Carpenter had entered a blind guilty plea to a first-degree murder
charge. Although he had no prior arrest record, a judge sentenced him
to die.
Carpenter was the ninth person put to death in Oklahoma, and the
379th nationally, in the past 20 years.
Officials said Carpenter spent his last day pretty much as he had
spent his final two months -- alone, watching television. His mother
stayed with him for 80 minutes, but he had no other family visitors
and none signed up to view his death.
Carpenter was served his requested final meal at noon -- barbecued
beef ribs, corn on the cob, baked beans, potato salad, hot rolls,
sweetened lemonade and pecan pie with whipped topping. Prison
officials said he declined an evening meal.
Four relatives of the victim were in the small audience that saw
Carpenter die. The accommodation of family members of victims wishing
to view executions is a new state program rushed into law only
Wednesday by the state Legislature.
Carpenter made no final statement from the death chamber.
In Oklahoma City, Attorney General Drew Edmondson said his thoughts
"are with the family of A.J. Kelley. Their trip through our justice
system is now complete, and I hope, in its resolution, they may now
find some peace."
According to testimony at his trial, Carpenter filled his pickup
truck with $37 worth of gasoline, then went into the convenience
store, where he placed a sandwich, soft drink and chewing tobacco near
the cash register.
Kelley's body was found in the minnow room of the convenience
store, which was located near Lake Eufaula in eastern Oklahoma.
Investigators speculated Carpenter said he wanted to buy some bait,
then followed Kelley to the room and stabbed him in the neck.
He was interrupted as two men, one of them a retired Oklahoma City
police detective, entered the store. The gave chase out of the store,
then wrote down the car's license tag number as Carpenter drove away.
Carpenter was apprehended about an hour later.
Carpenter was in the early stages of his appeal process, which
could have continued for several more years. Instead, he fired his
lawyer from the Oklahoma Indigent Defense System.
In January, he wrote the Oklahoma Court of Criminals Appeals saying
he had fired his lawyer because his request for no more appeals was
not being followed.
A McIntosh County judge named attorney Deborah Reheard as
Carpenter's new lawyer and set a hearing for Feb. 13.
At that hearing, Carpenter spent an hour on the witness stand
defending his choice and answering questions about his mental and
emotional status. He told Judge Steven Taylor the best he could hope
for, should the death penalty be overturned, would be life in prison
or life without parole.
"I could be in the system for 60 or 70 years," Carpenter said. "I
see no future in that."
Although she personally opposes the death penalty, Reheard
supported Carpenter's decision. She spent two hours with him the night
before his execution and told prison officials as she left him that he
had not changed his mind and that she would not be filing any appeals.
Case Number: C-95-0057
Scott Dawn CARPENTER, Petitioner,
An Appeal from
the District Court of McIntosh County; before the Honorable Robert A.
Layden, District Judge.
Scott Dawn
Carpenter, Petitioner entered a plea of nolo contendere to the crime
of First Degree Murder in Case No. F-94-18 in the District Court of
McIntosh County before the Honorable Robert A. Layden, District Judge.
Petitioner's plea was accepted and he was convicted of First Degree
Murder and/or Felony Murder and sentenced to death, upon the trial
court's finding that the murder was committed to avoid arrest. The
Judgement of the trial court is AFFIRMED.
Paul S. Faulk,
Steve Nash, Capital Trial Division, Okla. Indigent Defense System,
Norman, for Defendant at trial.
Thomas C.
Giulioli, District Attorney, O.R. Barris, III, Assistant District
Attorney, Eufaula, for the State at trial.
Anne M. Moore,
Division Chief, Capital, Direct Appeals Division, Oklahoma Indigent
Defense System, Norman, for Petitioner on appeal.
W.A. Drew
Edmondson, Attorney General, William L. Humes, Asst. Attorney General,
Oklahoma City, for Respondent on appeal.
OPINION DENYING
PETITION FOR CERTIORARI
LANE, Judge:
[929 P.2d 991]
¶1 On February
10, 1994, Petitioner Scott Dawn Carpenter was charged with Malice
Murder, or, in the alternative, Felony Murder, in connection with the
death of A.J. Kelley. On August 18, 1994, the State announced its
intention to seek the death penalty. On September 19, 1994, the first
day of trial, Petitioner entered a plea of nolo contendere to First
Degree Murder in Case No. F-94-18, in the District Court of McIntosh
County, before the Honorable Robert A. Layden, District Judge. A
sentencing hearing was held November 13, 1994. At the conclusion of
the hearing Judge Layden found the existence of the sole aggravating
circumstance alleged, that the murder was committed to avoid arrest
and prosecution, and sentenced Petitioner to death. Formal judgment
and sentence was pronounced at a sentencing hearing held December 16,
1994, over defense counsel's objections, as Petitioner had escaped
from jail and was not present at the sentencing. On December 27, 1994,
counsel filed a motion to withdraw plea on behalf of Petitioner. The
motion was argued on February 7, 1995, before the Honorable Steven W.
Taylor, and denied.
¶2 On December
12, 1995, Petitioner filed his application requesting this Court grant
his petition for a writ of certiorari and reverse the trial court's
ruling refusing to allow him to withdraw his plea. From this judgment
and sentence Petitioner has perfected this appeal.
¶3 Petitioner
raises the following propositions of error in support of his writ:
I. Petitioner's
First Degree Murder conviction is void because the Information did not
allege the essential elements of first degree felony murder, thereby
failing to confer subject matter jurisdiction on the district court in
violation of Petitioner's rights under the Fourteenth Amendment and
Article II, __ 7, 17, and 20 of the Oklahoma Constitution;
II. Petitioner's
Sixth Amendment right to counsel and his rights protected by the Due
Process Clause of the Fourteenth Amendment were violated when the
trial court imposed judgment and sentence in absentia, thereby
rendering Petitioner's connections and sentence null and void for lack
of jurisdiction;
III. Petitioner's
due process and Eighth Amendment rights were violated when the State
ignored this Court's directive in Hunter and filed a Bill of
Particulars three months after formal arraignment and one month before
trial;
IV. The District
Attorney abdicated his duty to exercise impartial discretion in filing
a Bill of Particulars and in plea negotiations and, instead, acted as
a special prosecutor advocating the interests of and controlled by the
victim's family in violation of Oklahoma law and Petitioner's rights
under the Eighth and Fourteenth Amendments;
V. Petitioner's
due process and Eighth Amendment rights were violated, because the
evidence was insufficient to prove a murder committed for the purpose
of avoiding arrest or prosecution, the only aggravating circumstance
alleged by the State;
VI. Petitioner's
nolo contendere plea was not knowing and voluntary because the trial
court improperly advised Petitioner on the elements of the charge of
First Degree Felony Murder and the plea was not supported by a
sufficient factual basis in violation of Petitioner's rights protected
by the Eighth and Fourteenth Amendments;
[929 P.2d 992]
VII. Petitioner's
nolo contendere plea was involuntary because it was induced by the
deficient performance of counsel in violation of his Sixth Amendment
rights and, therefore, Petitioner's plea was obtained in violation of
his due process rights protected by the Fourteenth Amendment;
VIII. The
District Judge who presided at the hearing on Petitioner's motion to
withdraw his nolo contendere plea exceeded and abused his authority
and violated Petitioner's rights protected by the Fourteenth
Amendment;
IX. Petitioner's
death sentence is inherently unreliable and cannot stand under the
Eighth and Fourteenth Amendments or Oklahoma's statutory scheme
because the evidence in mitigation outweighed the evidence in
aggravation and because the trial court was not aware at the time of
sentencing that it could enter a sentence less than death despite a
finding that the aggravating circumstance outweighed the mitigating
circumstances; and,
X. Petitioner's
death sentence must be vacated because the use of victim impact
evidence at his sentencing proceedings violated his rights under the
Eighth and Fourteenth Amendments.
FACTS
¶4 On February 6,
1994, at approximately 5:30 p.m., retired Oklahoma City police officer
Jim Parsons and his-friend Jerry Yort drove to the Dutchess Creek Bait
and Grocery Store, located at Porum Landing, Lake Eufaula, Oklahoma,
to return an empty beer keg. Parsons was the store's previous owner
and had sold it to the present owner, A.J. Kelley, some years earlier.
Parsons and Yort noticed an older model Ford pickup truck parked at a
gas pump when they drove up. Carrying the empty keg, Parsons and Yort
entered the store, where Parsons proceeded to yell out Kelley's name.
Kelley did not answer.
¶5 As the two men
walked to the rear of the store Petitioner met them at the door of the
minnow room. Asking where Kelley was, Petitioner told Parsons the
store owner was in the cooler, located on the other side of the store.
Parsons tried to enter the minnow room, but Petitioner blocked the
way, stating that Kelley did not allow anyone in the back room.
Parsons noticed that Petitioner seemed nervous and that he had water
dripping from his hands. Parsons and Yort backed out of the store and
remained outside for several minutes. Petitioner remained inside.
During this time, Yort wrote down the tag number of the pickup truck
and a description of the vehicle.
¶6 Two other
customers entered and subsequently left the store. Petitioner exited
the store after these customers left. He walked to the Ford pickup and
drove away. Parsons noticed a drop of blood on one of Petitioner's
shoes as he left the store. Upon reentering the store, Parsons
discovered Kelley lying between two compressors in the minnow room
with a wound to his neck. Parsons pursued Petitioner in his vehicle
while Yort phoned for assistance. Parsons lost sight of Petitioner,
returned to the store, and he and Yort secured the crime scene until
police arrived.
¶7 On the store's
counter Parsons found a paper bag containing warm corn dogs,
cigarettes, and chewing tobacco. There was no money missing from the
cash registers, but the gas pump indicated approximately thirty-seven
dollars ($37) worth of gas had been dispensed from one of the fuel
pumps. The cash register tape also showed an incomplete sales
transaction amounting to approximately forty-three dollars ($43)
¶8 Petitioner was
stopped in Stigler, Oklahoma, a short distance away from the bait
store. Upon being questioned, Petitioner confessed to stabbing Kelley,
professing that he did not know why he had stabbed the victim. He also
indicated that he had not taken anything from the store.
¶9 Testimony at
the sentencing hearing indicated that Petitioner had been seen in at
least three other convenience/bait/grocery type establishments earlier
in the day, staying several minutes in each, leaving each [929 P.2d
993] without buying anything. His behavior was described by store
owners and/or workers as "unusual" and prompted one person to write
down Petitioner's physical description. He returned to some of the
stores several times that day, never buying anything, but never acting
improperly toward any of the individuals in those establishments.
Petitioner was known to most of the store owners and/or workers who
saw him that day as he had frequented the various stores on a regular
basis.
¶10 Petitioner
was described by numerous individuals as quiet, easy-going,
respectful, cooperative, non-aggressive, pleasant, polite, a good
student and non-violent. He had no prior arrests or convictions, and
attended church with his family. Teachers and fellow students
expressed their disbelief upon discovering that Petitioner had been
charged with the murder.
¶11 Dr. Phillip
Murphy, a clinical psychologist, testified on Petitioner's behalf. Dr.
Murphy opined that Petitioner suffers from some sort of brain damage,3
which increases his likelihood of suffering a seizure. He diagnosed
Petitioner as suffering from a complex partial temporal lobe seizure
at the time he committed the murder. These seizures, according to Dr.
Murphy, are often accompanied by memory loss and confusion. Dr.
Murphy-testified there was nothing in Petitioner's past medical
history indicating he had ever suffered such a seizure, nor was there
any other evidence presented indicating Petitioner had experienced any
seizures, at any time. Dr. Murphy also admitted on cross-examination
that he could not state for certain that Petitioner had suffered a
seizure at the time he killed Kelley, only that the possibility
existed.
¶12 Petitioner
claims as his first proposition of error that the Information charging
felony murder is defective because it did not allege the essential
elements of the underlying felony of robbery with a dangerous weapon
and thus failed to confer subject matter jurisdiction on the district
court. In support of his argument, Petitioner cites to Tiger v. State,
900 P.2d 406 (Okl.Cr. 1995), Pickens v. State, 885 P.2d 678, 683-684
(Okl.Cr. 1994) and Miller v. State, 827 P.2d 875, 879 (Okl. Cr. 1992).
He further claims that the defect cannot be waived because it is
jurisdictional.
¶13 In Parker v.
State, 917 P.2d 980 (Okl. Cr. 1996) we reviewed our rulings in Tiger
and Miller and held that an information need not allege each element
of a crime in order to confer jurisdiction. Rather, the question is
whether the information gives the defendant notice of the charges
against him and apprises him of what he must defend against at trial.
Id. at 985. The Information here alleged in the alterative that
Petitioner was guilty either of malice murder or felony murder.
¶14 In pertinent
part the Information charging Petitioner with felony murder read as
follows:
"that the said
defendant did unlawfully, regardless of malice, while in the
commission of the crime of Robbery with a Dangerous Weapon take the
life of A.J. Kelley, a Human Being, by means of a knife held in the
hands of the said Defendant and with which the said defendant did stab
the body of the said A.J. Kelley from which mortal wounds the said
A.J. Kelley did languish and die, . . ."
¶15 The
Information here gave the Petitioner sufficient notice of the charges
against him. It recited the name of the Petitioner, the date, place,
weapon, and method of the crime, identified the crime victim and
specified the statutes under which Petitioner was being charged.
Petitioner entered a nolo contendere plea to the charges filed against
him. At the hearing where Petitioner entered his plea, he testified
that he knew all of the elements of the crime(s) he was charged with
and that if he chose to go to trial the burden was on the State to
prove each of the [929 P.2d 994] elements of the crime(s). We are hard
pressed to find now that Petitioner did not know all of the elements
of the crimes he was charged with when he specifically testified to
the contrary. We find no error here.
¶16 At
Proposition II, Petitioner alleges it was error for the trial court to
impose formal judgment and sentence because he was not present at the
time of sentencing. Petitioner admits that he was absent from the
hearing because he had escaped from the county jail where he was being
held, but claims that the reason for his absence from the sentencing
is irrelevant, and that the judgment and sentence as formally entered
are null and void and should be vacated. He further claims that the
imposition of the sentence deprived him of his due process rights in
that it triggered the time period within which he was required to
withdraw his plea if he so decided. The trial court proceeded with the
judgment and sentencing hearing over the objections of defense
counsel.
¶17 It should be
noted here that Petitioner was recaptured and returned to custody
shortly after the sentencing hearing, and ultimately filed a motion to
withdraw his plea, which was heard, and denied, by the district court.
As we have noted on numerous occasions, a party complaining of error
must show not only that some error occurred, but also that some injury
resulted from the error. Elmore v. State, 846 P.2d 1120, 1123 (Okl.Cr.
1993); Crawford v. State, 840 P.2d 627, 634 (Okl.Cr. 1992); Edington
v. State, 806 P.2d 81, 83 (Okl.Cr. 1991); Cook v. State, 650 P.2d 863,
868 (Okl.Cr. 1982); Harrall v. State, 674 P.2d 581, 583 (Okl.Cr.
1984). Petitioner's requested relief for this alleged error is that he
be resentenced, at another formal sentencing, and be allowed to file
another motion to withdraw his plea. Since Petitioner filed the
original withdrawal motion, and was given an extensive hearing on the
same, we are unable to discern any injury he may have suffered by
being sentenced in absentia.
¶18 We find no
reversible error here. Petitioner's cited authorities are factually
distinct from the instant case, involving situations where the
defendant did not appear at all, either in person or through counsel,
or was ill and unable to attend, or requested that he be allowed to
attend, and his request was denied. In short, the involuntary absence
of the defendants in these cases is a far cry from Petitioner's
voluntary absence occasioned by his escape from custody. Likewise, the
cases cited by the State all involve instances of the defendant's
absence from a proceeding after it had already begun. Thus, as we
noted in Gregg v. State, 844 P.2d 867, 876-77 (Okl.Cr. 1992), a
defendant may waive his right to be present in court during trial, and
that presence is waived by voluntary absence.
¶19 In this case,
Petitioner purposefully absented himself from the proceedings prior to
the commencement of the sentencing hearing, and now seeks to complain
because he was not present. Even if we find it was error to sentence
Petitioner in absentia, we find it harmless in that Petitioner did
file his motion to withdraw and was granted a hearing on the same. Any
right to be present was waived by his voluntary absence.
¶20 Petitioner
claims at Proposition III that he was denied his due process rights
when the State filed its Bill of Particulars three months after formal
arraignment and one month before trial. Citing Hunter v. State, 829
P.2d 64, 65 (Okl.Cr. 1992), Petitioner filed a motion to have the Bill
stricken on various grounds. The motion was heard by the district
court and overruled. Once again, Petitioner's complaint is not one of
prejudice or injury, but more one of failure to follow what he claims
is appropriate procedure. In Hunter, we required a Bill of Particulars
to be filed at or prior to arraignment, with the time being extended
should the trial court, in its discretion, determine there is good
cause for such an extension. In Marquez v. State, 890 P.2d 980, 982
(Okl.Cr. 1995) we clarified [929 P.2d 995] Hunter, noting that the
defendant is entitled to be notified within a reasonable amount of
time prior to trial that the death penalty is being sought. There is
nothing in Petitioner's record that leads this Court to believe that
the month's notice in the filing of the Bill of Particulars was
insufficient. Defense counsel did not request a continuance or
additional time to prepare, and when asked, announced ready for trial.
Both parties admit that there was ongoing discussion, until the filing
of the Bill, as to whether or not the death penalty would be pursued.
¶21 In defending
its failure to file the Bill at arraignment, the State indicated it
was waiting to file until it received reports from Petitioner's
experts, aware that he was pursuing a diminished capacity defense. The
trial court apparently found this to be "good cause." We will not
second guess that ruling, and find no reversible error here.
¶22 At
Proposition IV Petitioner claims the district attorney acted as a
special prosecutor in seeking the death penalty by allowing his
decision to seek the death penalty to be controlled by the wishes of
the victim's family. There is no dispute that the district attorney
here consulted the victim's family during plea negotiations with
Petitioner. However, his consultation with the family concerning their
feelings is hardly proof that the district attorney, as claimed by
Petitioner, allowed the victim's family to completely control all
decisions concerning plea negotiations. The record reflects that the
district attorney consulted with the victim's family and conveyed to
Petitioner that the family considered a plea arrangement of life to be
unacceptable. However, the district attorney also testified that he
never seriously considered offering Petitioner a life sentence as he
felt it was not appropriate in this case.
¶23 Regardless,
Petitioner's characterization of the district attorney as a "special"
or "private" prosecutor is inapposite here. The record reflects that
the State's counsel was, at all times, in control of the case before
us. The fact that he consulted the victim's family and kept them
informed, at all times, of the case's progress, is not prima facie
evidence he abdicated his role as prosecutor and assumed the role of
avenger. It is well established that the State is under no obligation
to plea bargain with a defendant. State ex rel. Stout v. Craytor, 753
P.2d 1365, 1368 (Okl.Cr. 1988). Likewise, the decision whether to
prosecute and what charge to file is within the discretion of the
prosecutor. Id.
¶24 Nothing in
Petitioner's argument persuades this Court that the decision to pursue
the death penalty in this case was either improper and/or unsupported
by the law and facts. Moreover, even if Petitioner could quantify and
document the extent to which the victim's family participated in any
decision concerning the charging and prosecution of this case, he
alleges nothing which shows that the course of action pursued by the
State would have been any different had the family been absent during
the entire process. Additionally, Petitioner has cited no supporting
authorities to bolster his position that it is improper to advise a
victim's family of case developments, or to consider their feelings
regarding the case.
¶25 We agree that
had the State appointed a special prosecutor, abdicated its duty by
formally delegating its authority to another to prosecute the case, or
allowed the family to hire private counsel to represent them, then
Petitioner's cited authorities as to the impropriety of engaging the
services of a special prosecutor would have been relevant. There was
no special prosecutor and the victim's family did not hire their own
counsel to represent them. Likewise, the citation to Robison v.
Maynard, 829 F.2d 1501 (10th Cir. 1987) is inapplicable here. That
case dealt with the exclusion of testimony from the victim's family
members as to whether the death penalty was the appropriate
punishment. That is not the case before this Court, and it does not
support the argument advanced by Petitioner. We find no error here.
¶26 At
Proposition V, Petitioner claims his due process rights were violated
because the evidence presented was insufficient to prove the murder
was committed for the purpose of avoiding arrest or prosecution. It is
significant that this is the only aggravating factor alleged by the
State. Petitioner's [929 P.2d 996] claim is that his statement to the
police that he did not know why he killed Kelley was sufficient to
establish he did not kill Kelley to avoid arrest or prosecution.
Petitioner further claims the statement to police precludes the use of
circumstantial evidence to prove his intent to avoid arrest, and even
if used, the circumstantial evidence must rule out all other
hypotheses except the murder to avoid arrest aggravator, citing Snow
v. State, 876 P.2d 291, 299 (Okl.Cr. 1994).
¶27 While
Petitioner is correct in his assertion that the murder-to-avoid-arrest
aggravating circumstance is determined by establishing the accused's
intent, he is incorrect in his claim that once the accused makes a
statement indicating his intent, the evidence of intent to kill to
avoid arrest or prosecution may not be inferred from circumstantial
evidence. Petitioner's statement to the police was admitted as
evidence. In that statement, he confessed to killing Kelley, but
stated that he did not know why he had done it. That statement is
direct evidence. ("Testimony that accused [sic] admitted having
committed the offense is of the nature of direct evidence of his
guilt." Nichols v. State, 418 P.2d 77, 84 (Okl.Cr. 1966).) Likewise,
the evidence used to prove the aggravator alleged by the State was
circumstantial.
¶28 In light of
the foregoing, the appropriate standard of review in this case is the
one set forth by this Court in Mayes v. State, 887 P.2d 1288 (Okl.Cr.
1994). In Mayes, the State's evidence was solely circumstantial, but
the defendant testified as to his version of what happened. We
determined that the evidence should be reviewed 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. Mayes, 887 P.2d at 1303; Spuehler v. State, 709 P.2d 202,
203-04 (Okl. Cr. 1985). We find, using this standard, that the
evidence presented here was sufficient to find the existence of the
murder-to-avoid-arrest aggravator.
¶29 The trial
court, after listening to the evidence, determined that Petitioner had
planned the robbery: the victim's store was the only one where
Petitioner and the victim were alone together for some period of time
(all of the other stores had several other customers present during
the time Petitioner was in them); Petitioner lured the victim into the
back room of the store in order to kill him; and, the murder was cold
blooded and not the result of an impulse. The record also indicated
Petitioner was well known to the victim, who could have easily
identified him and he was familiar with the store where the robbery
and murder took place; he claimed he had gone to the store to buy
something although at the time of his apprehension and arrest he had
no money with him; he left the scene of the crime and disposed of the
murder weapon along a highway; and despite claims that he was headed
home at the time of his arrest, Petitioner was found in Stigler,
Oklahoma, several miles in the opposite direction from his place of
residence. A rational fact finder could have found the elements of the
aggravator beyond a reasonable doubt.
¶30 Petitioner
also alleges there was insufficient evidence to establish a predicate
crime upon which the murder-to-avoid-arrest aggravator was based.
Citing Barnett v. State, 853 P.2d 226, 233-34 (Okl.Cr. 1993),
Petitioner claims he cannot be found to have murdered Kelley to avoid
arrest because the force used to accomplish the robbery was a
significant contributing cause of the victim's death, not a separate
crime. We do not find Petitioner's argument persuasive. The facts of
the Barnett case make it particularly inapplicable to the case before
us. In Barnett, as Petitioner notes, we found when crimes such as
assault and battery or feloniously pointing a firearm, constituted
part of the actions that resulted in the death of the victim, they
were not separate and distinct from the murder itself. However, in
Barnett, we specifically cited cases where predicate crimes were
separate and distinct offenses, noting that murder committed to avoid
prosecution for robbery constituted one of those crimes. See, Barnett,
853 P.2d at 233, n. 2 (citing [929 P.2d 997] Fox v. State, 779 P.2d
562 (Okl.Cr. 1989) (defendant sought to avoid prosecution for robbery
by murdering the victim.)) The evidence presented here was sufficient
to support the State's claim that this murder was committed to avoid
arrest or prosecution. We find no error here.
¶31 In
Proposition VI, Petitioner alleges that his plea of nolo contendere
was not knowing and voluntary. He claims the trial court improperly
advised him of the elements of first degree felony murder, and that
the plea was not supported by a sufficient factual basis. This Court
has determined that trial judges should observe the guidelines set
forth in King v. State, 553 P.2d 529, 535 (Okl.Cr. 1976) in accepting
a defendant's guilty plea. The findings of the trial court should be
enunciated on the record for review to preclude any question on
appeal. This same procedure is to be followed in determining the
validity of a plea of nolo contendere. Ocampo v. State, 778 P.2d 920,
923 (Okl.Cr. 1989); Wester v. State, 764 P.2d 884, 886 (Okl.Cr. 1988).
¶32 A review of
the record in this case indicates King guidelines were followed, and a
sufficient factual basis established to accept the plea. The trial
court satisfied itself as to Petitioner's competency and asked him if
he understood the proceedings. In response to Petitioner's affirmative
answers, the court then verified that Petitioner understood the
consequences of his plea and the elements the State would be required
to prove if the case went to trial. After determining that the plea
was not the result of coercion, and after an offer of proof was made
which included a summary of the testimony of approximately fifteen
witnesses, the trial court found sufficient evidence had been
presented to accept the no contest plea. We find no error here.
¶33 Petitioner
also alleges the trial court improperly informed him of the elements
of the crimes charged, requiring this Court to vacate the judgment and
sentence and allow Petitioner to withdraw his plea. He claims that the
trial court improperly stated that the crime of felony murder that he
was charged with was "murder committed in the course of a robbery."
Admittedly, the trial court could have chosen its words more
carefully. However, the allegation that Petitioner was unaware he was
charged with felony murder, the underlying felony being robbery with a
dangerous weapon, is not borne out by the record.
¶34 The portion
of the Information charging Petitioner with felony murder, alleged the
underlying felony of Robbery with a Dangerous Weapon, claiming
Petitioner killed Kelley with a knife. Combined with the information
produced at the preliminary hearing and the extensive offer of proof
elicited at the plea hearing, we are unable to conclude that
Petitioner did not understand the charges filed against him. Moreover,
after extensive questioning from the trial court, Petitioner
repeatedly affirmed that he understood the crimes with which he was
charged, and that he had discussed the same with defense counsel. We
find that the plea was knowingly and voluntarily entered.
¶35 Finally,
Petitioner claims that the evidence presented was insufficient to
support the charge of malice murder. While he admits that his
statement to police was an admission that he killed Kelley without
provocation, Petitioner now claims that his "diminished capacity" at
the time of the murder rendered him incapable of forming the intent
necessary to support the first degree malice murder charge.
Recognizing that Dr. Murphy's testimony was not presented at the plea
hearing, we still find no error.
[929 P.2d 998]
¶36 We disagree
with Petitioner's characterization of Dr. Murphy's testimony. While
the testimony at the sentencing hearing was that Petitioner possibly
could have suffered a seizure during the killing, cross-examination
revealed that Petitioner had never suffered such a seizure, and it was
just as likely as not that he suffered no seizure at the time the
murder was committed. Petitioner carried a hunting knife into the
store where Kelley was working alone. He had no money with him, yet he
"purchased" $43.00 worth of gas and numerous other items. He decided,
at the last minute, that he needed minnows for fishing, which required
the victim to enter the back room of the store, hidden from the view
of anyone else who might enter. Petitioner stabbed the victim, without
provocation, and when confronted by Parsons and Yort while leaving the
back room just moments after the crime, told the two men that Kelley
was in the cooler on the other side of the store, and that he (Kelley)
did not allow anyone into the back room of the establishment.
Petitioner left the store and drove away, and kept driving until
stopped by the police.
¶37 The evidence
presented was sufficient to support the factual basis for malice
murder. More importantly, Petitioner's actions immediately after the
crime indicate no "diminished capacity" and, in fact, support the
description of Petitioner as a methodical thinker.
¶38 We have long
held that the protections of King do not require mechanical
compliance, (see, State v. Durant, 609 P.2d 792, 793 (Okl.Cr. 1980)),
and we do not require the trial court to undertake some sort of formal
ritual in order to satisfy the minimum standards of due process when
accepting a guilty plea. Ocampo, 778 P.2d at 923. Instead, as we
stated in Berget v. State, 824 P.2d 364, 370 (Okl.Cr. 1991), we will
examine the entire record before us to determine whether the guilty
plea was entered in a knowing and voluntary manner. Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). According to the
record, there is no evidence this plea was not voluntarily entered. We
find no error here.
¶39 We will
address Proposition VII in conjunction with Proposition VIII, as the
two address different aspects of the same claim. Proposition VII
advances the theory that Petitioner's plea was involuntary, because
defense counsel's performance of his duties was deficient, rendering
him ineffective. As such, Petitioner claims he should have been
allowed to withdraw his plea. At Proposition VIII, Petitioner alleges
the district court judge who presided at his hearing on the motion to
withdraw his plea exceeded and abused his authority and violated
Petitioner's Fourteenth Amendment rights.
¶40 The decision
to allow the withdrawal of a plea is within the sound discretion of
the trial court and we will not interfere unless we find an abuse of
discretion. Hopkins v. State, 764 P.2d 215 (Okl.Cr. 1988); Vuletich v.
State, 735 P.2d 568 (Okl.Cr. 1987); Ligon v. State, 712 P.2d 74
(Okl.Cr. 1986). There is no error identified here which would justify
a finding that the trial court abused its discretion in denying
Petitioner's request to withdraw the plea. Frederick v. State, 811
P.2d 601 (Okl.Cr. 1991).
¶41 Judge Steven
W. Taylor heard the motion to withdraw plea, and at the conclusion of
the argument noted, on the record, that he did not believe the
testimony of Petitioner's trial counsel, Paul Faulk, and his
investigator, Karen Billings. Defense counsel claimed at the hearing
that his performance as Petitioner's counsel amounted to ineffective
assistance. Mr. Faulk testified that he allowed Petitioner to believe
that if he entered a plea he would not receive the death penalty, and
that Faulk misled Petitioner into believing that the death penalty was
not a possibility. Billings testified she told Petitioner there was
"no way" he would get the death penalty if he entered a plea.
¶42 There is no
support in the record for either the claim that counsel was
ineffective or that Petitioner was misled either by counsel or his
investigator into believing that he could not receive the death
penalty if he entered a plea. The record is replete with numerous
filings, motions, and pleadings indicating that counsel was more than
proficient in the exercise of his duties. Testimony at the hearing on
the motion to withdraw established Faulk's expertise in death [929
P.2d 999] penalty cases, his continuing assignment to those cases
(even after Petitioner's case had been pled), and his experience as
more than competent defense counsel. The record also revealed Faulk's
deep disappointment with this case, in particular, being prosecuted as
a "death case," and he relayed that frustration and anger to the trial
court during the hearing.
¶43 Judge Taylor
termed the motion to withdraw and the hearing on the same, at various
times, to be a "Wewoka switch" and "shell game" spurred on by defense
counsel's belief that the case did not warrant the death penalty. He
further noted that Petitioner did not even appear at the withdrawal
hearing to either confirm or deny the testimony given by counsel Faulk
and investigator Billings, or to explain to the trial court what he
did or did not understand, or what he was or was not told.
¶44 Petitioner's
conclusion is that the trial court's reaction to the motion to
withdraw had a "chilling effect on Mr. Carpenter's exercise of his
rights under Oklahoma and federal constitutional law." He asserts that
the trial court's conclusions are unsupported by the record and appear
to have been drawn from some "preconceived bias against the procedure
rather than the evidence that was presented at the hearing."
¶45 A review of
the record does not support Petitioner's contention. Initially, we
find it difficult to conclude that the trial court's behavior and
reaction to the motion, as presented, could have had a "chilling
effect" on a defendant who was not even present for the hearing.
Moreover, since Petitioner does not identify what rights he was unable
to exercise due to this "chilling effect," we find, once again, that
we are confronted with a claim of alleged error with no injury.
Secondly, the record on the motion to withdraw is replete with
references to defense counsel's dissatisfaction with the system, his
personal belief that this was "not a death case" and that Petitioner's
sentence should have been life, as well as his recitations as to the
years of experience he has had in handling death cases. The trial
court was offended, but not by the process of plea withdrawal. Rather,
the court was incensed at what it saw as a blatant attempt by defense
counsel, dissatisfied with the sentence his client received after
entering a valid plea, to manipulate the judicial system through a
motion to withdraw that same valid plea in an effort to reach a
different result.
¶46 The record of
the plea was quite clear. Petitioner indicated he was aware not only
of the charges against him, but also understood that by entering the
plea he was subject to punishment of either life, life without parole,
or death. There is nothing in the record to support the claim that
Petitioner was misled regarding the plea agreement, or that he was not
fully aware, at all times, that the death penalty was a possibility.
Likewise, there is nothing in the record supporting the claim of
ineffective assistance of counsel. Even Faulk refused to admit that he
told Petitioner there was "no way" he would receive the death penalty
if he entered a plea. In fact, testimony from a jail guard who spoke
with Petitioner revealed that Petitioner not only knew that the death
penalty was a possibility, but had resigned himself to the fact the
sentence would be decided by the court. Having examined the record
before us, we cannot say that the representation afforded Petitioner
during the proceedings fell below the standard established in
Strickland. [929 P.2d 1000] The determining criteria is whether, but
for counsel's alleged omissions or commissions, the result of the
trial would have been different. We do not find these criteria here.
¶47 There was no
abuse of authority with regard to the motion to withdraw the plea, and
there is nothing present in Petitioner's argument supporting his claim
that his constitutional rights were violated. We find no error here.
¶48 At
Proposition IX, Petitioner claims the sentence of death is "inherently
unreliable" because the evidence presented in support of the
aggravator was outweighed by the mitigating evidence, and because the
trial court was unaware that it could impose a lesser sentence even if
it determined that the aggravating circumstances outweighed the
mitigating circumstances.
¶49 With respect
to the second assertion, Petitioner cites to the trial court's
statements concerning the imposition of the death penalty and the
weighing of aggravating and mitigating circumstances, as proof that
the trial court was unaware that it could impose a sentence less than
death. While the choice of words may have been somewhat inartful, we
do not find, from the excerpt presented or anything else in the
record, that the trial court felt it had no choice but to impose the
death penalty. An alternative, and equally acceptable interpretation
of the same excerpt, would be that the trial court was explaining that
only if the State proved that the aggravating circumstances outweighed
the mitigating circumstances would the death penalty be imposed.
Anything less would mean that the penalty choices were either life or
life without parole.
¶50 Additionally,
we have previously stated that unless proven otherwise, we will
presume the trial court knows the penalty procedures involved in
capital sentencing. Berget, 824 at 375. The presumption here is that
the trial court followed the law, and the citation from the record
presented does not prove that the trial court did not understand the
law or that the death sentence was imposed due to a misconception of
what the law requires and/or permits. We find no error here.
¶51 In examining
whether the aggravating circumstance presented here outweighed the
mitigating factors presented on Petitioner's behalf, we examine the
record according to the criteria established in Fisher v. State, 736
P.2d 1003, 1011 (Okl.Cr. 1987). In Fisher we stated:
[T]his Court will
review such evidence only to the extent necessary to determine whether
there was sufficient evidence from which a rational sentencer could
find that the balance of aggravating and mitigating circumstances
warranted a death sentence.
We analogized the
Fisher standard to the Spuehler sufficiency of the evidence standard.
¶52 The trial
court, after listening to the evidence, made the following
determinations:
— Petitioner was
not, suffering from any mental distress, seizure or disorder at the
time the crime was committed;
— Petitioner had
planned the robbery, bolstered by testimony from several other
convenience store owners/employees who saw Petitioner in their
respective stores the day of the robbery/murder, acting suspiciously;
[929 P.2d 1001]
— The victim's
store was the only one where Petitioner and the victim were alone
together for some period of time (all of the other stores had several
other customers present during the time Petitioner was in them);
— Petitioner
seemed to be thinking clearly a the time he was confronted by
witnesses Yort and Parsons immediately after the murder;
— Petitioner
lured the victim into the back room of the store in order to kill him;
and
— The murder was
cold blooded and planned, and not the result of an impulse.
Petitioner left
the scene of the crime and disposed of the murder weapon along a
highway. Petitioner knew the victim and was familiar with the store
where the robbery/murder took place. Petitioner claimed he had gone to
the store to buy something although at the time of his apprehension
and arrest he had no money with him.
¶53 While there
was testimony indicating the possibility Petitioner might have had a
seizure at the time the crime was committed, cross-examination
revealed that the seizure claim was speculation (based on Petitioner's
numerous head injuries suffered over a period of years), and it was
quite possible Petitioner never had experienced such a seizure, either
at the time of the murder or any other time. Food discovered in a bag
on the store counter immediately after the murder was still warm,
indicating Petitioner had heated it up, intending to take it with him
upon leaving the store. The gas pump outside reflected that several
gallons of gas had been pumped, in an amount sufficient to fill both
tanks on the Petitioner's truck.
¶54 In
mitigation, Petitioner put on evidence that he was always a good
student, that he never caused trouble either at home or school, he had
no prior arrests, and no prior history with law enforcement, in any
capacity. He claimed that he did not remember the stabbing, and did
not know why he had killed the victim, stating "it could have been
anybody." On cross-examination, mitigation witnesses also testified
that Petitioner was the type of person who thought things through and
made rational decisions.
¶55 We cannot say
from examining the record that the evidence presented in support of
the aggravating circumstance of avoiding arrest was outweighed by the
mitigating evidence. We are unable to say that a rational sentencer
could not have reached the conclusion that death was the appropriate
sentence in this case. We find no error here.
¶56 Finally,
Petitioner contends at Proposition X that his death sentence must be
vacated because the victim impact evidence used at the sentencing
hearing violated his constitutional rights. Petitioner claims the
interjection by the victim's son as to his opinions concerning the
circumstances of the crime and the appropriate punishment were
improper and created a "constitutionally unacceptable risk that the
sentence was imposed in an arbitrary and capricious manner."
Petitioner further claims that victim impact evidence is irrelevant
and should be excluded entirely.
¶57 Petitioner
does not deny that the introduction of victim impact evidence is
proper and admissible in evaluating the crime committed. This Court
has affirmed that, when admitted in the manner contemplated in Payne
v. Tennessee, 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991),
victim impact evidence is proper. Mitchell v. State, 884 P.2d 1186,
1204 (Okl.Cr. 1994), Freeman v. State, 876 P.2d 283, 289 (Okl.Cr.
1994); Neill v. State, 896 P.2d 537 (Okl.Cr. 1994). Having considered
and approved the introduction of proper victim impact evidence, we
will not reconsider the issue here.
¶58 With respect
to his complaint that the introduction of the evidence swayed the
trial court to impose a sentence it might not have otherwise, there is
nothing in the record to support Petitioner's assertion. The record is
quite clear as to the factors the trial court used in making its
decision to impose the death penalty. It should also be remembered
that the decision maker in this case was a judge, not a jury, and, as
indicated above, we will presume that the decisions made by a trial
court with respect to sentencing were in compliance with the law.
Petitioner points to nothing in the record showing the decision to
impose the death penalty was the result of the victim impact
statement, or that, absent the statement, the punishment would not
have been the same. We find no error here.
[929 P.2d 1002]
MANDATORY
SENTENCE REVIEW
¶59 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
judge's finding of an aggravating circumstance as enumerated in 21
O.S.1991, § 701.12. After carefully weighing the aggravator and all
mitigating evidence, we have determined that the
murder-to-avoid-arrest aggravating circumstance upon which the death
penalty was based was factually substantiated, and amply supported by
the evidence presented at trial. We further find no indication in the
record that the sentence of death was imposed under the influence of
passion, prejudice, or any other arbitrary factor.
¶60 We find no
error present in Petitioner's case warranting reversal, modification
or dismissal, and therefore AFFIRM the judgment and sentence of the
trial court, and DENY the Petition for Certiorari.
JOHNSON, P.J.,
CHAPEL, V.P.J., and LUMPKIN, J., concur.
STRUBHAR, J.,
recused. |