Summary:

Depressed due to financial ruin caused by gambling, struck wife with hatchet while she was sleeping, then struck her 7-8 more times in head and neck as she screamed.

Finally killed her with gunshot, then immediately went upstairs and shot both daughters while they were awake. Pled guilty at trial; Waived appeals.

Citations:

Fluke v. State, 14 P2d 29 (Okla. 1998).

ClarkProsecutor.org

Oklahoma Attorney General

W.A. Drew Edmondson, Attorney General - Execution Date Requested for Fluke

February 21, 2001

Attorney General Drew Edmondson today asked the Oklahoma Court of Criminal Appeals to set an execution date for Tulsa death row inmate Ronald Dunaway Fluke, who has chosen to waive his appeals.

Fluke, 52, pleaded guilty to the Oct. 17, 1997, murders of his 44-year-old wife, Ginger Lou Fluke and their daughters, Kathryn Lee Fluke, 11, and Susanne Michelle Fluke, 13, in their Tulsa home. He was sentenced to death for each murder.

"Fluke pleaded guilty to the crime, declined his right to present mitigating evidence and asked to be sentenced to death," said Edmondson.

"His conviction and sentences have been affirmed on mandatory sentencing review and the district court found Fluke competent to waive his appeals. Fluke has failed to file any appeals and his deadlines to appeal have passed. It is time for an execution date to be set." Edmondson asked the court on Nov. 17 to set an execution date, but that request was denied to allow Fluke to file an appeal with the U.S. Supreme Court. That appeal was never filed, prompting today's request.

At about 1:30 a.m., Oct. 17, 1997, Fluke murdered his wife as she lay sleeping on the couch by striking her eight or nine times in the back of the head, neck and shoulder with a large hatchet, then shooting her once in the head.

He then killed his daughters, shooting both girls once in the head. The girls were in separate, upstairs bedrooms and were awake when their father shot them.

At about 8 a.m. that morning, Fluke went to the Tulsa Police Department and confessed to the murders.

Currently, two other Oklahoma death row inmates are scheduled for execution and execution dates have been requested for two others. Execution dates are set Robert William Clayton, Tulsa County, March 1; and Phillip Dewitt Smith, Muskogee County, March 8. Edmondson's requests for execution dates for Muskogee County killers Terrance James and Sammy Ray Van Woudenberg are pending before the Oklahoma Court of Criminal Appeals.

ProDeathPenalty.com

The Oklahoma Court of Criminal Appeals set a March 27 execution date for Tulsa County killer Ronald Dunaway Fluke.

Fluke, 52, pleaded guilty to the Oct. 17, 1997, murders of his wife, Ginger Lou Fluke, 44, and their daughters, Kathryn Lee Fluke, 11, and Susanne Michelle Fluke, 13, at their Tulsa residence. "I am pleased with the court's swift action," Edmondson said. "These were heinous crimes deserving of the death penalty."

At about 1:30 a.m. on Oct 17, 1997, Fluke struck his wife several times with a large hatchet as she slept on the couch then shot her. He then went upstairs and shot each of his daughters in the head while they were awake.

Later that day, he went to the Tulsa Police Department and confessed. Records indicate that Fluke told police he wanted to die, saying, "I am the sorriest individual on the face of this Earth right now, and I deserve to die."

He pleaded guilty to murder charges and waived his appeals. Previously, the court opted to let the time for Fluke to file his federal appeal run out. He never filed an appeal with the U.S. Supreme Court. Fluke will be put to death by lethal injection at Oklahoma State Penitentiary in McAlester.

Betty Hightower has no interest in watching the execution of the man who killed her sister and two nieces. But she plans to be at Oklahoma State Penitentiary when Fluke is put to death. "I will be there in support of Ginger, Susanne and Kathryn," Hightower said. "Well, I do think that he deserves to die," said Hightower in a telephone interview from her Lawton home. "I think this crime deserves much more than the legal punishment. I just feel like he is taking the coward's way out by going to sleep."

The morning of the murders at his South 69th East Avenue residence, Fluke walked into the Tulsa Police Department and confessed.

As his wife slept on the couch at about 1:30 a.m., Fluke struck her several times in the back of the head, neck and shoulder with a large hatchet. When she began to make a noise, he shot her, saying he didn't want the children to wake up.

He then went to his daughters' upstairs rooms and shot each of the girls once in the head.

Fluke, a self-employed safety consultant, told police: his business was in ruins; he hadn't paid taxes in several years; he couldn't pay his cell phone bill; his car was about to be repossessed; he had borrowed a lot of money from friends; his marriage was on the rocks; and he was suicidal.

He wanted to spare his daughters the embarrassment of his suicide and financial ruin, he told police. "I believe I killed the flesh, but I believe their souls are in heaven now," he said, according to court records. He also attempted to take his own life, but decided suicide was not the way out because he had "heard suicide is not a very good action to take," the records show. He repeatedly told police that he wanted to die, saying "I am the sorriest individual on the face of this Earth right now, and I deserve to die," the records indicate.

Edmondson said that he doubts Fluke will seek a clemency hearing before the Oklahoma Pardon and Parole Board. Regarding Fluke's decision to waive his appeals, Edmondson said, "He's accelerated the time of the execution, not the certainty of it." Hightower said she takes comfort in the fact that when "this cold-blooded killer breathes his last breath, that he will face the almighty God for his judgment."

Fluke believes that depression played a role in the murder of his wife and daughters. He was asked whether he thought his family had a right to decide for themselves if they could have handled his financial problems. "Yes, Ginger, Susanne and Kathryn should have had the right to decide for themselves, but my deluded mind made the worst possible decision," Fluke replied.

He said he makes no excuses for his crimes and he wants to be put to death. If he had a second chance, he said he would have sought psychological help. "My financial crisis was not as severe as my deluded mind perceived," Fluke wrote. "Yes, now, looking back, I should have sought out psychological guidance . . . I hadn't filed taxes for three years and that laid heavy on my mind. When you are in the depth of depression, your only thoughts are of death and of how to take your own life," he said.

Fluke, who was a Tulsa firefighter from 1972 until 1977, said he was in his mid-20s when he became a compulsive gambler. "No doubt, that contributed significantly to my depression," he said. "Gambling, basically, ruined my life."

Although he unsuccessfully tried to kill himself the morning of the murders, he doesn't consider his death to be state-assisted suicide. He has not pursued any of his available appeals and chose to represent himself.

He also chose not to seek a clemency hearing before the Oklahoma Pardon and Parole Board. "I feel I will receive my just punishment for my crimes," Fluke said. Fluke said he had a normal childhood, with a loving father, three sisters and two brothers.

He grew up in Tulsa and attended Rogers High School and junior college. He met Ginger at a club in 1978. He said she was a good mother and that he loved her. He describes Suzanne as brilliant and a very good speller.

Kathryn had talents for painting and singing that hadn't been tapped yet. Both were excellent cheerleaders, he said. "Susanne and Kathryn were the light of my life and I miss them so much, but I will see them very soon," Fluke said. Unlike many other death-row inmates, Fluke doesn't complain about the conditions. "I sleep a lot, keep to myself most of the time," he said. "Days seem long at times, but the weeks and months fly by. I've told people it's kind of like a retirement home with really good security. Being locked down 23 hours a day isn't a bad thing. You don't have to deal with people who are struggling with a lot of issues. I am so sorry for what I did. I would take it all back," Fluke said. "I can't, so the only thing I can do is to take my just punishment."

Betty Hightower believes Ron Fluke probably was depressed when he killed her sister and two nieces. "Most people would be depressed if they would have squandered away thousands of dollars in a matter of months," said Hightower, who lives in Lawton.

She believes Fluke borrowed tens of thousands of dollars from his family. "The only reason he was having financial difficulty, if he was, was because of his own greed for money, his compulsion for gambling and total disregard for the needs and well-being of his family," Hightower said.

Fluke was a member of her family for 15 years, Hightower said, and everyone liked him. He made a point of going to her sons' baseball games, she said.

The family never suspected Fluke's gambling problem or depression. But depression is no defense for his crimes, Hightower said, "I just call it the work of an evil man." Ginger Fluke's family plans to be in McAlester Tuesday when Fluke is executed.

Hightower said she doesn't plan to be a witness, but some family members have said they will. "Ron said he loved his family but he did not love them enough to let them decide for themselves if they could have weathered any problems or embarrassment they may have had to endure due to his action," Hightower said.

Hightower agrees with the things that Fluke has said about his wife and daughters. "Ginger was the most caring, sweet and loving person you would ever want to meet," Hightower said.

"She was a devoted wife and mother and a wonderful sister and friend. Susanne and Kathryn couldn't help but be the light of anyone's eyes. They were both so sweet and cared deeply about other people's feelings. Both girls always had a smile on their faces. The world was a better place with them in it," Hightower said. "But I would not wish them back to the abuse and pain they suffered at the hands of Ron Fluke."

Ginger's nieces, Kristi Milam of Oklahoma City and Deanna Bullock of Kearney, Mo., say they still have questions. Milam said she wrote Fluke a letter a few days ago, but "there are no answers" for why he committed the murders. Both women have a problem believing depression played a significant role and said someone that depressed would hurt themselves rather than their family. "He's said so many things about why he did it," Milam said. Hightower said her family has no bitterness toward Fluke, they have turned it over to God. "When this is all over Tuesday; we hope it will put a final chapter on this part of our lives."

Death Penalty Institute of Oklahoma

Ronald Fluke, 52, was executed tonight via lethal injection. He was pronounced dead at 9:34pm. After his mandatory first appeal, he had dropped all remaining appeals in order to be executed.

Fluke pleaded guilty and was sentenced to die for the October 17, 1997, murders of his wife, Ginger Lou Fluke, and daughters, Susanne Michelle Fluke, 13, and Kathryn Lee Fluke, 11, at their Tulsa home.

Fluke turned himself in to the Tulsa police a few hours after the murders. Fluke stated that after killing his family he had started to kill himself, but was unable to do so.

After sitting through several days of jury selection, Fluke changed his plea to guilty during his September, 1998 trial. His attorneys had been prepared to show that Fluke was suffering from chronic depression at the time of the murders.

Although his defense attorneys had 14 people willing to testify on his behalf during the sentencing hearing, Fluke refused to allow them to put on a case. Judge Tom Gillert sentenced Fluke to death. Gillert told Fluke that "what you were unable to do yourself, now you have foisted on me."

Fluke was the 40th person executed in Oklahoma since the state resumed capital punishment. He was the 10th person executed here this year. He is also the fifth Oklahoma inmate to waive their appeals in favor of execution. The last consensual execution in Oklahoma was that of Stephen Edward Wood on August 5, 1998.

Vigils and protests were held at numerous locations around the state, including outside the gates of Oklahoma State Penitentiary in McAlester and outside the Governor's Mansion in Oklahoma City.

Ronald Dunaway Fluke

The Oklahoman

March 27, 2001

OKLAHOMA - A man who pleaded guilty to the 1997 shooting deaths of his wife and 2 daughters was executed Tuesday. Ronald Dunaway Fluke, 52, was killed with a lethal dose of drugs at the Oklahoma State Penitentiary in McAlester.

Fluke pleaded guilty in 1998 in the murders of his wife, 44-year-old Ginger Lou Fluke, and their daughters, Kathryn Lee Fluke, 11, and Susanne Michelle Fluke, 13.

A compulsive gambler, Fluke had said he wanted to spare his wife and daughters the embarrassment of what he viewed as his impending financial doom.

Over objections of public defenders, the former safety consultant was deemed mentally competent to plead guilty and not fight his death sentence. "I don't have a death wish, but I did a terrible thing and I feel sorry for what I did and I'm ready to pay the price," Fluke told a judge. A court-appointed psychiatrist said in an evaluation of Fluke that he reasoned his family would be happier in heaven, where Fluke was certain they would go after death.

Fluke becomes the 10th condemned inmate to be put to death this year in Oklahoma, and the 40th overall since the state resumed capital punishment 1990. Fluke becomes the 21st condemned inmate to be put to death this year in the USA and the 704th overall since America resumed executions since January 17, 1977.

(sources: Associated Press & Rick Halperin)

Ronald Dunaway Fluke

The Oklahoman

A man who fatally shot his wife and two teen-age daughters in 1997 apologized for what he did before the state executed him Tuesday night.

Ronald Dunaway Fluke, 52, was pronounced dead at 9:34 p.m. from a lethal dose of drugs at the Oklahoma State Penitentiary in McAlester.

He pleaded guilty in 1998 for the murders of his wife, 44-year-old Ginger Lou Fluke, and their daughters, Kathryn Lee Fluke, 11, and Susanne Michelle Fluke, 13.

A compulsive gambler, Fluke had said he wanted to spare his wife and daughters the embarrassment of what he viewed as his impending financial doom. "I've done a terrible thing. I'm sorry. I wish I could take it back," Fluke said. "I've been through a fiery trial that has increased my faith and made my heart purer. I'm a Christian saved by the blood of Jesus." He asked for prayers for all families involved.

Fluke and a friend, Phyllis England Neu, mouthed "I love you" to each other. Neu witnessed the execution on Fluke's behalf, along with a minister. He said he was having trouble getting through to his sisters and his son and asked Neu to contact them for him. "Thank you for being my friend," Neu said.

Fluke was the 123rd inmate executed in Oklahoma since statehood and the 10th this year. Over objections of public defenders, the former safety consultant was deemed mentally competent to plead guilty and not fight his death sentence. "I don't have a death wish, but I did a terrible thing and I feel sorry for what I did and I'm ready to pay the price," Fluke told a judge.

He was sentenced to death because of 2 aggravating circumstances: knowingly creating a great risk of death to more than one person and the killings being especially heinous, atrocious or cruel.

A court-appointed psychiatrist said in an evaluation of Fluke that he reasoned his family would be happier in heaven, where Fluke was certain they would go after death. He believed he would be reunited with them after his execution and requested a last meal of the Lord's Supper: some grape juice and a cracker.

Fluke spent his last hours in isolation on death row under a suicide watch, which Oklahoma Attorney General Drew Edmondson said was a typical procedure with condemned inmates.

The Flukes had apparently been having marital difficulties and Ginger Fluke had been sleeping on the sofa, according to Tulsa police.

About 1:30 a.m. on Oct. 17, 1997, Fluke attacked her with a hatchet. Police said evidence showed Mrs. Fluke was alive and screaming at the time. Fluke eventually shot her in the head with a .38-caliber pistol and made his way to his daughters' bedroom.

Police said both daughters were awake when he shot them. One of the girl's thought he was joking when he pointed the gun at her. It jammed at first, but Fluke managed to fire it. He surrendered at 8 a.m. that morning. He pleaded guilty during jury selection at his trial, was sentenced to death for each murder and waived his appeals.

Flukes sister-in-law, Betty Hightower of Lawton, said he borrowed thousands from his family and gambled it away. Ginger Fluke's niece, Lori Adams, read a statement the family released earlier Tuesday evening, saying the lives of Mrs. Fluke and her 2 daughters were taken by someone who was supposed to love them most. "Most people lock their doors at night to keep the bad guys out, little did they know that dreadful night they were locking the bad guy in. He not only took the lives of 3 very precious people, he also took a part of many others who loved Ginger, Susanne and Kathryn very, very much," Adams read.

When asked about Fluke's apology, Adams said the family didn't want to focus on him. "We chose to focus on Ginger, Susanne and Kathryn," she said.

Fluke said in written responses to questions from the Tulsa World that he should have sought psychological help and was overcome with depression at the time of the killings. Twelve members of Mrs. Fluke's family were present at the penitentiary Tuesday.

Judge sentences man for murders of wife, two daughters

The Oklahoma Daily Online

October 13, 1998

TULSA, Okla. -- A man who killed his wife and two daughters was sentenced Monday to lethal injection after refusing to defend himself against the charges.

Ronald Dunaway Fluke, 49, pleaded guilty last month to three counts of first-degree murder. He told the court he wanted the death sentence.

Fluke believes his family is with God and that he can be reunited with them, said chief public defender Pete Silva.''Mr. Fluke now believes that as long as he doesn't take his life personally that, upon his death, he will be able to be with them,'' Silva said.

Tulsa District Judge Tom Gillert set the execution date for Nov. 16. Gillert could have chosen life in prison or life without the possibility of parole.

Had the case come to trial, prosecutors were prepared to present evidence to show Fluke repeatedly struck his wife, Ginger, with an ax and then shot her in the head Oct. 17, 1997, at their home.

Susanne Fluke, 13, and Kathryn Fluke, 11, also were shot in the head with a .380-caliber pistol. ''We should not forget them,'' said Mrs. Fluke's niece, Lori Adams, in regard to the attention surrounding Fluke during the sentencing.

Police described Fluke as calm and coherent when he walked into the detective quarters and confessed to the killings. Authorities have said Fluke indicated that he had put the gun to his own head, but couldn't pull the trigger to commit suicide. Silva previously said Fluke was depressed, beset by financial problems and obsessed with the end of the world. Fluke made the guilty plea against Silva's advice.

A court review of the sentence is automatic. But Fluke has indicated he intends to waive additional appeals.

Source: Associated Press

Appellate Court Upholds Defendant's Right to Volunteer for the Death Penalty

By Allen Levine - Lexis One

November 13, 2000

Ronald Fluke walked into a Tulsa, Okla. police station in 1997 and confessed to having just committed a gruesome series of murders.

Fluke hit his wife in the head with a hatchet while she slept. But she woke up and began screaming. He hit her again before finally shooting her to death. He then went upstairs and shot his daughters, ages 13 and 11. He told police he had planned the killings for some time.

The next year Fluke went on trial for his life. In the middle of jury selection, he decided to plead guilty. His plea was accepted. He then refused to submit any mitigating evidence. He was sentenced to death.

He refused to appeal. But Oklahoma provides for a mandatory death sentence review. In that review, the Court of Criminal Appeals of Oklahoma found he was completely within his rights.

The court said that the trial judge correctly found that Fluke was competent, that he knew what he was doing when he waived rights and that he was under no coercion.

In a 1998 court proceeding, a public defender said there at least 15 witnesses who could present mitigating evidence. The evidence included potential testimony that Fluke was depressed, had troubles with his business and had gambling problems.

At that 1998 hearing, Fluke said he was not trying to commit suicide by refusing to fight the death penalty. He was trying to get justice. Fluke, who is 51, was quoted in the Tulsa World newspaper about his refusal to put up a defense as having said, "I feel like I am doing what's right. I'm guilty. I've made peace with God."

Fluke is not the first Oklahoman to, in essence, volunteer for execution. In 1995 Thomas Grasso was executed by lethal injection for strangling an 87-year-old woman during a robbery.

Grasso had asked for the death penalty. Unless Fluke changes his mind and pursues further appeals, he may be executed as early as next year.

CASE NAME: RONALD DUNAWAY FLUKE, Appellant, v. THE STATE OF OKLAHOMA, Appellee.

COURT: COURT OF CRIMINAL APPEALS OF OKLAHOMA (AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY. THE HONORABLE THOMAS GILLERT, DISTRICT JUDGE)

CASE SUMMARY:

Appellant challenged the judgment of the District Court of Tulsa County (Oklahoma), which had convicted him of the first degree murder of his wife and two daughters.

Taken in the light most favorable to the State, competent evidence supported the finding that appellant's wife's suffering was conscious, and that she was well aware of the attack before appellant rendered the fatal wound.

In the middle of jury selection, and against advice of defense counsel, appellant pled guilty to the murders of his wife and two adolescent daughters rather than continue with trial. The trial judge accepted the guilty pleas despite defense counsel's assertion that he believed his client was incompetent, and the pleas were memorialized in writing the next day.

The State then presented evidence in support of its alleged aggravating circumstances. After the trial court determined appellant was competent, it sentenced him to death on each count. The judgment was affirmed.

Appellant's waiver of his rights to: jury trial, presentation of mitigating evidence, and direct appeal were made knowingly, intelligently, and voluntarily. Sufficient evidence supported the finding of the heinous, atrocious, or cruel aggravating circumstance and the sentence imposed was based upon aggravating circumstances supported by the evidence and not under the influence of passion, prejudice, or any other arbitrary factor.

Judgment was affirmed; the court affirmed he trial court's findings that appellant's waiver of his right to jury trial, presentation of mitigating evidence, and of his right to a direct appeal of his judgment were all made knowingly, intelligently, and voluntarily.

Oklahoma Court of Criminal Appeals

Fluke v. State
2000 OK CR 19
14 P.3d 565
71 OBJ 2929

RONALD DUNAWAY FLUKE, Appellant -vs- STATE OF OKLAHOMA, Appellee

Case Number: D-98-1237
Decided: 10/26/2000

OPINION

CHAPEL, JUDGE:

[14 P.3d 566]

¶1 Ronald Dunaway Fluke entered pleas of guilty to three counts of First Degree Murder in violation of 21 O.S.1991, § 701.7, in the District Court of Tulsa County, Case No. CF-97-4924. In the middle of jury selection on September 23, 1998, and against the advice of counsel, Fluke decided to plead guilty to the murders of his wife and two adolescent daughters rather than continue with his trial. The Honorable Thomas Gillert accepted Fluke's guilty pleas despite defense counsel's assertion that he believed his client was presently incompetent, and the pleas were memorialized in writing the next day. The state then presented evidence in support of its alleged aggravating circumstances. The trial court conducted a Wallace¹ hearing the following day, September 25, 1998, found Fluke understood the [14 P.3d 567] consequences of waiving the presentation of mitigating evidence, and continued sentencing to October 2, 1998. On October 2^nd, the defense called an expert, Dr. Ann Taylor, to testify that Fluke was presently incompetent² and the proceedings were again postponed to October 12, 1998. On October 12^th, the trial court held a short hearing during which it incorporated Dr. Taylor's October 2^nd testimony into the record and asked Fluke a few questions. At the conclusion of this hearing, the trial court found Fluke competent and sentenced him to death on each of three counts of Murder in the First Degree. On October 19, 1998, the trial court held a Grasso³ hearing and determined Fluke was also competent to waive his capital direct appeal.

¶2 Fluke filed his Brief on Capital Mandatory Sentence Review on October 12, 1999. This Brief and Fluke's mandatory sentence review are now before the Court. Proposition I of that brief alleged that the trial court erred by denying Fluke's request for determination of competency. This Proposition has been largely addressed by our March 30, 2000, Order remanding the case for further hearings on the issue of Fluke's competency.⁴ That Order directed the district court to have Fluke evaluated by an independent mental health professional for purposes of aiding the judge in his determination of the following issues: was Fluke competent when he entered his guilty pleas and waived presentation of mitigating evidence during the Wallace hearing, and is he presently competent to waive his capital direct appeal. In accordance with our Order, the trial court dutifully appointed Dr. Thomas Goodman to examine Fluke. Dr. Goodman's report has been made part of the record. After reviewing Dr. Goodman's report, the trial court entered findings of fact and conclusions of law supporting its original conclusion that Fluke was and is competent in all areas delineated above.⁵

¶3 Our Order remanding the matter for further competency evaluations has rendered part 1 of Fluke's Proposition I moot. Regarding sub-sections 2 and 3, we have fully considered the record before us, including Dr. Goodman's report and the trial court's findings of fact and conclusions of law, and find no abuse in the trial court's discretion in finding Fluke was and is presently competent. We do emphasize for purposes of clarity and to guide trial courts in future cases that an independent competency evaluation, like that conducted here in compliance with our March 30^th Order, shall be conducted in all death penalty volunteer cases. Proposition I is denied.

¶4 Propositions II through IV raise sentencing issues. Capital sentence review is mandatory and not subject to waiver, and requires this Court to determine whether the evidence supports the aggravating circumstances found by the trial judge.⁶ In this case the Bill of Particulars filed against Fluke alleged three (3) aggravating circumstances. However, the trial judge found the existence of only two (2) aggravating circumstances beyond a reasonable doubt: (1) that the murder of Ginger Fluke was especially heinous, atrocious or cruel; and (2) a great risk of death to more than one person as to all three victims.

[14 P.3d 568]

¶5 Under Proposition II, Fluke argues that victim impact evidence should be deemed inadmissible in cases where a defendant waives presentation of mitigating evidence. Fluke reads Payne v. Tennessee⁷ to require the presence of mitigating evidence before victim impact evidence becomes admissible as a form of rebuttal. However, Fluke's argument is moot under the particular facts of his case, where the sentencer did consider mitigating evidence before imposing a sentence. The judge took into consideration the fact that Fluke's business was failing and that he was experiencing financial difficulties, as well as Fluke's fragile mental state at the time he committed his crimes. Accordingly, because mitigation was considered in this case, we need not decide whether Payne requires it before victim impact evidence may be introduced. This Proposition is denied.

¶6 In his third proposition of error, Fluke claims there was insufficient evidence to support the trial court's finding that Ginger Fluke's murder was especially heinous, atrocious or cruel. The especially heinous, atrocious or cruel aggravating circumstance is limited to cases in which the murder was preceded by torture or serious physical abuse.⁸ "The State must show conscious suffering, and evidence the victim was aware of the attack is sufficient to show torture."⁹ We will review the record to see whether any competent evidence supports such a finding.¹⁰

¶7 In this case, Fluke attacked Ginger Fluke with a hatchet while she slept. When he hit her on the back of her head, she awoke and began screaming. He continued to hit her with the hatchet as she screamed, leveling at least seven or eight blows to her head and neck. She remained conscious and screaming until Fluke pulled out a gun and shot her in the head. Taken in the light most favorable to the state, this was competent evidence to support a finding that Ginger Fluke's suffering was conscious, and that she was well aware of the attack before Fluke rendered the fatal gunshot wound. Accordingly, sufficient evidence supports the judge's finding of the heinous, atrocious or cruel aggravating circumstance. This proposition is denied.

¶8 In his fourth and final proposition of error, Fluke claims the State presented insufficient evidence in support of the great risk of death aggravating circumstance. We disagree. Fluke told police he had been planning to kill his entire family for some time before he committed the murders. Fluke put that plan in motion when he killed Ginger Fluke. After he accomplished the first murder, he immediately ran upstairs and murdered his daughter in her bedroom, then went into his second daughter's room and fatally shot her as well. The deaths occurred in close proximity in terms of time and location.¹¹ Under our case law, the killing of more than one person is sufficient to satisfy this aggravating circumstance.¹² Accordingly, we find the evidence sufficient to sustain this aggravating circumstance. Fluke's fourth and final proposition of error is denied.

MANDATORY SENTENCE REVIEW

¶9 Pursuant to the mandates of 21 O.S.1991, § 701.13(C)(1), this Court must determine whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. The [14 P.3d 569] record reflects that Judge Gillert took into consideration all the evidence in aggravation discussed above. He systematically, methodically, and correctly eliminated aggravating circumstances not supported by sufficient evidence.¹³ Moreover, despite Fluke's attempts to waive presentation of mitigating evidence, the trial court did consider in mitigation Fluke's mental state and the financial crisis his business was experiencing at the time of the crimes. Under these facts and circumstances, we find the sentence imposed was based upon aggravating circumstances supported by the evidence and not under the influence of passion, prejudice or any other arbitrary factor.

¶10 We further find that the record supports the trial court's findings that Fluke's waiver of his right to jury trial, presentation of mitigating evidence, and of his right to a direct appeal of his Judgment were all made knowingly, intelligently and voluntarily. In light of the foregoing, the Judgments and Sentences are AFFIRMED.¹⁴

AN APPEAL FROM THE DISTRICT COURT OF TULSA COUNTY
THE HONORABLE THOMAS GILLERT, DISTRICT JUDGE

Ronald Dunaway Fluke was convicted of three counts of First Degree Murder in Case No. CF-97-4924, in the District Court of Tulsa County, sentenced to death, and waives appeal. The Judgments and Sentences for First Degree Murder are AFFIRMED.

*****

FOOTNOTES

¹ Wallace v. State, 1995 OK CR 19, 893 P.2d 504, cert. denied, 516 U.S. 888, 116 S.Ct. 232, 133 L.Ed.2d 160.

² The Application for Determination of Competency was actually filed on October 6, 1998.

³ Grasso v. State, 1993 OK CR 33, 857 P.2d 802.

⁴ Fluke v. State, No. D-98-1237 (Okl.Cr. March 30, 2000) (Order Remanding for Hearing on Issue of Appellant's Competency to Enter Guilty Plea, Waive Mitigation, and Waive Capital Direct Appeal) (Not For Publication).

⁵ Fluke discharged his appellate attorneys at the conclusion of the June 14, 2000, hearing. This Court reviewed and affirmed that decision and appointed standby appellate counsel on August 31, 2000. In conducting our review we determined that the trial court proceedings substantially complied with our Rules and case law governing discharge of appellate attorneys. Standby counsel's request for further review of the issue of pro se appellate representation, filed October 2, 2000, is denied. On September 9, 2000, Fluke declined to file a brief challenging the trial court's findings of fact and conclusions of law in the competency proceedings, and waived his right to oral argument. The State subsequently waived oral argument on September 26, 2000, and the case was submitted to the Court for decision.

⁶ Grasso, 857 P.2d at 808 (citing 21 O.S.1991, § 701.13(C)(2)).

⁷ 501 U.S. 808, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

⁸ Malicoat v. State, 2000 OK CR 1, 992 P.2d 383, 398, cert. denied, __ U.S. __, __ S.Ct. __, __ L.Ed.2d __, 2000 WL 979448 (2000).

⁹ Malicoat, 992 P.2d at 398 (citing Le v. State, 1997 OK CR 55, 947 P.2d 535, 550, cert. denied, 524 U.S. 930, 118 S.Ct. 2329, 141 L.Ed.2d 702 (1998)).

¹⁰ Malicoat, 992 P.2d at 398.

¹¹ Hooper v. State, 1997 OK CR 64, 947 P.2d 1090, 1106, cert. denied, 524 U.S. 943, 118 S.Ct. 2353, 141 L.Ed.2d 722 (1998) (where jury could conclude victims were together when killed and evidence sufficiently suggested murders were in close proximity, aggravating circumstance of great risk of death supported by the evidence in this case).

¹² Ochoa v. State, 1998 OK CR 41, 963 P.2d 583, 604, cert. denied, 526 U.S. 1023, 119 S.Ct. 1263, 143 L.Ed.2d 358 (1999).

¹³ The judge determined there was insufficient evidence to prove the especially heinous, atrocious or cruel aggravating circumstance in the two counts involving Fluke's daughters, and he found insufficient evidence to support the continuing threat aggravating circumstance as to all three counts.

¹⁴ If no petition for rehearing is filed in this case, mandate will issue twenty days after the date this opinion is filed. Rules 3.14 & 3.15 , Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2000). Fluke has ninety days from the issuance of mandate in this case to file a petition for writ of certiorari in the United States Supreme Court. If he fails to timely file such a petition, and no application for post-conviction relief is pending in this Court, this Court will set a date for execution of the judgment thirty days after that time condition is not met. 22 O.S.Supp.1999, § 1001.1(A)(1).