Brenda E Andrew
White Female; 5 ft. 3 in. tall; 110 pounds; Brown hair; Brown eyes;
ABD: SCAR C LOW 4" c section
CHE: DISC L LOW BIRTH MARK
2001-6189 - Oklahoma County - Murder In The First Degree - 09/22/2004
2001-6189 - Oklahoma County - Conspiracy To Commit Murder In The First
Degree - 09/22/2004 - 10Y - Incarceration
was a stay-at-home mom and Sunday school teacher. She had married her
high school sweetheart, Rob, and together they had two beautiful
children. But at the age of 40, Brenda was having a midlife crisis.
She and Rob separated.
In November of 2001, Rob stopped
by to pick up the kids and went into the garage to help Brenda with
the furnace pilot light. Moments later, Brenda called 911. Her husband
had been shot to death and she had been wounded. She told police two
gunmen had attacked them in their garage.
Police investigating the crime
quickly discovered that Brenda had been having an affair with a fellow
church member and insurance salesman named James Pavatt. James had
recently sold Rob a million-dollar life insurance policy. Friends also
said Rob was feared for his life, and had become suspicious of his
wife and the insurance agent.
When police went to arrest
Brenda, she was gone. So was James Pavatt. Three months later, the
fugitive couple was arrested at the Mexican border. James was tried
first. He was convicted and sentenced to death.
Then, it was Brenda's turn.
Prosecutors argued that she helped her lover kill her husband for
money and a chance at a new life. She even shot herself in the arm to
throw cops off her trail. Despite defense attempts to put the blame on
James, Brenda was found guilty and sentenced to death. She is the only
woman on Oklahoma's death row.
The Sunday School Killers
Two Former Sunday School Teachers
Conspire to Kill a Man for Nearly a Million Dollars in Life Insurance
By Beckly Smith - Voices.yahoo.com
June 21, 2007
How did two Sunday school teachers become
cold-blooded killers? An illicit love affair, an $800,000 life
insurance policy, and a man deeply in debt created a deadly
combination that ended up taking the life of Rob Andrew.
It happened on November 20, 2001 in an Oklahoma
City suburb when Brenda Andrew lured her estranged husband to her home
to pick up their two children. Brenda told him that the pilot light of
the furnace was out and while he bent to fix it James Pavatt came
quietly up behind Rob and shot him in the side with a 16 gauge
shotgun. In vain, Rob grabbed at a garbage bag full of empty soda cans
trying to protect himself, but Brenda took the gun from Pavatt and
blasted her husband in the chest. Afterwards she used a .22 caliber
pistol to shoot herself in the arm and told police that she and Rob
had been the victims of masked intruders.
So, just what drove these two people to murder?
Brenda Andrew grew up in a small town in Oklahoma
in a Christian home. She was a baton twirler who never attended the
parties thrown by other kids because she did not smoke or drink. She
married her high school sweetheart Robert "Rob" Andrew and became a
stay at home mom to their two children and a Sunday school teacher.
As she turned 40, it seemed Brenda was having a
mid-life crisis and she began a series of illicit sexual affairs. One
of them was with James Pavatt, a member of the same church as the
Andrews and a fellow Sunday school teacher. Pavatt, a life insurance
agent, socialized with Rob, Brenda and their children, and had
recently sold an $800,000 life insurance policy to Rob. Pavatt
divorced his wife, Suk Hui, in the summer of 2001. Brenda Andrew filed
divorce papers in late September of that same year.
The brake lines on Rob Andrew's car were severed
sometime on the night of October 25-26, 2001. The next day Rob was
notified of an "emergency" involving his wife. The ploy did not work
as Rob had discovered the damage to his vehicle before he was harmed
and he notified police.
When Rob Andrew realized his brake lines had been
severed he asked Mr. Pavatt about removing Brenda as the beneficiary
of his life insurance policy, but was told (falsely) that since Brenda
was the owner of the policy, Mr. Andrew had no control over the
The day before Rob Andrew's funeral, James Pavatt,
Brenda Andrew and her children went on the run. Tricity and Parker
Andrew were drug on a fugitive journey through Mexico. Three months
later Pavatt and Andrew were arrested as they tried to cross the
border back into the United States.
Little is known about James Pavatt's early life,
although it is known that he was in the Air Force and served in
Southeast Asia. He was attached to the Military Police. He was married
to Suk Hui Pavatt for nine years before divorcing her in 2001. At that
time he was working as an agent for Prudential Insurance. Former
co-workers characterize him as very cold, and manipulative. One
co-worker said there was something about Pavatt that struck him as
"off-center". "He always talked about shooting dogs. Every time he saw
a dog he would talk about shooting it," the man said. Someone else who
knew Pavatt described him as "creepy."
His ex-wife said, "He wasn't the same Jim I knew
for nine years. He was the most kind person while we were married.
Something was not right with him."
James Pavatt went on trial August 25, 2003. On
September 16, 2003 he was found guilty of First Degree Murder and
Conspiracy to Commit First Degree Murder. On October 21, 2003 he was
sentenced to death.
Brenda Andrew was convicted of Conspiracy to Commit
Murder and First Degree Murder on September 22, 2004 and sentenced to
The former Sunday school teachers now sit on death
row in Oklahoma. Brenda Andrew is the only woman on Oklahoma's death
Andrew formally sentenced to death
By Nick Trougakos - NewsOK.com
September 23, 2004
Convicted murderer Brenda Andrew was defiant
Wednesday, claiming she is innocent of her husband's shooting death
even as a judge formally sentenced her to be executed.
Andrew - appearing in Oklahoma County District
Court for the first time since she was sentenced to death by a jury
July 15 - told Oklahoma County District Judge Susan Bragg she had no
involvement in the death of advertising executive Rob Andrew.
"The verdict which sentenced me to the death
penalty is an egregious miscarriage of justice, Brenda Andrew said. "I
am an innocent woman, wrongfully convicted.
Earlier, Brenda Andrew smiled as she walked into
court, handcuffed and wearing an orange prison jumpsuit. She took a
seat in the jury box and nodded to family members sitting in the
gallery, then smiled and whispered to her attorneys on several
The 40-year-old mother of two was then called to
stand in front of Bragg, surrounded by attorneys and Oklahoma County
sheriff's deputies, to hear the judge set her execution date at Dec.
An Oklahoma County jury voted on the death penalty
for Brenda Andrew after a six-week trial. The jury decided she planned
and then carried out the Nov. 20, 2001, shooting death of Rob Andrew,
39. Her co-defendant, James Pavatt, 50, was convicted in 2003 on the
same charges and also sentenced to death.
Brenda Andrew held a folded, white piece of paper
in her hand, but looked straight at the judge when she gave her
"I plan to fight for my freedom to the end and the
end is neither execution nor imprisonment, it is the complete
vindication of my name, she said. "God knows my heart and He will
deliver me out of this situation.
Three jurors showed up in court to watch the
Michael Welch, a 45-year-old Edmond mail carrier,
said he came so he could see his job through to the end and show
support for Rob Andrew's family.
Welch said he wasn't bothered by Brenda Andrew's
contention she was wrongfully convicted.
"With all the evidence that was presented in front
of me, I wouldn't change my mind one inch, he said. "What was done
wasn't an accident. It was deliberately done.
Assistant District Attorney Gayland Gieger said he
wasn't surprised by Brenda Andrew's comments.
"Ms. Andrew has shown absolutely no remorse for her
criminal actions from day one, Gieger said. "It certainly doesn't
surprise me that she continues to show no remorse after being found
guilty of murder.
Gieger's partner at trial, Assistant District
Attorney Fern Smith, said she was surprised not only by what Brenda
Andrew said, but by the way she said it, calling her demeanor flippant
"The fact that she said the jury was wrong in what
they did, that it wasn't based on the evidence, that her conviction
was egregious, Smith said, "was disrespectful to the court and to the
Defense attorney Greg McCracken said Brenda Andrew
will appeal the case "as vigorously as possible.
"She looks forward to the appeals process,
McCracken said. "She looks forward to a new trial and a new day.
McCracken and his defense partner George Miskovsky
III said there would be several grounds for appeal, most notably the
pretrial publicity they said made it impossible for Brenda Andrew to
get a fair trial.
"We respect what the jury did, they worked hard,
McCracken said. "But our opinion is that it was just too difficult for
her to get a fair jury in this county.
Welch said the jury was diligent in its
"We went by the laws that the judge set down for
us, Welch said. "We went over things and went over things. We went
over all the evidence and that's what our decision was.
Gieger also defended the jury's decision.
"They walked out of the courtroom feeling that they
made the right decision, he said. "Today a sentence was imposed that
was a just result for this terrible crime that Brenda Andrew and James
Pavatt committed against Mr. Andrew.
Brenda Andrew, meanwhile, defended her character
and directed thinly veiled criticism toward Rob Andrew's family.
"I love my children dearly, she said. "I am a
loving, gentle and compassionate mother.
"I noticed the supposed God-fearing people who
celebrated my death sentence and I see that as human sickness.
Andrew to be only woman on death
September 19, 2004
Formal sentencing on murder conviction coming
Wednesday. In a matter of days, convicted murderer Brenda Andrew will
take up a unique position in Oklahoma's Corrections Department.
She'll be the only woman in the state on death row.
Andrew is scheduled to appear in Oklahoma County
District Court on Wednesday to hear a judge hand down her formal
sentence for the murder of her husband, Oklahoma City advertising
executive Rob Andrew.
Attorneys said the hearing should be nothing more
than a procedural gathering where Oklahoma County District Judge Susan
Bragg will affirm the jury's decision to execute Brenda Andrew, 40.
"This is a legal formality at this point,"
Assistant District Attorney Gayland Gieger said. "I think it's going
to be kind of short and sweet."
The last time Bragg, Brenda Andrew and Gieger met
in the same room, there was nothing short or sweet about it.
The jury convicted Brenda Andrew on July 13,
deciding she was guilty of the Nov. 20, 2001, shotgun shooting of Rob
Andrew, 39. Jurors voted two days later to send her to death row. The
decision brought an end to nearly six weeks of emotional witness
testimony, graphic evidence and contentious arguments by attorneys.
Gieger said Bragg likely will not allow witnesses
to be called Wednesday but will give lead defense attorney Greg
McCracken and his client a chance to speak if they wish.
George Miskovsky III, McCracken's partner at trial,
said he doesn't expect Brenda Andrew will say anything, but he didn't
close the door on the possibility.
"Based on the fact that this is going to be
appealed," Miskovsky said, "I don't anticipate her making any comment.
But she might. You never know what people are going to do."
State law calls for death sentence decisions to be
appealed automatically. Recent examples show the appeals process will
likely last about 7 years.
At Wednesday's hearing, Bragg will sign a document
known as a death warrant in order to set an execution date. The date
is usually 60 to 90 days from the hearing but will be a formality in
light of the appeal, Gieger said.
After the hearing, Brenda Andrew will be moved from
the Oklahoma County jail to the Lexington Assessment and Reception
Center for processing, Corrections Department spokesman Jerry Massie
said. She then will move to Mabel Bassett Correctional Center in
McLoud, where female death row inmates are housed.
Her prison life will be a far cry from where she
was in the months leading up to the night Rob Andrew was killed by 2
close-range shotgun blasts.
The couple shared a spacious home in a respectable
northwest Oklahoma City neighborhood. Brenda Andrew stayed home and
raised the couple's 2 children, Tricity and Parker, while Rob Andrew
worked as an executive at Jordan and Associates.
Evidence and testimony at trial showed the Andrews'
life was not picture perfect.
2 men testified they had affairs with Brenda Andrew
while she was married, and several pastors said the couple sought
marriage counseling on numerous occasions. She filed for divorce a
month and a half before Rob Andrew's death.
Prosecutors argued Brenda Andrew also was having an
affair with Rob Andrew's insurance agent, James Pavatt. Attorneys said
Pavatt and Brenda Andrew conspired to kill Rob Andrew for an $800,000
life insurance policy.
Gieger told jurors during closing arguments that
Pavatt ambushed Rob Andrew and shot him in his side, then Brenda
Andrew took the gun -- Rob Andrew's own 16-gauge shotgun -- and shot
him in the neck as he lay prone on his garage floor.
Pavatt -- who was convicted in 2003 of murdering
Rob Andrew and sentenced to death -- and Brenda Andrew fled the
country the day before Rob Andrew's funeral.
The 2 were on the run for 3 months. They were
arrested re-entering the United States from Mexico.
Pavatt would do anything for love, ex-wife
September 5, 2003
When murder defendant James Pavatt was in love,
that was what mattered most, one of his ex-wives testified Wednesday.
Suk Hui Pavatt admitted it was hard to testify
against her ex- husband because she still cares about him.
"If he was in love with someone, he would do
anything for that person," she said. They were married for nine years
before James Pavatt divorced her Sept. 6, 2001, during a time when
prosecutors say James Pavatt and his co-defendant, Brenda Andrew, were
planning a killing.
Pavatt, 49, and his lover, Brenda Andrew, 39, are
accused of the Nov. 20, 2001, shooting death of Robert "Rob" Andrew,
her estranged husband, as he came to pick up his children for the
Brenda Andrew filed for divorce Oct. 3, 2001.
Testimony in the 7th day of Pavatt's trial is
expected to continue today in Oklahoma County District Court before
District Judge Susan Bragg.
Prosecutors are seeking the death penalty. Brenda
Andrew's trial is set for Jan. 12.
Pavatt denies he was there the night of the
killing. He admits to having an affair with Brenda Andrew, but says he
is being accused of murder because of his association with her.
Suk Hui Pavatt testified she was shocked when her
husband began talking about a divorce.
She told jurors her husband first said he wanted a
divorce because she didn't get along with his family.
James Pavatt then said the divorce was for her
protection because of problems with his previous duty in the Special
Forces, she testified.
"He said Korea was the only place that was safe in
the whole world," said Suk Hui Pavatt, who lives in Arizona.
She said she stayed a short time in Korea before
returning to Oklahoma City because James Pavatt told her he had made
the biggest mistake in his life.
Suk Hui Pavatt found a different man when she
returned, she testified.
"He wasn't the same Jim I knew for nine years," she
said. "He was the most kind person while we were married. Something
was not right with him."
Even though the reconciliation didn't work, James
Pavatt borrowed her red 1992 Chevrolet Beretta on Nov. 25, 2001, the
day he fled Oklahoma City with Brenda Andrew and her 2 children.
It was the vehicle they were arrested in Feb. 28,
2002, in Hidalgo, Texas, while trying to re-enter the United States
5 of the 8 witnesses to testify have told how
Brenda Andrew openly talked about her dislike for the man she had been
married to for 17 years.
The night before Rob Andrew was killed, Brenda
Andrew repeatedly declared how she hated her estranged husband,
Cynthia Balding, the mother of 1 of Andrew's daughter's friends.
"I hate him. I hate him. I hate him," Balding
testified Brenda Andrew said in a Nov. 19, 2001, late-night telephone
call. "I was shocked the way she said she hated him."
2 of Brenda Andrew's lovers testified about how she
would talk about her problems with Rob Andrew while she was still
Rick Nunley, a family friend, and James Higgins, an
Oklahoma City grocer, told jurors about the affairs they had with
Brenda Andrew while she was still married to Rob Andrew.
Higgins said, "She wished he would die so she could
get his money and go on with her life."
Nunley and Higgins testified that Brenda Andrew
introduced Pavatt to them.
Nunley, an Oklahoma City reservoir engineer,
testified he met Brenda Andrew when she worked with his ex-wife at a
bank. The two couples were friends for about 10 years before he said
their affair began after he filed for divorce.
The sexual relationship lasted from late October
1997 until March 1998, Nunley testified.
Brenda Andrew called Nunley from Hidalgo, Texas,
when she and Pavatt were arrested.
Brenda Andrew was wanting his help in getting in
touch with her attorney, Greg McCracken, and her sister, Kim Bowlin,
"She said she had important attorney papers in the
children's luggage -- a written confession," Nunley testified.
The letter that prosecutors say was written by
Pavatt was written to Tricity Andrew. The letter is expected to be
used in the trial with a prosecution handwriting expert expected to
verify Pavatt wrote it.
Court of Criminal Appeals of Oklahoma
Andrew v. State
Brenda Evers ANDREW, Appellant v. STATE of Oklahoma, Appellee.
June 21, 2007
Greg McCracken, George Miskovsky, III, Andrea D.
Miller, Oklahoma City, OK, attorneys for defendant at trial.Fern
Smith, Gayland Gieger, Assistant District Attorneys, Oklahoma County,
Oklahoma City, OK, attorneys for the State at trial.William H. Luker,
James H. Lockard, Sandra Mulhair Cinnamon, Capital Direct Appeals
Division, Indigent Defense System, Norman, OK, attorneys for appellant
on appeal.W.A. Drew Edmondson, Attorney General of Oklahoma, Seth S.
Branham, Assistant Attorney General, Oklahoma City, OK, attorneys for
appellee on appeal.
¶ 1 Appellant, Brenda Evers Andrew, was charged
with First-Degree (malice) Murder in violation of 21 O.S.2001,
§ 701.7(A), and Conspiracy to Commit First Degree Murder in violation
of 21 O.S.2001, § 421, in Oklahoma County District Court Case No.
The State filed a Bill of Particulars alleging the existence of three
(3) aggravating circumstances: (1) that the person committed the
murder for remuneration or the promise of remuneration or employed
another to commit the murder for remuneration or the promise of
remuneration; (2) the murder was especially heinous, atrocious, or
cruel; and (3) the existence of the probability that the defendant
will commit criminal acts of violence that would constitute a
continuing threat to society. See 21 O.S.2001, § 701.12(3), (4) and
¶ 2 A jury trial was held before the Honorable
Susan W. Bragg, District Judge, in June and July 2004. The jury
found Appellant guilty of both counts, and found the existence of two
aggravating circumstances: the murder was for remuneration and the
murder was especially heinous, atrocious, or cruel. The jury set
punishment at death on the first-degree murder count and ten (10)
years and a $5000.00 fine on the conspiracy count. Judge Bragg
formally sentenced Appellant in accordance with the jury verdict on
September 22, 2004.2
¶ 3 Appellant's husband Robert (“Rob”) Andrew was
shot to death at their Oklahoma City home sometime around 7:00 p.m. on
November 20, 2001. Appellant was also shot in the arm during this
¶ 4 The Andrews were separated at the time and Rob
Andrew was at the home to pickup the two minor children for visitation
over the Thanksgiving holiday. The custom was that Appellant would
bring the children out to the car and Rob would take them from there.
However, on this night, Appellant asked Rob Andrew to come into the
garage to light the pilot light on the furnace because it had gone
¶ 5 Appellant's version of the events from that
point on was that as Rob was trying to light the furnace, two masked
men entered the garage. Rob turned to face the men and was shot in
the abdomen. He grabbed a bag of aluminum cans to defend himself and
was shot again. Appellant was hit during this second shot.
¶ 6 Undisputed facts showed that after that,
Appellant called 911 and reported that her husband had been shot.
Emergency personnel arrived and found Rob Andrew's body on the floor
of the garage; he had suffered extensive blood loss and they were
unable to revive him. Appellant had also suffered a superficial
gunshot wound to her arm. The Andrew children were found in a
bedroom, watching television with the volume turned up very high,
oblivious to what had happened in the garage.
¶ 7 Appellant was taken to a local hospital for
treatment. Her behavior was described by several witnesses,
experienced in dealing with people in traumatic situations, as
uncharacteristically calm for a woman whose husband had just been
¶ 8 Rob Andrew was shot twice with a shotgun. A
spent 16-gauge shotgun shell was found in the garage on top of the
family van. Rob Andrew owned a 16-gauge shotgun, but had told
several friends that Appellant refused to let him take it when they
separated. Rob Andrew's shotgun was missing from the home. One
witness testified to seeing Appellant at an area used for firearm
target practice near her family's rural Garfield County home eight
days before the murder and he later found several 16-gauge shotgun
shells at the site.
¶ 9 Appellant's superficial wound was caused by a
.22 caliber bullet, apparently fired at close range, which was
inconsistent with her claim that she was shot at some distance.
About a week before the murder, Pavatt purchased a .22 caliber handgun
from a local gun shop. Janna Larson, Pavatt's daughter testified
that, on the day of the murder, Pavatt borrowed her car and claimed he
was going to have it serviced for her. When he returned it the
morning after the murder, the car had not been serviced, but Larson
found one round of .22 caliber rimfire ammunition on the floorboard.
In a conversation later that day, Pavatt told Larson never to repeat
that Appellant had asked him to kill Rob Andrew, and he threatened to
kill Larson if she did. He also told her to throw away the .22 round
she found in her car.
¶ 10 Police searched the home of Dean Gigstad, the
Andrews' next-door neighbor, after the Gigstads reported finding
suspicious things in their home. Police found evidence that someone
had entered the Gigstads' attic through an opening in a bedroom
closet. A spent 16 gauge shotgun shell was found on the bedroom
floor, and several .22 caliber rounds were found in the attic itself.
There were no signs of forced entry into the Gigstad home. Gigstad
and his wife were out of town when the murder took place, but
Appellant had a key to their home. The .22 caliber round found in
Janna Larson's car was of the same brand as the three .22 caliber
rounds found in the Gigstads' attic; the .22 caliber bullet fired at
Appellant and retrieved from the Andrews' garage appeared consistent
with bullets in these unfired rounds. These rounds were capable of
being fired from the firearm that Pavatt purchased a few weeks before
the murder; further testing was not possible because that gun was
never found. The 16 gauge shotgun shell found in the Gigstads' home
was of the same brand as the 16 gauge shell found in the Andrews'
garage. Ballistics comparison showed similar markings, indicating
that they could have been fired from the same weapon. Whether these
shells were fired from the 16-gauge shotgun Rob Andrew had left at the
home was impossible to confirm because, as noted, that gun remains
¶ 11 Within days after the shooting, before Rob
Andrew's funeral, Appellant, James Pavatt and the two minor children
left the State and crossed the border into Mexico. They were
apprehended while attempting to re-enter the United States in late
¶ 12 Appellant and Pavatt met while attending the
same church. At some point they began teaching a Sunday school class
together. Appellant and Pavatt began having a sexual relationship.3
Around the same time, Pavatt, a life insurance agent, assisted Rob
Andrew in setting up a life insurance policy through Prudential worth
approximately $800,000. In late September 2001, Rob Andrew moved out
of the family home, and Appellant initiated divorce proceedings a
short time later.
¶ 13 Janna Larson, Pavatt's adult daughter,
testified that in late October, Pavatt told her that Appellant had
asked him to murder Rob Andrew. On the night of October 25-26, 2001,
someone cut the brake lines on Rob Andrew's automobile. The next
morning, Pavatt persuaded his daughter to call Rob Andrew from an
untraceable phone and claim that Appellant was at a hospital in
Norman, Oklahoma, and needed him immediately. An unknown male also
called Rob that morning and made the same plea. Rob Andrew's cell
phone records showed that one call came from a pay phone in Norman
(near Larson's workplace), and the other from a pay phone in south
Oklahoma City. Rob Andrew discovered the tampering to his car before
placing himself in any danger. He then notified the police. The
next day, Appellant told Rob that she read in the newspaper that
someone cut his brakes, but no media coverage of this event had
¶ 14 One contentious issue in the Andrews'
relationship was control over the insurance policy on Rob Andrew's
life. After his brake lines were cut, Rob Andrew inquired about
removing Appellant as beneficiary of his life insurance policy. Rob
Andrew spoke with Pavatt's supervisor about changing the beneficiary.
He also related his suspicions that Pavatt and Appellant were trying
to kill him. At trial, the State presented evidence that in the
months preceding the murder, Appellant and Pavatt actually attempted
to transfer ownership of the insurance policy to Appellant without Rob
Andrew's knowledge, by forging his signature to a change-of-ownership
form and backdating it to March 2001.4
¶ 15 In the days following the murder, Pavatt
obtained information over the Internet about Argentina, because he had
heard that country had no extradition agreement with the United
States. Larson also testified that after the murder, Appellant and
Pavatt asked her to help them create a document, with the forged
signature of Rob Andrew, granting permission for his children to
travel with Appellant out of the country. Appellant also asked
Larson to transfer funds from her bank account to Larson's own
account, so that Larson might wire them money after they left town.
¶ 16 Appellant did not attend her husband's
funeral, choosing instead, to go to Mexico with Pavatt and the
children. Pavatt called his daughter several times from Mexico and
asked her to send them money. Larson cooperated with the FBI and
local authorities in trying to track down the pair.
¶ 17 After her apprehension, Appellant came into
contact with Teresa Sullivan, who was a federal inmate at the Oklahoma
County jail. Sullivan testified that Appellant told her that she and
Pavatt killed her husband for the money, the kids, and each other.
Appellant also told her that Pavatt shot her in the arm to make it
look as if she was a victim.
¶ 18 Expert testimony opined that the wound to
Appellant's arm was not self-inflicted, but was part of a scheme to
stage the scene to make it look like she was a victim, just like her
husband. Additional facts will be discussed as relevant to
Appellant's propositions of error.
II. CHANGE OF VENUE ISSUE
¶ 19 In proposition ten, Appellant claims the trial
court erred in not granting her request for a change of venue. Prior
to trial, Appellant filed a motion for a change of venue. The trial
court held a hearing on the motion January 9 and 21, 2003. The
defense presented evidence of the extensive coverage of the case in
the local media, as well as polling data showing that a substantial
number of Oklahoma County residents were somewhat familiar with the
case and had opinions about the case. After considering this
evidence, the trial court denied the motion, stating:
I don't think we're going to know [whether unbiased
jurors can be seated] until such time as we bring in a large panel,
put them up in the jury box and voir dire them. It's unfortunate but
that's actually the only way ․ that you can make that determination.
¶ 20 We review the trial court's denial of
Appellant's motion for change of venue for an abuse of discretion.
DeRosa v. State, 2004 OK CR 19, ¶ 21, 89 P.3d 1124, 1135-36.
Pretrial publicity alone does not warrant a change of venue. United
States v. McVeigh, 918 F.Supp. 1467, 1473 (W.D.Okl.1996) ( “Extensive
publicity before trial does not, in itself, preclude fairness”). The
influence of the news media must be shown to have actually pervaded
the trial proceedings. Hain v. State, 1996 OK CR 26, ¶ 8, 919 P.2d
1130, 1136. We consider all relevant evidence to determine whether a
fair trial was possible at that particular place and time, keeping in
mind the ultimate issue: whether the trial court was in fact able to
seat twelve qualified jurors who were not prejudiced against the
accused. DeRosa, 2004 OK CR 19, ¶ 19, 89 P.3d at 1135 (“if a trial
court denies a defendant's change of venue motion and the defendant is
then tried and convicted, the question is no longer about hypothetical
and potential unfairness, but about what actually happened during the
¶ 21 From the beginning, this case received
considerable attention in the local media. That fact cannot be
disputed. Appellant refers us generally to the record of the hearing
on her change-of-venue motion, but she does claim that air of
prejudice pervaded the trial proceedings themselves. Again, our
chief concern is not how, or how often, the case played in the media,
but whether, at the end of the day, the trial court was able to
empanel twelve fair and impartial jurors.
¶ 22 The trial court is entitled to considerable
discretion on issues involving jury selection, because it personally
conducts voir dire and has the opportunity to observe the demeanor of
the panelists-so much of which is lost in the transcription of the
proceedings. Harris v. State, 2004 OK CR 1, ¶ 11, 84 P.3d 731, 741.
Nowhere in her brief does Appellant claim, much less demonstrate, that
any juror actually seated was biased against her due to adverse
pretrial publicity. Instead, Appellant invites this Court to hold
that, because of extensive media coverage, prejudice should be
presumed. We decline that invitation and hold that the trial court
did not abuse its discretion in denying a change of venue.
III. FIRST STAGE ISSUES
¶ 23 In propositions two through five and seven
through nine, Appellant claims that improper, irrelevant and
inadmissible evidence was introduced during the first stage of trial.
The admission of evidence is reviewed under an abuse of discretion
standard. The introduction of evidence is left to the sound
discretion of the trial court; the decision will not be disturbed
absent an abuse of that discretion. Pickens v. State, 2001 OK CR 3,
¶ 21, 19 P.3d 866, 876. An abuse of discretion is “a clearly
erroneous conclusion and judgment, one that is clearly against the
logic and effect of the facts presented.” C.L.F. v. State, 1999 OK CR
12, ¶ 5, 989 P.2d 945, 946.
¶ 24 A trial court can exercise discretion only
when an attempt to introduce evidence is met with a contemporaneous
objection; otherwise, this Court's review is limited to a review for
plain error. Lott v. State, 2004 OK CR 27, ¶ 69, 98 P.3d 318, 340.
Plain error is that error which is plain from the record, and which
goes to the foundation of the case or takes from a defendant a right
essential to his defense. Simpson v. State, 1994 OK CR 40, ¶ 23, 876
P.2d 690, 698. Thus, alleged evidentiary errors which are preserved
by objection are reviewed differently than alleged evidentiary errors
which were not met with an objection.
¶ 25 Much of the evidence complained of here was
introduced to show the relationship between Appellant and the victim
and the relationship between Appellant and Pavatt. Evidence of these
relationships and evidence of Appellant's prior “bad acts” was
introduced to show Appellant's motive and her intent to kill her
husband. The evidence was also relevant to show Appellant's
preparation prior to the killing and the schemes she used to enter
into a conspiracy with Pavatt to kill Rob Andrew.
¶ 26 We begin our discussion with Appellant's
complaint about the introduction of hearsay statements of the
deceased, which is raised in proposition two. Appellant claims that
the introduction of the hearsay statements of the deceased allowed the
decedent to testify, through others, as an accuser. See Shepard v.
United States, 290 U.S. 96, 104, 54 S.Ct. 22, 25-26, 78 L.Ed. 196
(1933). The statements addressed in Shepard are quite different from
the statements here. In Shepard, the victim, while still alive and
not anticipating death stated, “Dr. Shepard has poisoned me.” 5
¶ 27 Appellant's claim is broken down into
different subject matters. We start with testimony concerning Rob
Andrew's 16 gauge shotgun. The fact that Rob Andrew owned a 16 gauge
shotgun was not in dispute. The fact that he was killed by a 16
gauge shotgun was also undisputed. This fact is significant given
the fact that the 16 gauge is less common than the 12 or 20 gauge
shotgun and the fact that Rob Andrew's shotgun and the murder weapon
were never recovered. The statements revolve around Rob Andrew's
desires, expressed to witness Ron Stump, to get his shotgun out of the
marital home, after Appellant had changed the locks and security
codes. Rob told Ron that Appellant would not let him have the
shotgun. The statement was made just a week prior to the murder.
However, the statement was introduced to show that Rob did not have
the shotgun; inferring that it was still in Appellant's control.
¶ 28 The State admits that statements made by Rob
regarding Appellant's refusal to allow him into the house to retrieve
his shotgun went beyond the state-of-mind exception. They did not
address whether the statement was offered for the truth of the matter
asserted. Nevertheless, any error in the admission of these
statements was harmless given the fact that there was a substantial
amount of evidence that the shotgun was in the possession of Appellant
and not in the possession of Rob Andrew. Appellant told police that,
if the shotgun were still at the house, it was in the hall or bedroom
closet. Also during the first part of September, 2001, as Rob was
moving out of the home, witness James Higgins saw the shotgun in the
¶ 29 Coupled with this claim is an argument
regarding Rob's statement to Ron Stump that Appellant had finally
found someone to kill him (referring to Pavatt). This statement was
made just shortly after Rob had moved out of the house. This
statement is clearly a statement showing Rob's state-of-mind at the
time. “Such antecedent declarations by a decedent are admissible in a
homicide case to show the decedent's state of mind toward the
defendant or to supply the motive for killing.” Welch v. State, 2000
OK CR 8, ¶ 28, 2 P.3d 356, 370.
Testimony showing ill feeling, threats, or similar
conduct by one spouse toward another in a marital homicide case is
relevant and statements by the deceased expressing fear of a spouse
are admissible under the state of mind exception to the hearsay rule.
Washington v. State, 1999 OK CR 22, ¶ 36, 989 P.2d
¶ 30 Appellant next claims that hearsay evidence
concerning Rob Andrew's belief that Appellant and James Pavatt tried
to kill him by cutting the brake lines to his car, were inadmissible.
These taped statements were introduced through Prudential employees.
Again this evidence was introduced to show Rob Andrew's
state-of-mind. His fear of Appellant and Pavatt, and the motive for
this killing: the insurance money. The conversations Rob had with
the insurance company were introduced to show why Appellant had a
motive to kill Rob. He was trying to keep Appellant from being the
primary beneficiary to the life insurance policy. The conversation
shows why he would try to change the beneficiary to his brother. The
phone calls were also introduced to show why the insurance company
would not change the beneficiary over the phone at Appellant's
request-increasing her anger and resentment of Rob Andrew.
¶ 31 Appellant also claims that Rob's statements to
the police that he believed that Appellant and Pavatt were responsible
were testimonial in nature, and thus, in violation of Crawford v.
Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Crawford held that testimonial hearsay violates the confrontation
clause. Id. at 51-52, 124 S.Ct. at 1364. Rob's belief was supported
by the evidence in this case. The jury would have reached the same
conclusion absent this testimony. The introduction of this testimony
was harmless beyond a reasonable doubt, considering the mountain of
evidence leading to the conclusion that Appellant was responsible, in
part, for the brake line incident. Chapman v. California, 386 U.S.
18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710-711 (1967). The
inclusion of this evidence also showed the inadequacy of the police in
their ability to stop Appellant and Pavatt before they actually
carried out their plan to kill Rob Andrew. Crawford does not bar the
use of testimonial statements for purposes other than establishing the
truth of the matter asserted. Crawford, 541 U.S. at 59, fn. 9, 124
S.Ct. at 1369, fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414,
105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985). The inclusion of
this testimony does not require reversal.
¶ 32 One of Appellant's main complaints concerns
the testimony of attorney Craig Box. Rob Andrew hired Box to
represent him in divorce proceedings against Appellant. Box
testified that Andrew told him about a series of calls from Appellant
and Pavatt, which led him to believe that they were responsible for
the brake line incident and attempt on his life. The State agrees
that the statements constituted inadmissible hearsay, but were
¶ 33 These statements supported the conspiracy
charge by showing when an agreement may have been consummated. They
also support the theory that the motive for murder was the insurance
money. Thus the possibility exists that they were not introduced for
the truth of the matter asserted. Nevertheless, if inadmissible,
overwhelming admissible evidence was introduced to support these
claims, including statements by Appellant confirming her vitriolic
hatred for Rob and her desire to be the beneficiary of the insurance
policy. Furthermore, tape recordings of Pavatt trying to change the
ownership of the insurance policy with Prudential; his threats toward
Rob; and statements he made concerning Appellant's request that he
kill Rob were properly admitted.
¶ 34 The same can be said of other statements Rob
made to others about the trouble he was having in changing the
beneficiary of the policy. This is especially true in light of the
evidence of falsified change of ownership papers, and Appellant's
statements that she could sign Rob's name as well as he could and the
fact that she routinely signed his name on employment related items.
¶ 35 The remainder of the statements Rob made to
others about being kicked out of the house; Appellant hiding money;
Rob's statements regarding Appellant's belief that he was having a
homosexual affair; his statements about Appellant's affair with
Nunley; and Rob's statements regarding the changing of the locks and
Appellant's refusal to let him see the children, constituted
inadmissible hearsay, for which no exception existed; however, they
were also harmless considering the amount of admissible evidence on
¶ 36 Appellant next challenges the admission of
Rob's computer journal. This was admitted as part of a police report
admitted as State's exhibit 205, over defense objection. The State
points out that defense counsel referred to the journal long before it
was admitted into evidence by referring to portions which say that
Appellant was a good mom and the spiritual leader of the home.
Defense counsel asked questions about entries in the journal and
actually read portions of the journal before it was admitted. The
inclusion of this evidence was made relevant to rebut defense
counsel's use of the same evidence to show Appellant was a good mom.
Appellant cannot now complain about the use of the journal. See
Malicoat v. State, 2000 OK CR 1, ¶ 40, 992 P.2d 383, 403-04.
¶ 37 In proposition five, Appellant claims that
hearsay was improperly admitted under the guise of “co-conspirator
hearsay.” This claim relates to Pavatt's statement to Janna Larson.
Larson was allowed to testify that Pavatt said, “[Y]ou're never
going to believe what that nuttier than a fruit cake woman asked me to
do. And then he told me that she asked him if he would kill her
husband or if he knew someone that could do it․” Defense counsel
objected that the statement was hearsay within hearsay, the statement
was not corroborated, and there was no evidence of an agreement.
¶ 38 The record indicates that this conversation
occurred around the end of October, 2001. About the same time that
Pavatt asked Larson to call Rob Andrew and tell him to drive to
Norman, Oklahoma to pickup Appellant, after the brake lines to his
vehicle had been cut.
¶ 39 Circumstantially, looking at the totality of
the evidence introduced to that point, it could reasonably be
concluded that Pavatt had entered into an agreement with Appellant to
kill Rob Andrew. The conversation with Larson was meant to get her
reaction to the idea. He needed Larson to make a call to get Rob
Andrew to drive a long distance with faulty brakes. This
conversation furthered the conspiracy by allowing Pavatt to know what
tactic to take with Larson in involving her in the scheme. The trial
court did not abuse its discretion in allowing this evidence in as
non-hearsay under the co-conspirator theory. See 12 O.S.Supp.2002,
¶ 40 In proposition three, Appellant claims that
the trial court erred by allowing the State to introduce evidence of
other crimes and bad acts which were not relevant. The admission of
this evidence, as with all evidence, is reviewed under the abuse of
that discretion standard spelled out above.
¶ 41 Evidence that a defendant committed other
crimes is admissible to show motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of mistake or accident. 12
O.S.2001, § 2404(B); Lott, 2004 OK CR 27, ¶ 40, 98 P.3d at 334-35.
Proof of “other crimes” must be clear and convincing. Id.
¶ 42 The State argues that nearly all of this
“other crimes” evidence was res gestae evidence, which is evidence
that is (a) so closely connected to the charged offense as to form
part of the entire transaction, (b) necessary to give the jury a
complete understanding of the crime, or (c) central to the chain of
events. See Rogers v. State, 1995 OK CR 8, ¶ 21, 890 P.2d 959, 971
(and cases cited therein).6
¶ 43 The issue here boils down to whether the
complained of evidence was relevant to prove motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake
or accident; or whether the evidence is improper character evidence,
which is generally prohibited. See 12 O.S.2001, § 2404. Specific
instances of conduct to prove a person's character or a trait of
character are admissible when the character is part of a claim or
defense. 12 O.S.2001, § 2405(B).
¶ 44 Initially, Appellant attacks evidence
concerning the cutting of the brake lines of Rob Andrew's car.
Appellant claims that there was insufficient evidence which tied her
to this crime under a clear and convincing standard, not that the
evidence was otherwise inadmissible.
¶ 45 Sometime around the end of October, 2001,
Appellant asked Pavatt to kill Rob Andrew. About this same time, on
October 26, the brake lines to Rob Andrew's vehicle were cut. Pavatt
asked his daughter to call Rob and tell him that he needed to come to
Norman to pick up Appellant at the hospital; in an obvious attempt to
get Rob to drive some distance from his northwest Oklahoma City home
with faulty brake lines. Appellant claims that there was
insufficient evidence linking her to this incident.
¶ 46 Appellant claims that the only particular
piece of evidence linking her to the crime was inadmissible hearsay
evidence concerning the fact that Appellant knew about the brake lines
being cut before she could have innocently acquired the information.
However, the State introduced evidence of an enormous amount of phone
calls between Pavatt and Appellant on October 25 and October 26.
Appellant attempts to give alternative meaning to phone calls made on
October 26 by stating these are the calls during the time Rob Andrew
was trying to change the beneficiary to his policy after learning that
his brake lines had been cut. However, Appellant does not try to
explain the number of phone calls made on October 25 and the morning
of October 26.
¶ 47 Other evidence, furthermore, links Appellant
to this attempt on Rob Andrew's life. Appellant appeared at the bank
where Janna Larson was working in Norman shortly after Larson called
Rob Andrew, in an attempt to get him to drive to Norman. During this
visit, Appellant asked Larson about phone calls she made to Rob
Andrew. This evidence, coupled again with evidence about Brenda's
hatred of Rob and her threats, show by clear and convincing evidence a
link between Appellant and the attempt on Rob Andrew's life.
¶ 48 Certainly this evidence was relevant to the
charged crime of conspiracy to commit first degree murder, which the
State alleged started on September 1, 2001. The cutting of the brake
lines, though not alleged as an overt act in the conspiracy was
relevant to show an agreement existed between Appellant and Pavatt at
the time the brake lines were cut. This evidence was also
“inextricably intertwined” with the murder offense, thus it was
admissible intrinsic evidence. See United States v. Viefhaus, 168
F.3d 392, 397-98 (10th Cir.1999).7
evidence is similar to the res gestae exception used by this Court.
¶ 49 Next, Appellant complains about evidence that
she had extramarital sexual affairs with two other men. Appellant
claims that this evidence, although not criminal, was evidence of bad
acts, only introduced to show her bad character. This evidence was
relevant to show motive.
¶ 50 The first affair, with Rick Nunley, started in
1997 and ended probably about four years prior to this murder;
however, Appellant and Nunley kept in contact through phone
conversations. Nunley met Appellant in downtown Oklahoma City around
the first of October, 2001. Appellant told Nunley about the divorce
proceedings. At some point between then and the murder, Appellant
expressed to Nunley that she was upset about Rob trying to change the
beneficiary on the life insurance policy. Cell phone records
indicated eighty-seven phone calls between Appellant and Nunley during
the months of September, October and November, 2001. Appellant also
called Nunley from jail when she was arrested, while returning to the
United States from Mexico. Evidence of their sexual affair was
limited to one question during his testimony. Thus, even though, the
evidence of a sexual affair between Nunley and Appellant was remote,
its significance was a minimal part of the relationship, and the
mention of it was harmless in this case.
¶ 51 The second affair, this with James Higgins,
started in 1999 and ended in May 2001, just six months prior to Rob's
murder. Evidence of this affair was more detailed. This sexual
affair started when Appellant handed Higgins a key to a motel room and
they met that afternoon at the motel room. These types of meetings
occurred several times a week during those two years. They also had
sex at the Andrew home and in the car. All during this time,
Appellant kept telling Higgins how much she hated Rob Andrew. She
also told Higgins that she wished Rob Andrew was dead.
¶ 52 This Court has allowed evidence of an affair
for the purpose of establishing motive. In Allen v. State, 1993 OK
CR 49, 862 P.2d 487, this Court held that evidence that the defendant
had a sexual relationship with his secretary, which ended six months
prior to the murder of his wife, was relevant to show motive. Id.
¶ 17, at 491. This Court reasoned that evidence of a close personal
relationship, where intimate details of the defendant's marriage were
shared, was relevant.
¶ 53 This case is no different; Appellant shared
with both of these men her hatred for Rob Andrew and her wish that he
was dead. Her co-defendant was just the last in a long line of men
that she seduced; however, this last man shared the same hatred of
Rob and was willing to kill for Appellant. The evidence of
Appellant's affairs proved motive and intent in this case. The trial
court did not abuse its discretion in admitting this evidence.
¶ 54 Appellant further complains about a litany of
evidence under this “other crimes evidence” claim. The complaints
cover the following evidence: testimony from Rob Andrew's co-worker,
Barbara Murcer-Green, concerning confrontations at the workplace
between Appellant and Rob Andrew and Appellant's threats to her
personally, which was met with a contemporaneous objection. This
evidence was relevant to show Appellant's hatred and rage, and
possible resentment toward Rob Andrew, thus it was relevant.
¶ 55 Other evidence included Higgins' testimony
that Appellant had “come on to” his two adult sons when they were
building a deck for the Andrews; David Ostrowe's testimony that she
was dressed provocatively when the Andrews and the Ostrowes went to
dinner together (6-8 weeks before the murder), someone in the
restaurant called Appellant a “hoochie,” and inappropriate talk about
a trip to Mexico; Ron Stump's testimony that Appellant changed her
hair color after learning what color of hair Ron liked; and David
Head's testimony, over objection, about Appellant threatening to kill
¶ 56 This Court is struggling to find any relevance
to this evidence, other than to show Appellant's character. The
State agrees that most of this evidence was irrelevant to any issue in
this case; however, even so, the introduction of this evidence was
harmless due to the overwhelming evidence in this case.
¶ 57 Additional evidence included William
Burleson's testimony about Appellant's demeanor at the funeral home;
Cynthia Balding's testimony about Appellant hiding money; testimony
regarding Appellant's attempt to influence the children with a puppy;
Janna Larson's testimony that she told her father, James Pavatt, that
she thought Appellant lied when she told him she had not slept with
any other men other than her husband and Pavatt; and testimony that
Pavatt told Larson that the Andrew children were well trained and
would not tell of the affair between he and Appellant.
¶ 58 First, out of this evidence, the evidence of
Appellant's demeanor at the funeral home was relevant to show a
consciousness of guilt, and as such is not considered “other crimes”
evidence. See Anderson v. State, 1999 OK CR 44, ¶ 15, 992 P.2d 409,
416. The witness testified that in all of his long experience, her
flat, cold, and unemotional demeanor was the most bizarre demeanor he
had ever seen from a grieving spouse.
¶ 59 The remaining evidence was relevant to show
the relationship between Appellant and Pavatt and the relationship
between Appellant and Rob Andrew, Appellant's ability to lie and
influence Pavatt, and her desire to keep their sexual affair a secret
from the children and others. The evidence concerning the money was
relevant to show motive, and the money provided the source which
Appellant was to utilize while on the run in Mexico, thus it was
relevant as part of this criminal episode.
¶ 60 This proposition would have even less merit
had the trial court instructed on the limited use of “other crimes”
evidence. We shall discuss this refusal in our discussion of
instructional error below.
¶ 61 In proposition seven, Appellant raises a
series of claims attacking the introduction of certain evidence which
she claims was irrelevant or at least more prejudicial than probative.
We restate the general rules of evidence here. Evidence is
relevant if it has “any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.” 12
O.S.2001, § 2401. Relevant evidence is admissible unless it is
prohibited under the evidence code. One prohibition against
admission is that the relevant evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice. See 12 O.S.Supp.2002, § 2403. Again, introduction is
judged under an abuse of discretion standard.
¶ 62 First, Appellant claims, in the first section
of this proposition, that evidence was introduced which was used to
cast an unwarranted veil of suspicion over Appellant and distract and
confuse the jury. This evidence included documents showing that
Pavatt made Appellant the primary beneficiary of two life-insurance
polices. Appellant claims that there is no evidence that these
policies were still valid. Next, Appellant cites to evidence
consisting of a tape recording of conversations between Appellant and
Rob Andrew recorded in the days before the murder. These recordings
include conversations between Tricity and Rob Andrew. Appellant next
cites evidence of two Agatha Christie mystery books entitled Murder is
Easy and Sparkling Cyanide. Appellant also complains about the
introduction of a title and registration to the Bowlins' vehicle,
which was found in the 1992 Chevrolet Beretta Appellant and Pavatt
used to drive to Mexico. Appellant claims that this could have been
caused by a mix-up in the inventory of both vehicles by the Hidalgo
police before the search warrant was served.
¶ 63 All of this evidence was relevant to some
aspect of this case. Appellant being named as beneficiary of
Pavatt's insurance, whether valid or not, was evidence of the extent
of their relationship and provided support for the fact that, at least
Pavatt, intended to make their relationship permanent at some point.
The tape recordings of the conversations show the way Appellant used
Tricity to get Rob Andrew to come over to the house alone. The
evidence of the books, considering all of the circumstances, was just
one more piece of the puzzle, relevant to show Appellant's role in the
children's life to rebut the claim that she was a “good mother.” The
relevance of these books was slight, but not substantially outweighed
by the dangers found in Section 2403.
¶ 64 The relevance of the car ownership papers was
relevant to support the State's theory that Pavatt and Appellant
intended to switch cars with the Bowlins at some point in order to
avoid detection while in the United States (after returning from
Mexico). The admissibility was not dependent on the fact that the
papers may have never made it into the Beretta while in the possession
of Appellant. The Bowlins took these documents with them so that a
vehicle exchange could be made.
¶ 65 Appellant claims the next group of evidence
was cumulative of the relationship between Appellant and Pavatt.
Relevant evidence may be excluded if the probative value is
substantially outweighed by the danger of needless presentation of
cumulative evidence. 12 O.S.Supp.2002, § 2403. Appellant complains
about a birthday card to Pavatt from Appellant; photographs of
Appellant, Pavatt, and the Andrew children taken while on a trip to
Six-Flags over Texas; evidence of Pavatt's infatuation with
Appellant; and finally the contents of Appellant's luggage, including
her thong underwear. All of this evidence was introduced to show the
extent and the nature of the relationship between Pavatt and
Appellant, and their intentions in fleeing to Mexico-not as a grieving
widow, but as a free fugitive living large on a Mexico beach. As
this trial was primarily about the motive and intent of Appellant to
kill her husband with the aid of Pavatt, this evidence was highly
relevant and its probative value was not outweighed by any dangers.
¶ 66 The final group of evidence attacked here
includes a letter written by the victim to witness Ron Stump. This
evidence, like the hearsay evidence cited above, was relevant to show
the victim's state-of-mind and to provide a explanation of the motive.
Welch, 2000 OK CR 8, ¶ 28, 2 P.3d at 370. Appellant also complains
about the introduction of audio tape recordings of phone conversations
between herself and the victim. These tapes were relevant to show
the type of relationship these two people had, which would cause
Appellant to kill her own husband. They were relevant to show her
level of hostility, rage and hatred toward her husband, all which
provide a motive for the killing. Although she did not kill in a fit
of rage, she did use her hatred as a possible “I'll be better off with
him dead” self justification for the murder. The relevance of this
evidence was not outweighed by any dangers.
¶ 67 Lastly, Appellant urges this Court to consider
the hearsay evidence complained of above as an attempt to introduce
irrelevant evidence, only for the purpose of eliciting sympathy for
the victim. We find that the trial court did not abuse its
discretion in allowing the admission of any of the evidence raised in
¶ 68 In proposition eight, Appellant claims that
the trial court abused its discretion when it allowed the admission of
audio cassette tapes without the proper authentication.
“Authentication may be proved by direct or circumstantial evidence,
and is sufficient if evidence supports a finding that the matter in
question is what its proponent claims it to be.” Hooper v. State,
1997 OK CR 64, ¶ 29, 947 P.2d 1090, 1102. A voice on a recording may
be authenticated if the witness's opinion is based on hearing the
voice at any time in circumstances which connect the voice with the
alleged speaker. Id. See 12 O.S.2001, § 2901.
¶ 69 Craig Box, Rob Andrew's divorce attorney,
listened to all of the tapes and testified that the voice on the tapes
was that of Appellant. Furthermore, Appellant gives her name,
address and policy number over the phone. Appellant also allows
Pavatt to converse with the Prudential Insurance office, and she
identifies Pavatt as her insurance agent. Pavatt's voice was
authenticated by his actions during the call. He gave his company
¶ 70 Rob Andrew's voice was identified by Ron Stump
on other tapes introduced earlier in the trial. Although Stump did
not identify the voice on these particular tapes as those of Rob
Andrew, the jury had similarly authenticated tapes from which to
determine the voice was that of Rob Andrew.
¶ 71 The audio tapes in this case were sufficiently
authenticated and the trial court did not abuse its discretion in
allowing these tapes into evidence.
¶ 72 In proposition nine, Appellant argues that her
statements to police were the result of custodial interrogation, thus
their introduction was unconstitutional because she had not been
advised of her Miranda 8
rights. During the Jackson v. Denno 9
hearing, Appellant admitted that she agreed to speak with the police
because she wanted to help the police catch those responsible for
shooting her husband. Appellant was taken to the police station to
be questioned by detectives. The detective interviewing her
considered her to be a witness, not a suspect. She was taken to a
friend's house after the interview. She was not “arrested” at any
time. She was not handcuffed, shackled or placed in any type of
restraint. Eye-witnesses are routinely taken to the police station
for interviews. Appellant was the only living eye-witness to this
crime. Under the circumstances of this case, a reasonable person in
the same position would not conclude that he or she was in custody.
See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 3151, 82
L.Ed.2d 317 (1984) (the relevant inquiry is how a reasonable man under
the circumstances would understand the situation.) Warnings are not
required “simply because the questioning takes place in the station
house, or because the questioned person is one whom the police
suspect.” Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714,
50 L.Ed.2d 714 (1977). The trial court did not abuse its discretion
in allowing the admission of Appellant's statements.
¶ 73 Next, in proposition four, Appellant claims
that the trial was infected with improper and inadmissible opinion
testimony. The admissibility of lay witness' opinions is a
determination within the sound discretion of the trial court whose
decision will not be disturbed unless clearly erroneous or a clear
result of an abuse of discretion. Washington v. State, 1999 OK CR 22,
¶ 21, 989 P.2d 960, 970. Opinion testimony of a lay witness is
permissible under 12 O.S.2001, § 2701 when it is rationally based on
the perception of the witness and is helpful to the determination of a
fact in issue.
¶ 74 Appellant first claims that witnesses were
improperly allowed to give their opinions of her guilt. The
determination of guilt or innocence is the sole and exclusive province
of the jury, and a witness may not express an opinion on this issue.
Bowie v. State, 1991 OK CR 78, ¶ 3, 816 P.2d 1143, 1145.
¶ 75 Ron Stump and Rod Lott both gave testimony
indicating that they believed that Appellant was responsible for
killing Rob Andrew. Officer Mike Klinka, Michael Fetters and Mark
Sinor testified that Rob Andrew relayed to them that he believed that
Appellant was trying to kill him.
¶ 76 The questioning of Rod Lott came during
re-direct after defense counsel was allowed to ask if Rod Lott liked
Appellant, and defense counsel's questioning of Lott's motivation for
testifying. The prosecutor asked why he did not like her. Rod Lott
answered, “I believe she's responsible for his death.” This
testimony was properly admitted because Appellant opened the door on
cross-examination, so that the prosecution could delve into Lott's
¶ 77 Stump's initial opinion, that Appellant and
Pavatt killed Rob Andrew, and his testimony that he knew of no one
that had a motive to kill Rob Andrew other than Appellant and Pavatt
was not met with an objection. We review for plain error here, and
we find none.
¶ 78 Mike Klinka's, Michael Fetters' and Mark
Sinor's testimony was admitted to show Rob Andrew's state-of-mind as
explained above. There is no reason to rehash this argument here.
¶ 79 Next, Appellant claims that other witnesses
were allowed to give “expert” opinion evidence without being qualified
to do so. An expert witness is one who possesses scientific or
specialized knowledge acquired by study or practice or by both, and
is, ordinarily, a person who has experience and knowledge in relation
to matters which are not generally known. Kennedy v. State, 1982 OK
CR 11, ¶ 27, 640 P.2d 971, 977.
¶ 80 The witnesses Appellant complains about here
are police officers. Police officers are allowed to give opinion
testimony based on their training and experience. Berry v. State,
1988 OK CR 83, ¶ 6, 753 P.2d 926, 929-30; McCoy v. State, 1985 OK CR
49, ¶ 14, 699 P.2d 663, 665-66.
¶ 81 Sgt. Frost testified that it was “very
strange” that Appellant could not remember the words spoken by her
alleged attackers. He also testified that she was unusually calm and
he felt it unusual that she did not ask about her husband while at the
hospital. Technical Investigator Teresa Bunn testified similarly.
We find that the trial court did not abuse its discretion in allowing
this testimony as it was properly based on their perceptions in
conjunction with their training and experience.
¶ 82 Frost was also allowed to testify that it was
significant that Appellant was shot at close range, without
explanation. Any error in relation to this testimony was harmless
due to the overwhelming evidence that she was indeed shot at close
range. Officer Klinka was allowed to testify that he believed that
Appellant was involved in the cutting of Rob Andrew's brake lines.
Appellant failed to object to this testimony, thus we review for plain
error only. We find that this testimony does not rise to the level
of plain error based on the context of the testimony as rebuttal to
defense counsel's cross-examination regarding a link between Appellant
and the brake line incident.
¶ 83 Appellant claims that Detective Garrett was
allowed to testify that he believed that Pavatt was preparing to move
into the Andrew home. The questioning regarded what Pavatt was doing
the day of the murder. Garrett testified that Pavatt was moving his
washer and dryer into the Andrew home. The prosecutor asked, “Moving
in?” Garrett answered “Yes.” An objection to this testimony was
sustained, but the trial court did not admonish the jury as requested.
Defense counsel objected that the answer was speculation and the
trial court announced that it was speculation, but the trial court
denied counsel's request to have the jury admonished. We find that
the trial court's actions cured this error as an admonishment would
have merely magnified the possibility of prejudice. See Ferguson v.
State, 1984 OK CR 32, ¶ 10, 675 P.2d 1023, 1027.
¶ 84 In proposition one, Appellant complains that
she was prohibited from calling or presenting testimony from witnesses
essential to her defense, due to the trial court's erroneous rulings.
Some of this testimony was excluded because the trial court found
that trial counsel failed to comply with the discovery code. See 22
O.S.Supp.2002, § 2002. The exclusion of this testimony as a sanction
to a discovery code violation is reviewed under an abuse of discretion
standard. Rojem v. State, 2006 OK CR 7, ¶ 46, 130 P.3d 287, 297.
¶ 85 The right to call witnesses to present a
defense is a fundamental element of due process. Id. at ¶ 47 130 P.3d
at 297, quoting White v. State, 1998 OK CR 69, ¶ 12, 973 P.2d 306,
311. The exclusion of evidence might be the appropriate sanction for
a discovery code violation in the most severe cases, where the
violation is “willful and motivated by a desire to obtain a tactical
advantage.” Id. Alternative sanctions are appropriate in other
¶ 86 First, Appellant claims that she was not
allowed to present the testimony from Sergeant Larry Northcutt and
Officer Roger Frost, both of whom worked during their off duty hours
patrolling the Lansbrook neighborhood where the Andrews lived.
Counsel asked Northcutt whether Appellant requested extra patrols
around her house. Trial court ruled that the information had not
been provided in discovery; therefore, Northcutt could not answer the
question. Not until the day that Northcutt was to testify, did
Appellant provide a summary of his testimony. No good reason existed
for this other than to attempt to gain a tactical advantage;
therefore, the trial court did not abuse its discretion in precluding
¶ 87 Counsel asked Frost, in many different ways,
whether Northcutt told him that Appellant requested extra patrols at
her residence. The trial court sustained each objection based on
hearsay. What was evident from the testimony was that the off-duty
officers were providing extra patrol near the residence. On appeal,
Appellant argues that the testimony is not hearsay, it is provided to
show why the officers provided extra patrol. On the contrary,
counsel wanted to elicit this testimony to show that Appellant
requested extra patrols in order to show that she was not a
calculating murderer. This testimony was hearsay and the trial court
did not abuse its discretion.
¶ 88 Furthermore, the jury was well aware that
extra patrols were requested. The only information that was kept
from the jury was that Appellant had requested those patrols. The
failure to give this information to the jury did not prejudice
Appellant. The jury might have believed that her request for extra
patrols took place during the planning stage of this murder, and the
request was just another method of deflecting suspicion away from her.
¶ 89 Next, Appellant cites to her attempts to
present the testimony of Lisa Gisler and Carol Shadid, who were
neighbors of Appellant, regarding what they heard on the night of the
murder. These witnesses heard noises, which Appellant describes as a
“loud noise” (Gisler) or “three shotgun blasts” and a scream (Shadid).
Appellant claims this testimony would corroborate her story of the
events and rebut the staging theory espoused by the State.
¶ 90 Defense counsel provided the State with a list
of witnesses which included these two witnesses; however, no summary
of their expected testimony was provided. Nevertheless, both of
these witnesses provided statements to the police. Their statements
were contained in police reports that were in the custody of the
State. Defense counsel made an offer of proof indicating that their
testimony would be consistent with their statements to police.
Preclusion of this testimony, under the circumstances was too harsh a
sanction, thus there was an abuse of discretion here. The trial
court had at its disposal the possibility of a short continuance, if
necessary, so the State could prepare for cross-examination of these
two witnesses, especially considering the limited nature of their
testimony. The trial court abused its discretion in using the
¶ 91 Even though an abuse of discretion occurred,
we find that the error was harmless beyond a reasonable doubt. See
Hooks v. State, 2001 OK CR 1, ¶ 14, 19 P.3d 294, 307. Despite
Appellant's claim, evidence that there were three shots is consistent
with the State's theory of two shots fired from a shotgun and one
fired from a .22 caliber handgun. The testimony is inconsistent with
Appellant's story that she heard only two shots fired. Furthermore,
both reconstruction experts, prosecution and defense, testified that
Appellant's gunshot wound was evidence of a staged event.
¶ 92 Next, Appellant claims that exclusion of
Officer Ronald Warren's testimony was error. The testimony was
excluded, because of a lack of pre-trial notice. This officer made a
written report, which was in the custody of the State. The report
spells out his expected testimony. Like the above witnesses, the
exclusion of the testimony constituted an abuse of discretion.
However, defense counsel was able, through another witness, to elicit
the same evidence; evidence that Appellant was kneeling over
obviously deceased Rob Andrew attempting to aid him, while
disregarding her own gunshot injury. This excluded evidence was
largely cumulative; therefore, the exclusion was harmless beyond a
¶ 93 Lastly, Appellant claims that the exclusion of
testimony from Donna Tyra was error. Donna Tyra was a detention
officer at the County jail. Defense counsel listed Tyra as a second
stage witness who would offer testimony about Appellant's good
character while incarcerated at the County jail (the State did not
list Tyra as a witness or have a report from her, unlike the above
witnesses) However, defense counsel wished her to testify to rebut
witness Teresa Sullivan's testimony regarding Appellant's confession.
¶ 94 An offer of proof indicated that Tyra would
have testified that Sullivan was a known snitch, known as the “mouth
of the south;” Sullivan and Appellant could not have contacted each
other, either verbally or through notes; and that there were
newspapers available to the inmates on the pod, so that Sullivan could
have learned the facts of the case through news reports. Discovery
of this testimony was not presented to the State.
¶ 95 Defense counsel was allowed to produce the
testimony of Angela Burk, who testified that Sullivan was a known
snitch. She testified that she communicated to Sullivan through the
cell doors, and she testified that inmates were sometimes out in the
pod together. Any error in the failure to allow Tyra to testify was
harmless beyond a reasonable doubt.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM
¶ 96 In proposition six, Appellant claims that she
was denied effective assistance of counsel. In order to show that
counsel was ineffective, Appellant must show both deficient
performance and prejudice. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).10
In Strickland, the Court went on to say that there is a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional conduct, i.e., an appellant must overcome the
presumption that, under the circumstances, counsel's conduct
constituted sound trial strategy. Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
¶ 97 To establish prejudice, Appellant must show
that there is a “reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different. A reasonable probability is a probability sufficient to
undermine the confidence in the outcome.” Strickland, 466 U.S. at
694, 104 S.Ct. at 2068.
¶ 98 In the context of a capital sentencing
proceeding, the relevant inquiry is “whether there is a reasonable
probability that, absent the errors, the sentencer ․ would have
concluded that the balance of aggravating and mitigating circumstances
did not warrant death.” Strickland, 466 U.S. at 695, 104 S.Ct. at
¶ 99 Appellant first claims that counsel was
ineffective for failing to provide adequate witness summaries, for
which reason defense witnesses were prohibited from testifying (see
proposition one). In our discussion of proposition one, we held
that, where error occurred in the prohibition of this testimony, the
error was harmless beyond a reasonable doubt. We further find that
defense counsel's failure to provide adequate witness summaries did
not prejudice Appellant, thus the second prong of Strickland is not
satisfied. Counsel cannot be defined as ineffective.
¶ 100 Appellant next claims that counsel was
ineffective for failing to make contemporaneous objections to damaging
hearsay statements and improper opinion evidence (see propositions two
and four). We addressed the substantive portion of these arguments
above and found that the majority of the evidence was properly
admitted. We further find that counsel was not ineffective for
failing to object to this evidence, as there was no resulting
¶ 101 Appellant next claims that counsel was
ineffective for failing to investigate and present evidence tending to
show her innocence which is divided into three categories; (1) blood
pattern evidence, (2) signature evidence, and (3) corroborating
¶ 102 The blood pattern evidence deals with the
defense expert who testified that Appellant had high velocity blood
spatter on her jeans. In closing the prosecution turned this
evidence against Appellant by arguing that she received this spatter
by firing the second shot and getting blow back blood spatter from
Rob. However, this blood spatter had never been tested to determine
its source. Now, during the pendency of this Appeal, Appellant
provides DNA analysis which she argues shows that the blood stains
were from her alone. The State's response points out that the blood
is a mixture: the major component from Appellant and the minor
component being from an unknown male (arguably the victim because the
tester cannot exclude the victim as the source of the blood).
Appellant claims that utilizing a defense expert without first
determining the source of these stains led to the theory that she
fired the second shot, making her more culpable and allowing the jury
to more easily give her the death penalty. The prosecutor could have
made this argument by stating that the unknown (minor component) blood
spatter came from the victim, forming the basis for the same argument.
¶ 103 This evidence does not show by clear and
convincing evidence that the outcome would have been different;
consequently, no evidentiary hearing is necessary.
¶ 104 Next, Appellant claims that new evidence
regarding the signatures on a change of ownership application (State's
exhibit 24) for the $800,000.00 life insurance police shows that she
did not forge the signature of Rob Andrew, but that Pavatt could have
copied the signatures from other documents and pasted them to this
document; a “cut and paste” theory of forgery.
¶ 105 Appellant had retained an expert in this area
for trial, Ernie Smith. He told counsel of his “cut and paste”
theory regarding Robert D. Andrew's signature. He was not called to
testify. This was a sound strategic decision, based on the evidence.
¶ 106 Appellant maintained that the change of
ownership document was genuine in conversations with the judge
handling the divorce, a close friend, and the Prudential Insurance
Agency. Appellant and Pavatt were working together to find some way
that Appellant would receive the proceeds of the life insurance
policy. No clear and convincing evidence exists for the holding of
an evidentiary hearing, because in any event the documents were forged
by Appellant and Pavatt working together.
¶ 107 Lastly, Appellant claims that additional
witnesses exist who could have corroborated Appellant's story, could
have bolstered Pavatt's confessional letter, and could have rebutted
some of the State evidence.
¶ 108 Appellant provides, in the application for
evidentiary hearing, an affidavit from a neighbor who would have
testified that she heard two shots, she heard screaming, and she saw
someone bending over in the front yard after the shots. Appellant
claims that this bolsters her story that the final two shots were
simultaneous, sounding like one shot, and the story that there were
two assailants as the person this neighbor saw outside could have been
the second assailant. This witness testified at Pavatt's trial but
did not testify at the present trial.
¶ 109 Another witness regards the letter from
Pavatt, introduced at trial, wherein he stated that he and another
assailant were responsible, and Appellant was not involved. He
stated that he shot Appellant and the other assailant shot Rob Andrew.
To this day, Pavatt has not named the second assailant. Appellant
now provides an affidavit from Appellant's brother-in-law, James
Bowlin, who states that Pavatt told him the same story when he met
them in Mexico, just days prior to their arrest.
¶ 110 The last witness, not utilized at trial, was
Appellant's sister, Kimberly Bowlin who states that it was her, not
Appellant, who was present near the target practice area just days
prior to the murder.
¶ 111 Appellant's application for evidentiary
hearing shall be denied. She has not presented clear and convincing
proof to this Court that counsel was ineffective for failing to
present this evidence, thus entitling her to an evidentiary hearing on
this extra-record evidence and to have the record supplemented with
the evidence. See Rule 3.11 (“the application and affidavits must
contain sufficient information to show this Court by clear and
convincing evidence there is a strong possibility trial counsel was
V. FIRST STAGE INSTRUCTIONAL ERROR
¶ 112 In proposition eleven, Appellant claims that
the trial court erred in its instructions to the jury. It is well
settled that trial courts have a duty to instruct the jury on the
salient features of the law raised by the evidence. Hogan v. State,
2006 OK CR 19, ¶ 39, 139 P.3d 907, 923. Even if a trial court fails
in this duty, this Court will not reverse on instructional error
unless the error resulted in a miscarriage of justice or constitutes a
substantial violation of a constitutional or statutory right. 20
O.S.2001, § 3001; Carter v. State, 2006 OK CR 42, ¶ 5, 147 P.3d 243,
244, citing Ashinsky v. State, 1989 OK CR 59, ¶ 20, 780 P.2d 201, 207.
¶ 113 First, Appellant claims that the trial court
erred in failing to give cautionary instructions on jailhouse
The instruction was requested in response to witness Teresa
Sullivan's testimony. Sullivan testified that Appellant confessed
that she and Pavatt killed Rob Andrew for the money, house, kids and
each other. Sullivan was an inmate in the Oklahoma County Jail when
Appellant confided in her.
¶ 114 This instruction is to be given when a
witness is a “professional jailhouse informant.” Wright v. State,
2001 OK CR 19, ¶ 21, 30 P.3d 1148, 1152. Sullivan was in federal
custody while at the county jail. She was not facing any State
charges, and she testified that she did not expect any benefit from
testifying. She did not seek out authorities with which to share her
story. She, as well as others incarcerated in the county jail with
Appellant, were contacted to determine whether they had information
relevant to this case. The possibility that Sullivan was a jailhouse
informant was not supported by the evidence presented to the trial
court. The trial court did not err in failing to give this
¶ 115 Next, Appellant claims that the trial court
erred in instructing the jury on the doctrine of flight. Along with
this claim, Appellant urges this Court to eliminate and discontinue
the jury instructions on the doctrine of flight as it relates to
consciousness of guilt. Appellant explained to Sullivan that she
left for Mexico to get the kids away from everything, for a little
vacation. Her statement explaining her act of departure warranted
the giving of the flight instructions. See Mitchell v. State, 1993
OK CR 56, ¶¶ 7-8, 876 P.2d 682, 684. Appellant's argument against
the doctrine of flight does not persuade this Court to change its
position on this issue. The trial court did not err in giving this
¶ 116 Appellant next claims that the trial court
failed in its duty to instruct on the lesser related offense of
accessory after the fact. Instructions on this offense were not
requested during trial. There was no evidence that Appellant was an
accessory after the fact. Her defense was that she did not know who
killed her husband. She did not claim that she knew Pavatt killed
her husband, so she helped him flee to Mexico to avoid capture, which
might be a basis for the instruction. Furthermore, the State's
evidence did not support an instruction on this offense. Therefore,
the trial court did not err in failing to give this instruction sua
¶ 117 Appellant next complains about the trial
court's refusal to give limiting instructions on the use of “other
crimes” evidence (see discussion above regarding the evidence). We
find that jury instructions on the use of other crimes evidence was
warranted in this case, although some of the evidence indicating that
Appellant committed other crimes or “bad acts” was part of the “res
gestae,” much of the evidence was presented as “other crimes” evidence
for the specific purposes spelled out in 12 O.S.Supp.2002, § 2404.
However, in spite of this error, we find that the error to give the
requested instruction did not create the type of injury which requires
reversal of this case. See 20 O.S.2001, § 3001.1; also see Anderson
v. State, 1999 OK CR 44, ¶ 16, 992 P.2d 409, 416-17.
VI. SECOND STAGE ISSUES
¶ 118 In proposition fourteen, Appellant claims
there was insufficient evidence to support the especially heinous,
atrocious, or cruel aggravating circumstance. When the sufficiency
of the evidence supporting an aggravator is challenged on appeal, we
review the evidence in the light most favorable to the State to
determine whether any rational trier of fact could have found the
facts necessary to support the aggravating circumstance beyond a
reasonable doubt. DeRosa, 2004 OK CR 19, ¶ 85, 89 P.3d at 1153.
This Court upholds a jury's finding of this aggravating circumstance
when it is supported by proof of conscious, serious physical abuse or
torture prior to death. Davis v. State, 2004 OK CR 36, ¶ 39, 103
P.3d 70, 81.
¶ 119 Appellant, in her phone call to police told
the emergency operator, during her second 911 call, that her husband
was breathing, conscious and was trying to talk, even after being shot
twice. This conversation occurred at around five minutes after Rob
Andrew was shot. The medical examiner testified that Rob was shot
twice. The medical examiner also testified that death would not have
¶ 120 Although the murder weapon was never found,
circumstantial evidence showed that Rob was shot with a single-shot
shotgun, which would have required manual reloading between the shots.
The evidence supported the fact that Rob was conscious during this
time and even after being shot the second time. When emergency
personnel arrived, Andrew was still clutching a trash bag full of
empty aluminum cans, which reasonably suggested that he either tried
to shield himself from being shot, or attempted to ward off his
attacker. All of these facts tend to show that Rob Andrew suffered
serious physical abuse, and was conscious of the fatal attack for
several minutes. See Ledbetter v. State, 1997 OK CR 5, ¶¶ 53-54, 933
P.2d 880, 896 (evidence that murder victim was likely aware that she
was about to be assaulted because defendant had attempted to kill her
one week earlier, that she tried to defend herself from the fatal
attack, and that she attempted to communicate with a neighbor after
the attack was sufficient to show that the murder was especially
heinous, atrocious or cruel).
¶ 121 Appellant claims, in proposition twelve, that
the trial court failed to properly instruct the jury during the second
stage proceedings, thus depriving her of her right to fair sentencing
proceeding. She first claims that the trial court failed to instruct
on the necessary elements of murder for remuneration. This argument
rests on the trial court's failure to give Appellant's requested
instruction on the aggravating circumstance of murder for
¶ 122 The trial court gave the uniform instructions
on the murder for remuneration aggravating circumstance. The uniform
instruction only states that “the person committed the murder for
remuneration or the promise of remuneration or employed another to
commit the murder for remuneration or the promise of remuneration.”
OUJI-CR 4-72 (2000). No further defining instructions are included
in the uniform instructions.
¶ 123 Appellant requested that the jury be
instructed as follows:
The State has alleged that the defendant committed
the murder for remuneration or the promise of remuneration. This
aggravating circumstance is not established unless the State proves
beyond a reasonable doubt that:
First: the murder was committed by the defendant
for the purpose of her financial gain.
Second: the defendant was in a position to receive
financial gain by the act of murder at the time the homicide occurred.
¶ 124 We initially note that this requested
instruction does not fully describe or define the murder for
remuneration aggravating circumstance, thus it does not accurately
state the law. This Court has determined that the murder for
remuneration instructions accurately state the law.
¶ 125 The traditional application of the “murder
for remuneration” aggravating circumstance has been where a defendant
has been hired or has hired another person to perform an act of
murder. Plantz v. State, 1994 OK CR 33, ¶ 42, 876 P.2d 268, 281.
Murder for remuneration has also been applied to killings motivated
primarily to obtain proceeds from an insurance policy. Id. We find
that the trial court did not abuse its discretion in refusing
Appellant's proposed instruction.
¶ 126 Appellant next claims that the trial court's
answer to the jury's question about life without parole was
inadequate. During second stage deliberations, the jury sent out a
note asking, “Is [sic] life without parole mean incarceration in
prison until her natural death?” The trial court answered that life
without parole was self-explanatory. Trial counsel did not object to
this answer, thus we review for plain error. This type of answer was
one of the options recommended in Littlejohn v. State, 2004 OK CR 6,
¶ 11, 85 P.3d 287, 293-94, therefore, there is no plain error here.
¶ 127 Next, Appellant claims that the uniform
instructions on mitigating circumstances, OUJI-CR 2d 4-78, ran afoul
of Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964-65, 57
L.Ed.2d 973 (1978), as the prosecutor was allowed to use the language
to fashion an argument which compared mitigation with culpability.
The same argument made here was rejected in Hogan v. State, 2006 OK CR
19, ¶ 94, 139 P.3d 907, 936. We find no reason to revisit this
issue, especially in light of the fact that the jury was instructed
that they could decide what mitigating factors existed beyond those
listed pursuant to OUJI-CR 4-79, and consider them as well. See also
Rojem v. State, 2006 OK CR 7, ¶¶ 57-58, 130 P.3d 287, 299.
Appellant's arguments regarding the second stage instructions must
VII. PROSECUTORIAL MISCONDUCT
¶ 128 In proposition thirteen, Appellant alleges
several instances of what she calls prosecutorial misconduct. We
first note that no trial will be reversed on the allegations of
prosecutorial misconduct unless the cumulative effect was such to
deprive Appellant of a fair trial. Garrison v. State, 2004 OK CR 35,
¶ 128, 103 P.3d 590, 612. Many of the allegations here were not
preserved at trial with contemporaneous objections, thus we review for
plain error. We will not find plain error unless the error is plain
on the record and the error goes to the foundation of the case, or
takes from a defendant a right essential to his defense. Simpson,
1994 OK CR 40, ¶ 23, 876 P.2d at 698.
¶ 129 Appellant first claims that the prosecutor
intentionally misled the jury by pointing out to them that Tricity
Andrew did not beg for her mother's life. Defense counsel had
planned and had informed the Court that he intended to ask Tricity if
she wanted her mother to get the death penalty, but the question was
never asked, possibly due to Tricity's emotional state on the witness
stand. Appellant also claims that the prosecution attacked defense
counsel's choice to use Appellant's fifteen-year-old niece to ask to
spare Appellant's life by asking the jury, “would you put your
15-year-old niece on the stand to do that? I wouldn't.” There was
no objection to either of these comments.
¶ 130 While these comments were “low blows” and may
have constituted improper argument and casting aspersions on defense
counsel, we can confidently say that they did not rise to the level of
¶ 131 Appellant next claims that the prosecutor
improperly attacked her by stating in response to mitigating evidence
indicating she was a good mother, “Would she bring men into her house
with her children there and her husband at work?” This comment was
not met with an objection. The comment was properly based on the
evidence, and it was in response to the list of mitigating evidence,
thus did not constitute error. See Selsor v. State, 2000 OK CR 9,
¶ 35, 2 P.3d 344, 354.
¶ 132 Appellant, next points us to the prosecutors
comment that, “Rob Andrew's parents would like to visit him in prison․
The only place they get to visit is his grave.” The prosecutor used
this comment to rebut mitigating evidence that Appellant “has many
relatives who would visit her in prison if given the opportunity.”
Again, no objection was lodged. This comment is similar to the ones
condemned in Duckett v. State, 1995 OK CR 61, ¶ 46, 919 P.2d 7, 19.15
However, as in Duckett, we find that the comment did not rise to the
level of plain error.
¶ 133 Appellant next claims that the prosecutor
attempted to elicit sympathy for the victim by pointing out that
Appellant murdered a man with admirable attributes, noting specific
aspects of his life. Again, there was no objection. This argument
did not rise to the level of plain error.
¶ 134 Next, Appellant complains that the
prosecutor, during second closing, attacked defense counsel's
argument. The prosecutor pointed out that defense counsel argued
that Rob would ask for forgiveness just as Jesus did on the cross,
then later told them that Appellant was “a cold-blooded, heartless
killer.” These comments were separated by nearly fourteen pages of
transcript and were in direct response to defense counsel's argument.
There was no error here. See DeRosa, 2004 OK CR 19, ¶ 70, 89 P.3d
¶ 135 Next, Appellant claims the prosecutor argued
facts not in evidence by trying to get the jury to imagine what Rob's
last word were, “Was it goodbye, I love you, Brenda? Was it I
forgive you? Was it, take care of my children?” No objection to
these comments was lodged. This was also, arguably, in response to
defense counsel's argument regarding Rob's belief in forgiveness and
argument regarding the aggravating circumstance of heinous, atrocious
or cruel. No plain error occurred here.
¶ 136 Appellant claims that the prosecutor's
argument that Rob's mother could not make it to the witness stand was
arguing facts not in evidence. Defense Counsel objected, and the
trial court interrupted the argument, allowed the prosecutor to
rephrase, then, just a few lines later, after an objection to other
comments, reminded the jury, in no uncertain terms, that “nothing that
the attorneys say is evidence.” We find that any error in these
comments was cured, due to the later instruction by the court.
¶ 137 Appellant claims that the prosecutor
misstated the evidence by inferring that the victim impact witnesses
wanted the death penalty through their testimony, even though Rob's
father testified that “all of our family will do everything in our
power to assist for convictions and punishment for all of those who
are involved in this and responsible for the murder of my son and that
they will never ever walk free again.” These arguments were in
direct response to the defense argument that the victim impact
witnesses didn't ask for the death penalty. The prosecutor informed
the jury that, by law, the victim impact witnesses could not ask for a
specific punishment during their victim impact testimony. There was
no objection and the comments do not rise to the level of plain error.
¶ 138 Appellant claims that the prosecutor argued
that she deserved the death penalty for things that are not
“aggravating circumstances.” Appellant points out that the
prosecutor argued that “she killed [Rob] because she wanted the money;
she wanted the custody of the children.” The prosecutor also argued
that she deserved the death penalty for the way she treated Rob after
“[h]e had forgiven her time and time again.” There was no objection
here. Remember that one of the aggravating circumstances alleged was
continuing threat-this argument was to establish that her motive and
callousness caused her to be a continuing threat. There is no error
¶ 139 Appellant has failed to show either that her
trial was so infected by misconduct as to violate due process, or that
her death sentence was improperly or unconstitutionally obtained.
DeRosa, 2004 OK CR 19, ¶ 70, 89 P.3d at 1149. Appellant was
convicted and sentenced to death based upon the facts and
circumstances of this case, rather than any improper remarks by the
VIII. NEW TRIAL
¶ 140 Appellant filed a motion for new trial with
this Court on September 21, 2005. Appellant's motion is brought
pursuant to 22 O.S.2001, §§ 952 and 953, alleging newly discovered
evidence. The State filed a response on June 21, 2006.
The test for whether a motion for a new trial
should be granted based upon newly discovered evidence is: (1)
whether the evidence is material; (2) whether the evidence could not
have been discovered before trial with reasonable diligence; (3)
whether the evidence is cumulative; and (4) whether the evidence
creates a reasonable probability that, had it been introduced at
trial, it would have changed the outcome.
Ellis v. State, 1992 OK CR 45, ¶ 50, 867 P.2d 1289,
¶ 141 The motion contains information that Teresa
Sullivan, who testified against Appellant, received a reduction of her
federal sentence due to her cooperation with the Oklahoma County
District Attorney's office in this case. Sullivan testified that she
had twenty-two (22) months left on her sentence; however, a new
sentence was given by the federal court after she testified, which
basically allowed her release just five (5) months after testifying.
The documents indicate that Sullivan was granted the early release
because of her cooperation in this case.
¶ 142 Information attached to the motion also
indicates that Sullivan received a downward departure on her federal
sentence because she cooperated with the federal authorities in the
investigation of her co-defendants (even though she testified that she
was not a snitch). The gist of the motion is that the State knew
about the potential for a benefit to Sullivan, but failed to disclose
¶ 143 Sullivan testified that Appellant confessed
that she and James Pavatt killed Rob Andrew. Sullivan's attorney
says in a letter written to the federal prosecutor that he had to
explain to her that she might receive additional consideration on her
federal sentence if she were called to testify against Appellant. It
appears that Sullivan provided information to the State (before
testifying) with no understanding that she might receive a benefit.
When she testified at trial, there were no guarantees that she would
receive any benefit.
¶ 144 One document in particular states that
Oklahoma City Police detectives contacted Sullivan at her place of
federal confinement as part of their investigation (as well as others
who where incarcerated with Appellant at the Oklahoma County Jail).
Sullivan provided information to the detectives before contacting,
William P. Earley, the federal public defender who represented her in
her federal case. The documents indicate that Earley filed the
motion for a reduction of sentence after Sullivan testified as any
effective advocate might have done. He stated that he would have
filed this motion regardless of any input from the Oklahoma County
District Attorney's office.
¶ 145 Appellant has not presented a sufficient
showing to be granted a new trial. Substantial additional evidence
supports the conviction. We are further convinced that, were we to
grant a new trial with this “newly discovered evidence” being
introduced, the outcome of the trial would be the same.
¶ 146 Sullivan was thoroughly cross-examined
regarding her motivation to testify against Appellant, with repeated
attempts to show her bias. Defense counsel also called a witness to
refute the possibility that Appellant shared any information with
Sullivan. The knowledge of the fact that Sullivan was the
beneficiary of an act of grace by the federal courts would not change
the outcome of this trial.
IX. CUMULATIVE ERROR
¶ 147 In proposition fifteen, Appellant urges this
Court to view the alleged errors in a cumulative fashion, should we
hold that no individual error rises to the level of reversible error.
We have reviewed the case to determine the effect, if any, of
Appellant's alleged accumulation of error. We find, even viewed in a
cumulative fashion, the errors we identified do not require relief.
Stouffer v. State, 2006 OK CR 46, ¶ 205-06, 147 P.3d 245, 280.
¶ 148 We found error, although harmless, in the
admission of some State's evidence and exclusion of some defense
evidence. We also found error in the failure to include an
instruction on “other crimes” evidence. We find that even viewed in
a cumulative fashion, these errors do not require relief.
Furthermore, these errors combined with alleged and unpreserved error
which did not rise to the level of plain error did not cause Appellant
to receive an unfair trial.
X. MANDATORY SENTENCE REVIEW
¶ 149 We found above that there was sufficient
evidence to support the finding of the statutory aggravating
circumstance of heinous, atrocious or cruel. We further find that
sufficient evidence exists to support the finding of the statutory
aggravating circumstance of murder for remuneration. We again note
that the jury did not find the aggravating circumstance that there
exists a possibility that Appellant will commit criminal acts of
violence that would constitute a continuing threat to society. After
reviewing the entire record in this case, we find that the sentence of
death was not imposed because of any arbitrary factor, passion, or
prejudice. Appellant presented mitigating evidence, which was
summarized and listed in an instruction to the jury, as follows:
The defendant did not have any history of prior
The defendant has never committed acts of violence
in the past,
The defendant is a good mother, who loves her
children very much,
The death penalty would deprive Tricity and Parker
Andrew of their only living parent,
The defendant has a family, who loves her and
values her life,
The defendant has many relatives, who would visit
her in prison if given the opportunity,
The defendant was a kind and giving neighbor and
The defendant has an education and might be able to
help other inmates,
The defendant was a dedicated employee, who worked
The defendant has been a model inmate since being
incarcerated at the Oklahoma County Jail,
The defendant has always been active in school and
¶ 150 In addition, the trial court instructed, that
the jury could decide that other mitigating circumstances exist and
they could consider them as well.
¶ 151 We can honestly say that the jury's verdict
was not born under the influence of passion, prejudice or any other
arbitrary factor, and the evidence supported the jury's findings of
the aggravating circumstances. See 21 O.S.2001, § 701.13.
Appellant's convictions and her sentences should be affirmed. We
find no error warranting reversal of Appellant's conviction or
sentence of death for first-degree murder, nor do we find any error
requiring the reversal of her conviction and sentence for the crime of
conspiracy to commit murder; therefore, the Judgment and Sentence of
the trial court is, hereby, AFFIRMED.
¶ 1 I agree with the outcome reached in this case,
which affirms Appellant's first-degree murder and conspiracy
convictions and the sentences set by the jury and then ordered by the
trial judge. This is an unusually strong evidentiary case, which
leaves little or no doubt that Appellant is guilty of the crimes
charged, crimes committed after methodical planning.
¶ 2 At times cases come before us where we are
challenged to ascertain who is actually responsible for the crime at
issue: this is not one of those cases.
¶ 3 Guilty or not, Appellant deserves a fair trial,
one that is reliable and that is free of the sorts of errors or
accumulations of error that would leave this Court with grave doubts
about the outcome.
¶ 4 Therefore, while I agree that the propositions
raised by Appellant do not merit any relief, I believe today's opinion
is a bit too willing to concede error or the possibility of error with
respect to what occurred in this trial. As such, I must part ways
with significant portions of the analysis.
¶ 5 In my opinion, this case is factually unique
due to the repeated attempts on the victim's life. These attempts,
in turn, created a rather extended period of time when the victim was
experiencing trauma and stress that was truly startling and
extraordinary. As such, many of the deceased's statements, which are
found to be error or potential error in today's opinion, were
admissible hearsay under the state of the mind exception, 12 O.S.2001,
§ 2803(2). Furthermore, such statements were for the most part
admissible under 12 O.S.2001, § 2804(B)(2).
¶ 6 In addition, much of the “other crimes”
evidence went directly to the issue of motive, intent, preparation,
and planning, all of which were highly relevant and intricately
connected to the State's theory and burden of proof. I also find the
statements regarding insurance transfers admissible.
¶ 7 That is not to say that this was an error-free
trial. Few trials, if any are. I am thus bothered by the denial of
a defense witness, despite credibility issues, and two instructions
that should have been given.
¶ 8 Nevertheless, the evidence in this case is
overwhelming and I find the errors in this case are overwhelmed by the
strong evidence of guilt. I am simply not convinced that any
reversible error took place in this case.
¶ 1 The first stage of this capital murder trial is
rife with error. That error, at its most egregious, includes a
pattern of introducing evidence that has no purpose other than to
hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad
woman. The jury was allowed to consider such evidence, with no
limiting instruction, in violation of the fundamental rule that a
defendant must be convicted, if at all, of the crime charged and not
of being a bad woman.
¶ 2 I cannot agree with the majority's analysis of
the Oklahoma Evidence Code's provisions which embody this rule.1
That analysis is contrary to the purpose of the rule and to the
jurisprudence of this Court.2
¶ 3 I concur nonetheless in the result reached by
the majority opinion. The evidence of Andrew's guilt of the murder
is indeed overwhelming and the fundamental principles of justice do
not require a second trial on that question.
¶ 4 I cannot, however, stretch that rationale far
enough to find this jury was unaffected by that evidence in deciding
whether this defendant should live or die.
¶ 5 The evidence in question here included
(1) Andrew's prior adulterous affair with J.T.H.,
(2) her prior adulterous affair with another man;
(3) neighborhood boys had once told their mother
that Andrew had “come on to them” when they were working at her house;
(4) on the occasion of a restaurant dinner her
dress was too short, she showed too much cleavage, and someone there
called her a “hoochie;”
(5) she had said she liked having workmen at her
house and used them to babysit;
(6) she dyed her hair red after learning a male
acquaintance was partial to redheads; and
(7) during an argument with a plumber, she
threatened to kill him.
¶ 6 This is only a partial list of the testimony
Andrew complains of on appeal, but it will suffice to demonstrate the
tenor of the prosecutor's evidence.
¶ 7 Andrew argues that the sole purpose of this and
similar evidence was to “humiliate” and “dehumanize” her. Whatever
the purpose, I believe one effect was to trivialize the value of her
life in the minds of the jurors. As the prosecutor argued in
closing, Andrew was “different.”
¶ 8 Citing to Woodson v. North Carolina, 428 U.S.
280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976), Andrew argues that
the result of the prosecution's misconduct was a sentencing procedure
that did not meet the heightened standard of reliability required by
the Eighth and Fourteenth Amendments.
¶ 9 During closing argument at the penalty stage of
trial, the prosecutor made numerous improper statements.
¶ 10 I will address only the most immoderate of the
1. Referring to the testimony of Andrew's
distraught and sobbing 13-year-old daughter, the prosecutor told the
jury, “I'm sure you noticed from the witness stand, Tricity did not
beg for her mother's life.” 3
2. Referring to the testimony of Andrew's niece,
“Would you put your 15-year-old niece on the stand to do that? I
3. In response to defense argument that Andrew's
relatives would visit her in prison, “Rob Andrew's parents would like
to visit him in prison ․ the only place they get to visit is his
4. In response to victim impact statements not
asking for death: “Did they have to say it? Wasn't it conveyed?
Wasn't their message conveyed to you what punishment they want,” and,
“They're [the victim's family] prohibited by law from asking for a
specific punishment.” 6
¶ 11 The second stage of Brenda Andrew's trial was
fundamentally unfair. I find it impossible to say with confidence
that the death penalty here was not imposed as a consequence of
improper evidence and argument. A death sentence imposed under the
influence of passion, prejudice, and other arbitrary factors cannot be
upheld. See 21 O.S.2001, § 701.13.
¶ 12 I would reverse and remand for resentencing.
¶ 1 I cannot agree to affirming the conviction in
this case as I find merit in Appellant's Propositions I, II, III and
IV. I would reverse and remand this case for a new trial.
was charged conjointly with James Dwight Pavatt. The two defendants
were severed for trial. Pavatt was convicted of both counts,
received the death penalty, and appealed his Judgment and Sentence,
which was affirmed in Pavatt v. State, 2007 OK CR 19, 159 P.3d 272.
appeal brief was filed on February 21, 2006 and the State's brief was
filed on June 21, 2006. Andrew filed a reply brief on July 10, 2006.
Oral argument was held on January 30, 2007.
State presented evidence that the Andrews' marriage had been strained
for several years, and that Appellant had had a number of extramarital
to one witness, Appellant had told her husband that she could sign his
name “better than he could.” Among other evidence, the State
presented recordings of telephone conversations from Appellant and
Pavatt to the insurance company's home office, inquiring about the
status of the policy and attempting to persuade them that a legitimate
ownership change had been made.
Shepard Court stated, “The admission of this declaration, if
erroneous, was more than unsubstantial error. As to that the parties
are agreed. The voice of the dead wife was heard in accusation of
her husband, and the accusation was accepted as evidence of guilt.
If the evidence was incompetent, the verdict may not stand.” Shepard,
290 U.S. at 98, 54 S.Ct. at 23.
the jury a complete understanding of the crime” phrase was first
utilized by this Court in Carter v. State, 1985 OK CR 33, 698 P.2d 22,
where the omission of the other crimes evidence would have left gaps
in the testimony and would have likely confused the jury and left them
to speculate about what happened during a single episode. Id. ¶ 13,
at 24-25. This definition should be read in conjunction with the
other two so that this exception does not swallow the rule.
404(b) of the Federal Rules of Evidence does not apply to other act
evidence that is intrinsic to the crime charged. “Other act evidence
is intrinsic when the evidence of the other act and the evidence of
the crime charged are inextricably intertwined or both acts are part
of a single criminal episode or the other acts were necessary
preliminaries to the crime charged.” United States v. Lambert, 995
F.2d 1006, 1007 (10th Cir.1993), quoting United States v. Williams,
900 F.2d 823, 825 (5th Cir.1990).
v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
Strickland standard continues to be the correct test for examining
claims of ineffective assistance of counsel where counsel fails to
utilize mitigation evidence. Bell v. Cone, 535 U.S. 685, 122 S.Ct.
1843, 152 L.Ed.2d 914 (2002).
has filed a motion for an evidentiary hearing based on this evidence
pursuant to Rule 3.11, Rules of the Oklahoma Court of Criminal
Appeals, Title 22, Ch.18, App. (2007).
relevant instruction, Oklahoma Uniform Jury Instruction Number 9-43A
reads:The testimony of an informer who provides evidence against a
defendant must be examined and weighed by you with greater care than
the testimony of an ordinary witness. Whether the informer's
testimony has been affected by interest or prejudice against the
defendant is for you to determine. In making that determination, you
should consider:(1) whether the witness has received anything
(including pay, immunity from prosecution, leniency in prosecution,
personal advantage, or vindication) in exchange for testimony;(2) any
other case in which the informant testified or offered statements
against an individual but was not called, and whether the statements
were admitted in the case, and whether the informant received any
deal, promise, inducement, or benefit in exchange for that testimony
or statement;(3) whether the informant has ever changed his or her
testimony;(4) the criminal history of the informant; and(5) any other
evidence relevant to the informer's credibility.
has filed a motion for a new trial related to witness Sullivan's
recently as 1998, this Court has held that being an accessory to a
felony is not a lesser included offense to the defined felony.
Cummings v. State, 1998 OK CR 45, ¶ 40, 968 P.2d 821, 834. However,
this Court's decision in Shrum v. State, 1999 OK CR 41, 991 P.2d 1032,
wherein this Court allowed instruction on all lesser “related”
offenses allowed this Court to reverse cases where evidence of the
greater offense was lacking and there was some evidence of a lesser
“related” offense. See Glossip v. State, 2001 OK CR 21, 29 P.3d
597.A discussion regarding an all or nothing approach to a defense is
not appropriate here-suffice it say that the State should be confident
in their charging so that an accessory offense is not the “fall back”
oft condemned argument that the defendant gets three hots and cot,
while the victim lays cold in the grave.
motion is supported by affidavits and documents obtained from the
Clerk of the Federal Court for the Western District of Oklahoma. The
affidavit states that these documents were obtained on July 26, 2005.
O.S.2001, § 2404.
v. State, 2000 OK CR 8, ¶ 8, 2 P.3d 356, 365:Evidence of other crimes
or bad acts is not admissible as proof of bad character to show a
person acted in conformity therewith but “may ․ be admissible for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.” 12 O.S.1991, § 2404(B). The reason other crimes evidence
is so limited and its admission guarded revolves around fairness to
the accused who should be convicted, if at all, by evidence of the
charged offense and not by evidence of separate, albeit similar,
offenses. To be admissible, evidence of uncharged offenses must be
probative of a disputed issue of the crime charged, there must be a
visible connection between the crimes, evidence of the other crime(s)
must be necessary to support the State's burden of proof, proof of the
other crime(s) must be clear and convincing, the probative value of
the evidence must outweigh the prejudice to the accused and the trial
court must issue contemporaneous and final limiting instructions.
When other crimes evidence is so prejudicial it denies a defendant his
right to be tried only for the offense charged, or where its minimal
relevancy suggests the possibility the evidence is being offered to
show a defendant is acting in conformity with his true character, the
evidence should be suppressed.(citations omitted). See also Lott v.
State, 2004 OK CR 27, ¶ 40, 98 P.3d 318, 334-35; Bryan v. State, 1997
OK CR 15, ¶ 33, 935 P.2d 338, 356.
designed to inflame the passions of the jury that divert the jury from
its duty to decide a case on the evidence have long been condemned by
this Court. See Tobler v. State, 1984 OK CR 90, ¶ 28, 688 P.2d 350,
356; Ward v. State, 1981 OK CR 102, ¶ 5, 633 P.2d 757, 758; Bryant
v. State, 1978 OK CR 110, ¶ 24, 585 P.2d 377, 381. The prosecutor's
argument was nothing but an attempt to enrage the jury and repeat the
theme that Andrew deserved the death penalty, not because the State
had proved the aggravating circumstances it alleged, but because she
was a bad mother and woman. This argument was outside the record and
without foundation because Tricity was never asked any questions about
punishment for her mother. The freedom of speech and the range of
argumentation permitted during closing argument extends only to the
evidence presented at trial and to reasonable inferences drawn
therefrom. Ward, 1981 OK CR 102, ¶ 3, 633 P.2d at 758. “Arguments
beyond the scope of the evidence can only be intended to arouse the
passions and prejudices of the jurors and are improper.” Id. It is
impermissible for a prosecutor to go outside the record for purposes
of appealing to the jury's passions and prejudices. Bryant, 1978 OK
CR 110, ¶ 24, 585 P.2d at 381.
prosecutor crossed the line and again went outside the record by
questioning the propriety of putting on a mitigation witness who asked
the jury to spare Andrew's life. The prosecutor's personal opinion
that she would not have put this witness on the stand to shield the
young girl from testifying in a capital sentencing proceeding
reinforced the idea that Andrew was a bad person and thus she deserved
the death penalty. It is improper.
only has this Court repeatedly condemned this argument, we have done
so in many cases prosecuted by this district attorney's office. See
Young v. State, 2000 OK CR 17, ¶ 99, 12 P.3d 20, 45-46; Powell v.
State, 2000 OK CR 5, ¶ 150, 995 P.2d 510, 539; Le v.State, 1997 OK CR
55, ¶ 53, 947 P.2d 535, 554; Duckett v. State, 1995 OK CR 61, ¶ 46,
919 P.2d 7, 19. Our reprimands to seasoned prosecutors, including
the lead prosecutor here, have been ignored and capital case after
capital case has been jeopardized. It cannot and should not be
6. It is
improper for the prosecutor to ask jurors to have sympathy for
victims. Warner v. State, 2006 OK CR 40, ¶ 190, 144 P.3d 838, 890.
As noted in Note 3, supra, references to matters outside the record is
error. See also White v. State, 1995 OK CR 15, ¶ 24, 900 P.2d 982,
C. JOHNSON, V.P.J.: concurs.LUMPKIN, P.J.: concur
in results.A. JOHNSON, J.: concurs in results in part/dissents in
part.CHAPEL, J.: dissents.