Randle Robison, a white man, was 35 when he was sentenced to
death in Stephens County for the 1980 murders of Julia Sheila
Lovejoy, Averyl Bourque and Robert Leon Swinford in a bungled
robbery at a rural home.
spent 10 years and 10 months on death row and was executed on March
ROBISON v. STATE
1984 OK CR 21
677 P.2d 1080
Case Number: F-81-388
Oklahoma Court of Criminal Appeals
appeal from the District Court of Stephens County; George W.
Lindley, District Judge.
Randle Robison, appellant, was convicted of three counts of Murder
in the First Degree, in Stephens County District Court, Case No.
CRF-80-165. He was sentenced to death and appeals. AFFIRMED.
Branch, Jr., Duncan, for appellant.
Eric Cartwright, Atty. Gen., of Okl., Susan Talbot, Asst. Atty.
Gen., Oklahoma City, for appellee.
Olan Randle Robison, appellant, was convicted of three counts of
Murder in the First Degree in Stephens County District Court Case
No. CRF-80-165. In accordance with 21 O.S.Supp. 1976 § 701.11
[21-701.11], the jury fixed punishment at death by lethal injection,
in all three counts.
Appellant was convicted for the deaths of Julie Sheila Lovejoy,
Averil Bourque, and Robert Leon Swinford, all of whom shared a house
on the outskirts of Velma, [677 P.2d 1083] Oklahoma. A robbery
apparently precipitated their deaths, which was evidenced by the
disheveled state of their home when their bodies were discovered the
morning of June 12, 1980. The victims died from wounds inflicted by
a .22 caliber pistol and a .380 caliber pistol.
The state presented a number of witnesses at trial who implicated
appellant and two other men, Johnny Gillum and William Starr Jordan,
in the murders. One of the witnesses, Sharon Briscoe, was
appellant's girlfriend and it was her apartment in Healdton,
Oklahoma, where several persons, including appellant, had gathered
on June 11, 1980, to discuss a future amphetamine laboratory.
Throughout the day appellant consumed drugs and alcohol until he
finally passed out in the early evening, but not until after he had
called Johnny Gillum in Wichita Falls, Texas, requesting that Gillum
come to Healdton because he was needed. When Gillum arrived and
successfully awakened appellant, the two of them and William Starr
Jordan took several guns from the apartment and loaded them in
Sharon Briscoe's car. Appellant stated that he was going to "get
some gold" or "get rich" and the three men left.
After returning sometime before 11:00 p.m. with a suitcase and an
empty brown purse, appellant gave one of the women in the apartment
a lady's watch, a man's watch, and a pocket knife. He then had her
clean his boot, which contained a spot that looked like blood.
Appellant also removed his blood-stained shirt. Upon appellant's
orders, everyone packed and left that night for Wichita Falls,
Patricia Brumfield was with appellant and Johnny Gillum later that
night when they travelled to Lake Arrowhead where suitcases and a
gun were tossed into the water. The gun, a .380 caliber pistol was
later recovered. At trial, Ms. Brumfield testified that appellant
told her of shooting the people in Velma; that one of the women was
naked and had a gun. He also told her that they did not find the
gold they had gone after. Appellant requested that Ms. Brumfield
retrieve a .22 pistol from William Jordan, but she discovered that
Jordan had disposed of it.
Two other witnesses for the State also testified of being told by
appellant that he had participated in murdering three people during
When the crime scene was processed, jewelry was discovered in a
purse beneath Averil Bourque's body on her bed. A jeweler estimated
the value to be between $6,000 and $8,000. It was revealed at trial
that appellant was aware that Ms. Bourque possessed valuable
jewelry. Among possessions discovered missing from the house
following the murders was Robert Swinford's watch, and a .22 caliber
Appellant initially contends that the trial court erred in denying
his motion for change of venue. He attempted to support this
contention prior to trial through the affidavits of three residents
in Stephens County who verified that appellant could not receive a
fair trial in that County because of the extensive pretrial news
coverage of the triple slayings which prejudiced the citizens of
that county against appellant and thereby rendered it impossible to
empanel a jury which did not have a fixed opinion concerning his
The applicable rule to this issue is stated in Hammons v. State, 560
P.2d 1024 (Okl.Cr. 1977), as follows:
considering a motion for a change of venue, the presumption of law
is that a defendant can get a fair and impartial trial in the county
in which the offense charged was committed. The presumption is
rebutable, but the burden of persuasion is upon the defendant. Fry
v. State, 91 Okl.Cr. 326, 218 P.2d 643 (1950). A mere showing that
pretrial publicity was adverse to the defendant is not enough.
Shapard v. State, Okl.Cr., 437 P.2d 565 (1967). The defendant must
show by clear and convincing evidence that jurors were specifically
exposed to the publicity and that he was thereby prejudiced.
Tomlinson v. State, Okl.Cr., [677 P.2d 1084] 554 P.2d 798 (1976).
The granting of a change of venue is a discretionary matter within
the powers of the trial court and unless it is clear from the record
that the trial court has abused its discretion, or committed error
in judgment, this Court will not overrule the trial court,
especially where there has been an extensive voir dire examination
to determine the prejudicial effect of the pretrial publicity.
Shapard v. State, supra.
While it is true that appellant sought to rebut the presumption in
favor of his receiving a fair and impartial trial in Stephens County
through the affidavits and testimony of the three affiants, we are
compelled to agree with the trial judge that he did not meet
The newspaper accounts of the homicides do not appear to be adverse
to appellant, although they relate the fact that he was charged with
the crimes and give some background information about him. The
jurors each truthfully conveyed that they had been exposed to
publicity concerning the crime through the news media, but through
voir dire it was established that their prior knowledge would not
act to prejudice them. They each indicated they could render a fair
judgment on the evidence presented in court aside from information
they may have obtained outside of court. Thus, no abuse of
discretion was shown by the trial court's denial of change of venue.
Appellant urges reversal of his conviction because of comments made
by the prosecutor that amounted to comments on appellant's right to
remain silent. The initial incident assigned as error occurred
during voir dire when the prosecutor questioned a prospective juror
concerning the consideration he would give to defendant's bias,
interest, and credibility should he testify. The law in this area is
that it is error for the prosecutor to comment at any stage of the
jury trial upon the defendant's right to remain silent. Hanf v.
State, 560 P.2d 207 (Okl.Cr. 1977).
When a similar situation arose in Stover v. State, 617 P.2d 898
(Okl.Cr. 1980), this Court reversed the conviction. The reversal was
predicated on the prosecutor's comments followed by defense
counsel's timely objection and motion for mistrial. Defense counsel
did not object to the comments in the present case, which is
mandatory for preservation of the error; thus, there is no basis for
review of this alleged error other than to review it for fundamental
error. Having found none, this allegation provides no grounds for
Appellant also complains of statements made during closing argument,
which he alleges were comments on his failure to take the stand in
contravention of 22 O.S. 1981 § 701 [22-701]. We have read the
closing argument and are of the opinion that the comments were no
more than reasonable comments on reasonable interpretations of the
evidence. See Cobbs v. State, 629 P.2d 368 (Okl.Cr. 1981). Only when
taken out of context, as appellant has done, do the remarks appear
to be emphasizing appellant's failure to testify. Furthermore, no
objections were entered when the remarks were made and any error
which could have occurred was waived.
Appellant's third argument urges reversal because of the tainted
in-court identification of appellant by Terry Henderson who had
undergone hypnosis prior to identifying him. Ms. Henderson had been
travelling past the murder victims' home the night of the murders
when a car containing at least two occupants was backing out of the
driveway. After hearing of the murders, she contacted the sheriff's
office and gave a description of the car and one of the occupants.
During the investigation of the murders, Ms. Henderson underwent
hypnosis. At trial appellant sought to have her testimony excluded,
but was unsuccessful. When the witness testified, she positively
identified appellant as the man she saw in the car.
This Court has not deviated from the rule pronounced in Jones v.
State, 542 P.2d 1316 (Okl.Cr. 1975), that statements made in a
hypnotic state are inadmissible "when offered for establishing the
truth of the statements." But the issue in the present case is not
resolved by that rule. The issue at hand is whether a witness may
make an in-court identification following hypnosis when no
identification had been made prior to the hypnosis. We think not.
Through our research, we have discovered that the Arizona Courts
share the same view on hypnosis as we have come to hold. Testimony
by a witness who had been hypnotized was held inadmissible from the
time of hypnosis forward in State v. Mena, 128 Ariz. 226, 624 P.2d
1274 (1981). The court reasoned:
generally agreed that hypnosis is a state of altered consciousness
and heightened suggestibility in which the subject is prone to
experience distortions of reality, false memories, fantasies and
confabulation (the "filling in of memory gaps with false memories or
inaccurate bits of information"). In the context of pretrial
interrogation under hypnosis, these distortions, delusions and
confabulations are apparently aggravated by the tendency of a
subject to respond in a way he believes is desirable to the
hypnotist. This may happen even without any intent or awareness on
the part of the hypnotist or the subject.
addition, a person may assimilate the distortions, delusions and
confabulations he develops under hypnosis as part of his own memory.
After the hypnotic session has ended, the subject would then
perceive those hypnotically induced impressions to be reflections of
his actual past observations.
* * *
* * *
determination of the guilt or innocence of an accused should not
depend on the unknown consequences of a procedure concededly used
for the purpose of changing in some way a witness' memory.
Therefore, until hypnosis gains general acceptance in the fields of
medicine and psychiatry as a method by which memories are accurately
improved without undue danger of distortion, delusion or fantasy, we
feel that testimony of witnesses which has been tainted by hypnosis
should be excluded in criminal cases.
* * *
* * *
realize that it will often be difficult to determine whether
proffered testimony has been produced by hypnosis or has come from
the witness' own memory, unaffected by hypnotic suggestion. In order
to ensure against the dangers of hypnosis, therefore, this Court
will consider testimony from witnesses who have been questioned
under hypnosis regarding the subject of their offered testimony to
be inadmissible in criminal trials from the time of the hypnotic
In subsequent cases the Arizona courts have held that hypnosis does
not render a witness incompetent to testify to those facts
demonstrably recalled prior to hypnosis. State ex rel. Collins v.
Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); State v. Young,
135 Ariz. 437, 661 P.2d 1138 (Ariz. App. 1982). We adopt that
holding in the case at hand with regard to the subject matter of Ms.
Henderson's posthypnotic testimony, which includes her in-court
identification of appellant. The identification was inadmissible and
the trial court erred in permitting it to be made. Nevertheless,
this error is not grave enough to predicate reversal of the
conviction. The evidence apart from Ms. Henderson's identification
is far too overwhelming for us to conclude that her identification
determined the verdict.
Appellant argues in his Fourth assignment of error that evidence
regarding appellant's character and prior offenses was improperly
admitted at trial and resulted in prejudice to him. The alleged
improper evidence was introduced through the testimony of Sharon
Briscoe, a witness for the State, who in one instance remarked [677
P.2d 1086] that appellant was one of several people gathered at her
apartment the day of the murders to plan the erection of an
amphetamine laboratory. Although not objected to, and therefore not
preserved for appellate review, we nevertheless find that the
witness' explanation was relevant and therefore properly admissible.
Relevant evidence is evidence that has any tendency to make more or
less probable a material fact in issue. President v. State, 602 P.2d
222 (Okl.Cr. 1979).
Testimony given at trial revealed that money was needed to set up
the amphetamine laboratory, and the apparent motive behind the
murders was robbery. We find that the evidence of the amphetamine
laboratory was explanatory of the motive for the commission of the
murders. The fact that the evidence of the lab reflected in some
part on appellants character is outweighed by the probative value of
disclosing the motive of robbery for committing the murders.
In another statement Ms. Briscoe explained that she slept with
appellant, and he complains that this was an improper comment on his
character. It has long been the rule that the State may not attack
the defendant's character unless the defendant puts his character in
issue by introducing evidence of good character. Doser v. State, 88
Okl.Cr. 299, 203 P.2d 451 (1949). Although there are certain times
where such a remark would be improper, we do not think Ms. Briscoe's
comment in the context in which it was made can be construed as an
attack on appellant's character.
During Ms. Briscoe's testimony, it also surfaced that appellant had
a prior record, was on probation for an unspecified offense, and at
the time of the murders had an upcoming court appearance.
Appellant's trial counsel diligently objected to such testimony when
it was offered, the objections were sustained, and the jury was
admonished not to consider it.
We note that the remarks were not elicited by the prosecutor.
Moreover, even though they were improper, as they could be construed
as offered to prove the character of appellant in order to show he
acted in conformity therewith, we do not believe that the evidence
in any way affected the verdict. In the instant case, the court's
admonishment to the jury cured any error. Kitchens v. State, 513
P.2d 1300 (Okl.Cr. 1973).
Appellant filed a motion for new trial based on newly discovered
evidence which he claims was erroneously overruled by the trial
court. Whether or not a motion for new trial based on newly
discovered evidence is granted is largely within the discretion of
the trial judge. Garcia v. State, 545 P.2d 1295 (Okl.Cr. 1976).
Marlow v. City of Tulsa, 564 P.2d 243 (Okl.Cr. 1977), enunciates the
following guidelines for determining whether a trial court abused
its discretion in overruling a motion for new trial: 1) Is the
evidence material? 2) Did the accused or his counsel exercise due
diligence to discover the evidence before the trial? 3) Is it
cumulative? 4) Is there a reasonable probability that if the newly
discovered evidence had been introduced at the trial it would have
changed the results. Id. at 245.
In the present case, appellant secured an affidavit from
codefendant, Johnny Gillum. Gillum stated that appellant was asleep
in the backseat of Sharon Briscoe's car when the murders occurred
and had no knowledge of them until the crimes had been carried out.
He further stated that the man seen and identified by Terry
Henderson was not appellant, but William Starr Jordan.
Gillum's trial was held several days after appellant's; he was found
guilty and sentenced to life imprisonment. Appellant argues that had
Gillum been called to testify in appellant's trial prior to his own,
he would have refused to incriminate himself through his testimony.
It is our opinion that the trial court did not err when it overruled
the motion for new trial. The facts of this case [677 P.2d 1087]
indicating appellant's guilt are so strong that there is no
reasonable probability that the jury's verdict would change if the
new evidence were introduced. Testimony from at least five witnesses
implicated appellant in the murders through conversations they had
with him or overheard, and observations they made both before and
after the murders occurred. Under these circumstances we find no
abuse of discretion on the part of the trial court in overruling
appellant's motion for new trial.
Appellant submits that the prosecutor went beyond the scope of
evidence during closing arguments in both stages of the trial to
arouse passions and prejudices of the jurors and also expressed his
personal opinion of appellant's guilt. Our review of the closing
arguments reveals that the appellant's claims are for the most part
unfounded. Prosecutors are entitled to make reasonable comments on
the interpretations of the evidence. See Cobbs v. State, 629 P.2d
368 (Okl.Cr. 1981). When the prosecutor stated that he represented
the victims, the one instance where we agree that the prosecutor
deviated from the above-stated rule, the defense counsel failed to
object. Had he objected our conclusion would be no different,
however, as the comment made was improper but could not have
affected the verdict. Accordingly, appellant was not denied a fair
and impartial trial by the remarks of the prosecutor and reversal or
modification is not justified.
Five of the photographs of the victims introduced by the State at
trial are claimed by appellant to be gruesome and admitted into
evidence solely to arouse the passions and prejudice of the jury.
The photographs depict the victims as they were found at the crime
scene and the facial view of one victim at the autopsy. The general
rule as to admissibility of photographs is that they are admissible
when they are relevant to issues before the court and when their
probative value is not outweighed by danger of prejudice to the
accused. Vierrether v. State, 583 P.2d 1112 (Okl.Cr. 1978).
The probative value of photographs of murder victims can be
manifested numerous ways including showing the nature, extent, and
location of wounds, Glidewell v. State, 626 P.2d 1351 (Okl.Cr.
1981), depicting the crime scene, Deason v. State, 576 P.2d 778
(Okl.Cr. 1978), and corroborating the medical examiner's testimony.
Bills v. State, 585 P.2d 1366 (Okl.Cr. 1978). The probative value of
the photographs in the instant case is derived from each of the
elements of the cited cases. Thus, the photographs possess probative
value, which is not outweighed by prejudice to appellant.
One of the State's photographic exhibits depicted an O.S.B.I. agent
holding a string stretched to a hole in the wall in order to
illustrate the trajectory of a bullet in relation to the dead body
of Averil Bourque. Appellant claims that such a posed photograph was
inadmissible at trial under the rule that posed photographs showing
various assumed positions intended only to illustrate a hypothetical
situation are inadmissible as evidence. The rationale of the rule
forbidding admission of such photographs is to guard against "stage
setting" for the purpose of re-enacting the crime as the State
theorizes it happened. Roberts v. State, 82 Okl.Cr. 75, 166 P.2d 111
Although it is our opinion that the photograph should not have been
admitted into evidence because its purpose was no more than to show
the State's theory of what happened in Averil Bourque's bedroom the
night of the murder, we do not find the photograph to be nearly as
offensive as the one admitted in Roberts. There being no apparent
prejudicial effect that could have arisen from admission of the
photograph into evidence, we find no basis on which to grant relief.
Title 21 O.S. 1981 § 701.13 [21-701.13](C) requires this Court to
make three determinations in addition to consideration of
appellant's assigned errors. The first determination is whether the
death penalty was imposed under the influence of passion, prejudice,
or any other arbitrary factor. We have carefully reviewed the
transcript in this regard and find it devoid of prejudice or bias.
And, while it is true that the victims resided in a small community
where there may be strong feeling concerning a crime such as this,
we are confident that the penalty imposed was not influenced by
passion, prejudice, or any other arbitrary factor.
Second, a determination must be made on whether the evidence
supports the jury's findings of statutory aggravating circumstances.
The following aggravating circumstances were found by the jury: (1)
the defendant knowingly created a great risk of death to more than
one person; (2) the defendant had previously been convicted of a
felony involving the use or threat of violence to the person; and
(3) the existence of a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society. Additionally, a fourth aggravating circumstances, the
murder was heinous, atrocious, or cruel, was found to exist in the
case of Averil Bourque.
It is apparent from the facts of the case that the three murders
created a risk of death to more than one person as the three victims
resided in the same house and were all present when appellant and
his two codefendants arrived to rob them. The jury's finding in this
regard is adequately supported.
During the second stage of the trial, the State admitted a certified
judgment and sentence of appellant's 1973 conviction for armed
robbery. This particular conviction supports the jury's finding that
appellant had previously been convicted of a felony involving the
use or threat of violence to the person. Furthermore, the calloused
manner in which the crimes were committed supports the finding that
there is a probability that appellant would commit future acts of
violence which would be a continuing threat to society.
Averil Bourque's death was the result of multiple gunshot wounds.
She was shot once in the left breast, once in the right ear, and
twice between the eyes. The wounds in the ear and between the eyes
were at close range as evidenced by powder burns surrounding the
wounds. A death occurring at close range by two gunshots between the
eyes amply supports a finding that the death occurred in a heinous,
atrocious or cruel manner.
Finally, after considering whether the sentence of death is
excessive or disproportionate to the penalty imposed in similar
cases, which is the third determination that this Court must make,
we conclude that it is not. The death penalty was upheld in Stafford
v. State, 669 P.2d 285 (Okl.Cr. 1983), Stafford v. State, 665 P.2d
1205 (Okl.Cr. 1983), and Hays v. State, 617 P.2d 223 (Okl.Cr. 1980),
which are all cases where the victims of robberies were shot and
killed as occurred in the instant case. Furthermore, the factors
which existed in the cases where this Court has either modified the
death sentence to life1 or reversed the conviction2
are not present in the case at hand. Thus, we find that the assessed
death penalty is neither excessive nor disproportionate.
For the reasons hereinstated, the judgment and sentence appealed
from should be, and the same is hereby, AFFIRMED.
Jones v. State, 660 P.2d 634 (Okl.Cr. 1983); Driskell v. State, 659
P.2d 343 (Okl.Cr. 1983); Boutwell v. State, 659 P.2d 322 (Okl.Cr.
1983); Munn v. State, 658 P.2d 482 (Okl.Cr. 1983); Odum v. State,
651 P.2d 703 (Okl.Cr. 1983); Burrows v. State, 640 P.2d 533 (Okl.Cr.
1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); Irwin v. State,
617 P.2d 588 (Okl.Cr. 1980).
Coleman v. State, 670 P.2d 596 (Okl.Cr. 1983); Hall v. State, 650
P.2d 893 (Okl.Cr. 1982); Brewer v. State, 650 P.2d 54 (Okl.Cr.
1982); Hager v. State, 612 P.2d 1369 (Okl.Cr. 1980).
BUSSEY, Presiding Judge, specially concurring:,
agree that the judgment and sentence should be affirmed and that the
record is free from any error which would justify reversal or
modification. The aggravating circumstances amply support the
imposition of the death penalty. I do not, however, agree that the
in-court identification of the defendant by witness Henderson was so
tainted, as to render it inadmissible for I am of the opinion that
the identification was based on her observations of the defendant at
the crime scene. In this regard her testimony was merely cumulative
of that established by other evidence.
BUSSEY, P.J., specially concurs.
CORNISH, J., concurs.
ROBISON v. STATE
1991 OK CR 111
818 P.2d 1250
Case Number: PC-89-1293
Oklahoma Court of Criminal Appeals
appeal from the District Court of Stephens County; George W.
Lindley, District Judge.
Randle Robinson, appellant, was tried by jury for the crime of
Murder in the First Degree, three counts, in Case No. CRF-80-165 in
the District Court of Stephens County before the Honorable George W.
Lindley, District Judge. The jury returned verdicts of guilty on all
three counts and set punishment at death by lethal injection, also
in all three counts. The trial court sentenced appellant
accordingly. This Court affirmed the Judgment and Sentence. Robison
v. State, 677 P.2d 1080 (Okl.Cr. 1984). Thereafter, the United
States Supreme Court denied certiorari. Robison v. Oklahoma, 467
U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). Appellant's
application for post-conviction relief was denied by the Stephens
County District Court on September 6, 1985. This Court affirmed that
denial of relief on November 25, 1985, in an unpublished order. The
order of the District Court denying post-conviction relief is
Alan Bauman, Oklahoma City, for appellant.
Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen.,
Oklahoma City, for appellee.
OLAN RANDLE ROBISON, appellant, was tried by jury for the crime of
Murder in the First Degree, three counts, in Case No. CRF-80-165 in
the District Court of Stephens County. The jury returned verdicts of
guilty on all three counts and set punishment at death by lethal
injection, also on all three counts. The trial court sentenced
appellant accordingly. This Court affirmed the Judgment and
Sentence. Robison v. State, 677 P.2d 1080 (Okl.Cr. 1984).
Thereafter, the United States Supreme Court denied certiorari.
Robison v. Oklahoma, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831
(1984). Appellant's application for post-conviction relief was
denied by the Stephens County District Court on September 6, 1985.
This Court affirmed that denial of relief on November 25, 1985, in
an unpublished order.
March 11, 1986, appellant filed a Writ of Habeas Corpus in the
United States District Court for the Western District of Oklahoma.
That Writ was denied by unpublished opinion on June 16, 1986. The
appellant appealed that denial of relief on July 16, 1986, to the
United States Court of Appeals for the Tenth Circuit. On September
25, 1987, the Tenth Circuit Court of Appeals affirmed the decision
in part and reversed in part, with an order remanding a portion of
the case for further consideration. Robison v. Maynard, 829 F.2d
1501 (10th Cir. 1987). The sole issue remanded concerned effective
assistance of appellate counsel.
December 27, 1988, the United States District Court for the Western
District of Oklahoma entered an order finding that one of
appellant's death sentences was invalid but denied appellant relief
on the remanded issue. Appellant filed a notice of intent to appeal
on May 9, 1989, and the appeal is still pending.
Appellant filed his second Application for Post Conviction Relief in
the Stephens County District Court on December 21, 1988. Supplements
to the Application were filed on February 21, 1989, and on March 3,
1989. On March 3, 1989, an evidentiary hearing was conducted and
final briefing was completed in September, 1989. On November 14,
1989, the Stephens County District Court entered an order denying
appellant post-conviction relief. From that order denying relief,
appellant appeals to this Court.
his first assignment of error, appellant contends that his
competency was called into question prior to trial, yet he was
denied a statutorily required post-examination competency hearing.
Our review of the record indicates that there was never a judicial
finding pursuant to 22 O.S. 1981 § 1175.1 [22-1175.1], et seq., that
a doubt as to appellant's competency existed. Rather, it appears
that appellant was allowed a psychiatric examination by agreement of
the parties and not by commitment of the court. Indeed, as the
District Court of Stephens County noted in its exhaustive order
denying relief, appellant's competency was never called into issue
at trial. Furthermore, this issue has not been properly preserved
for our review as it was not raised on direct appeal or in
appellant's first application for post-conviction relief. In Coleman
v. State, 693 P.2d 4, 5 (Okl.Cr. 1984), this Court held that the
doctrine of res judicata bars consideration in post-conviction
proceedings of issues which have been or which could have been
raised on direct appeal. See also 22 O.S. 1981 § 1086 [22-1086].
his second assignment of error, appellant argues for the first time
that his jury was recluded from fully considering the mitigating
evidence presented at trial because of an "anti-sympathy"
instruction given by the trial court. We again note Coleman, supra,
that precludes appellant's ability from raising this claim for the
first [818 P.2d 1252] time on his second application for
post-conviction relief. Our finding on this assignment of error is
further supported by the United States Supreme Court's ruling in
Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415
(1990). In Saffle, the Supreme Court clearly rejected the Tenth
Circuit Court of Appeals reasoning in Parks v. Brown, 860 F.2d 1545
(10th Cir. 1988), concerning the effect of the "anti-sympathy"
instruction on a particular jury. The Supreme Court further held
that in any event, such an issue was not proper for collateral
relief because it did not fall within either of the two exceptions
to the general principle that new rules will not be applied on
his next assignment of error, appellant contends that he was denied
his constitutional rights because his court appointed appellate
counsel had previously, as a judge, sentenced him in other cases.
Again, this issue is barred by the doctrine of res judicata because
it was not raised on direct appeal or on appellant's first
application for post-conviction relief. Coleman, supra.
reference to the preceding assignment of error, the District Court
of Stephens County conducted an evidentiary hearing prior to its
ruling denying relief on appellant's second application for
post-conviction relief. Prior to that hearing, appellant had filed a
Motion to Disqualify the Honorable George W. Lindley. Judge Lindley
had presided over appellant's trial and had denied appellant's first
application for post-conviction relief. Appellant maintains that
Judge Lindley was directly involved in the appointment of his
appellate counsel. Appellant avers that the propriety of the
appointment and retention of his counsel was a principal subject of
the post-conviction proceeding. Appellant asserts that it was
established that he had written to his appointed appellate counsel
expressing his dissatisfaction and requesting counsel to withdraw,
but at a meeting between Judge Lindley and trial counsel, Judge
Lindley directed counsel to continue his representation. Appellant
specifically argues that Judge Lindley should have disqualified
himself because appellant needed his testimony concerning the
appointment of counsel. Judge Lindley refused to disqualify himself
finding that the testimony that appellant wanted to elicit was not
material, but merely cumulative.
We have reviewed the record of the evidentiary hearing and find that
it does not indicate, nor has appellant demonstrated, any prejudice
which denied him due process or fundamental fairness. Our review of
the appellant's proffer of proof reveals that the testimony
appellant sought from Judge Lindley would have clearly been either
cumulative of the testimony given by appellant's appellate counsel
or immaterial. We find no violation of 22 O.S. 1981 § 1084
[22-1084], nor are any of the conditions listed in 20 O.S. 1981 §
1401 [20-1401], which require the disqualification of a judge,
present in this case. This assignment of error is without merit.
Finally, appellant suggests that the Oklahoma death penalty scheme
is unconstitutional. This argument has been raised previously and
addressed by both state and federal courts in appellant's case.
Thus, we find the procedural bar of Coleman, supra, to preclude a
reconsideration of this issue.
Having carefully reviewed the appeal. and being sufficiently advised
in the premises, this Court finds that the order of the district
court denying post-conviction relief should be, and hereby is
P.J., LUMPKIN, V.P.J., and BRETT, J., concur.
PARKS, J., specially concurs.
PARKS, Judge, specially concurring:
disposing of the first portion of appellant's third assignment of
error, the majority holds that the issue is barred by res judicata.
I agree with this conclusion. However, for the reasons stated below,
I would also note that there appears to have been no conflict of
interest regarding appellate counsel's representation of appellant.
The record reveals that in 1977 appellant entered pleas of guilty,
pursuant to a plea [818 P.2d 1253] agreement, to two (2) felony
charges in Stephens County District Court before then District Judge
Hegel Branch, Jr. Following appellant's conviction in the present
case, Mr. Branch, as an attorney in private practice, was appointed
to represent appellant on direct appeal. Branch was not aware of the
prior cases at the time of his appointment, but was advised of such
in a letter from appellant in mid-1981. However, appellant never
filed a request for the appointment of new counsel and did not raise
the issue in any previous plea for relief.
Following the evidentiary hearing in the instant action, the
district court made detailed findings which set forth the above
facts. The court also noted that appellant's prior cases, over which
Judge Branch presided, were not related to the present proceedings
and were not referred to during appellant's murder trial.1
Therefore, the present case is clearly distinguishable from Worthen
v. State, 715 P.2d 81 (Okl.Cr. 1986), the case upon which
appellant's relies in this assignment. Accordingly, even had this
issue been timely raised, would find that it is without merit.
also wish to reiterate my opinion that the so-called "anti-sympathy"
instruction in the second stage of trial is unnecessary and
confusing to the jury where mitigating evidence has been introduced.
See Fox v. State, 779 P.2d 562, 579 (Okl.Cr. 1989) (Parks, P.J.,
concurring in part/dissenting in part). As a matter of stare
decisis, however, I yield my view to that of the majority of this
The only prior conviction referred to during appellant's murder
trial was one for armed robbery in 1973. Robison v. State, 677 P.2d
1080, 1088 (Okl.Cr. 1984).
Robison v. Maynard
1992 OK CIV APP 142
857 P.2d 817
64 OBJ 2515
Case Number: 79261
RANDLE ROBISON, APPELLEE,
GARY MAYNARD, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF THE
OKLAHOMA DEPARTMENT OF CORRECTIONS, DAN REYNOLDS, INDIVIDUALLY AND
IN HIS CAPACITY AS WARDEN OF THE OKLAHOMA STATE PENITENTIARY,
FRED JORDAN, IN HIS CAPACITY AS CHIEF MEDICAL EXAMINER OF THE STATE
OF OKLAHOMA, DEFENDANT.
Appeal from the District Court of Pittsburg County; Robert A.
Layden, Trial Judge.
The trial court ordered the warden of the state penitentiary to
"ensure that the body will not be autopsied" after entering a
temporary injunction prohibiting the release of the body of
plaintiff, a convicted murderer scheduled for imminent execution by
lethal injection, to the medical examiner in order to protect
plaintiff's right to dispose of his body in the manner he chooses.
21 O.S. 1991 § 1151 . The warden was under a statutory mandate to
cooperate with the medical examiner and to assist in making a body
available for investigation. 63 O.S. 1991 § 940 . The medical
examiner must exercise his discretion in making a determination
whether an autopsy is necessary in the performance of his statutory
duty to investigate all "deaths of any inmates occurring in any
place of penal incarceration" and "deaths of persons whose bodies
are to be cremated." 63 O.S. 1991 § 938 (g), (h). Discretionary
powers of public officials will not be controlled by injunction
unless there is a showing of fraud or bad faith.
Randy Alan Bauman, Oklahoma City, for appellee.
Neal Leader, Asst. Atty. Gen., Oklahoma City, for appellants.
Plaintiff Olan Randle Robison was sentenced to death by the District
Court of Stephens County, and the execution was to be carried out on
March 13, 1992, at the state penitentiary at McAlester. On March 11,
1992, he filed a petition seeking a declaratory judgment affirming
his right to direct the manner - cremation - by which his body was
to be disposed. He also sought relief by injunction and/or
restraining order preventing various defendants from permitting or
performing an autopsy after his execution.
After hearing on March 12, 1992, the trial court granted a temporary
injunction and, in open court, ordered Dan Reynolds, Warden of the
Oklahoma State Penitentiary "not to turn the body of the petitioner
over to the State Medical Examiner for purposes of conducting an
autopsy." After hearing on March 13, the trial court entered an
order that the Warden "ensure that the body will not be autopsied by
the Chief Medical Examiner or any other person, unless allowed by
Order of this Court, or by Order or Writ issued by a higher court."
The Warden and the Director of the Department of Corrections appeal.
the response to the petition in error, it was proposed that the
appeal should be dismissed as moot because counsel for Plaintiff had
dismissed the underlying action, and Plaintiff's body had been
autopsied and released for burial. However, Plaintiff's counsel
stated that there was "no objection to continuing this appeal in the
interest of deciding an issue of continuing concern." Defendants ask
this court to review the merits of the controversy because (1) the
challenged event is "capable of repetition, yet evading review,"
Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219
U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), quoted in Roe
v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147
(1973), and (2) the question presented is of "broad public
interest." Marquette v. Marquette, 686 P.2d 990, 992 (Okla. Ct. App.
are persuaded that, indeed, a question of public interest is
presented. Furthermore, the issue is capable of costly, repetitive
litigation. Therefore, we will decide the case on the merits.
Defendants first propose that the trial court erred in finding that
the provisions of 63 O.S. 1991 § 938 , do not require the medical
examiner's office to conduct an investigation into Plaintiff's
death. Plaintiff proposed to the trial court and proposes to this
court that his death, the result of an execution observed by many
people, would not be an unexplained death and, therefore, the
provisions of the "Unexplained Deaths Act," which require an
autopsy, were not applicable. Defendants, on the other hand, contend
that the trial court erred in relying on the chapter heading of
"Unexplained Deaths" in interpreting section 938.
Title 63 O.S. 1991 § 938 , provides:
human deaths of the types listed herein shall be investigated as
provided by this act:
. . .
deaths of any inmates occurring in any place of penal incarceration;
deaths of persons whose bodies are to be cremated. . . .
Unquestionably, Plaintiff's death occurred in a place of penal
incarceration, and his body was to be cremated. Thus, the statute
requires "investigation" unless it can be determined that section
938 and related statutes deal only with "unexplained deaths" as
stated in the chapter title.
enacting S.B. No. 81, 1961 Okla. Sess. Laws, ch. 30, the codifiers
entitled the chapter, "Board of Unexplained Deaths." The intent for
the enactment was stated as: "AN ACT relating to unexplained deaths;
creating a board with authority to employ a state medical examiner .
. . with authority to investigate such deaths. . . ." Official
Session Laws 604 (1961).
Although the heading preceding the chapter number in the Oklahoma
Session Laws 1972 517 (West), retains the title, "Public Health and
Safety - Unexplained Deaths," the legislature changed the law in
1972 by enactment of H.B. No. 1401, 1972 Okla. Sess. Laws, ch. 246
(emphasis added), which was described as follows:
ACT RELATING TO PUBLIC HEALTH AND SAFETY;
AMENDING 63 O.S. 1971 §§ 931 , 933 THROUGH 951, AND 954; CHANGING
BOARD OF UNEXPLAINED DEATHS TO THE BOARD OF MEDICOLEGAL
INVESTIGATIONS; . . . PROVIDING FOR CHIEF MEDICAL EXAMINER, FIXING
HIS QUALIFICATIONS, AND DEFINING HIS AUTHORITY AND DUTIES; . . .
PROVIDING FOR INVESTIGATIONS TO DETERMINE CAUSE AND/OR MANNER OF
CERTAIN HUMAN DEATHS; PROVIDING FOR AUTOPSIES. . . .
the legislature specifically changed the "title" of the body of law,
63 O.S. 1991 §§ 931 , 933 through 951 , and 954 , from "Unexplained
Deaths" to "Medicolegal Investigations." Furthermore, the court in
Allen v. Board of Trustees of Oklahoma Uniform Retirement System for
Justices and Judges, 769 P.2d 1302, 1305 (Okla. 1988), stated:
the constitutional mandate of Art. 5, § 43 , Okl. Const., the
Legislature must revise Oklahoma laws every ten years. If the
substance of the revision is not otherwise prohibited by the
Constitution the revision will stand as authorized. A statute's
incorporation in a decennial compilation purges or cures any defect
present in that enactment's title. By relation back the
incorporation gives the statute validity from the date of the
original enactment in a flawed form. (Footnotes omitted.)
statutes applicable herein have been incorporated into both the 1981
and 1991 decennial compilations. Thus, any potential defect in the
enactment's title has been cured. Accordingly, Plaintiff's emphasis
and the trial court's focus on the term, "unexplained deaths," were
Defendants also propose that the trial court erred, when under the
guise of issuing a temporary injunction, it substituted its judgment
and discretion for that of the medical examiner as to whether an
investigation into the cause and manner of Plaintiff's death
required an autopsy. Again, we agree with Defendants' contention.
Title 63 O.S. 1991 § 941 , requires the medical examiner to
conduct an investigation into any death which is specified for
investigation under the terms of the act. Section 944 (emphasis
necessary in connection with an investigation to determine the cause
and/or manner of death and when the public interest requires it,
the Chief Medical Examiner [or] his designee . . . shall require and
authorize an autopsy to be conducted.
Plaintiff argues for a conjunctive reading of the language
"investigation to determine the cause and/or manner of death and
when the public interest requires it." He contends that where there
has been a legal execution the first requirement has been satisfied
because the "cause and/or manner of death" is known, and thus the
medical examiner has no discretion to perform an autopsy on the
single public-interest criterion. We do not agree.
When read in context of the mandates of section 938, section 941
provides that the medical examiner shall immediately conduct an
investigation into the cause and manner of death when he is notified
of the death of an inmate who died "in any place of penal
incarceration." Therefore, by statutory mandate the medical examiner
must determine the cause and/or manner of death when an inmate has
been executed under the laws of this state.
The Deputy Chief Medical Examiner testified that the Office of the
Chief Medical Examiner "take[s] jurisdiction for at least the reason
that the death [has] occurred in penal incarceration" and that "it
has been the long standing policy . . . that it is always in the
public interest to [perform] an autopsy on any death that occurs in
penal incarceration." The medical examiner testified as to the
purpose of investigating a death known to be an execution by the
State of Oklahoma:
my opinion and the opinion of our agency that any time the State
takes a person's life by legal execution that it is always in the
public interest that an autopsy and complete toxicology be
[performed] and that it be [performed] by an authority that is
totally independent of the agency that conducted the execution and
that has no interest at all or . . . is not in any way under control
of that agency in order to protect the public interest.
The medical examiner explained the various aspects of public
interest that would be protected by conducting an autopsy. He
further testified that the autopsy would not interfere in any way
with the ability of Plaintiff's family to dispose of the body as he
chose. Thus, there is undisputed evidence that a person's right to
dispose of his body in the manner in which he chooses, 21 O.S. 1991
§ 1151 , is not infringed upon by allowing the Chief Medical
Examiner to perform his mandatory investigation.
It is well established in Oklahoma that discretionary powers of
public officials will not be controlled by injunction "in absence of
any showing that their action is fraudulent or in bad faith." White
v. Pottawatomie County, 199 Okla. 103, 184 P.2d 446 (1947) (syllabus
5); see also Moore v. Porterfield, 125 Okla. 217, 257 P. 307 (1927)
(syllabus 2); International Ass'n of Fire Fighters, Local No. 1881
v. Haralson, 558 P.2d 415 (Okla. Ct. App. 1976). Herein, the record
is devoid of any evidence of fraudulent intent or bad faith. Indeed,
the Warden, all law enforcement officers and state and county
officials are under a statutory mandate to cooperate with the
medical examiner and to assist in making a body available for
investigation. 63 O.S. 1991 § 940 . Here, the evidence strongly
supports a conclusion that the only breach of duty in the exercise
of discretion would have been if the medical examiner had not (1)
performed an investigation, including autopsy, (2) affirmatively
established the cause of death, (3) ruled out any possibility that
the State had failed to protect the rights of the inmate during his
incarceration, and (4) established that the execution had been
carried out in the manner prescribed by law.
Based upon the foregoing, we find that the trial court erred in
granting the temporary injunction to prevent Defendants from
fulfilling their statutory obligations, which had the effect of
preventing the Chief Medical Examiner from performing his statutory
duties to investigate the type of death which occurred herein.
BACON, C.J., and BOUDREAU, J., concur.