagliano if it was correct to say that he had provided defense counsel with a defense and that if he had not provided them with the defense of insanity that they would have had to think of something else. [718 P.2d 365] The trial court sustained the objection and admonished the jury to disregard the statement; thus any error was cured. See Williams v. State, 702 P.2d 382 (Okl.Cr. 1985).

¶44 The remaining remarks were made during closing argument. One was a correct statement of law concerning expert testimony and was not improper. Others were fair inferences from Dr. Gagliano's testimony. One comment, however, was improper. When defense counsel was objecting to certain statements, the prosecutor said, "Let's defend old Dr. Gagliano. Let's defend him." This unprofessional outburst is similar to one made during Brewer's first trial that contributed to the need for a retrial. Brewer, 650 P.2d at 57-58. In the first trial, however, there were numerous errors that, taken together, demonstrated appellant's denial of a fair trial. This time appellant was given a fair, though imperfect, trial. Neither modification nor reversal is mandated by this single, uncured error.

¶45 Another remark made in closing argument is objected to for the first time on appeal. As it was brief and did not result in fundamental error, any error was waived. The final two comments complained of were met with timely objections, which were sustained, and followed by admonitions by the trial court for the jury to disregard the remarks. Both comments were improper, but they did not determine the verdict. The errors were cured by the admonition. See Stout v. State, 693 P.2d 617 (Okl.Cr. 1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3489, 87 L.Ed.2d 623 (1985).

XVI.

¶46 The next assignment of error alleges the trial court erred in refusing to instruct the jury at the second stage that if they could not agree on a penalty within a reasonable time, the trial court would impose life imprisonment. This Court has considered this argument in the past and found it to be without merit. See, e.g., Brogie v. State, 695 P.2d 538 (Okl.Cr. 1985). Our stance has not since changed.

XVII.

¶47 Nor has our stance changed on appellant's argument that excluding jurors who are unequivocally opposed to the death penalty denies an accused of a fair and impartial cross-section of the community. See Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986).

XVIII.

¶48 Appellant filed a supplemental brief claiming that a recent Tenth Circuit Court of Appeals case mandates reversal because the trial court did not instruct the jury sua sponte that the State had to prove beyond a reasonable doubt that he did not kill in the heat of passion. The case appellant relies on, United States v. Lofton, 776 F.2d 918 (10th Cir. 1985), is distinguishable from the case at bar.

¶49 Defendant Lofton's affirmative defense to first degree murder was that she had killed her husband in the heat of passion or adequate provocation, which would constitute the lesser included offense of voluntary manslaughter. The instructions given did not advise the jury that this was Lofton's sole defense to murder. On the contrary, the jury was instructed to consider manslaughter only if it found Lofton not guilty of first degree murder.

¶50 In the case at bar the defense was insanity. The instruction on manslaughter was given as a lesser included offense, not as a defense to the charge of murder. We hold that under these circumstances the Lofton instruction is not required.

XIX.

¶51 Finally this Court must determine whether the evidence supports the aggravating circumstances found and whether the sentence was imposed under the influence of passion, prejudice, or any other arbitrary factor. 21 O.S.Supp. 1985 § 701.13 [21-701.13]¹

[718 P.2d 366]

¶52 We have already determined that the evidence supported a finding that Benjamin Brewer had been previously convicted of a felony involving the use or threat of violence to the person. Likewise we find that the record amply supports that the manner of death was especially heinous, atrocious, and cruel.

¶53 Appellant argues that the passage of time between the homicide and trial constituted an arbitrary factor, and that the large picture of the victim, the allegation that Brewer raped his victim, and improper closing argument and cross-examination of witnesses resulted in a verdict based on passion or prejudice. We have examined the record thoroughly and conclude that the death sentence was imposed not due to passion, prejudice, or any other arbitrary factor, but because of the overwhelming evidence of guilt and the nature of this gruesome crime.

¶54 The judgment and sentence is AFFIRMED.

BUSSEY, J., specially concurs.

PARKS, P.J., concurs in results.

Footnotes:

¹ Comparing appellant's sentence to similar crimes to determine whether the sentence of death is excessive or disproportionate is no longer mandated by statute. See 1985 Okla. Sess.Laws, ch. 265, § 1. When first presented with the question of whether this statute should be applied retroactively, this author believed it should not. See Green v. State, 713 P.2d 1032 (Okl.Cr. 1985). Upon reconsideration, I believe the change is procedural only and should be applied retroactively. See Foster v. State, 714 P.2d 1031 (Okl.Cr. 1986). Insofar as the Green opinion is inconsistent with Foster, it is hereby overruled.

BUSSEY, Judge, specially concurring:

¶1 Finding that the evidence overwhelmingly supports the judgment and sentence of death, and that the record is free of any error requiring modification or reversal, I concur.

1991 OK CR 85
814 P.2d 505
STATE OF OKLAHOMA, PETITIONER, v. BENJAMIN BREWER, RESPONDENT.
Case No. F-83-677.
August 2, 1991

51 F.3d 1519

Benjamin BREWER, Plaintiff-Appellant,
v.
Dan REYNOLDS, Defendant-Appellee.

No. 94-5072.

United States Court of Appeals,
Tenth Circuit.

April 5, 1995.

DISCUSSION

B.

III. CONCLUSION