Oklahoma Executes Man for
Wife's 1996 Slaying
By Katie Fretland - Associated Press
March 16, 2012
An Oklahoma man convicted of killing his wife
with help from a relative of his mistress to collect insurance
money was put to death by injection Thursday.
Timothy Shaun Stemple shook his head no when
asked if he had any last words, as members of his family and his
wife's sat separately from each other watching the condemned man
The 46-year-old Stemple gasped for about 20
seconds, his eyes opened and he groaned. He then laid still with
closed eyes and his face turned pale. He was pronounced dead at
His family had asked the governor to stay the
execution so that medical testimony disputing his accomplice's
account of the 1996 attack on Trisha Stemple could be heard in
court. Stemple's mother, his 21-year-old daughter and his sisters
held each other by their hands and arms as he was being put to
death. One of his sisters held his crying daughter's face close to
Afterward, Trisha Stemple's sister, Deborah
Ruddick-Bird, said the day was not about Timothy Stemple. She said
it was "about justice, finality and closure for my gorgeous
sister, Trisha, and my family."
"Today we put a period at the end of the
chapter that held us captive for far too long," Ruddick-Bird told
reporters. "Today we breathe again. Today we move forward and move
Trisha Stemple, 30, was beaten with a
plastic-covered baseball bat and run over by a pickup truck Oct.
24, 1996, along a Tulsa highway. Her husband maintained his
innocence throughout the trial and appeals process. And at a
clemency hearing last month, he declined to address Pardon and
Parole Board members.
The board denied his plea for clemency.
"The state of Oklahoma murdered an innocent man
today," his mother, Lia Stemple, told The Associated Press by
phone after the execution. "I don't want vengeance but I want the
truth to be known so this doesn't happen to another family. My son
was a noble man."
The New York-based Innocence Project also urged
Gov. Mary Fallin to stay the execution and called for additional
DNA testing to be done. Human blood was found on the plastic that
was on the bat, but it was too deteriorated to determine whose it
was, prosecutors said. His family hoped advances in DNA testing
could help exonerate him.
Stemple's execution at the state prison in
McAlester is the first of three scheduled over the next two months
in Oklahoma. Last month, Department of Corrections officials said
the state has four doses left of the lethal injection drug
pentobarbital, an anesthetic that manufacturers have objected to
selling for use in executions.
It was among the drugs used to execute Stemple.
Stemple's accomplice, Terry Hunt, told the AP
during a prison interview Sunday that he was disappointed Stemple
didn't confess when given the opportunity at the clemency hearing.
"I'm not innocent and Shaun is not innocent," said Hunt, who's in
prison in Hominy serving a life sentence.
Hunt is the cousin of Dani Wood, who was having
an affair with Timothy Stemple. Hunt's testimony that the crime
was brutal, with Trisha Stemple being conscious during much of the
attack, was a factor that helped prosecutors secure the death
penalty for Stemple.
Hunt struck the woman with a bat twice and her
husband hit her in the back of the head about 20 to 30 times,
according to Hunt's testimony. Hunt said Stemple tried to drive
over his wife's head with the pickup truck. Hunt tried to place a
wheel on her chest. Following the initial attack, she managed to
drag herself onto grass along the highway after they drove away.
In his testimony, Hunt said they returned and
struck her with the truck, traveling about 60 mph.
A forensic expert consulted by Timothy
Stemple's family said the wife's injuries were consistent with
being hit by a vehicle and run over but that there's no evidence
she was beaten.
The medical examiner first thought she died
after being hit by a car, but there was "no primary point of
impact below the knees as is usual in the typical auto-pedestrian
collision," according to prosecutors' report in the case.
Stemple executed for death of
By Cary Aspinwall - TulsaWorld.com
March 15, 2012
McALESTER - Oklahoma executed Timothy Shaun
Stemple on Thursday evening for the 1996 murder of his wife,
He was pronounced dead at 6:11 p.m. at Oklahoma
State Penitentiary. He had declined to offer any last words and
took a few short gasps and briefly opened his eyes after the
lethal injection began at 6:05 p.m.
His daughter, Lauren Stemple, witnessed the
execution along with Stemple's parents and two sisters. She sobbed
quietly on her aunt's shoulder as her father took his final
A last-minute campaign this week by Shaun
Stemple's family and anti-death penalty groups failed to convince
Gov. Mary Fallin to grant Stemple a stay of execution.
In 1997, a jury convicted Stemple of brutally
beating to death his wife of 11 years and running over her with a
pickup, aided by a teenage accomplice.
Investigators said he planned his wife's
killing to collect on a $950,000 insurance policy.
Several of Trisha Stemple's family members also
witnessed the execution, along with retired Tulsa homicide
detective Mike Huff and Tulsa County Sheriff Stanley Glanz.
Trisha Stemple's youngest sister, Deborah
Ruddick-Bird, offered a statement on behalf of her family after
the execution: "Today is not about Shaun. It's about justice,
finality and closure for my gorgeous sister Trisha and my family."
Thursday, Ruddick-Bird said, her family "put a
period at the end of a chapter that held us captive for far too
Stemple's final meal request was a large
stuffed-crust pizza with extra cheese, half pepperoni and half
Canadian bacon, and a 2-liter bottle of orange soda with ice. He
was the second Oklahoma inmate to be executed this year.
Stemple and his family contended that he was
innocent and that Trisha Stemple died as a result of a
They mounted a campaign based on their belief
that he was wrongly convicted, using analysis from forensic firms
they hired to bolster their case. The Innocence Project and the
Norwegian foreign minister lobbied for Fallin to stay Stemple's
According to court testimony, Shaun Stemple
hired a teenage accomplice, Terry Hunt, to wait in the woods along
U.S. 75 between 81st and 91st streets, and Stemple, who had his
wife with him, feigned car trouble so he could stop at a
preselected spot nearby.
Stemple and Hunt then took turns beating Trisha
Stemple with a cellophane-wrapped baseball bat, and he ran over
her body with a pickup, evidence indicated. Court records indicate
that Trisha Stemple tried to get up after her husband tried to
drive the truck's tires over her head, and he got out of the
truck, walked over to her and said: "Don't worry, Trish. The
ambulance is on its way."
He then grabbed the bat again and hit her in
the back of the head eight to 12 more times, court records
Trisha Stemple's skull, neck bone and pelvis
were crushed, and 17 ribs were broken. A hole was drilled into one
of Trisha Stemple's car tires to make it appear that she'd had car
trouble, according to testimony.
Her body was found alongside the highway after
Shaun Stemple reported her missing. Trisha Stemple's death was
originally investigated as a hit-and-run auto-pedestrian
collision, but investigators began to suspect foul play as they
examined the evidence.
Hunt, the cousin of Shaun Stemple's
then-girlfriend, testified for the prosecution and is serving a
life sentence for first-degree murder.
Attorney General Scott Pruitt issued a
statement Thursday before Stemple's execution, reiterating that a
jury of Stemple's peers examined the evidence and sentenced him to
death fourteen years ago.
"My thoughts are with Trisha Stemple's family
and what they have endured," Pruitt said.
Cheating husband who
killed his wife for $1million insurance executed by lethal
injection after choosing pizza as his last meal
March 16, 2012
A man convicted of killing his
wife with help from his mistress' relative to collect insurance
money was put to death by lethal injection last night.
Timothy Shaun Stemple's
execution in Oklahoma was carried out at the state prison in
McAlester after Gov Mary Fallin denied a request by the condemned
man's family to stay the capital punishment.
His family sought to have
medical testimony disputing his accomplice's account of the 1996
attack on Trisha Stemple heard in court.
Stemple was a married kids'
soccer coach in 1996 when he had an affair and enlisted his
girlfriend's 16-year-old cousin to help him kill his wife of 11
years, according to evidence presented at his 1997 trial.
Trisha Stemple, 30, was beaten,
run over with a pickup truck and left on the side of a road beside
her car, whose tire was punctured with a drill to make the crime
appear to be random carjacking, testimony showed.
Timothy Stemple might have
collected on a $950,000 life insurance policy, but his teen-age
accomplice testified against him in exchange for a life prison
term, court testimony showed.
The 30-year-old woman was beaten
with a plastic-covered baseball bat and run over by a pickup truck
October 24, 1996, along a Tulsa highway.
Her husband maintained his
innocence throughout the trial and appeals process.
And at a clemency hearing last
month, Timothy Stemple, 46, declined to talk about the case,
saying it wasn't the appropriate forum.
Prison spokesman Jerry Massie
told Reuters that Stemple chose pizza as his last meal.
The Pardon and Parole Board
denied his plea for clemency.
Stemple's execution is the first
of three scheduled over the next two months in Oklahoma.
Last month, Department of
Corrections officials said the state has four doses left of the
lethal injection drug pentobarbital, an anaesthetic that
manufacturers have objected to selling for use in executions.
Stemple's accomplice, Terry
Hunt, told The Associated Press during a prison interview Sunday
that he was disappointed Stemple didn't confess when given the
opportunity at the clemency hearing.
'I'm not innocent and Shaun is
not innocent,' said Hunt, who's in prison in Hominy serving a life
Hunt is the cousin of Dani Wood,
who was having an affair with Timothy Stemple.
Hunt's testimony that the crime
was brutal, with Trisha Stemple being conscious during much of the
attack, was a factor that helped prosecutors secure the death
penalty for Stemple.
Hunt struck the woman with a bat
twice and her husband hit her in the back of the head about 20 to
30 times, according to Hunt's testimony.
Hunt said Stemple tried to drive
over his wife's head with the pickup truck.
Hunt tried to place a wheel on
Following the initial attack,
she managed to drag herself onto grass along the highway after
they drove away.
In his testimony, Hunt said they
returned and struck her with the truck, traveling about 60 mph.
A forensic expert consulted by
Timothy Stemple's family said the wife's injuries were consistent
with being hit by a vehicle and run over but that there's no
evidence she was beaten.
The medical examiner first
thought she died after being hit by a car, but there was 'no
primary point of impact below the knees as is usual in the typical
auto-pedestrian collision,' prosecutors said in a report in the
Court of Criminal Appeals of
Stemple v. State
Timothy Shaun STEMPLE, Appellant. v. STATE of
January 20, 2000
W. Creekmore Wallace, II,
Sapula, Johnie O'Neal, Tulsa, for Defendant.T. Brett Swab, Mark L.
Collier, Assistant District Attorneys, Tulsa, for the State.Gloyd
L. McCoy, Coyle & McCoy, Oklahoma City, for Appellant.W.A. Drew
Edmondson, Attorney General of Oklahoma, William L. Humes,
Assistant Attorney General, Oklahoma City, for Appellee.
O P I N I O N
¶ 1 Timothy Shaun Stemple was
convicted by jury of first degree malic murder, 21 O.S.1991,
§ 701.7 (count one), conspiracy to commit first degree murder, 21
O.S.1991, § 421 (count two), and attempted first degree murder,
21 O.S.1991, § 42 (count three), in Tulsa County District Court,
Case Number CF-96-5169, the Honorable B.R. Beasley, Associate
District Judge, presiding. After the sentencing stage, the jury
found the existence of two aggravating circumstances: “the person
committed the murder for remuneration or the promise of
remuneration, or the person employed another to commit the murder
for remuneration or promise of remuneration;” and “the murder was
especially heinous, atrocious or cruel.” 21 O.S.1991,
§ 701.12(3) & (4). The jury set punishment at death on count
one, ten years on count two and twenty-two years on count three.
¶ 2 Stemple concocted a plan to terminate the
life of his wife, Trisha Stemple, and to collect her life
insurance proceeds. Stemple was having an extra-marital affair
with Dani Wood. Dani Wood had a sixteen year old cousin, Terry
Hunt. According to Hunt, Stemple offered him $25,000 to $50,000 to
help kill Trisha (if they collected the insurance money).
¶ 3 Hunt recruited another person, Nathanial
Helm to assist in the plan. Helm and Hunt went to Wal-Mart where
they purchased a baseball bat and plastic wrap. The plastic wrap
was wrapped around the bat to keep the bat from getting bloody.
¶ 4 On October 10, 1996, Hunt and Helm went to
the designated location on highway 75 and waited for Stemple and
his wife to arrive. A while later Stemple drove up and told Helm
and Hunt that Trisha was ill and he could not get her to accompany
¶ 5 Two weeks later, Stemple arranged for Hunt
to drive Stemple's pickup to a particular location on highway 75
and leave the hood up. Stemple and Trisha arrived in their black
Nissan Maxima. Stemple began working on the truck and Trisha
stood next to the truck. Hunt came up behind Trisha and hit her
in the head with the bat. The blow did not render Trisha
unconscious, so Stemple took the bat and hit her several more
¶ 6 Stemple and Hunt then placed Trisha's head
in front of the front tire of the pickup and attempted to run over
her head, however, the tire would not roll over Trisha's head so
her head was pushed along the pavement. After this, Trisha tried
to get up. Stemple grabbed the bat and hit her several more
times. The pair then placed Trisha's body under the truck and
drove over her chest. After this Trisha rose up on her elbows,
so Stemple hit her again several times with the bat.
¶ 7 Stemple then went back to the black Nissan
and drilled a hole in the front tire to make it look as if
Trisha's car had a flat. One expert testified that the hole in
the tire had spiral striations consistent with drilling. Stemple
and Hunt left in the pickup, but decided to turn around to make
sure Trisha was dead. When they got back to the spot where they
left Trisha, they noticed that she had crawled into the grass
beside the road. Stemple then sped up and ran over Trisha as she
lay in the grass.
¶ 8 Trisha's body was found later that morning,
after Stemple called reporting that she was missing. The autopsy
evaluation revealed that Trisha had fractures to her arm, ribs,
pelvis, vertebrae and skull. The medical examiner concluded that
Trisha died from blunt force trauma to the head.
¶ 9 While in the Tulsa County jail awaiting
trial, Stemple made numerous notes including confessions, lists of
witnesses, etc. Inmates testified that Stemple tried to get them
to arrange the death of several witnesses. The inmates also
testified that Stemple gave them a copy of his confession.
Included in these writings were sample letters for witnesses Terry
Hunt and Dani Wood, detailing their involvement and exculpating
him from the crime. Hunt and Wood were to be coerced into
rewriting and signing the letters by persons hired by the other
¶ 10 Stemple claimed that he was at home when
Trisha left during the middle of the night. Stemple testified
that he believed that Wood was responsible for the murder of
JURY SELECTION ISSUES
¶ 11 Stemple complains, in proposition four,
that he was deprived of his right to be present at every critical
stage of the proceeding by being absent from an in camera hearing
regarding comments made by a spectator to venire member Heffernan.
Heffernan indicated, during voir dire, that a spectator had
stated an opinion about the case to him. Heffernan indicated
that the statement did not taint him in any way. Heffernan was
not removed by either side, nor by the court.
¶ 12 The next day an in camera hearing was
held. The spectator, Marita Ries said that she was sitting next
to Heffernan and possibly said that “this is a terrible case.”
Ries was admonished to keep her opinions to herself. Stemple was
not present at this hearing and his attorney advised the trial
court that he waived his client's right to be present.
¶ 13 First, we note that this in camera hearing
was not part of the voir dire and Ries was not a part of the jury
pool. Therefore, cases which discuss the absence of a defendant
from voir dire are distinguishable. See Darks v. State, 1998 OK
CR 15, ¶ 35, 954 P.2d 152, 162 (“There is no way to assess the
extent of prejudice, if any, a defendant might suffer by not being
able to advise his attorney during jury selection.”)
¶ 14 Stemple was present during the voir dire
of Heffernan and he was aware that a spectator had stated an
opinion to Heffernan. Ries' admission during the in camera
hearing did not add anything to the voir dire. In actuality, her
statement did not indicate any bias whatsoever. Regardless, of
the guilt or innocence of Stemple, all present could agree that
this was a terrible case.
¶ 15 We find that the absence of Stemple during
this in camera hearing was not prejudicial to his case. It
certainly was not an instance where a fair and just trial was
thwarted by his absence. Kentucky v. Stincer, 482 U.S. 730, 745,
107 S.Ct. 2658, 2667, 96 L.Ed.2d 631 (1987); Gregg v. State, 1992
OK CR 82, ¶ 23, 844 P.2d 867, 876. Therefore, there was no error
FIRST STAGE ISSUES
¶ 16 Stemple argues in proposition two that the
State failed to comply with basic rules of discovery when
prosecutors failed to inform him that Terry Hunt had changed his
story. The Oklahoma Discovery Code requires that the State
disclose, upon request of the defense, “the names ․ of witnesses
which the state intends to call at trial, together with their
relevant, written or recorded statement, if any, or if none,
significant summaries of any oral statement ․;” 22 O.S.Supp.1998,
§ 2002(A)(1)(a), and “any written or recorded statements and the
substance of any oral statements made by ․ a codefendant.” 22
O.S.Supp.1998, § 2002(A)(1)(c). The Discovery Code also requires
that the State provide exculpatory evidence, regardless of a
request by the defense. 22 O.S.Supp.1998, § 2002(A)(2). The
State is under a continuing duty to disclose discoverable
material. 22 O.S.Supp.1998,§ 2002(C). Stemple filed a motion
for discovery; therefore, he triggered the requirements of
Sections 2002(A) and 2002(C).
¶ 17 The State disclosed recorded statements
made by Hunt, and Hunt testified at preliminary hearing. Hunt's
preliminary hearing testimony was not interrupted or cut short by
the magistrate. In fact, trial counsel admitted that he
thoroughly cross-examined Hunt at preliminary hearing. Stemple
argues that Hunt materially changed his testimony at trial, and
because of the change, the State had a duty to inform him about
changes of which the State had knowledge prior to trial.
¶ 18 At trial, Hunt testified that Stemple's
first plan involved a kill switch on the Nissan Maxima. Stemple
and his wife would drive to a location where Stemple would kill
the car. Stemple and his wife would get out and Hunt would come
out of hiding and hit Trisha with the baseball bat. Stemple
objected to this testimony, stating that this is the first time he
had heard these details. The prosecutor admitted that, before
testifying, Hunt indicated that this conversation had taken place.
The trial court sustained Stemple's objection and the jury was
admonished to disregard the testimony. Regarding this testimony,
we find that any perceived error was cured by the admonishment to
the jury. Patton v. State, 1998 OK CR 66, ¶ 68, 973 P.2d 270,
292-93, cert. denied, 528 U.S. 939, 120 S.Ct. 347, 145 L.Ed.2d 271
(a trial court's admonishment usually cures any error).
¶ 19 Later, Hunt testified that he drove by
Nathaniel Helm's residence before driving out to the location of
the murder. Again, Stemple objected stating that this was the
first time he had heard this story. Obviously, the State knew
about this information because they talked about it in opening
statement. The State argued that this testimony was a minor
deviation from the discovery materials and preliminary hearing
testimony. Stemple also objected to Hunt's testimony wherein he
said that he acted like the assault was a “car jacking” and told
them to “get down.” The trial court overruled the objections.
¶ 20 Hunt's own desire or need to make it sound
like he was a “car jacker” did nothing to change the substance of
his testimony against Stemple. There is no evidence that the
State knew that Hunt was going to testify that he was acting like
it was a car jacking. Hunt obviously was trying to make Trisha
believe that her husband was not involved in the attack.
¶ 21 Obviously, the State did not turn over the
substance of all of the oral statements made by Hunt leading up to
trial. The State defended themselves by saying that Hunt was
made available to the defense for questioning. On appeal, the
State argues that the change in testimony did not amount to a
materially significant change and that Stemple was not prejudiced
by the more detailed testimony at trial.
¶ 22 We find that the failure to disclose this
information was not fatal to this case. First, the additional
information did not substantially change the evidence against
Stemple. Whether or not Hunt went by Helm's residence before
going to the scene of the crime is inconsequential. Therefore,
the trial court did not abuse its discretion in allowing the
evidence to be introduced.
¶ 23 Hunt's testimony regarding the desire to
make the assault look like a “car jacking” was not a substantial
change in his earlier testimony. At preliminary hearing Hunt
stated that the plan was, first, to make it look like a robbery,
and later, Stemple decided to make it look like a hit and run.
¶ 24 Stemple also complains about Hunt's
testimony when he states that he tried to run over her chest.
The discovery materials apparently stated that “they tried to run
over her.” The trial court decided that this was substantially
the same. Stemple lastly complains about testimony concerning
the disposal of the keys of the Maxima. During preliminary
hearing, Hunt did not mention any of these details. These were
not changes in testimony sufficient to trigger the State's
continuing duty to disclose (if the State had prior knowledge of
the change). This was inconsequential testimony and did not
constitute the substance of the case.
¶ 25 In this case there was no complete failure
to disclose evidence as there was in Skelly v. State, 1994 OK CR
55, 880 P.2d 401. In the present case, the prosecutor did turn
over all written and recorded statements. But the State did not
disclose the substance of Hunt's oral statements made just before
testifying. Stemple cites the Florida case of Evans v. State,
721 So.2d 1208 (Fla.App.1998) for support of this proposition.
However in Evans the witness's testimony changed from “I didn't
see anything” to “I saw the defendant shoot the victim.” Such a
material change in testimony did not occur in this case.
¶ 26 The Supreme Court of Florida has stated
“When testimonial discrepancies appear, the
witness' trial and deposition testimony can be laid side-by-side
for the jury to consider. This would serve to discredit the
witness and should be favorable to the defense. Therefore,
unlike failure to name a witness, changed testimony does not rise
to the level of a discovery violation․”
Bush v. State, 461 So.2d 936, 938 (Fla.1984),
cert. denied, 475 U.S. 1031, 106 S.Ct. 1237, 89 L.Ed.2d 345
(1986). The same can be said of the case at bar. Stemple had the
opportunity and did question Hunt regarding the discrepancies in
his trial testimony versus his preliminary hearing testimony and
his recorded statements. These discrepancies served to discredit
Hunt and made him somewhat less believable.
¶ 27 The State is not required to give a script
of its case in chief. However, the State is under a continuing
duty to disclose additional evidence or material discovered prior
to or during trial. 22 O.S.Supp.1998,§ 2002(C). Such failure
to disclose may be error when this evidence is material, would
change the theory of the case or would cause the defendant to
change his strategy. However, in this case, the State did not
violate the letter or the spirit of the Discovery Code by failing
to inform Stemple of the discrepancies in Hunt's testimony.
¶ 28 Also in this proposition, Stemple argues
that the State attempted to introduce testimony from James Johnson
that was not provided in discovery. Stemple objected to the
testimony at trial. His objections were sustained and the
evidence was excluded. The State provided a written statement by
Johnson. That is all that is required in the Oklahoma Discovery
Code. The State is required to disclose a witness's “relevant,
written or recorded statements, if any, or if none, significant
summaries of any oral statement,․” 22 O.S.Supp.1998,
§ 2002(A)(1)(a). There was no violation of the discovery code
¶ 29 Stemple, lastly complains about the
testimony of William Compion regarding insurance scams. He
claims he was not advised that Compion would testify about these
alleged scams. Stemple's objection to William Compion's
testimony was sustained. Stemple did not ask that the jury be
admonished. Therefore, reversal is not required. Shepard v.
State, 1988 OK CR 97, ¶ 7, 756 P.2d 597, 600 (where objection was
sustained and no request was made to have the jury admonished and
no motion for a mistrial or other relief was made, reversal was
¶ 30 In proposition three, Stemple complains
that the introduction of a videotape, State's exhibit number 87,
showing that he exercised his right to remain silent and his right
to consult an attorney violated his due process rights. Trial
counsel never filed a written motion to exclude the tape or to
excise any portion of the tape. At trial the trial court asked
defense counsel, “Do you want an exception?,” and counsel replied
in the affirmative. The trial court later stated that “State's
exhibit 87 was admitted and an exception has been allowed the
¶ 31 “Failure to object with specificity to
errors alleged to have occurred at trial, thus giving the trial
court an opportunity to cure the error during the course of trial,
waives that error for appellate review unless the error
constitutes fundamental error, i.e. plain error․” Simpson v.
State, 1994 OK CR 40, ¶ 2, 876 P.2d 690, 693; See 12 O.S.1991,
§ 2104(A)(1)(“Error may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of a party
is affected, and․a timely objection or motion to strike appears of
record, stating the specific ground of objection, if the specific
ground was not apparent from the context․”); See also Dunham v.
State, 1988 OK CR 211, ¶ 10-11, 762 P.2d 969, 972 (error not
preserved by general objection).
¶ 32 In Wolfe v. State, 1987 OK CR 80, ¶ 4, 736
P.2d 546, 547, this Court held that trial counsel's general
objection “for purposes of appeal” were insufficient to preserve
error in the introduction of tape recorded statements. On appeal
the appellant claimed that “the statement was made during plea
negotiations with the prosecutor, and was coerced by law
enforcement officials.” This Court reasoned that “12 O.S.1981,
§ 2104(A)(1) requires that objections to the admission of evidence
must be both specific and timely, in order for merits of the
objection to be considered on appeal.” Id. In Mornes v. State,
1988 OK CR 78, ¶ 12, 755 P.2d 91, 95, this Court held that a
general objection is insufficient when portions of evidence are
admissible. In Mornes, the appellant made a general objection to
the introduction of a pen pack. He failed to request that the
trial court excise improper portions of the pen pack.
¶ 33 The case at bar is similar to both Wolfe
and Mornes. Portions of this tape were admissible, but the
introduction of some portion of the tape could be construed as
error. Stemple's general objection to this tape was not
sufficient because portions of the tape were admissible and it is
not clear upon what grounds Stemple based his objection. Because
trial counsel did not make a more specific objection and because
he did not request the redaction of objectionable material, we
will review for plain error only.
¶ 34 On the video tape Stemple begins by
saying, “I feel as though I should have an attorney ․ because how
ugly this looks on me.” Stemple says that he fears that the
police are going to try and pin the murder on him because he had
plenty of motive; the large insurance policy and the extramarital
affair. He also explains that he knows that a red pickup was seen
in the area of the crime and he recently owned a red pickup. He
knows people saw him out there because he was out there in the
area that night. Stemple states that he wants to help but he
does not want to “screw” himself. He says that he will be
selective in the questions that he answers.
¶ 35 The officers assured Stemple that they
were not going to arrest him, but they read the Miranda1
warning to him anyway. They asked him if he wanted to answer
questions or if he wanted an attorney and Stemple said, “I better
get an attorney.” He says again that he wants to help and asks
if he can make an appointment for a later time. The detectives
tell him that will be up to him and his attorney. They tell him
“you know what happened.” And Stemple replies, “I do.” Then
Stemple says “I'm gonna get an attorney.” At that time the
interview ended. All of this was on the video shown to the jury.
¶ 36 Stemple claims in this appeal that he
requested counsel at the beginning of the tape, therefore, this
video taped statements was admitted in violation of his right to
counsel. In Davis v. United States, 512 U.S. 452, 459, 114 S.Ct.
2350, 2355, 129 L.Ed.2d 362 (1994), the Court held that if a
suspect makes a request for counsel that is ambiguous or equivocal
in that a reasonable officer in light of the circumstances would
have understood only that the suspect might be invoking his right
to counsel, Supreme Court precedents do not require that
questioning cease. The Court stated that if it were to require
questioning to cease if a suspect makes a statement that might be
a request for an attorney, the clarity and ease of application
necessary for effective law enforcement would be lost. Id. at
461, 114 S.Ct. at 2356. The portion of the tape, before Stemple
was read the Miranda warning, was admissible. Stemple did not
unequivocally invoke his rights. Therefore, questioning did not
need to cease.
¶ 37 Stemple was still not clear that he wanted
an attorney when he commented about counsel right after the
reading of Miranda. He continued to say I want to talk, “can I
make an appointment for later.” Even if this was an unequivocal
request for counsel, the conversation introduced after this did
not rise to the level of plain error. “Plain error denies the
accused a constitutional or statutory right, and goes to the
foundation of the case.” McGregor v. State, 1994 OK CR 71, ¶ 34,
885 P.2d 1366, 1383, cert. denied, 516 U.S. 827, 116 S.Ct. 95, 133
L.Ed.2d 50 (1995).
¶ 38 Stemple's statement indicating that he
knew what happened was incriminating. An argument can be made that
the comment was made after an unequivocal request for counsel in
response to a comment by police that they should know was
reasonably likely to elicit an incriminating response. See Rhode
Island v. Innis, 446 U.S. 291, 299-300, 100 S.Ct. 1682, 1688-89,
64 L.Ed.2d 297 (1980). Stemple explained on the tape why he was
reluctant to talk to officers. He was looking out for his best
interests and the interests of his children and he didn't want to
get himself into trouble. Even though there may have been a
violation of Stemple's Fifth Amendment right, the introduction of
the comment did not go to the foundation of the case.
¶ 39 Stemple complains that the prosecutor used
his silence and request for counsel during this interview against
him. In Jenkins v. Anderson, 447 U.S. 231, 239-40, 100 S.Ct.
2124, 2129-30, 65 L.Ed.2d 86 (1980), the Supreme Court held that
once a defendant is informed that he has a right to remain silent,
any attempt to impeach the defendant by his subsequent silence and
invocation of the right to counsel is error. The Court reasoned
that once a person is given the Miranda warnings, he is informed,
“at least implicitly, that his subsequent decision to remain
silent cannot be used against him.” Jenkins, 447 U.S. at 240, 100
S.Ct. at 2130. Further, due process requires that the
prosecution not be allowed to call attention a defendant's silence
and insist that, because he chose not to talk, when he has been
told that he has a right to remain silent, an unfavorable
inference might be drawn regarding the credibility of his trial
¶ 40 The Fifth Amendment right to counsel is a
prophylactic right designed to protect a person from the
compelling pressures of custodial interrogation. McNeil v.
Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 2208, 115 L.Ed.2d
158 (1991); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966). The purpose of the Fifth Amendment right to
counsel is to protect “the suspect's ‘desire to deal with the
police only through counsel,’ ” McNeil, 501 U.S. at 178, 111 S.Ct.
at 2209, quoting, Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct.
1880, 1884, 68 L.Ed.2d 378 (1981).
¶ 41 In White v. State, 1995 OK CR 15, ¶ 22,
900 P.2d 982, 992, this Court stated,
Any comment on a defendant's exercise of his
right to remain silent is error. However, error may be harmless
where there is overwhelming evidence of guilt and the defendant is
not prejudiced by the error. Error may also be “cured” where the
trial court sustains the defendant's objection and admonishes the
¶ 42 The prosecutor in this case insisted on
using Stemple's desire to remain silent as a means of convincing
the jury that he was guilty. The prosecutor first questioned
Stemple's failure to call the police. However, there was no
objection to this questioning. Therefore, we will review for
plain error only. Stemple also complains about the prosecutor's
mentioning of the videotape during closing. The prosecutor's
comments said nothing about Stemple's right to remain silent. He
merely commented on the portion of the tape which was admissible.
¶ 43 This Court held in Dungan v. State, 1982
OK CR 152, ¶ 6, 651 P.2d 1064, 1065, that comments on a
defendant's exercise of his right to remain silent after he has
received his Miranda warnings may be prejudicial to the extent
that they constitute fundamental error. However, whether these
comments rise to the level of fundamental error depends on the
particular facts and circumstances of each case. Based on the
fact that Stemple admitted to the murder in notes he wrote in jail
and the overwhelming evidence establishing guilt, we find that the
questioning and comments by the prosecutor did not rise to the
level of plain error.
¶ 44 In propositions six and seven, Stemple
complains about other comments made by the prosecutor. At one
point, the prosecutor asked Stemple if he left Oregon because he
was “run out of town because you were abusive with children.” The
defendant's objection was sustained and the jury was admonished to
disregard the comment. In viewing the entire record in this
case, we believe that the admonishment to the jury was sufficient
to cure the error committed by the prosecutor. Patton, 1998 OK CR
66, ¶ 68, 973 P.2d at 292-93.
¶ 45 Stemple also complains that the prosecutor
improperly vouched for the testimony of Terry Hunt and Rahmon
Macon. At no time did defense counsel object to the comments of
which Stemple now complains. Therefore, Stemple has waived
review for all but plain error. We find that none of the
comments rise to the level of plain error.
¶ 46 Stemple claims that the prosecutor cast
aspersions on defense counsel. No objections were made to these
comments; thus, we can review for plain error only. There was no
plain error here. Next, Stemple complains that the prosecutor
accused Stemple of fabricating a defense and lying. Of the
comments made, defense counsel only objected to one of them.
This objection was sustained and the jury was admonished to
disregard the comment. The admonishment cured the error. The
other comments did not rise to the level of plain error.
¶ 47 Stemple complains about the prosecutor's
demonstration with the baseball bat during closing argument. The
record does not reflect how the prosecutor was handling the bat
during closing argument. Stemple tries to equate the
prosecutor's action to the stabbing of a picture of the victim.
See Brewer v. State, 1982 OK CR 128, ¶ 5, 650 P.2d 54, 57, cert.
denied, 459 U.S. 1150, 103 S.Ct. 794, 74 L.Ed.2d 999 (1983).
However the record does not support such analogy. We find no
¶ 48 Stemple complains about cross examination
regarding the failure to call witnesses. Stemple's objection at
trial was sustained and the jury was admonished. The trial court's
actions cured any error. Stemple complains about the prosecutor
asking Stemple if the other witnesses are lying. Of the seven
incidents cited by Stemple, only one question drew an objection.
This type of cross examination did not amount to error. Asking
the defendant whether other witnesses were lying was a method used
to impeach the defendant's testimony. Ross v. State, 1978 OK CR
136, ¶ 7, 588 P.2d 1269, 1270 (“While this technique is not
desirable, we find no error in his cross-examination.”).
¶ 49 Stemple complains about the prosecutor's
improper cross examination of witness Tyler Ferrell regarding
pending charges. An objection was sustained and the jury was
admonished to disregard. The admonition cured any error.
¶ 50 In propositions ten and eleven, Stemple
argues that the introduction of certain evidence was error.
Stemple first argues that the evidence of his past insurance
claims was inadmissible. The evidence was relevant to show
motive and knowledge. First, the insurance claims were relevant
to show that Stemple was familiar with the insurance claim
process, whether or not the claims were valid. Second, the
insurance claims, which may have been dubious, were relevant to
corroborate the testimony of jail inmates, who testified that
Stemple told them about past insurance scams.
¶ 51 Stemple makes the claim that the papers he
prepared while in the county jail were prepared for his attorney
in preparation for trial. Stemple cites no authority for this
proposition. In fact the witnesses called during the Jackson v.
hearing stated that Stemple willingly shared this information with
them. Therefore, he waived any alleged privilege. We find that
the trial court did not abuse its discretion in allowing the
introduction of this evidence during trial. Dunham v. State, 1988
OK CR 211, ¶ 10, 762 P.2d at 972.
¶ 52 In proposition eight, Stemple claims that
there was insufficient evidence to support the attempted murder
charge. We agree. The State alleged that the attempted murder
took place on October 10, 1996, the night Trisha was too ill to
accompany Stemple to the planned murder site.
¶ 53 In order to be guilty of an attempted
crime three elements must be met:
“the intent to commit the crime; the
performance of some act toward its commission (commonly called the
commission of some overt act); and the failure to complete or
consummate the crime. It is equally settled that the overt act
must be more than mere preparation or planning the crime․”
“It must be such act or acts as will apparently
result, in the usual and natural course of events, if not hindered
by extraneous causes, in the commission of the crime itself.”
Rosteck v. State, 1988 OK CR 11, 749 P.2d 556,
559, quoting, Dunbar v. State, 75 Okl.Cr. 275, 131 P.2d 116, 122
(1942); See 21 O.S.1991, § 44 (definition of attempt).
¶ 54 What we have in this case is mere
preparation for the commission of the offense. Hunt and Helm were
stationed at the planned location in preparation to attack;
however, there was no overt act toward the commission of murder.
Therefore, Stemple's conviction for attempted murder must be
reversed and remanded with instructions to dismiss.
¶ 55 In a related claim, proposition nine,
Stemple claims that the convictions for attempted murder and
conspiracy to commit murder violate the principles of double
jeopardy. Because we have decided that the attempted murder
conviction must be dismissed, this proposition is moot.
¶ 56 In proposition five, Stemple raises claims
of ineffective assistance of counsel occurring during the first
stage of trial. In order to show ineffective assistance of
counsel, Appellant must meet the two-pronged test set out in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984). Lewis v. State, 1998 OK CR 24, ¶ 48, 970 P.2d 1158,
1173, cert. denied, 528 U.S. 892, 120 S.Ct. 218, 145 L.Ed.2d 183.
First Appellant must show that trial counsel's performance was
deficient (trial counsel was not functioning as the counsel
guaranteed by the Sixth Amendment). Second, he must show he was
prejudiced by the deficient performance (counsel's errors deprived
him of a fair trial with a reliable outcome). Strickland, 466
U.S. at 687, 104 S.Ct. at 2064.
¶ 57 We are to accord a strong presumption that
counsel was at least constitutionally competent. Strickland, 466
U.S. at 689, 104 S.Ct. at 2065.We will judge counsel's challenged
conduct on the facts of the particular case, viewed as of the time
of counsel's conduct, and ask if the conduct was professionally
unreasonable. Hooper v. State, 1997 OK CR 64, ¶ 57, 947 P.2d
1090, 1111, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141
L.Ed.2d 722 (1998).
¶ 58 An error must be so egregious that it
indicates deficient performance by counsel, falling outside the
wide range of reasonable professional assistance. Strickland, 466
U.S. at 687-89, 104 S.Ct. at 2064-65. Many significant errors
will not meet this highly demanding standard. Kimmelman v.
Morrison, 477 U.S. 365, 381-82, 106 S.Ct. 2574, 2586, 91 L.Ed.2d
305 (1986). Those errors that require reversal do so because they
reflect performance by counsel that has “so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland, 466 U.S.
at 686, 104 S.Ct. at 2064.
¶ 59 Stemple claims that his trial counsel was
ineffective for failing to object to the cross-examination of
Stemple and the closing argument by the prosecutor regarding
Stemple's assertion of his right to counsel. We believe that the
failure to object to the cross-examination did not deprive Stemple
of a fair trial. The failure to object to the closing argument
did not rise to the level of deficient performance, as the
comments were properly based on admissible evidence.
¶ 60 Stemple claims that counsel was
ineffective for waiting to give opening statement at the start of
his case in chief. This choice is a legitimate strategy. Counsel
cannot be faulted for waiting to make an opening statement at the
start of his case in chief. This strategic choice does not rise
to the level of deficient performance. Hammon v. State, 1995 OK
CR 33, ¶ 107, 898 P.2d 1287, 1310.
¶ 61 Stemple also claims that counsel was
ineffective for failing to present expert testimony regarding the
inconsistencies between the crime scene and Hunt's testimony.
Stemple does not show what the inconsistencies were, how they are
relevant to his trial or what the expert testimony would have
been. Therefore, we cannot review this claim.
SECOND STAGE ISSUES
¶ 62 Stemple complains that improper remarks by
the prosecutor during the sentencing stage violated his due
process rights and denied him a fair sentencing proceeding. All
of the comments Stemple now complains about were met with
contemporaneous objections and the jury was admonished to
disregard the comments. We find that the admonitions by the
trial court were sufficient to cure any conceivable error.
Patton, 1998 OK CR 66, ¶ 68, 973 P.2d at 292-93.
¶ 63 Stemple alleges, in proposition thirteen,
that the evidence was insufficient to support the jury's verdict
regarding the aggravating circumstances. Stemple also argues that
the mitigating evidence outweighed the aggravating circumstances.
¶ 64 The jury found the existence of two
aggravating circumstances: “the person committed the murder for
remuneration or the promise of remuneration, or the person
employed another to commit the murder for remuneration or promise
of remuneration,” 21 O.S.1991, § 701.12(3); and “the murder was
especially heinous, atrocious or cruel.” 21 O.S.1991, § 701.12(4).
On appeal, the standard of review is “whether there was any
competent evidence to support the State's charge that the
aggravating circumstance existed.” Bryson v. State, 1994 OK CR 32,
¶ 52, 876 P.2d 240, 259, cert. denied, 513 U.S. 1090, 115 S.Ct.
752, 130 L.Ed.2d 651 (1995).
¶ 65 Stemple claims that the only evidence of a
murder for remuneration or employing another to commit the murder
for remuneration is the uncorroborated testimony of Hunt. However,
Hunt's testimony was corroborated. Stemple's own written words
corroborated Hunt's testimony. Further, circumstantial evidence
can be adequate to corroborate the accomplice's testimony. Pierce
v. State, 1982 OK CR 149, ¶ 6, 651 P.2d 707, 709. The existence
of a large insurance policy, the fact that Hunt admitted his
involvement, and the fact that the murder was set up to look like
an accident all corroborate Hunt's testimony that the murder was
done for remuneration.
¶ 66 The other aggravating circumstance, the
murder was especially heinous, atrocious or cruel, is also
supported by the evidence. This aggravating circumstance must be
supported by evidence of conscious serious physical abuse or
torture prior to death. This may include the infliction of
either great physical anguish or extreme mental cruelty. Cheney
v. State, 1995 OK CR 72, ¶ 15, 909 P.2d 74, 80.
¶ 67 The evidence showed that Trisha Stemple
was struck by a baseball bat and run over by a pickup. She tried
to get up, so she was struck again with the baseball bat. Later,
she crawled from the road, onto the grass, where she was struck by
the pickup. The fact that Trisha Stemple was conscious during
the attack is shown by her ability to move herself from the
pavement on to the grass on the side of the road after being
beaten by a baseball bat and run over by the pickup. The type of
injuries sustained and the description of the attack show that
Trisha Stemple suffered great physical pain before she died.
This evidence is sufficient.
¶ 68 The mitigating evidence included testimony
from Stemple's son who asked that his father's life be spared.
The mitigating factors were outlined in an instruction to the
jury. As well as Stemple's relationship with his children and
extended family, the mitigating factors included his lack of a
prior criminal history; his high probability of rehabilitation;
his religious beliefs; his past history of working with and
coaching children in soccer; his education, young age and a
listing of positive things he has done in his life.
¶ 69 We believe that the jury properly weighed
all of the mitigating evidence against the aggravating
circumstances. We will not disturb the jury's findings that the
aggravating circumstances outweighed the mitigating factors.
HARMLESS ERROR AND CUMULATIVE ERROR REVIEW
¶ 70 Stemple argues in his initial proposition
of error that the errors in this case were too egregious to be
called harmless. Stemple claims that his credibility was on the
line in this case. He claims that the errors occurring at trial
damaged his credibility in such a way as to deprive him of a fair
¶ 71 This proposition rests on the premises
that the key witnesses against him were all yoked with the
presumption of not being credible. The jurors were instructed
that the codefendant's testimony and the “jail house snitches'
testimony” were all to be judged more critically.
¶ 72 Stemple claims that he should not have
been yoked with this presumption. He claims that the errors that
occurred at trial improperly created this yoke for him to bear.
A yoke that should not have been placed upon him in front of the
jury. He claims that this yoke created, in the jury's mind, an
improper and unconstitutional burden on his credibility which
affected the outcome of the case. Therefore, Stemple claims, the
errors cannot be called harmless.
¶ 73 The United States Supreme Court has held
that only errors which create a situation where “a criminal trial
cannot reliably serve its function as a vehicle for determination
of guilt or innocence ․” can escape harmless error review. Rose
v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 3106, 92 L.Ed.2d
460 (1986). Even Constitutional errors are subject to the
Harmless Error doctrine. Id. at 576, 106 S.Ct. at 3105. The
United States Supreme Court has repeatedly stated, “the
Constitution entitles a criminal defendant to a fair trial, not a
perfect one.” Id. at 579, 106 S.Ct. at 3105; See Lutwak v.
United States, 344 U.S. 604, 620, 73 S.Ct. 481, 490, 97 L.Ed. 593
(1953). “[I]f the defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that any
other errors that may have occurred are subject to harmless-error
analysis.” Rose v. Clark, 478 U.S. at 579, 106 S.Ct. at 3106.
¶ 74 Stemple does not claim that the errors in
this case are not subject to harmless-error analysis. He merely
claims that the errors, placed in the context of this case,
support the notion that the errors were not harmless and justify a
reversal of his conviction and sentence.
¶ 75 We disagree with this notion. The trial
in this case was not perfect, however, viewing the errors in the
context of this case, the errors did not deprive Stemple of a fair
trial. Many of the errors of which Stemple complains in his
brief, were not properly preserved at trial. We found that these
errors did not rise to the level of plain error because the error
did not go to the foundation of the case.
¶ 76 Of the errors properly preserved at trial,
we found numerous errors which were cured by the trial court by
admonition to the jury. We find that these errors, viewed
cumulatively, do not warrant reversal. We found numerous
allegations that did not rise to the level of plain error. Even
looking at these allegations in a cumulative fashion, we find that
they do not rise to the level of plain error. Finally, our
analysis of all of the errors combined do not rise to the level of
reversible error in this case.
MANDATORY SENTENCE REVIEW
¶ 77 Title 21 O.S.1991, § 701.13, requires this
Court to determine “[w]hether the sentence of death was imposed
under the influence of passion, prejudice or any other arbitrary
factor; and whether the evidence supports the jury's or judge's
finding of statutory aggravating circumstance.” Sufficient
evidence existed to support the finding of the two statutory
aggravating circumstances, as discussed in proposition thirteen.
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. The facts of this case simply warranted
the penalty of death.
¶ 78 We have found that Stemple's conviction
for attempted murder must be reversed and remanded with
instructions to dismiss. We find no error warranting reversal of
the convictions or sentences for the remaining counts; therefore,
the Judgment and Sentence on the remaining counts is AFFIRMED.
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).
STRUBHAR, P.J., concurs (Count III), concurs in
result (Counts I & II).LUMPKIN, V.P.J., and JOHNSON, J.,
concur.CHAPEL, J., concurs in part/dissents in part.