Oklahoma inmate on death row for 15 years to be executed

KOTV.com

March 9, 2004

OKLAHOMA CITY (AP) _ David Jay Brown has spent the past 15 years on death row, appealing to every court possible for his freedom. His fight is expected to end Tuesday. His execution for the death of his former father-in-law, Eldon McGuire, is scheduled for 6 p.m. at the Oklahoma State Penitentiary in McAlester.

Brown's execution has been stayed three times. The Oklahoma Pardon and Parole Board recommended clemency in 2002, but former Gov. Frank Keating denied it. On Monday morning, Brown's attorney, Gary Peterson, asked the U.S. Supreme Court to review the case. Senior Assistant Attorney General Sandy Rinehart planned to file a response Tuesday morning, asking the court not to hear the case and not to stay the execution. ``He's more than exhausted all appeals,'' Rinehart said.

For his last meal, Brown asked for barbecue beef with hot sauce and onion, two large orders of french fries and a vanilla malt.

McGuire's family will be glad when the execution is over and they can move on, said McGuire's cousin Barbara Logue. McGuire's wife, Ann, and daughter, Lee Ann, have gone on vacation and won't be back until after the scheduled execution. ``They didn't want to be here,'' Logue said. ``It's just too painful for them. ... They just want it to be over and hope to gain some closure from this.''

The problems started with Lee Ann McGuire and Brown's stormy six-month marriage in 1983. After the marriage ended, Brown threatened the family. He and Eldon McGuire had never gotten along. In 1986, Brown showed up with a rifle at Lee Ann McGuire's hair salon in Chickasha, the Clipper Ship. "He said, 'Don't anyone touch the phone or I'll blow you away,''' Lee Ann McGuire testified in Grady County District Court. He shot into an empty barber chair. He was charged with kidnapping the people in the shop and pointing a weapon. Brown blamed Eldon McGuire, a recently retired Chickasha Fire Department captain, for the charges.

Ann McGuire testified in Grady County District Court that Brown told her husband, "You are all going to pay. You all's time's up. You're going to pay for what you did to me.'' In February 1988, Brown checked into an El Reno motel about 40 miles north of Chickasha.

He testified he went to Eldon McGuire's house to patch up their relationship, but when he arrived, McGuire hit him, kicked him and told him he would kill him. Brown said he was running to leave the house when McGuire shot at him.

Brown said he shot back blindly in self-defense, a theory the prosecution disputed. "There was a hard-contact wound,'' Rinehart said. "The muzzle had to be against the head, which defeats any self-defense claim.'' McGuire was shot eight times, including once in the back of the head, testified Dr. Chai Choi, who performed the autopsy.

Lee Ann McGuire and her grandmother Lillian McGuire found Eldon McGuire dead inside his house the next day. "Since the death of Eldon, his daughter and wife have lived in constant turmoil,'' Logue and her brothers wrote in a statement Monday. "Hopefully, they will be able to find some peace and go on with their lives after the execution.''

Brown v. State, 871 P.2d 56 (Okl.Cr. 1994) (Direct Appeal).

Defendant was convicted in the District Court, Grady County, James R. Winchester, J., of first-degree murder, and was sentenced to death. He appealed. The Court of Criminal Appeals, Lumpkin, P.J., held that: (1) defendant's affidavit in support of application for change of venue must set forth facts rendering a fair and impartial trial there improbable; (2) trial court's failure to grant defendant change of venue was not fundamental error; (3) evidence was sufficient to support finding that defendant acted with premeditation; (4) defendant's waiver of right to be present during sentencing phase of trial was valid, and his absence was voluntary; and (5) aggravating circumstance that there was probability that defendant would commit criminal acts of violence that would be continuing threat to society outweighed mitigating factors. Affirmed.

LUMPKIN, Presiding Judge:

Appellant David Jay Brown was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), Case No. CRF-88-45, in the District Court of Grady County. The jury found the existence of one aggravating circumstance, the existence of a probability Appellant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1981, § 701.12(7)), and recommended death as punishment.

The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. We affirm. The murder of Eldon McGuire was discovered on February 20, 1988, when his daughter Lee Ann McGuire, received word he could not be contacted by telephone. The decedent had telephoned his wife, who was a patient in a local hospital, between 7:30 and 7:45 the evening before.

He told her he was tired and would visit her the next morning. Lee Ann and Eldon's mother arrived at his house, forced entry through the front door, and discovered the decedent lying in the south end of the living room. Authorities found a cordless telephone in the kitchen area.

They also found in the kitchen some meat and cheese unwrapped and uneaten; it appeared the decedent was preparing to eat his evening meal. Appellant was formerly married to Lee Ann, and blamed the decedent for a multitude of problems in his life. He was arrested in Louisville, Kentucky, on March 3, 1988. As he has alleged insufficiency of the evidence in his first proposition, the evidence will be discussed in more detail below.

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For his first proposition of error, Appellant claims the evidence was insufficient to show he committed the crime of first degree murder. Specifically, he claims the evidence did not show premeditation. Since this case presents both direct and circumstantial evidence, we will review it in the light most favorable to the State to determine whether any rational trier of fact could find the elements of the crime charged beyond a reasonable doubt. Spuehler v. State, 709 P.2d 202, 203-04 (Okl.Cr.1985). In reviewing this evidence, this Court must accept all reasonable inferences and credibility choices that tend to support the verdict of the trier of fact. Curtis v. State, 762 P.2d 981, 982 (Okl.Cr.1988). We find that, viewed in the light most favorable to the prosecution, the evidence is sufficient.

The evidence here indicates the death arose from an ongoing family conflict. Appellant and his ex-wife, Lee Ann McGuire, had a short, stormy marriage surrounded by a generally tempestuous relationship. The decedent, Lee Ann's father, never approved of the relationship, and did not like Appellant, nor did Appellant like him.

The situation became more serious when at one point after the marriage was terminated, Appellant walked into the hair styling shop where Lee Ann worked. He was carrying a rifle, and during an argument with Lee Ann fired the weapon into a vacant barber chair. There were several people in the shop at the time. Appellant was arrested and charged with several criminal counts as a result of the incident.

Appellant thought the charges were manufactured by the decedent, who was a retired captain with the Chickasha Fire Department and who Appellant believed was very influential with law enforcement officers. Believing the charges were bogus charges and believing he would get a long prison term, Appellant absconded while on bail and fled the jurisdiction.

A little over a year later, Appellant returned to the area. He did not surrender to authorities, but called Lee Ann to see if she would consent to dismissing the charges. She refused. He became angry, telling Lee Ann he had left a message in the wood pile at her parent's house and they would all be sorry. An obscene message was found in the woodpile. In addition, he accurately described to Lee Ann the actions of her and her parents at the house on a particular night, indicating he had been watching the house.

Appellant and the decedent had at least one previous physical confrontation. Appellant had also called the decedent's house less than a month before the homicide. As the decedent's wife picked up an extension, she heard Appellant tell the decedent "you all's time is up," and they would pay for what they had done to him. A friend of Appellant's talked with Appellant a month or two before the homicide.

Appellant blamed the decedent for his legal troubles, believing the decedent wielded undue influence over Lee Ann. When the friend asked Appellant if there was anything he could do to help, Appellant asked the friend to beat up the decedent. In the context of the conversation, the friend did not know whether Appellant was serious. Appellant's ex-wife, Connie, heard Appellant say he would like to beat up the decedent. He possessed a handgun at the time he made the statement. He seemed frustrated at the time he made the statement.

Jerry Clark, a man Appellant met while he was outside Oklahoma, returned temporarily with Appellant to the area in January and February 1988. During this period, he heard Appellant say he would like to get intoxicated and kill the decedent, as he had cost Appellant everything he owned. Appellant also said he did not care if the whole family were dead. Clark returned to Louisville, Kentucky, on February 16.

Appellant returned there on February 21, a Sunday. Appellant told Clark he and the decedent "had it out" and Appellant got even. He said he had gone to the decedent's house, and left him on the floor. When they first arrived in January, Appellant and Clark acquired a room in an El Reno motel, where they stayed for approximately a week. El Reno is north of Chickasha approximately 40 miles. Appellant checked back into the same motel on February 16. Although he paid for the room through February 23, he left the motel on February 19, the day of the homicide, and did not return.

We believe this evidence is adequate to show premeditation. Taken in the light most favorable to the prosecution, the physical evidence at the scene negates Appellant's theory of self-defense. Appellant admitted going to the decedent's house, claiming he did so to convince him to change his mind about the charges. He claims the decedent allowed him to enter the house, then hit him from behind, knocking him down.

The decedent then kicked him and told him he would kill him. At one point the decedent kicked at Appellant and missed, striking the bedroom door. As Appellant ran for the front door to exit the house, the deceased fired a shot at him, at which time Appellant pulled from his back pocket a loaded 9 mm. semiautomatic pistol and began firing blindly at the decedent. He said he fired until the gun was empty, firing approximately 18 times in two or three seconds. [FN1] He then went back to El Reno for his clothes, then drove to Louisville.

FN1. It is important to note the pistol is a semiautomatic pistol. The firearms expert testified at trial a separate pulling on the trigger is required to fire each round (Tr. 777). We think it unlikely any normal person could fire such a weapon 18 times in two or three seconds; and in any event, a person could not simply "[freeze] down on the trigger of a semiautomatic pistol and discharge all of the rounds in the clip," as Appellant claims in his reply brief. The mechanics of the weapon make this impossible.

Authorities found the decedent partially curled up in front of his bathroom and near a wall heater on the south end of his living room. They found heel marks on a bedroom door across the room, and paint matching that on the door on the decedent's boot heel.

They found several 9 mm. casings around the living room sofa and others in other spots around the room. Three slugs were found in the open: one on the floor near a chair, one between the decedent's feet and one on some nearby clothing. There were nine bullets in the lower portion of the wall behind the body similar to the ones lying in the open. In the northeast corner of the living room authorities found embedded in a wall a copper-jacketed bullet and fragment not consistent with the others found. That path where that bullet found was consistent with an entry and exit hole in the corner of a television set and a shattered oil lamp globe which had been standing next to the television.

A lever-action rifle was found in the middle of the room; one shot had been fired from it. The lever action was partially pulled down, but not far enough to eject the spent casing in the chamber. Four live, copper-jacketed rounds were found inside the rifle. Blood was also found on the rifle, as was a small dent, as if something had ricochetted off the rifle.

This information is obtained from the transcript and other evidence admitted during the trial. During oral argument, Appellant used during argument a diagram of the decedent's residence, showing the location of several items. However, since the exhibit was not admitted at trial, it was not properly before this Court, and is not being used by this Court in its deliberations.

The decedent suffered a severe gunshot injury to the index, middle and ring finger of his left hand which in the opinion of the medical examiner would have rendered him incapable of using it. A man's gold ring was found in the living room; it had been badly damaged. The medical examiner found seven additional gunshot wounds to the body and two to the head. A wound on the left shoulder bore evidence of stippling, indicating the weapon causing the injury was fired at intermediate range. A firearms expert with the Oklahoma State Bureau of Investigation performed tests on a handgun taken from Appellant, and concluded the weapon would have left stippling if it were fired from a distance of less than 30 inches.

Both entry wounds in the head indicated shots had been fired from relatively close range. One was surrounded by stippling, indicating intermediate range. The other wound had gunpowder residue inside the wound itself. The medical examiner concluded this could only come from a "hard contact wound," meaning the barrel was pressed against the scalp itself when the weapon was fired. Appellant testified he got no closer than two or three feet from the decedent during the brief struggle.

We believe the position of the bullets found at the scene disproves Appellant's self-defense theory. Despite Appellant's claims he shot the decedent only to preserve his own life and did not intend to kill him, he did not seek help for the decedent after the shooting.

Instead, he ran out the door, apparently locking it behind him. He testified on direct examination he took the weapon with him because he did not know what would transpire at the house; however, he said on cross-examination he intended to use the weapon if he had to. Despite Appellant's claim he did not get closer than two feet to the decedent while firing, one head wound shows the gun barrel was pressed against decedent's head when the gun was fired.

Most of the bullet holes were fired into the west wall and corner of the short hallway. State's exhibits 9, 10 and 11 are photographs of the scene. They show that corner of the hallway cannot be seen from the front door area, as it is blocked by a wall heater, which did not exhibit any signs of being fired at. We agree with the State that had Appellant been running toward the door while firing as he claimed he did, his line of fire would have been blocked by this wall heater, which would have blocked the bullets found in the lower wall behind the body.

We believe this evidence is sufficient. While the Court has "a duty to assess the historical facts when it is called upon to apply a constitutional standard to a conviction obtained in a [trial] court," "this inquiry does not require a court to 'ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.'

Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979) (citations omitted) (emphasis in original). In this light we find the evidence supports both the presence of premeditation required for first degree murder and the absence of self-defense. This first proposition is without merit.

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Reviewing the evidence in mitigation and aggravation, we find the sentence of death to be factually substantiated and appropriate. Finding no error warranting reversal or modification, the judgment and sentence for Murder in the First Degree is AFFIRMED.

Brown v. State, 933 P.2d 316 (Okl.Cr. 1997) (PCR).

Following affirmance, 871 P.2d 56 of first-degree murder conviction and death sentence, petitioner sought postconviction relief. The District Court of Grady County, James R. Winchester, J., denied relief, and petitioner appealed. The Court of Criminal Appeals, Lumpkin, J., held that: (1) several claims were waived; (2) trial defense counsel was not ineffective; (3) appellate counsel was not ineffective; (4) district court properly denied petitioner's motion for discovery; (5) district court properly decided postconviction claims without evidentiary hearing; and (6) petitioner's pro se motion for crime scene reconstruction expert was not properly before postconviction court. Affirmed. Strubhar, V.P.J., concurred in results.

Brown v. Gibson, 7 Fed.Appx. 894 (10th Cir. 2001) (Habeas)

Following affirmance of conviction and death sentence for first-degree murder, 871 P.2d 56, state prisoner petitioned for habeas corpus. The district court denied relief, and petitioner appealed. The Court of Appeals, Brorby, Circuit Judge, held that: (1) ineffective assistance of trial counsel was not shown; (2) state procedural bar was not adequate as to one claim; (3) ineffective assistance of appellate counsel was not established, to excuse procedural defaults; (4) argument asserting legal, not factual, innocence did not overcome procedural default; (5) prosecutor's comment on mitigating evidence did not warrant relief; (6) petitioner knowingly, voluntarily and intelligently waived the right to be present at the penalty phase of trial; (7) evidence did not require a second-degree murder instruction; and (8) determination of state appellate court that sufficient evidence existed to support the continuing threat aggravator was reasonable. Affirmed.

BRORBY, Circuit Judge.

David Jay Brown was convicted of the first degree murder of his former father-in-law, Eldon McGuire. The jury found the one aggravator offered, that he would be a continuing threat to society, and recommended a death sentence. The Oklahoma Court of Criminal Appeals affirmed the conviction and death sentence, Brown v. State, 871 P.2d 56 (Okla.Crim.App.), cert. denied, 513 U.S. 1003, 115 S.Ct. 517, 130 L.Ed.2d 423 (1994), and denied post-conviction relief, Brown v. State, 933 P.2d 316 (Okla.Crim.App.1997). Thereafter, Mr. Brown sought federal habeas corpus relief. The district court, in a very thorough and careful opinion, denied relief. Exercising jurisdiction pursuant to 28 U.S.C. §§ 1291, we affirm.

FACTS

In the afternoon of February 20, 1988, Mr. McGuire was discovered dead by his daughter Lee Ann McGuire and his mother Lillie McGuire. The two had gone to check on him when he could not be reached by telephone. The prior evening, he had telephoned his wife Laverne McGuire, who was in the hospital, to tell her that he would visit her the next morning, but he had failed to do so. At the time he was found, there was unwrapped meat and cheese on the kitchen table, suggesting he was preparing to eat before he was murdered.

Mr. Brown and Lee Ann had had a stormy six-month marriage and eight-year relationship. Mr. McGuire had never approved of Mr. Brown. And Mr. Brown did not like and was afraid of Mr. McGuire. Once the two had had a physical confrontation.

Sometime after the marriage had ended, Mr. Brown went to the beauty shop where Lee Ann worked, taking a rifle with him. He argued with her, told the people in the shop not to touch the telephone or he would blow them away, and shot at a vacant chair. Most people in the shop retreated to the back room. Mr. Brown was arrested and charged with sixteen criminal counts, including twelve counts of kidnaping. He thought the charges were manufactured by Mr. McGuire, who was a retired fire department captain and who Mr. Brown believed had influence with law enforcement. When the charges were not dismissed and Mr. Brown believed he could receive a greater than 150 year sentence, he fled from the area.

A little over a year later, he returned. He called Lee Ann. When she refused to have the charges dismissed, he became angry. She testified that he told her if they did not do something about the charges, they would all be sorry. Also, he described to her both her and her parents' actions on a particular night, indicating he had been watching them. He left an obscene message in the woodpile at her house. Approximately one month prior to the murder, Mr. Brown called the McGuire house. Laverne testified she picked up the telephone and heard Mr. Brown tell Mr. McGuire "you all's time" is up and they would pay for what they had done to him.

At approximately the same time, Mr. Brown told a friend he blamed Mr. McGuire for his problems. When the friend asked what he could do to help, Mr. Brown told him to beat up Mr. McGuire. Another ex-wife of Mr. Brown, Connie Brown, testified Mr. Brown said he would like to beat up Mr. McGuire. Jerry Clark, with whom Mr. Brown became acquainted after absconding, testified Mr. Brown said he would like to get drunk and get even with Mr. McGuire because he had cost him everything and he did not care if the whole bunch was dead. Mr. Clark also testified Mr. Brown told him after the murder that he had gotten even with Mr. McGuire and had left him on the floor.

At trial, Mr. Brown testified he went to the McGuire house to convince Mr. McGuire to drop the charges. According to Mr. Brown, Mr. McGuire invited him in; hit him from behind, knocking him down; kicked toward him striking a bedroom door and told him he would kill him. As Mr. Brown ran to leave the house, Mr. McGuire fired a shot. Mr. Brown then pulled a semiautomatic gun from his back pocket and fired eighteen shots in self-defense.

Mr. McGuire sustained two bullet wounds to his head. One came from a gun fired at close range, and the other was a hard contact wound. He also suffered other gunshot wounds, including a wound to his left hand, rendering him incapable of using it.

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We have reviewed the record in this case and considered all of Mr. Brown's arguments on appeal, including those not specifically addressed, and are not persuaded constitutional error infected his trial. We therefore AFFIRM the district court's denial of habeas corpus relief.

David Jay Brown