Short v. State, 980 P.2d 1081 (Okla.Crim.
1999) (Direct Appeal).
Defendant was convicted, in the District Court,
Oklahoma County, Charles L. Owens, J., of first degree murder and
five counts of attempting to kill after former conviction of two or
more felonies, and was sentenced to death. Defendant appealed. The
Court of Criminal Appeals, Lumpkin, V.P.J., held that: (1) as a
matter of apparent first impression, doctrine of transferred intent
applied to crime of attempt to kill another; (2) state's peremptory
challenges against two jurors were race neutral; (3) exclusion of
cellmate's testimony was appropriate sanction for discovery
violation; (4) probative value was not substantially outweighed by
unfair prejudice as to admission of photographs of drawings on
defendant's jail cell wall depicting attempted-murder victim; (5)
there was no plain error as to corroboration of defendant's
confession to firebombing apartment; (6) victim impact evidence did
not violate defendant's constitutional rights; (7) trial counsel was
not ineffective; and (8) evidence supported aggravating
circumstances at sentencing. Judgment and sentences affirmed;
application for hearing on Sixth Amendment claims denied. Johnson,
J., specially concurred and filed an opinion. Chapel, J., concurred
in results.
LUMPKIN, Vice Presiding Judge:
¶ 1 Appellant Terry Lyn Short was tried by jury
and convicted of First Degree Murder (Count I) (21 O.S.1991, §
701.7) and five counts of Attempting to Kill, After Former
Conviction of Two or More Felonies (Counts II-VI) (21 O.S.1991, §
652), Case No. CF-95-216, in the District Court of Oklahoma County.
In Count I, the jury found the existence of three (3) aggravating
circumstances and recommended the punishment of death. In Counts II-IV,
the jury recommended as punishment one hundred (100) years
imprisonment. In Counts V and VI, the jury recommended two (200)
hundred years imprisonment. The trial court sentenced accordingly.
From this judgment and sentence Appellant has perfected this
appeal.FN1
FN1. Appellant's Petition in Error was filed in
this Court on October 17, 1997. Appellant's brief was filed April
29, 1998. The State's brief was filed July 28, 1998. Appellant's
reply brief was filed August 17, 1998 The case was submitted to the
Court August 21, 1998. Oral argument was held January 26, 1999.
¶ 2 Appellant was convicted of the murder of Ken
Yamamoto. Mr. Yamamoto lived in apartment number 227 at the Royal
Chateau Apartments in Oklahoma City. Directly beneath that apartment,
in apartment number 127 lived Tammy Gardner, her two minor children,
and Brenda Gardner, Tammy's sister.
¶ 3 Brenda Gardner and Appellant had been dating
for some time. Appellant was abusive to Brenda and on several
occasions threatened to kill Brenda and her family. At approximately
3:00 a.m. on January 8, 1995, Tammy and Brenda were awakened by a
banging on the front door. When Brenda called out, the noise at the
door stopped. Approximately thirty (30) minutes later, Robert Hines,
the father of one of Tammy's children, knocked on the front door. He
was unable to enter through the door as it was jammed. Hines entered
the apartment through the patio door. He repaired the front door and
remained to visit with Tammy and Brenda. At approximately 5:00 a.m.,
Brenda looked out the patio door to see Appellant standing beside
Hines' truck. Upon hearing Brenda's announcement of Appellant's
presence, Hines moved towards the patio door to look out. Appellant
then threw a homemade explosive through the patio door, burning
Hines and the apartment. Despite the burning of his left arm, Hines
was able to run out of the apartment. Tammy, Brenda and the children
escaped unharmed.
¶ 4 The fire spread quickly and caused Mr.
Yamamoto's apartment to collapse into the inferno beneath it. Mr.
Yamamoto was asleep at the time of the fire, and awoke to find
himself burned and surrounded by paramedics. Mr. Yamamoto was
severely burned, suffering thermal burns to 95 percent of his body.
Mr. Yamamoto was transported to the hospital where he died several
hours later as a result of the burns.
¶ 5 That same evening, Appellant phoned his
cousin, David Davis, and asked him to pick him up and accompany him
to the police station so he could surrender. At Appellant's request,
Davis took Appellant a complete change of clothing. After changing
his clothes, and accompanied by Davis, Appellant surrendered to the
authorities.
¶ 6 Appellant raises fifteen propositions of
error in his appeal. These propositions will be addressed in the
order in which they arose at trial.
PRE-TRIAL ISSUES
¶ 7 Appellant challenges the trial court's
determination of his competency to stand trial in his fourth
assignment of error. At the time of Appellant's trial, the standard
of proof to be used in competency determinations required a
defendant to prove his/her incompetency by “clear and convincing”
evidence. That standard has since been held unconstitutional, and
“preponderance of the evidence” has been held the proper standard of
proof. Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d
498 (1996). Appellant argues that since he was found competent under
an unconstitutional standard of proof, his case should be reversed
and remanded in order that his competence can be evaluated under the
proper “preponderance of the evidence” standard.
¶ 8 Pursuant to an order of the trial court, Dr.
Edith King examined Appellant in the Oklahoma County Jail. Dr. King
reported: 1) Appellant was able to appreciate the nature of the
charges against him; 2) he was able to consult with his lawyer and
rationally assist in the preparation of his defense; 3) he was not
mentally ill; and 4) if Appellant were released without treatment,
therapy or training he would pose a significant threat to the life
or safety of himself and others.FN2 At the post-examination
competency hearing, defense counsel stipulated to Dr. King's
findings that Appellant understood the charges against him and could
assist in his defense and that if she were called to testify her
testimony would be consistent with her report. No other evidence was
offered or presented. Based upon the evidence before it, the trial
court found Appellant competent to stand trial.
FN2. This finding is not inconsistent with the
other findings. It is based on Appellant's anti-social personality
characteristics which could cause him to become dangerous to others
and not on his competency. (O.R.175).
¶ 9 Whether a defendant is competent to stand
trial is a matter left to the sound discretion of the trial court.
Siah v. State, 837 P.2d 485, 487 (Okl.Cr.1992). This Court can
review that decision, applying the proper standard of proof, i.e.
“preponderance of the evidence.” See Smith v. State, 932 P.2d 521,
528 (Okl.Cr.1996), cert. denied, 521 U.S. 1124, 117 S.Ct. 2522, 138
L.Ed.2d 1023 (1997). The standard of review on appeal is whether
there is any competent evidence reasonably supporting the trier of
fact. Gilbert v. State 951 P.2d 98, 105 (Okl.Cr.1997). When the
issue of competency is tried before a judge, his finding will not be
disturbed on appeal if it is supported by sufficient evidence. Id.
¶ 10 Here, the uncontradicted evidence showed
that Appellant knew the nature of the proceedings and possessed a
rational understanding of them. The defense failed to prove, even by
a preponderance of the evidence, that Appellant was incompetent to
stand trial. Because the evidence in this case so strongly supports
the finding that Appellant was competent, we find the trial court
did not abuse its discretion in finding Appellant competent to stand
trial, and this case need not be remanded for a new determination on
the issue. Accordingly, this assignment of error is denied.
JURY SELECTION
¶ 11 In his eleventh assignment of error,
Appellant contends the State's race-neutral reasons for excusing
venirepersons Smith and Frazier were pretextual and their excusal
from the jury violated the Equal Protection Clause under Batson v.
Kentucky, 476 U.S. 79, 98, 106 S.Ct. 1712, 1724, 90 L.Ed.2d 69
(1986).
¶ 12 Batson establishes a three (3) part analysis:
1) the defendant must make a prima facie showing that the prosecutor
has exercised peremptory challenges on the basis of race; 2) after
the requisite showing has been made, the burden shifts to the
prosecutor to articulate a race neutral explanation related to the
case for striking the juror in question; and 3) the trial court must
determine whether the defendant has carried his burden of proving
purposeful discrimination. Id. As for the second requirement, the
Supreme Court noted the race-neutral explanation by the prosecutor
need not rise to the level justifying excusal for cause, but it must
be a “clear and reasonably specific” explanation of his “legitimate
reasons” for exercising the challenges. Neill v. State, 896 P.2d
537, 546 (Okl.Cr.1994), cert. denied, 516 U.S. 1080, 116 S.Ct. 791,
133 L.Ed.2d 740, (1996), quoting Batson, 476 U.S. at 98, n. 20, 106
S.Ct. at 1723, n. 20. The trial court's findings as to
discriminatory intent are entitled to great deference. Id. Our
review is only for clear error by the trial court, Pennington v.
State, 913 P.2d 1356, 1365 (Okl.Cr.1995), cert. denied, 519 U.S.
841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996) and we review the record
in the light most favorable to the trial court's ruling. Neill, 896
P.2d at 546.
¶ 13 A review of the record in this case shows
the prosecutor offered raceneutral explanations for striking Ms.
Smith and Ms. Frazier from the panel. A neutral explanation in the
context of our analysis here means an explanation based on something
other than the race of the juror. At this step of the inquiry, the
issue is the facial validity of the prosecutor's explanation. Unless
a discriminatory intent is inherent in the prosecutor's explanation,
the reason offered will be deemed race neutral. Id., quoting
Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114
L.Ed.2d 395, 406 (1991). See also Purkett v. Elem, 514 U.S. 765, 115
S.Ct. 1769, 1770-71, 131 L.Ed.2d 834 (1995); Turrentine v. State,
965 P.2d 955, 964 (Okl.Cr.1998).
¶ 14 Here, the prosecutor used his second
peremptory challenge to excuse venireperson Smith. He explained that
she had a brother with two convictions and that because of the way
she answered questions posed to her, the prosecutor was not sure she
was being truthful. After noting that Ms. Smith was a black female,
the trial court, over defense counsel's objection, accepted the
prosecutor's explanation and struck the juror. The prosecutor used
his last peremptory challenge to excuse venireperson Frazier stating
that she had been convicted of an offense and placed on probation.
He added “I don't want to gamble a verdict in this case on someone
who I personally prosecuted.” (Tr. II, pg.218). Again noting that
the venireperson was a black female, the trial court, acknowledging
its own reservations about the explanation and over defense
counsel's objection, agreed to strike Ms. Frazier from the jury. (Tr.
II, pg.218-220).FN3 FN3. The record reflects that with the excusal
of Ms. Smith and Ms. Frazier, no black individuals were left to sit
on the jury. We also note for the record that Appellant is a white
male. However, we recognize the Batson rule applies to race based
exclusions even where the defendant and the potential juror do not
share the same race. Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364,
113 L.Ed.2d 411 (1991).
¶ 15 The prosecutor's explanations were facially
valid and do not reveal an intent to discriminate against the
potential jurors on account of race. Excusal of a potential juror
because of a prior criminal record or because of the criminal
records of family members are legitimate reasons for removal.
Further, these same reasons were used to excuse non-minority members
of the venire, i.e., a white female was excused because her husband
had a prior criminal record, albeit approximately twenty-six years
had passed since his two year incarceration. The fact that this
reason, criminal records by family members, was not used in every
instance in which it arose to excuse potential jurors, does not
lessen its legitimacy as a race-neutral explanation.
¶ 16 Once the prosecutor offers a race-neutral
basis for the exercise of the peremptory challenge, it is the duty
of the trial court to determine if the defendant has established
purposeful discrimination. [I]n the typical peremptory challenge
inquiry, the decisive question will be whether counsel's race
neutral explanation for a peremptory challenge should be believed.
There will seldom be much evidence bearing on that issue, and the
best evidence often will be the demeanor of the attorney who
exercises the challenge.... [E]valuation of the prosecutor's state
of mind based on demeanor and credibility lies ‘peculiarly within a
trial judge's province.’ Turrentine, 965 P.2d at 965, quoting
Hernandez, 500 U.S. at 365, 111 S.Ct. at 1859, 114 L.Ed.2d at 409.
¶ 17 Here, the trial court chose to believe the
prosecutor's race-neutral explanations for striking the jurors in
question, rejecting Appellant's assertion that the reasons were
pretextual. The trial court's decision on the issue of
discriminatory intent will not be overturned unless we are convinced
that the determination is clearly erroneous. Hernandez, 500 U.S. at
369, 111 S.Ct. at 1871-72, 114 L.Ed.2d at 412. See also Simpson v.
State, 827 P.2d 171, 175 (Okl.Cr.1992). Apart from the prosecutor's
demeanor, which we are not able to adequately review from the
written transcripts, the court could have relied on the facts that
the prosecutor defended his use of the peremptory challenges without
being asked to do so by the judge, that no history of the prosecutor
seeking to purposefully discriminate against jurors on the basis of
race was established, and that the record in this case reveals that
race was simply not an issue. No allegations were made that the
commission of the offense or the prosecution of Appellant were in
any way racially motivated. Therefore, we find no error in the trial
court's determination that the prosecutor did not discriminate on
the basis of race and that Appellant failed to carry his burden of
showing purposeful discrimination. This assignment of error is
denied.
FIRST STAGE ISSUES
¶ 18 In his first assignment of error, Appellant
contends reversible error occurred when the trial court prohibited
the defense from calling Mark Bayless as a witness. Appellant
asserts Bayless was a critical witness to rebut the State's case-in-chief
and that despite the failure of the defense to endorse Mr. Bayless
prior to trial, exclusion of his testimony violated the
constitutional compulsory process clause. Okla. Const. art. II, §
20; U.S. Const. amend. VI.
¶ 19 Prior to trial, Appellant was detained in a
“holding cell” in the Oklahoma City Jail. This “holding cell”
contained several people who were awaiting transportation to the
county jail. In the “holding cell” at the same time as Appellant
were inmates Jay Brown and Mark Bayless. Testifying in the State's
case-in-chief, Brown testified that Appellant said he thought he
knew Brown, a fact which Brown denied, and proceeded to tell Brown
that he was in jail for firebombing an apartment complex. Brown also
testified that he observed Appellant draw sexually explicit pictures
of a woman on the walls of the cell. Next to the pictures, Brown saw
Appellant write the words “die Brenda G”, “Brenda G is a slut”, and
“burn Brenda G”. Brown further testified that sometime later he and
Appellant were talking and Appellant told him that he had dated
Brenda G.; they had both been heroin addicts who stole to support
their addiction; he eventually got a job at “Two Guys Auto” and he
and Brenda moved into an apartment. Appellant also said that
Brenda's sister, Tammy, and her boyfriend Robert Hines, moved in
with them. Appellant stated that one day he came home from lunch and
found Brenda having sexual intercourse with Hines; that he looked
for a gun but could not find one, so he came up with the idea of
putting gasoline in a Coke bottle and a sock in the top. He then
went to the apartment where Brenda was living, threw the coke bottle
inside, saw it hit Hines in the back of the head, shut the door and
ran away.
¶ 20 Brown was the last witness presented in the
State's case-in-chief. The first witness called by the defense was
Mark Bayless. The State objected as Bayless was not endorsed as a
witness. Acknowledging this fact, defense counsel noted that he had
given the prosecutor a handwritten note three (3) days earlier
stating that the defense would call Bayless as a witness. Defense
counsel argued that Bayless would refute Brown's testimony
concerning Appellant's confession and would testify that he observed
someone other than Appellant draw the sexually explicit pictures on
the jail cell wall. The trial court upheld the State's motion to
prohibit the testimony finding the defense had violated the rules of
discovery by failing to list Bayless as a witness. The court also
found that even if called Bayless was not a crucial witness as he
was not present during the conversations between Appellant and Brown
and could not testify as to the content of those conversations.
Defense counsel then offered Bayless as a rebuttal witness to the
fact that Appellant did not draw the obscene pictures. The trial
court denied the request.
¶ 21 Prior to trial, discovery motions were filed
by both the prosecution and the defense. Eleven days prior to trial,
the defense filed its witness list and summary of testimony. Mark
Bayless was not listed as a witness. The failure of the defense to
list Bayless as a witness was a violation of the Discovery Code. 22
O.S.Supp.1996, § 2001 et. seq. The trial courts are empowered to
order the appropriate relief for the failure to comply with a
discovery order. 22 O.S.Supp.1996, § 2002(E)(2). This relief may
include prohibition of a witnesses testimony. Wilkerson v. District
Court of McIntosh County, 839 P.2d 659, 661 (Okl.Cr.1992).
¶ 22 In Wilkerson, this Court recognized that
“few rights are more fundamental than that of an accused to present
witnesses in his own defense.” Id. We also acknowledged the
preclusion of material defense witnesses from testifying is the
severest sanction for discovery violations, citing Taylor v.
Illinois, 484 U.S. 400, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988). Id.
See also Allen v. State, 944 P.2d 934, 937 (Okl.Cr.1997); Wisdom v.
State, 918 P.2d 384, 396 (Okl.Cr.1996). However, preclusion of
testimony is appropriate in certain circumstances. In Wilkerson we
stated: When the discovery violations are flagrant, such as being
designed to conceal a plan to present fabricated testimony or being
willful and motivated by a desire to obtain a tactical advantage,
then the preclusion sanction could be entirely appropriate and
consistent with the purposes of the compulsory process clause.
Petitioners have not established that, by
imposing the sanction, Respondent has exercised power unauthorized
by law or that Petitioners' remedies on appeal are not adequate and
appropriate. Rule 10.6(A), supra. They have not established that
their witnesses, precluded from testifying, are material or that
their case has been substantially prejudiced by the discovery
sanction. (citation omitted) Moreover, from the facts developed at
this point in the case, this Court is unable to determine that the
preclusion sanction is not appropriate. (citation omitted).
Wilkerson, 839 P.2d at 661. Based upon the record before us, we are
unable to determine that the preclusion of Bayless's testimony was
not an appropriate sanction. The preliminary hearing in this case
was held approximately one year and a half prior to trial. Brown
testified at the preliminary hearing and gave essentially the same
testimony as he did at trial. Appellant has failed to explain why he
did not notify the State about Bayless's testimony until the start
of trial.
¶ 23 Further, Bayless was not a material witness.
He was not a party to the conversations between Brown and Appellant.
Therefore, he could not testify as to the truthfulness of Brown's
testimony regarding Appellant's confession. At most, Bayless could
impeach Brown only as to the testimony regarding who drew the
pictures on the jail cell wall. Bayless was not a witness to the
actual crime and therefore could not have refuted the testimony of
the eyewitnesses. Because Bayless was not a material witness, and as
Appellant has failed to establish that he was substantially
prejudiced by the exclusion of the testimony, we find no error in
the trial court's ruling.
¶ 24 Relying on Spencer v. State, 795 P.2d 1075,
1078 (Okl.Cr.1990), Wooldridge v. State, 659 P.2d 943, 947 (Okl.Cr.1983)
and Luna v. State, 815 P.2d 1197, 1199 (Okl.Cr.1991) Appellant
argues that Bayless was a rebuttal witness for which no notice to
the State was required. The cases cited by Appellant are wholly
unavailing to his position. These cases concern the admission of
testimony of witnesses for the State who had not been endorsed. In
these cases, this Court found that since the evidence being rebutted
had not been presented until the defendant's case-in-chief, the
State could not have known that the rebuttal witness would be
required and therefore was excused from the obligation of endorsing
the witness, even though the witness could have been called in its
case-in-chief.
¶ 25 In the present case, the defense knew from
the preliminary hearing that it would need to impeach Brown's
testimony. Bayless's testimony was not offered to explain any
unexpected evidence from the State. It was only after Bayless was
prohibited from testifying in the case-in-chief that he was offered
as a rebuttal witness. Bayless was not a true rebuttal witness. He
was a rebuttal witness only in as much as every defense witness is a
“rebuttal” witness to the State's case. Further, under usual trial
proceedings, rebuttal is an opportunity for the State to present
witnesses, for whom no notice is required, to rebut the defense
case-in-chief. The defense does not present rebuttal witnesses until
surrebuttaI. Bayless's testimony does not qualify as surrebuttal
evidence. Accordingly, we find Bayless was subject to the provisions
of the discovery code and the defense was not excused from providing
timely notice of his testimony. This assignment of error is denied.
¶ 26 In his fifth assignment of error, Appellant
complains the admission of several pieces of evidence denied him a
fair trial. Initially, he contends the exhibition of Robert Hines'
wounds was irrelevant, inflammatory and unnecessarily prejudicial.
At the conclusion of Hines' direct examination, the prosecutor asked
Hines to show the jury the burns he suffered as a result of the
firebombing. Defense counsel objected arguing such a demonstration
was highly prejudicial and the prejudicial impact outweighed any
probative value. The objection was overruled and Hines' removed his
shirt revealing the burns to his arm.
¶ 27 Initially, Appellant has waived any claim
the evidence was not relevant. When a specific objection is raised
at trial, this Court will not entertain a different objection on
appeal. Mitchell v. State, 884 P.2d 1186, 1197 (Okl.Cr.1994), cert.
denied, 516 U.S. 827, 116 S.Ct. 95, 133 L.Ed.2d 50 (1995).
Therefore, we review only the objection as to prejudice. On appeal,
the burden of establishing prejudice is upon the defendant. Woodruff
v. State, 846 P.2d 1124, 1135 (Okl.Cr.), cert. denied, 510 U.S. 934,
114 S.Ct. 349, 126 L.Ed.2d 313 (1993). In reviewing the prejudicial
impact of photographs this Court has said that “[w]here the
probative value of photographs or slides is outweighed by their
prejudicial impact on the jury that, is the evidence tends to elicit
an emotional rather than rational judgment by the jury then they
should not be admitted into evidence.” President v. State, 602 P.2d
222, 225 (Okl.Cr.1979). See also Oxendine v. State, 335 P.2d 940,
942 (Okl.Cr.1958). Applying that standard to this case, the
demonstration of Hines' wounds was not such as to elicit an
emotional rather than rational judgment from the jury. Hines was
burned on the left side of his body-ear, neck and arm. Most of the
scarring resulting from the burns was visible prior to Hines
removing his shirt. The scarring was a direct result of Appellant's
actions and probative of his intent to kill Hines and the others.
The brief display of the wounds was not a mere theatrical
demonstration, but helped the jury in understanding the commission
of the offense. Gilbert, 951 P.2d at 121. Further, there is no
requirement that the visual effects of a particular crime be down
played by the State. McCormick v. State, 845 P.2d 896, 898
(Okl.Cr.1993). Here, the exhibition of Hines' wounds was probative
and that probative value was not outweighed by their prejudicial
impact. Appellant has failed to meet his burden of prejudice, and
the display of the wounds was proper.FN4
FN4. Appellant makes an additional argument that
in showing his wounds to the jury, Hines in effect became an
“exhibit” for the prosecution. He further argues the State did not
memorialize for appellate review what was shown to the jury. He
claims the State thereby violated Rule 2.2(b), Rules of the Oklahoma
Court of Criminal Appeals, Title 22, Ch.18, App. (1998) and the
in-court demonstration was per se inadmissible. The record reflects
the display of Hines' wounds was not offered or marked as an exhibit
by the State. Further, the display of his wounds was no different
than when a witness makes an identification at trial and it is so
noted in the record. Therefore, we find the demonstration was not
per se inadmissible.
¶ 28 Appellant next complains about the admission
of items retrieved from a search of his motel room. On the day
Appellant surrendered to the police, a search warrant was executed
on his motel room. Recovered in the search was a yellow note pad
with several diary entries concerning the state of Appellant's
relationship with Brenda Gardner, an empty plastic cola bottle, two
plastic cola bottle caps, one plastic cola bottle cap liner, and a
full bottle of lighter fluid. The admission of the evidence drew no
objection from defense counsel. Now on appeal, Appellant argues none
of these items were relevant. Reviewing this claim for plain error
only as the claim was not raised at trial, we find the evidence
properly admitted. The diary notes were relevant in showing
Appellant's intent to kill Brenda, and the other evidence, shown by
other testimony to be components of a firebomb, showed Appellant's
ability and opportunity to make a firebomb.
¶ 29 Further, Appellant complains about the
admission into evidence of the actual search warrant and the
accompanying affidavits. Again, they were admitted at trial with no
objection from the defense, therefore we review only for plain
error. We find the information in the affidavit and search warrant
was merely cumulative to other evidence already before the jury.
Appellant has failed to show that he was prejudiced by the admission
of the affidavit and search warrant. We find their admission did not
deny Appellant a fair trial.
¶ 30 Appellant further asserts the State failed
to prove any nexus between himself and the drawings on the jail cell
wall. Appellant objected to the admission of State's Exhibits 33 and
34, photographs of the drawings, on the grounds of authenticity and
relevance. This objection has preserved the issue for appellate
review.
¶ 31 The photographs were introduced during the
testimony of Detective Easley. He identified State's Exhibits 33 and
34 as photographs he took of the drawings on the cell wall. This
testimony was sufficient to authenticate the photographs. 12
O.S.1991, § 2901. As for the relevance of the photographs, Jay Brown
testified that he observed Appellant write derogatory comments and
threats about Brenda G. on the cell walls next to the pictures.
Neither Brown nor any other witness testified to seeing the actual
drawing of the pictures on the wall. Despite this fact, the drawings
corroborated Brown's testimony that Appellant wrote the obscene
comments and threats. Further, the fact that Appellant wrote the
derogatory comments next to the pictures makes it more probable that
Appellant drew the pictures. See 12 O.S.1991, § 2401. This probative
value of the pictures was not substantially outweighed by any
prejudice inherent in the crude nature of the pictures. Accordingly,
we find no error in the admission of the photographs of the
drawings.
¶ 32 Appellant raises an additional challenge to
the evidence in his sixth assignment of error. He asserts the
admission of the statement by David Davis to Detective Burke that
Appellant was not wearing socks when Davis picked him up and
accompanied him to the police station to surrender violated his
rights of confrontation as well as his right to a fair trial and a
reliable sentencing. This testimony was not met with an objection.
Reviewing only for plain error, we find none. When alleged hearsay
is admitted without objection, the statements may be considered as
though they are admissible. Plantz v. State, 876 P.2d 268, 279 (Okl.Cr.1994),
cert. denied, 513 U.S. 1163, 115 S.Ct. 1130, 130 L.Ed.2d 1091
(1995); Davis v. State, 451 P.2d 974, 977 (Okl.Cr.1969). Viewing the
statement as properly admitted, Appellant was not denied his
confrontation rights by the admission of the statement as Davis
testified at trial and was subject to cross-examination. The fact
that Davis could not recall whether or not he told Detective Burke
about the socks does not violate the confrontation clause. See
Omalza v. State, 911 P.2d 286, 301 (Okl.Cr.1995). See also United
States v. Owens, 484 U.S. 554, 558, 108 S.Ct. 838, 842, 98 L.Ed.2d
951 (1988). Further, admission of the statement did not deny
Appellant a fair trial or reliable sentencing as the statement was
consistent with other evidence presented by the State: namely
Brown's testimony that Appellant said he used his sock to make the
wick for the firebomb, and that a complete change of clothing,
except for the socks, was found in Davis's car upon Appellant's
surrender. Accordingly, this assignment of error is denied.
¶ 33 In his tenth assignment of error, Appellant
contends the trial court erred in admitting into evidence his
confession. Appellant asserts the State failed to establish through
substantial independent evidence the trustworthiness of the
confession. We review only for plain error as no objection was
raised to the admission of the confession.
¶ 34 A confession is not admissible under
Oklahoma law unless it is supported by “substantial independent
evidence which would tend to establish [its] trustworthiness.”
Fontenot v. State, 881 P.2d 69, 77-78 (Okl.Cr.1994), quoting Opper
v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101
(1954). See also Rogers v. State, 890 P.2d 959, 975 (Okl.Cr.1995),
cert. denied, 516 U.S. 919, 116 S.Ct. 312, 133 L.Ed.2d 215 (1995).
This standard does not require that each material element of the
charged offenses be corroborated by facts independent of the
confession, or that there be no inconsistencies whatsoever between
the facts proven and the facts related in the confession. Id. The
State in the present case did provide sufficient, corroborative
evidence independent of Appellant's confession to show its
trustworthiness and thus its competence.
¶ 35 Tammy Gardner and Robert Hines testified to
seeing Appellant light the firebomb and throw it through the patio
door. Hines was struck and burned by the firebomb. As rescue
personnel arrived at the burning apartments, Appellant was no where
to be found. When Appellant finally surrendered, no socks were found
among an otherwise complete change of clothes. Material necessary to
make a firebomb was found in Appellant's motel room. This evidence
sufficiently corroborates Appellant's confession to Brown as to
render the confession trustworthy and therefore admissible.
¶ 36 Appellant directs our attention to certain
inconsistencies between the confession and the evidence, i.e. no
evidence of an accelerant or a firebomb was found anywhere in the
Gardner apartment, the firebomb was thrown through the closed plate
glass of the patio door, and Hines denied any intimate involvement
with Brenda Gardner. While these inconsistencies were by no means
inconsequential, we do not believe they rendered Appellant's
confession untrustworthy and incompetent. Unless inconsistencies
between the confession and the other evidence so overwhelm the
similarities that the confession is rendered untrustworthy, it
remains within the province of the jury to determine whether the
confession is credible. Fontenot, 881 P.2d at 79. After reviewing
Appellant's confession, the independent corroborative evidence and
the alleged inconsistencies, we find that his confession was
trustworthy. Accordingly, it was competent evidence for the jury to
consider and we find no error in its admission. This assignment of
error is denied.
¶ 37 In his twelfth assignment of error,
Appellant contends the trial court erred in admitting evidence that
several months before the apartment fire, he had threatened to throw
gasoline on and burn Marjorie Long, Brenda Gardner's mother.
Appellant calls this evidence other crimes evidence for which no
notice was given and for which no exception exists. He further
argues that any relevance the evidence may have had was
substantially outweighed by its prejudicial nature.
¶ 38 To support its theory that Appellant
attempted to kill Hines, Brenda Gardner and her family, the State
presented evidence of the tumultuous relationship between Appellant
and Gardner. This evidence included Appellant's threats to harm
Brenda and her family; the threat that “heads would roll” as a
result of Brenda refusing to take full responsibility for their
joint shoplifting charge; his threat to Janet Gardner, Brenda's
sister, that Brenda had better meet him at a certain time and place
or “something bad was going to happen”; Brenda's fear that Appellant
would beat her up; and the threat made to Keith Partain by Appellant
that although he only had twenty cents, he was going to buy a bottle
full of gasoline to make a firebomb so he could burn up Brenda and
her family.
¶ 39 In addition to this evidence, the State also
offered the testimony of Marjorie Long that Appellant forced her car
from the road in an attempt to get Brenda out of Long's car and into
his car. Long testified that Appellant threw rocks at her car and
tried to run her off the road. He eventually forced them to pull
into a restaurant parking lot and told Brenda to get out of the car.
When she refused, Appellant threatened to “get some gas and pour it
on your mother and set her on fire.” Defense counsel objected to
this testimony on the basis that the trial court had previously
ruled that no evidence of threats to anyone other than Brenda
Gardner was admissible. After an in-camera discussion, the trial
court explained that in its previous ruling, the court had held
inadmissible evidence of threats made by Appellant to his ex-wife
and other women he had been involved with before Brenda Gardner. The
trial court further explained that the threats to throw gasoline on
and burn Mrs. Long were not included in the above ruling as that
threat was directed at Brenda Gardner, not Mrs. Long or any other
third party.
¶ 40 The evidence of Appellant's threat to burn
Mrs. Long was included in the State's Notice of Intent to Use
Evidence of Other Crimes or Bad Acts. (O.R.340). The evidence of
Appellant's prior threats toward Brenda Gardner and her family was
relevant to prove Appellant's motive and intent to firebomb the
apartment where Brenda lived. Evidence of previous altercations
between spouses is relevant to the issue of intent. Hooker v. State,
887 P.2d 1351, 1359 (Okl.Cr.1994). Although Appellant and Brenda
were not husband and wife, in light of their close relationship the
evidence was properly admitted pursuant 12 O.S.1991, § 2404(B) and
its probative value outweighed any prejudicial effect. This
assignment of error is denied.
FIRST STAGE JURY INSTRUCTIONS
¶ 41 Appellant contends in his third assignment
of error that his due process rights were violated when the trial
court failed to properly instruct the jury on the intent element of
attempting to kill. Specifically, he argues: 1) the doctrine of
transferred intent does not apply to attempt crimes; 2) Instruction
No. 11 contained inconsistent and confusing language, and
contradicted Instruction No. 10; and 3) the combined effect of
Instructions No. 10 and 11 removed the State's burden of proof on an
essential element of the offense.
¶ 42 Jury Instruction No. 10 provided: In Counts
2, 3, 4, 5 and 6 the defendant is charged with the crime of Attempt
to Kill Another, on or about the 8th day of January 1995, in
Oklahoma County, Oklahoma. No person may be convicted of an attempt
to kill another unless the State has proved beyond a reasonable
doubt each element of the crime. These elements are: First, an
attempt to kill; Second, another person; Third, by performing an act;
Fourth, with the intent to cause or belief that it would cause death.
(O.R.991). This instruction tracks the language of Instruction No.
4-8, OUJI-CR (2d). Instruction No. 11 provided: If you find that the
defendant intended to kill any of the named victims, those being:
Brenda Gardner, Robert Hines, Tammy Gardner, Chase Hacket or Robert
Gardner, and by mistake or accident injured or assaulted any one of
the named victims, the element of intent is satisfied even though
the defendant did not intend to kill any one of the victims. In such
a case, the law regards the intent as transferred from the original
intended victim to the actual victim. (O.R.992). This instruction
tracks the language of Instruction No. 4-11, OUJI-CR (2d).
¶ 43 Appellant objected to Instruction No. 11 at
trial arguing that it was a misstatement of the law. Appellant
further argued “[b]ut when you have the charge of assault and
battery with intent to kill, then there must be a specific intent to
kill an individual. And I don't believe, Your Honor, that they can
clothe that in general terms that intent to kill any is intent to
kill all.” (Tr. V, 81). The trial court overruled this argument
finding the instruction a proper statement of the law.
¶ 44 Under the doctrine of transferred intent
when one person acts with intent to harm another person, but because
of a bad aim he instead harms a third person who he did not intend
to harm, the law considers him just as guilty as if he had actually
harmed the intended victim. W.LaFave and A. Scott, Criminal Law, §
3.12(d) (2nd ed.1986). This Court has not specifically ruled on
whether this doctrine applies in attempt crimes, i.e., situations
where there is no injury to any unintended victim. However, we have
applied the law of transferred intent in a case of assault with a
dangerous weapon, despite the lack of any injury to an unintended
victim. Jones v. State, 508 P.2d 280, 282 (Okl.Cr.1973). In the
present case, when Appellant intended to cause, or believed that the
firebombing would cause the death of one or more of the inhabitants
of Apartment 127, then through his act of attempting to kill any of
those inhabitants by throwing the firebomb at the apartment, he
committed the offense of attempt to kill as to any other persons
assaulted by mistake or accident. Therefore, we find the doctrine of
transferred intent applies in the present case.
¶ 45 In this case, there were multiple victims of
the attempt to kill charges. In Instruction No. 11, the trial court
attempted to comply with the uniform jury instruction by listing the
names all of those individuals in the apartment at the time of the
firebombing as intended victims and using the reference “any one of
the named victims” for the reference to the actual victims. At first
glance, this instruction is confusing as it seems to list the same
individuals as intended victims and actual victims. However, when
the instruction is read in its entirety it is clear that the list of
intended victims is set forth in the disjunctive. Further, the last
sentence of the instruction distinguishes between “the original
intended victim” and “the actual victim.” Therefore, the instruction
reads that if the jury found Appellant intended to kill any of those
persons inside the apartment, those persons being Brenda Gardner,
Robert Hines, Tammy Gardner, Chase Hacket or Robert Gardner, and by
mistake or accident injured or assaulted Brenda Gardner, Robert
Hines, Tammy Gardner, Chase Hacket or Robert Gardner, the element of
intent is satisfied even though Appellant did not intend to kill any
one of the actual victims. Contrary to Appellant's argument, a
rational juror would not have read the instruction as transferring
intent from, for example Robert Hines to Robert Hines. The
instruction, while it could have been more clear based on the facts
of this case, adequately distinguished the intended victim from the
actual victim.
¶ 46 Further, Instruction No. 11 did not negate
the intent element set forth in Instruction No. 10. The burden of
proof set forth in Instruction No. 10 was that the act was performed
with the intent or belief that the act would cause death to another
person. Instruction No. 11 merely provided the intent to kill as to
one person is sufficient to convict as to another person actually
harmed. The burden of proof was not diminished by Instruction 11.
Nor was an element of the offense negated by applying the burden of
proof set out in Instruction No. 10 to the harm caused to a third
person who was the actual victim of Appellant's proven intent.
¶ 47 Having thoroughly reviewed Appellant's
challenges to Instructions No. 10 and 11, we find no errors
warranting reversal. This assignment of error is denied.
¶ 48 In his thirteenth assignment of error,
Appellant contends the trial court erred in failing to give a jury
instruction, sua sponte, requiring corroboration of his confession.
We review only for plain error as no such instruction was requested
nor was an objection raised to the absence of the instruction. We
agree the trial court erred in failing to give an instruction
requiring corroboration of the confession by independent evidence.
Shelton v. State, 793 P.2d 866, 876 (Okl.Cr.1990). However, the
failure to give such an instruction is not grounds for reversal when
the record contains corroborating evidence. Id. As discussed above,
the record in this case contained ample evidence corroborating the
confession. Therefore, we find reversal is not warranted by the
absence of the instruction.
¶ 49 Appellant also contends the trial court
failed to give an instruction, sua sponte, on the need for
corroboration of Brown's informant testimony. Once again we review
only for plain error as no such instruction was requested nor was an
objection raised to the absence of the instruction.
¶ 50 The decision to give a cautionary
instruction is more often discretionary than it is fundamental.
Wilson v. State, 756 P.2d 1240, 1243-44 (Okl.Cr.1988). Here, we find
the trial court did not abuse its discretion in failing to give such
an instruction. Substantial evidence, other than Brown's testimony,
placed Appellant at the scene of the crime. Cf. Smith v. State, 485
P.2d 771, 773 (Okl.Cr.1971) (failure to give cautionary instruction
on informant's testimony reversible error as informant's testimony
was only evidence which placed defendant at the scene of the crime).
Further, the jury was generally instructed on the weight and
credibility to be accorded the witnesses' testimony. (O.R.1001).
Accordingly, we find the absence of a cautionary instruction on
informant testimony did not deny Appellant a fair trial, and this
assignment of error is denied.
SECOND STAGE ISSUES
¶ 51 In his second assignment of error, Appellant
argues the victim impact evidence introduced in this case violated
the rules of evidence and his rights under the Sixth, Eighth and
Fourteenth Amendments of the United States Constitution and Article
II, §§ 7 and 9 of the Oklahoma Constitution. Specifically, he
asserts: 1) the testimony of Kiyoka Yamamoto far exceeded the scope
of permissible victim impact evidence; 2) the admission of a live
picture of the victim was error; 3) the admission of a newspaper
article about the victim was hearsay and outside the scope of
permissible victim impact evidence; 4) the victim impact evidence in
this case violated Appellant's right to due process, a reliable
sentencing proceeding and confrontation; and 5) victim impact
evidence has no place in Oklahoma's sentencing scheme.
¶ 52 Victim impact evidence is constitutionally
acceptable unless “it is so unduly prejudicial that it renders the
trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825,
111 S.Ct. 2597, 2608, 115 L.Ed.2d 720, 735 (1991). In Cargle v.
State, 909 P.2d 806, 827-28 (Okl.Cr.1995) we set out the basis the
United States Supreme Court utilized to find the Eighth Amendment is
not violated by victim impact evidence and that the Fourteenth
Amendment has the potential to be implicated if appropriate
restrictions are not placed on victim impact evidence.
¶ 53 This Court has held victim impact evidence
admissible as long as it is “restricted to the ‘financial, emotional,
psychological, and physical effects,’ or impact, of the crime itself
on the victim's survivors; as well as some personal characteristics
of the victim.” Ledbetter v. State, 933 P.2d 880, 889-90 (Okl.Cr.1997).
The statutory language [22 O.S.Supp.1993, § 984]
is clear the evidence should be restricted to the “financial,
emotional, psychological, and physical effects,” or impact, of the
crime itself on the victim's survivors; as well as some personal
characteristics of the victim. (cite omitted). So long as these
personal characteristics show how the loss of the victim will
financially, emotionally, psychologically, or physically impact on
those affected, it is relevant, as it gives the jury “a glimpse of
the life” which a defendant “chose to extinguish,” (cite omitted).
However, these personal characteristics should constitute a “quick”
glimpse, (cite omitted), and its use should be limited to showing
how the victim's death is affecting or might affect the victim's
survivors, and why the victim should not have been killed. Cargle,
909 P.2d at 828.
¶ 54 In the present case, the State filed a
Notice of Victim Impact Statement. The author of the statement was
Kiyoka Yamamoto, the victim's mother. Mrs. Yamamoto was the last
witness called for the State in the penalty phase of trial. Prior to
her testimony, the trial court noted it had read Mrs. Yamamoto's
statement and found it to be in conformity with Cargle. The court
was informed that Mrs. Yamamoto, a Japanese citizen, would read her
statement in Japanese then it would be translated into English by an
interpreter. Defense counsel agreed to the procedure and noted that
the defense had had a copy of Mrs. Yamamoto's statement for awhile
and agreed that it substantially complied with the law. Mrs.
Yamamoto's statement, which comprised approximately six pages in the
trial transcript, told how she had received a telephone call at her
home in Kyoto, Japan, telling her of her son's injuries and that she
immediately flew to Oklahoma City to be with him. Mrs. Yamamoto said
the victim was her only child that she had raised by herself. She
described her ill health over the last fifteen years and that she
had battled her illness for her son's sake. She described how when
her health was stabilized, her son told her he wanted to go to
America and study. Putting aside her own fears, she agreed to let
her son go to America. Mrs. Yamamoto said her son was an excellent
student and received many awards. She said he wanted to stay in
America and study but worried about his ailing mother. Mrs. Yamamoto
said she and her son talked on the telephone every two or three days
and he came to Kyoto every summer to check on her health.
¶ 55 Mrs. Yamamoto also stated that approximately
one week before her son was killed he told her that if anything
happened to him, to bury him in Oklahoma. She described her last
conversation with her son wherein he told her his downstairs
neighbors were very noisy and made it difficult for him to study.
Fourteen hours after that conversation, she received word that her
son had been injured and had only approximately fifteen hours to
live. Stating that she “could not understand why this was going on
... my heart was screaming, why, why, why ... [m]y head was hit by
big hammer.” She said that all she could think to do was to get an
airplane ticket. She said that reservations were made for her and
she left immediately. “The airplane was so slow. I couldn't eat or
sleep. I could only pray to God not to take my healthy young man's
life.” When she arrived in Oklahoma City, Mrs. Yamamoto rushed to
the hospital and found her son burned over 98 percent of his body.
She said she believed her son heard her voice, that he tried to move
his head and shortly thereafter passed away.
¶ 56 Mrs. Yamamoto said that her son had been
told by Mrs. Tohgi, the person who had made the phone call to Mrs.
Yamamoto and made her flight arrangements, that his mother was on
the way. She said her son squeezed Mrs. Tohgi's hand as tears ran
down his cheeks. Mrs. Yamamoto said that after she talked with her
son his condition changed quickly, and she believed that after he
heard her voice he quit fighting and seemed to be telling her “I
waited for you, ... I'm glad to hear your voice, ... please let me
rest.” Mrs. Yamamoto closed with noting it had been two years and
three months since her son was killed and that his death had greatly
affected her health. She said she had been hospitalized many times
for heart problems since his death. She added that anytime she sees
fires, bombs or emergencies on television, memories of her son's
death return causing her tremendous stress.
¶ 57 It was not until the close of Mrs.
Yamamoto's testimony that defense counsel objected to the victim
impact evidence and requested a mistrial. Defense counsel argued
that Mrs. Yamamoto was very emotional and that he did not realize
how emotional the evidence would be prior to it being presented at
trial. The trial court admitted the evidence was emotional, noting
that the witness cried and that she was permitted a few minutes to
regain her composure. The court noted however that the witness got
through her testimony, and that it was still of the opinion the
evidence was proper under Cargle. The request for a mistrial was
overruled.
¶ 58 The victim impact evidence in this case
comes very close to weighting the scales too far on the side of the
prosecution by so intensely focusing on the emotional impact of the
victim's loss. Id at 826. However, as we stated in Cargle, In
discussing this, we in no way hold the emotional impact of a
victim's loss is irrelevant or inadmissible; we simply state that,
in admitting evidence of emotional impact, especially to the
exclusion of the other factors, a trial court runs a much greater
risk of having its decision questioned on appeal.... The more a jury
is exposed to the emotional aspects of a victim's death, the less
likely their verdict will be a “reasoned moral response” to the
question whether a defendant deserves to die; and the greater the
risk a defendant will be deprived of Due Process.(citation omitted).
909 P.2d at 830.
¶ 59 Mrs. Yamamoto's statements concerning her
feelings and actions upon learning of her son's injury and
subsequent death were emotional, but fell within the guidelines set
forth in Cargle and § 984. These statements were probative of the
emotional, psychological, and physical effects she experienced as a
result of the death of her only child. Mrs. Yamamoto's statements
concerning her son's desire to study in America, his eventual
achievement of that goal and his concern for his mother provided a
brief glimpse of the unique characteristics of the individual known
as Ken Yamamoto. While her statements concerning her fifteen year
illness, her son's wish to be buried in Oklahoma City, and her son's
death bed thoughts upon seeing his mother were not relevant victim
impact evidence,FN5 their admission did not prevent the jury from
fulfilling its function in the second stage of trial. While a
portion of the victim impact testimony was very emotional, taken as
a whole, the testimony is within the bounds of admissible evidence,
and its focus on emotion did not have such a prejudicial effect or
so skew the presentation as to divert the jury from its duty to
reach a reasoned moral decision on whether to impose the death
penalty. Hooper v. State, 947 P.2d 1090, 1105 (Okl.Cr.1997).
FN5. Appellant challenges the admissibility of
Mrs. Yamamoto's statements concerning her son's death bed thoughts
and wishes for burial on the grounds of hearsay. We do not reach
this issue as we find such statements were not probative of the
financial, emotional, psychological, and physical effects, or
impact, of the crime itself on the victim's survivors or personal
characteristics of the victim. Cargle, 909 P.2d at 828.
¶ 60 At the close of Mrs. Yamamoto's testimony,
the State introduced a pre-mortem photograph of the victim. Defense
counsel's objection to the photograph was overruled. This Court has
held such photographs are generally inadmissible, again based on
their relevancy to the issues presented at trial. Cargle, 909 P.2d
at 830. We see no reason to retreat from that ruling. The photograph
was clearly irrelevant as it in no way showed the financial,
psychological or physical impact on the survivors or any particular
information about the victim. The photograph did not demonstrate any
“information about the victim” and it does not show how his death
affected or might affect the survivors. However, this error is
subject to the harmless error analysis. Id. at 835. See also Darks
v. State, 954 P.2d 152, 164 (Okl.Cr.1998). In light of our following
discussion that sufficient evidence to support the aggravating
circumstances was presented and the evidence in support of said
circumstances outweighed the mitigating evidence, the error in
admitting the pre-mortem photograph is harmless beyond a reasonable
doubt.
¶ 61 The State also admitted an article from the
Oklahoma City University campus newspaper concerning the victim and
his achievements at the university as an art student. This exhibit,
State's Exhibit No. 81, was admitted by stipulation. As counsel did
not raise any objection to the exhibit at trial, he has waived all
but plain error review. Simpson v. State, 876 P.2d 690, 698-99
(Okl.Cr.1994). We find no plain error in the admission of the
newspaper article as it did not impact the foundation of the case or
take from Appellant a right essential to his defense. Id.FN6
FN6. Contained in the newspaper article were
comments by friends and professors of the victim describing the
victim's accomplishments and personal characteristics. Title 22
O.S.Supp.1993, § 984.1 restricts those who may give victim impact
evidence to members of the victim's family or someone designated by
the family. Section 984.1 states in pertinent part:A. Each victim,
or members of the immediate family of each victim or person
designated by the victim or by family members of the victim, may
present a written victim impact statement or appear personally at
the sentence proceeding and present the statements orally.... Title
22 O.S.Supp.1993, § 984 defines members of the immediate family as
“spouse, a child by birth or adoption, a stepchild, a parent, or a
sibling of each victim.” None of the individuals interviewed in the
newspaper article met the above criteria. However, it is not
necessary for us to address the merits of the content of the
newspaper article as defense counsel's stipulation to its admission
makes any error in its admission harmless.
¶ 62 Finally, Appellant argues that victim impact
evidence has no place in Oklahoma's death penalty scheme as our
statutes require a balancing test of aggravating circumstances and
mitigation and victim impact evidence is relevant to neither. He
argues that victim impact evidence operates as irrelevant, improper,
highly charged, emotional evidence which is present in every capital
case and has the same effect as an unconstitutionally broad
aggravating circumstance or “superaggravator.” This argument has
been repeatedly rejected by this Court. Cargle, 909 P.2d at 824-30.
See also Conover v. State, 933 P.2d 904, 922 (Okl.Cr.1997); Smith,
932 P.2d at 537. Appellant has not persuaded us to reconsider the
issue.
¶ 63 Having reviewed Appellant's allegations
concerning victim impact evidence, we find he was not denied a
reliable sentencing proceeding by the admission of the victim impact
evidence. Accordingly, this assignment of error is denied. ¶ 64 In
his ninth assignment of error, Appellant contends he was denied a
fair sentencing proceeding by the admission of evidence supporting
the “continuing threat” aggravator. During the second stage of trial,
the State introduced victim protection orders from three different
women issued against Appellant. Appellant filed a motion in limine
to prohibit their admission arguing that the documents were filled
with hearsay and were only used to bolster the witnesses' testimony.
The trial court overruled the objection, finding that as long as the
sponsoring witness testified the orders were properly admissible.
Appellant did not renew his objection when the exhibits were offered
into evidence.
¶ 65 A ruling on a motion in limine is merely
advisory and not conclusive. To properly preserve the issue
contained in such a motion, the proposition must be introduced at
trial, and if overruled, objections should occur at that time.
Conover, 933 P.2d at 912. Appellant's failure to object to the
admission of the exhibits when they were offered waives all but
plain error. We find no plain error.
¶ 66 Appellant further argues the testimony of
witness Troi Billy far exceeded the scope of the More Definite and
Certain Statement of Allegations Set Forth in the Bill of
Particulars. In that pleading the State notified the defense of Troi
Lyn Billy's testimony in support of the “continuing threat”
aggravating circumstance. In the notice the prosecution stated: Troi
Lyn Billy will testify that in July 1991, the defendant threatened
to kill her and her children. She filed police reports in Case
Numbers 9102458, 9102407, 9102474, 9102466 and 9102694. In August of
1991, she filed for a Victim Protective Order. On July 29, 1991, the
defendant pointed a gun at her, her children and Susan Short and
threatened to kill them. On August 9, 1991, defendant telephoned Ms.
Billy and told her “it's time to die for real now, bitch.” On July
13, 1991, Short telephoned Ms. Billy and told her “your fucking ass
is dead.” (O.R.472).
¶ 67 Appellant now complains that Billy's
testimony exceeded the notice when she testified: 1) her house had
been burglarized and when she confronted Appellant he said “I told
you I'm going to get you”; and 2) Appellant once told her he would
cut her head off and “rape her in the ass.”
¶ 68 As to testimony concerning the burglary,
Appellant's only objection at trial was on the grounds of a leading
question. By objecting on that ground alone, he waived all other
grounds, including lack of notice. Mitchell, 884 P.2d at 1197. As
for the testimony concerning the rape threat, Appellant did object
on grounds of lack of notice but not until after Ms. Billy had
testified. This Court remains committed to the general rule that a
timely objection must be made on the record to preserve any alleged
error for appellate review. Wood v. State, 748 P.2d 523, 525 (Okl.Cr.1987).
A timely objection brings the alleged error to the attention of the
trial court and provides an opportunity to correct the error at
trial. Davis v. State, 753 P.2d 388, 392 (Okl.Cr.1988). Reviewing
only for plain error, we find none. The police reports concerning
each incident testified to by Ms. Billy and referenced in the More
Definite and Certain Statement had been provided to the defense.
This was sufficient notice of the State's intent to use evidence of
the burglary and rape threat to support the “continuing threat”
aggravator. As such, Ms. Billy's testimony did not exceed the scope
of the More Definite and Certain Statement. This assignment of error
is denied.
¶ 69 In his fourteenth assignment of error,
Appellant contends that all three aggravating circumstances found by
the jury failed to perform the narrowing function required by the
Eighth and Fourteenth Amendments to the United States Constitution
and by Art. II, §§ 7 and 9, of the Oklahoma Constitution. Appellant
recognizes this Court has previously rejected attacks on the
constitutionality of these aggravators, but asks us to reconsider
our decisions. We are not persuaded to alter our prior positions.
Therefore, Appellant's argument is denied as it pertains to the
constitutionality of the aggravating circumstances of “continuing
threat” ( See Hamilton v. State, 937 P.2d 1001, 1012 (Okl.Cr.1997));
“great risk of death” ( See Id.), and “especially heinous, atrocious
or cruel.” ( See Id.).
¶ 70 Appellant also challenges the use of
Instruction No. 4-74, OUJI-CR (2d).FN7 He contends that instead of
limiting the aggravating circumstance of “continuing threat”, the
instruction actually broadens its application by leaving out any
reference to violence. A review of the instruction does not support
Appellant's argument. The first paragraph of the instruction
explicitly refers to the allegation that there exists a probability
that the defendant will commit future acts of violence. That the
subsequently listed two criteria which must be proven do not mention
violence does not negate the burden on the State to prove a
probability that the defendant will commit future acts of violence
that constitute a continuing threat to society as listed in the
first paragraph. Reading the instruction in its entirety, it is
clear the State had the burden of proving the defendant had a
history of criminal conduct that would likely continue in the future
and that such conduct would constitute a continuing threat to
society. Accordingly, we reject Appellant's challenge to Instruction
No. 4-74, OUJI-CR (2d). This assignment of error is therefore denied.
FN7. OUJI-CR 4-74 provides:The State has alleged
that there exists a probability that the defendant will commit
future acts of violence that constitute a continuing threat to
society. This aggravating circumstance is not established unless the
State proved beyond a reasonable doubt: First, that the defendant's
behavior has demonstrated a threat to society; and Second, a
probability that this threat will continue to exist in the future.
ISSUES RELEVANT TO BOTH STAGES OF TRIAL
PROSECUTORIAL MISCONDUCT
¶ 71 In his seventh assignment of error,
Appellant contends that prosecutorial misconduct in both stages of
trial so infected the proceedings with unfairness as to deny his
constitutional right to a fair trial and reliable sentencing.
Appellant cites to numerous instances during both stages of trial in
which he contends the prosecutors exceeded the bounds of proper
prosecutorial advocacy. Initially, Appellant claims that in the
first stage closing arguments, the prosecutors: 1) indicated they
knew things that the jury did not; 2) misstated the evidence; and 3)
referred to facts not before the jury and to evidence which had been
excluded during trial. None of these comments were met with an
objection at trial. Therefore all but plain error has been waived.
Freeman v. State, 876 P.2d 283, 287 (Okl.Cr.), cert. denied, 513 U.S.
1022, 115 S.Ct. 590, 130 L.Ed.2d 503 (1994).
¶ 72 Reading the entire closing argument in
context, the complained of comments were within the wide latitude of
discussion permitted both the state and the defense in closing
argument. Any misstatements were not so egregious as to have risen
to the level of reversible error. Carol v. State, 756 P.2d 614, 617
(Okl.Cr.1988).
¶ 73 Appellant also asserts the prosecution
allowed Jay Brown to misrepresent his plea agreement with the State.
Appellant argues that what Brown got in return for his testimony
against Appellant was essential in determining his credibility and
that leaving the jury with a false impression of the terms of the
plea agreement violated due process. See Binsz v. State, 675 P.2d
448, 450-51 (Okl.Cr.1984). Brown testified on direct examination
that in exchange for his truthful testimony against Appellant, his
cooperation with the authorities in other drug cases, truthful
testimony against his co-defendant, successful completion of a drug
recovery program and a two week after-care program, and counseling
two to three times a week, he would receive a five year deferred
sentence. On cross-examination, Brown was asked about the meaning of
a deferred sentence. Brown insisted that even if he successfully
completed all of the above requirements he would still have a
conviction on his record, though “it won't be on my record as long
as I don't get in trouble again.”
¶ 74 The plea agreement with Brown indicated that
upon successful completion of the above mentioned requirements and
probationary period, he was to receive a five year deferred judgment.
(State's Exhibit 79). Under Oklahoma law, no conviction results
after the successful completion of the probationary period. 22 O.S.1991,
§ 991(c). Although Brown may not have used the correct terminology
in describing the plea agreement, he clearly testified that in
return for his cooperation and successful completion of the
probationary period, he would no longer have a conviction on his
record. No false impressions of the terms of the plea agreement were
left with the jury.
¶ 75 Turning to the second stage of trial,
Appellant reiterates his complaints about the victim impact evidence
raised in Proposition II and asserts that as the prosecutors in this
case participated in the trial of Cargle v. State, the manner in
which the prosecutors presented the victim impact evidence in this
case was indicative of bad faith and disrespect for this Court. As
discussed previously, the majority of the victim impact evidence was
properly admitted. We find nothing in the record to support
Appellant's claims of bad faith and disrespect for this Court on the
part of the prosecutors. This allegation is denied.
¶ 76 Appellant further argues the prosecutors
improperly: 1) stated that Appellant needed to go to death row for
what he did to the victim's mother; 2) stated that the State does
not seek the death penalty in every case; 3) transformed Appellant's
mitigation evidence into evidence supporting the death penalty; 4)
injected their personal sense of justice into the sentencing
proceeding; and 5) commented on Appellant's decision not to testify
at trial. None of these comments were met with an objection at trial.
Therefore all but plain error has been waived. Freeman, 876 P.2d at
287.
¶ 77 Reviewing the complained of comments in
context, we find the comments were properly based in the law and
were reasonable inferences on the evidence. Any misstatements did
not deny Appellant a fair trial. Addressing specifically the
prosecutor's comments on the mitigating evidence, we find the jury
was not encouraged to ignore the mitigating evidence. Therefore,
Appellant's reliance on Penry v. Lynaugh, 492 U.S. 302, 319, 109
S.Ct. 2934, 2947, 106 L.Ed.2d 256 (1989) and Lockett v. Ohio, 438
U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) is misplaced. Here,
the prosecutor simply argued the evidence presented in mitigation
was not persuasive. We find no error in the prosecution's attempt to
minimize the effect of the evidence presented by the defense.
Hamilton, 937 P.2d at 1010-11. Further, the jury was thoroughly
instructed as to the mitigating evidence. The prosecutors' comments
did not prevent the jury from fully considering the evidence
presented in mitigation.
¶ 78 Two other challenged comments warrant our
specific attention. Appellant asserts that by arguing that no
remorse had been shown, the prosecutor improperly commented on
Appellant's failure to testify. We find no error in this comment as
we have repeatedly held that “[b]efore a purported comment at trial
on a defendant's failure to testify will constitute reversible
error, the comment must directly and unequivocally call attention to
that fact.” Gilbert, 951 P.2d at 120; Hampton v. State, 757 P.2d
1343, 1346 (Okl.Cr.1988). The comment here did not directly call
attention to the fact that Appellant did not testify, rather the
comment was properly based upon Appellant's demeanor in the
courtroom.
¶ 79 However, the prosecutor did comment that it
was not justice to allow the defendant three meals a day, a clean
place to sleep, and visits by his friends while the victim's mother
daily grieves for her only son. This type of argument has been
repeatedly condemned by this Court. Le v. State, 947 P.2d 535, 554 (Okl.Cr.1997);
Duckett v. State, 919 P.2d 7, 19, (Okl.Cr.1995). However, under the
evidence in this case, we cannot find the comments affected the
sentence.
¶ 80 “Allegations of prosecutorial misconduct do
not warrant reversal of a conviction unless the cumulative effect
was such [as] to deprive the defendant of a fair trial.” Duckett,
919 P.2d at 19. Because we do not find the cumulative effect of any
inappropriate comments deprived Appellant of a fair trial, this
assignment of error is denied.
INEFFECTIVE ASSISTANCE OF COUNSEL
¶ 81 Appellant contends in his eighth assignment
of error that he was denied a fair trial and reliable sentencing
proceeding by the ineffective assistance of counsel. Specifically,
he contends counsel was ineffective for: 1) failing to promptly
notify the State of a defense witness; 2) failing to object to
hearsay and other patently inadmissible evidence; 3) failing to
request instructions regarding uncorroborated confessions and the
reliability of informant testimony; 4) conceding guilt and
abandoning the entire defense theory in closing argument; and 5)
failing to object to improperly admitted victim impact evidence.
¶ 82 An analysis of an ineffective assistance of
counsel claim begins with the presumption that trial counsel was
competent to provide the guiding hand that the accused needed, and
therefore the burden is on the accused to demonstrate both a
deficient performance and resulting prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674
(1984). Strickland sets forth the two-part test which must be
applied to determine whether a defendant has been denied effective
assistance of counsel. First, the defendant must show that counsel's
performance was deficient, and second, he must show the deficient
performance prejudiced the defense. Unless the defendant makes both
showings, “it cannot be said that the conviction ... resulted from a
breakdown in the adversary process that renders the result
unreliable.” Id. at 687, 104 S.Ct. at 2064. Appellant must
demonstrate that counsel's representation was unreasonable under
prevailing professional norms and that the challenged action could
not be considered sound trial strategy. Id. at 688-89, 104 S.Ct. at
2065.
¶ 83 When a claim of ineffectiveness of counsel
can be disposed of on the ground of lack of prejudice, that course
should be followed. Id. at 697, 104 S.Ct. at 2069. Concerning the
prejudice prong, the Supreme Court, in interpreting Strickland, has
held: [An appellant] alleging prejudice must show “that counsel's
errors were so serious as to deprive the defendant of a fair trial,
a trial whose result is reliable.” Strickland, 466 U.S., at 687, 104
S.Ct., at 2064; see also Kimmelman v. Morrison, 477 U.S. 365, 374,
106 S.Ct. 2574, 2582, 91 L.Ed.2d 305 (1986) (“The essence of an
ineffective-assistance claim is that counsel's unprofessional errors
so upset the adversarial balance between defense and prosecution
that the trial was rendered unfair and the verdict rendered
suspect”); Nix v. Whiteside, supra, 475 U.S. [157], at 175, 106
S.Ct. [988], at 998[, 89 L.Ed.2d 123 (1986) ]. Thus, an analysis
focusing solely on mere outcome determination, without attention to
whether the result of the proceeding was fundamentally unfair or
unreliable, is defective. To set aside a conviction or sentence
solely because the outcome would have been different but for
counsel's error may grant the defendant a windfall to which the law
does not entitle him. See [ United States v.] Cronic, supra, 466
U.S. [648], at 658, 104 S.Ct. [2039], at 2046[ 80 L.Ed.2d 657 (1984)
]. Lockhart v. Fretwell, 506 U.S. 364, 369-70, 113 S.Ct. 838,
842-43, 122 L.Ed.2d 180, 189 (1993) (footnote omitted). Although we
must consider the totality of the evidence which was before the
factfinder, our “ultimate focus of inquiry must be on the
fundamental fairness of the proceeding whose result is being
challenged.” Strickland, 466 U.S. at 695, 104 S.Ct. at 2069; Fisher
v. State, 736 P.2d 1003, 1012 (Okl.Cr.1987).
¶ 84 Turning to Appellant's specific allegations
of ineffectiveness, he first finds counsel ineffective for failing
to promptly notify the State of the testimony of Mark Bayless.
Appellant has failed to show any prejudice from counsel's conduct.
As discussed in Proposition I, Bayless was not a material witness.
His testimony could only serve to impeach the testimony of Jay
Brown. The jury was adequately instructed on the weight to be
accorded Brown's testimony. Consequently, we find counsel's failure
to promptly notify the State of Bayless's testimony was not
indicative of ineffective assistance of counsel.
¶ 85 In complaining that counsel was ineffective
for failing to object to hearsay and other inadmissible evidence
Appellant directs us to Propositions V and VI. He argues that the
evidence discussed in those propositions of error should have drawn
objections from defense counsel and that counsel's failure to so
object was indicative of ineffective assistance. While failure to
object may rise to the level of ineffective assistance of counsel,
such a failure often will not be conclusive. Where objections that
might have been raised would have been properly overruled and those
that might have been sustained would have amounted to at most
harmless error had the ruling been incorrect, Appellant has failed
to show that any errors by counsel were so great as to render the
results of the trial unreliable. Here, the evidence discussed in
Propositions V and VI was found to be either properly admitted or
harmless error. Therefore, counsel cannot be found ineffective for
failing to offer objections to the evidence.
¶ 86 In his thirteenth assignment of error,
Appellant argued and we found error in the trial court's failure to
sua sponte give instructions regarding corroboration of the
confession and the reliability of informant testimony. Appellant now
argues trial counsel was ineffective for failing to request either
instruction. As discussed in Proposition XIII, where there is ample
corroboration in the record, as in this case, the failure to give an
instruction on the need for corroborating evidence is harmless
error. Further, we found the failure to give a cautionary
instruction on informant testimony did not prejudice Appellant.
Therefore, counsel's failure to request these instructions did not
render the result of the sentencing proceeding unreliable. See
Workman v. State, 824 P.2d 378, 383 (Okl.Cr.1991).
¶ 87 Appellant next finds counsel ineffective for
abandoning the theory that the fire was a result of a
methamphetamine lab explosion. During trial, Appellant presented the
case that the fire in apartment 127 was the result of the explosion
of a methamphetamine lab and not the result of a firebomb. He also
challenged any identification of himself as the person responsible
for throwing a firebomb into the apartment. In closing argument,
defense counsel rejected the theory that the fire was the result of
a methamphetamine lab explosion stating that such a possibility had
to be rejected. He then focused his argument on the State's failure
to establish, beyond a reasonable doubt, that Appellant was the
person who threw the firebomb into the apartment. The legal argument
to be made is a matter of trial strategy. See Smith v. State, 650
P.2d 904, 908 (Okl.Cr.1982). This Court refuses to second guess
trial strategy on appeal. Id.
¶ 88 Further, Appellant's characterization that
this change in strategy was a concession of guilt is not borne out
by the record. Counsel vigorously argued that the State had failed
to establish guilt beyond a reasonable doubt and repeatedly pointed
out to the jury shortcomings in the State's case. In light of his
challenges throughout trial to any identification of Appellant as
the perpetrator of this crime, and in light of the substantial
evidence against Appellant, counsel's decision to pursue a more
viable theory of defense than that initially proffered was not
indicative of ineffective assistance and did not render the result
of the trial unreliable.
¶ 89 Finally, Appellant finds error in counsel's
failure to object to the victim impact evidence. As discussed in
Proposition II, counsel did object to the admission of the
pre-mortem photograph of the victim. Although he did fail to offer a
timely objection to the victim impact statement of Mrs. Yamamoto,
finding such evidence properly admitted we cannot find counsel
ineffective for failing to object. As for the newspaper article,
counsel's stipulation to its admission was sound trial strategy to
minimize the effect of the portions of that evidence which might
have been admissible through live witnesses.
¶ 90 Having thoroughly reviewed the record, and
all of Appellant's allegations of ineffectiveness, we have
considered counsel's challenged conduct on the facts of the case as
viewed at the time and have asked if the conduct was professionally
unreasonable and, if so, whether the error affected the jury's
judgment. Le, 947 P.2d at 556. In that light, we find that certain
omissions and errors were made by trial counsel. In determining
whether these errors or omissions were outside the wide range of
professionally competent assistance, we consider whether counsel
fulfilled the function of making the adversarial testing process
work. Id. As our ultimate focus must be on the fundamental fairness
of the trial, we find that Appellant has failed to rebut the strong
presumption that counsel's conduct was professionally reasonable and
that he has failed to show that he was denied a fundamentally fair
trial. Accordingly, this assignment of error is denied.
¶ 91 Filed with the direct appeal is an
Application for Evidentiary Hearing on Sixth Amendment Claim and
Motion to Supplement, pursuant to Rule 3.11(B)(3)(b), Rules of the
Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (1998).
Appellant asserts in the Application that counsel was ineffective in
failing to investigate and utilize available mitigating evidence.
Attached to the Application are three affidavits. In the first
affidavit, Dr. Ray Hand, Ph.D. and a licensed health service
psychologist, states that at the request of appellate counsel, he
conducted a psychological assessment of Appellant. The assessment
was conducted on March 27, 1998, a little over three (3) years after
the offenses in this case were committed. In his seven page
affidavit, Dr. Hand set forth the evaluation techniques and records
utilized in his assessment and a summary of his findings. Dr. Hand
concluded “[i]n the case of Terry Lyn Short a complex set of factors
combined to create adversity and disability in an individual with
circumscribed familial, economic, educational and social
opportunities.” (Exhibit A).
¶ 92 In the second affidavit Troy L. Hexemer,
Appellant's aunt, stated she had contact with Appellant from his
birth until he was approximately eight or nine years old. Ms.
Hexemer described Appellant's early life as one of neglect and
abuse. She stated that she was available to testify in Appellant's
trial, but was never contacted to do so. (Exhibit B). The third
affidavit is from Michael L. Johns, an investigator in the Capital
Direct Appeal Division of the Oklahoma Indigent Defense System. Mr.
Johns stated that he had made repeated attempts to obtain copies of
the Federal Prison Records on Barton Alton Short, Appellant's father,
but had been unsuccessful in obtaining any records. (Exhibit C).
Appellant's Application contends these items constitute the “clear
and convincing evidence” necessary under Rule 3.11(B)(3)(b)(i) to
demonstrate a strong possibility trial counsel was ineffective.
Accordingly, Appellant urges this Court to so find and to order an
evidentiary hearing to fully address the ineffectiveness issue.
¶ 93 Rule 3.11(B)(3)(6) allows an appellant to
request an evidentiary hearing when it is alleged on appeal that
trial counsel was ineffective for failing to “utilize available
evidence which could have been made available during the course of
trial....” Once an application has been properly submitted along
with supporting affidavits, this Court reviews the application to
see if it contains “sufficient evidence to show this Court by clear
and convincing evidence there is a strong possibility trial counsel
was ineffective for failing to utilize or identify the complained-of
evidence.” Rule 3.11(B)(3)(b)(i).
¶ 94 While Appellant has provided a great deal of
information in his affidavits, he has failed to set forth sufficient
evidence to warrant an evidentiary hearing. During the second stage
of trial, Appellant called as mitigation witnesses his sister and
two of his cousins. These women testified to the neglectful and
abusive conditions Appellant suffered while growing up. The
statements made by Mrs. Hexemer in Exhibit B are much the same. Also
testifying at trial for the defense was Dr. Wanda Draper, a Ph.D.
and clinical professor in the psychiatry department of the Oklahoma
College of Medicine. She stated that she had interviewed Appellant,
his sister, and a cousin, and reviewed records from the Department
of Human Services concerning Appellant as well as records pertaining
to Appellant's military history, medical history, family history,
childhood, his mother and her personal history, records on other
family members, and police reports. Based upon all of the above, she
testified to her evaluation of Appellant. Her conclusions are very
similar to those offered by Dr. Hand in Exhibit A. The information
contained in Exhibits A and B is merely cumulative to that offered
at trial. Appellant has failed to show by clear and convincing
evidence there is a strong possibility trial counsel was ineffective
for failing to utilize or identify Dr. Hand and Mrs. Hexemer as
potential mitigation witnesses.
¶ 95 Appellant's claim in Exhibit C is merely a
request for more time to develop and investigate additional
mitigating evidence that he claims was available but not discovered
by trial counsel. We fail to see how counsel was ineffective for
failing to obtain the prison records on Appellant's father.
¶ 96 Upon review of the application and the
supporting affidavit, we find Appellant has not shown by clear and
convincing evidence a strong possibility that defense counsel was
ineffective for failing to request a continuance of the trial. Darks,
954 P.2d at 168. Accordingly, we decline to grant Appellant's
application for an evidentiary hearing.
ACCUMULATION OF ERROR CLAIM
¶ 97 In his fifteenth assignment of error,
Appellant contends the aggregate impact of the errors in this case
warrants reversal of his convictions and at the very least
modification of his death sentence. This Court has repeatedly held
that a cumulative error argument has no merit when this Court fails
to sustain any of the other errors raised by Appellant. Ashinsky v.
State, 780 P.2d 201, 209 (Okl.Cr.1989); Weeks v. State, 745 P.2d
1194, 1196 (Okl.Cr.1987). However, when there have been numerous
irregularities during the course of a trial that tend to prejudice
the rights of the defendant, reversal will be required if the
cumulative effect of all the errors is to deny the defendant a fair
trial. Bechtel v. State, 738 P.2d 559, 561 (Okl.Cr.1987). While
certain errors did occur in this case, even considered together,
they were not so egregious or numerous as to have denied Appellant a
fair trial. Therefore, no new trial or modification of sentence is
warranted and this assignment of error is denied. MANDATORY SENTENCE
REVIEW
¶ 98 Pursuant to 21 O.S.1991, § 701.13(C), we
must determine (1) whether the sentence of death was imposed under
the influence of passion, prejudice or any other arbitrary factor,
and (2) whether the evidence supports the jury's finding of the
aggravating circumstances as enumerated in 21 O.S.1991, § 701.12.
Turning to the second portion of this mandate, the jury found the
existence of three (3) aggravating circumstances: 1) the defendant
knowingly created a great risk of death to more than one person; 2)
the murder was especially heinous, atrocious, or cruel; and 3) there
was an existence of a probability that the defendant would commit
criminal acts of violence that would constitute a continuing threat
to society. 21 O.S.1991, § 701.12(2)(4)(7). Each of these
aggravators was supported by sufficient evidence.
¶ 99 The aggravator of “especially heinous,
atrocious or cruel” is supported by evidence that the murder of the
victim was preceded by torture or serious physical abuse, which may
include the infliction of either great physical anguish or extreme
mental cruelty. Hain v. State, 919 P.2d 1130, 1146 (Okl.Cr.1996).
Here, the victim suffered severe burns to 95% of his body; 82% of
those burns being 3rd degree burns and the remainder 2nd degree
burns. The victim was conscious prior to being taken to the hospital
and for a period of time after his arrival. This evidence of
conscious physical suffering is sufficient to support the aggravator.
¶ 100 To support the aggravator of continuing
threat, the State must present evidence showing the defendant's
behavior demonstrated a threat to society and a probability that
threat would continue to exist in the future. Id. at 1147. A finding
that the defendant would commit criminal acts of violence that would
constitute a continuing threat to society is appropriate when the
evidence establishes the defendant participated in other unrelated
criminal acts and the nature of the crime exhibited the calloused
nature of the defendant. Battenfield v. State, 816 P.2d 555, 566
(Okl.Cr.1991), cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117
L.Ed.2d 632 (1992). To prove this aggravating circumstance, this
Court has held “the State may present any relevant evidence, in
conformance with the rules of evidence, ... including evidence from
the crime itself, evidence of other crimes, admissions by the
defendant of unadjudicated offenses or any other relevant evidence.”
Id.
¶ 101 In the present case, the State presented
evidence from three witnesses, testimony plus victim protection
orders, concerning various acts of violence and threats of violence
committed against them by Appellant. This evidence, plus the obvious
callousness of Appellant's throwing a firebomb into an occupied
apartment, located inside a complex of buildings, and then his
admission to the act, is sufficient to support this aggravator. See
Hain, 919 P.2d at 1147-48 (in determining the callousness of the
crime, the defendant's attitude is critical to the determination of
whether he poses a continuing threat to society.) This evidence
shows Appellant has a propensity toward violence which makes him a
continuing threat to society.
¶ 102 Finally, the aggravator of “great risk of
death to more than one person” is supported by evidence that
Appellant threw the firebomb into an apartment occupied by five
people and the apartment was in close proximity to numerous other
apartments, all occupied. See Turrentine, 965 P.2d at 978.
¶ 103 Having found the aggravators supported by
sufficient evidence, we turn to the mitigating evidence. Appellant
presented seven (7) witnesses: his sister, two cousins, two jailers
from the Oklahoma City Jail, the volunteer chaplain at the Oklahoma
City Jail, and Dr. Draper. These witnesses testified that Appellant
was raised in an abusive home where he witnessed his alcoholic
father beat his mother and where he himself was physically abused;
he was often abandoned by his parents when they were sent to prison
or just ran off; his mother was a prostitute who sometimes performed
her work in his presence, and a drug addict who introduced Appellant
to drugs; he grew up in extreme poverty and was taught to steal by
his parents; he acted out of extreme emotional impulse; he adjusted
well in structured environments, i.e. living with his cousins at
certain time periods when he was a child and later as an adult
incarcerated in the Oklahoma City Jail; and his life has meaning to
his friends and loved ones who would visit him if he was
incarcerated. This evidence was summarized into thirteen (13)
factors and submitted to the jury for their consideration as
mitigating evidence, as well as any other circumstances the jury
might find existing or mitigating.
¶ 104 Upon our review of the record and careful
weighing of the aggravating circumstances and the mitigating
evidence, we find the sentence of death to be factually
substantiated and appropriate as to Count I, First Degree Murder.
Under the record before this Court, we cannot say the jury was
influenced by passion, prejudice, or any other arbitrary factor
contrary to 21 O.S.1991, § 701.13(C), in finding that the
aggravating circumstances outweighed the mitigating evidence.
Accordingly, finding no error warranting reversal or modification,
the JUDGMENTS and SENTENCES for First Degree Murder and five counts
of Attempt to Kill, After Former Conviction of Two or More Felonies
are AFFIRMED and the APPLICATION FOR EVIDENTIARY HEARING ON SIXTH
AMENDMENT CLAIMS IS DENIED. STRUBHAR, P.J., and LILE, J., concur.
JOHNSON, J., specially concurs. CHAPEL, J., concurs in results.
