Olan Randle Robison, a white man, was 35 when he was sentenced to death in Stephens County for the 1980 murders of Julia Sheila Lovejoy, Averyl Bourque and Robert Leon Swinford in a bungled robbery at a rural home.

He spent 10 years and 10 months on death row and was executed on March 13, 1992.
 

ROBISON v. STATE
1984 OK CR 21
677 P.2d 1080
Case Number: F-81-388
Decided: 01/13/1984
Modified: 04/02/1984
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Stephens County; George W. Lindley, District Judge.

Olan Randle Robison, appellant, was convicted of three counts of Murder in the First Degree, in Stephens County District Court, Case No. CRF-80-165. He was sentenced to death and appeals. AFFIRMED.

Hegel Branch, Jr., Duncan, for appellant.

Jan Eric Cartwright, Atty. Gen., of Okl., Susan Talbot, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BRETT, Judge:

[677 P.2d 1082]

¶1 Olan Randle Robison, appellant, was convicted of three counts of Murder in the First Degree in Stephens County District Court Case No. CRF-80-165. In accordance with 21 O.S.Supp. 1976 § 701.11 [21-701.11], the jury fixed punishment at death by lethal injection, in all three counts.

¶2 Appellant was convicted for the deaths of Julie Sheila Lovejoy, Averil Bourque, and Robert Leon Swinford, all of whom shared a house on the outskirts of Velma, [677 P.2d 1083] Oklahoma. A robbery apparently precipitated their deaths, which was evidenced by the disheveled state of their home when their bodies were discovered the morning of June 12, 1980. The victims died from wounds inflicted by a .22 caliber pistol and a .380 caliber pistol.

¶3 The state presented a number of witnesses at trial who implicated appellant and two other men, Johnny Gillum and William Starr Jordan, in the murders. One of the witnesses, Sharon Briscoe, was appellant's girlfriend and it was her apartment in Healdton, Oklahoma, where several persons, including appellant, had gathered on June 11, 1980, to discuss a future amphetamine laboratory. Throughout the day appellant consumed drugs and alcohol until he finally passed out in the early evening, but not until after he had called Johnny Gillum in Wichita Falls, Texas, requesting that Gillum come to Healdton because he was needed. When Gillum arrived and successfully awakened appellant, the two of them and William Starr Jordan took several guns from the apartment and loaded them in Sharon Briscoe's car. Appellant stated that he was going to "get some gold" or "get rich" and the three men left.

¶4 After returning sometime before 11:00 p.m. with a suitcase and an empty brown purse, appellant gave one of the women in the apartment a lady's watch, a man's watch, and a pocket knife. He then had her clean his boot, which contained a spot that looked like blood. Appellant also removed his blood-stained shirt. Upon appellant's orders, everyone packed and left that night for Wichita Falls, Texas.

¶5 Patricia Brumfield was with appellant and Johnny Gillum later that night when they travelled to Lake Arrowhead where suitcases and a gun were tossed into the water. The gun, a .380 caliber pistol was later recovered. At trial, Ms. Brumfield testified that appellant told her of shooting the people in Velma; that one of the women was naked and had a gun. He also told her that they did not find the gold they had gone after. Appellant requested that Ms. Brumfield retrieve a .22 pistol from William Jordan, but she discovered that Jordan had disposed of it.

¶6 Two other witnesses for the State also testified of being told by appellant that he had participated in murdering three people during a robbery.

¶7 When the crime scene was processed, jewelry was discovered in a purse beneath Averil Bourque's body on her bed. A jeweler estimated the value to be between $6,000 and $8,000. It was revealed at trial that appellant was aware that Ms. Bourque possessed valuable jewelry. Among possessions discovered missing from the house following the murders was Robert Swinford's watch, and a .22 caliber pistol.

I.

¶8 Appellant initially contends that the trial court erred in denying his motion for change of venue. He attempted to support this contention prior to trial through the affidavits of three residents in Stephens County who verified that appellant could not receive a fair trial in that County because of the extensive pretrial news coverage of the triple slayings which prejudiced the citizens of that county against appellant and thereby rendered it impossible to empanel a jury which did not have a fixed opinion concerning his guilt.

¶9 The applicable rule to this issue is stated in Hammons v. State, 560 P.2d 1024 (Okl.Cr. 1977), as follows:

When considering a motion for a change of venue, the presumption of law is that a defendant can get a fair and impartial trial in the county in which the offense charged was committed. The presumption is rebutable, but the burden of persuasion is upon the defendant. Fry v. State, 91 Okl.Cr. 326, 218 P.2d 643 (1950). A mere showing that pretrial publicity was adverse to the defendant is not enough. Shapard v. State, Okl.Cr., 437 P.2d 565 (1967). The defendant must show by clear and convincing evidence that jurors were specifically exposed to the publicity and that he was thereby prejudiced. Tomlinson v. State, Okl.Cr., [677 P.2d 1084] 554 P.2d 798 (1976). The granting of a change of venue is a discretionary matter within the powers of the trial court and unless it is clear from the record that the trial court has abused its discretion, or committed error in judgment, this Court will not overrule the trial court, especially where there has been an extensive voir dire examination to determine the prejudicial effect of the pretrial publicity. Shapard v. State, supra.

¶10 While it is true that appellant sought to rebut the presumption in favor of his receiving a fair and impartial trial in Stephens County through the affidavits and testimony of the three affiants, we are compelled to agree with the trial judge that he did not meet success.

¶11 The newspaper accounts of the homicides do not appear to be adverse to appellant, although they relate the fact that he was charged with the crimes and give some background information about him. The jurors each truthfully conveyed that they had been exposed to publicity concerning the crime through the news media, but through voir dire it was established that their prior knowledge would not act to prejudice them. They each indicated they could render a fair judgment on the evidence presented in court aside from information they may have obtained outside of court. Thus, no abuse of discretion was shown by the trial court's denial of change of venue.

II.

¶12 Appellant urges reversal of his conviction because of comments made by the prosecutor that amounted to comments on appellant's right to remain silent. The initial incident assigned as error occurred during voir dire when the prosecutor questioned a prospective juror concerning the consideration he would give to defendant's bias, interest, and credibility should he testify. The law in this area is that it is error for the prosecutor to comment at any stage of the jury trial upon the defendant's right to remain silent. Hanf v. State, 560 P.2d 207 (Okl.Cr. 1977).

¶13 When a similar situation arose in Stover v. State, 617 P.2d 898 (Okl.Cr. 1980), this Court reversed the conviction. The reversal was predicated on the prosecutor's comments followed by defense counsel's timely objection and motion for mistrial. Defense counsel did not object to the comments in the present case, which is mandatory for preservation of the error; thus, there is no basis for review of this alleged error other than to review it for fundamental error. Having found none, this allegation provides no grounds for reversal.

¶14 Appellant also complains of statements made during closing argument, which he alleges were comments on his failure to take the stand in contravention of 22 O.S. 1981 § 701 [22-701]. We have read the closing argument and are of the opinion that the comments were no more than reasonable comments on reasonable interpretations of the evidence. See Cobbs v. State, 629 P.2d 368 (Okl.Cr. 1981). Only when taken out of context, as appellant has done, do the remarks appear to be emphasizing appellant's failure to testify. Furthermore, no objections were entered when the remarks were made and any error which could have occurred was waived.

III.

¶15 Appellant's third argument urges reversal because of the tainted in-court identification of appellant by Terry Henderson who had undergone hypnosis prior to identifying him. Ms. Henderson had been travelling past the murder victims' home the night of the murders when a car containing at least two occupants was backing out of the driveway. After hearing of the murders, she contacted the sheriff's office and gave a description of the car and one of the occupants.

¶16 During the investigation of the murders, Ms. Henderson underwent hypnosis. At trial appellant sought to have her testimony excluded, but was unsuccessful. When the witness testified, she positively identified appellant as the man she saw in the car.

[677 P.2d 1085]

¶17 This Court has not deviated from the rule pronounced in Jones v. State, 542 P.2d 1316 (Okl.Cr. 1975), that statements made in a hypnotic state are inadmissible "when offered for establishing the truth of the statements." But the issue in the present case is not resolved by that rule. The issue at hand is whether a witness may make an in-court identification following hypnosis when no identification had been made prior to the hypnosis. We think not.

¶18 Through our research, we have discovered that the Arizona Courts share the same view on hypnosis as we have come to hold. Testimony by a witness who had been hypnotized was held inadmissible from the time of hypnosis forward in State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). The court reasoned:

It is generally agreed that hypnosis is a state of altered consciousness and heightened suggestibility in which the subject is prone to experience distortions of reality, false memories, fantasies and confabulation (the "filling in of memory gaps with false memories or inaccurate bits of information"). In the context of pretrial interrogation under hypnosis, these distortions, delusions and confabulations are apparently aggravated by the tendency of a subject to respond in a way he believes is desirable to the hypnotist. This may happen even without any intent or awareness on the part of the hypnotist or the subject.

In addition, a person may assimilate the distortions, delusions and confabulations he develops under hypnosis as part of his own memory. After the hypnotic session has ended, the subject would then perceive those hypnotically induced impressions to be reflections of his actual past observations.

* * * * * *

The determination of the guilt or innocence of an accused should not depend on the unknown consequences of a procedure concededly used for the purpose of changing in some way a witness' memory. Therefore, until hypnosis gains general acceptance in the fields of medicine and psychiatry as a method by which memories are accurately improved without undue danger of distortion, delusion or fantasy, we feel that testimony of witnesses which has been tainted by hypnosis should be excluded in criminal cases.

* * * * * *

We realize that it will often be difficult to determine whether proffered testimony has been produced by hypnosis or has come from the witness' own memory, unaffected by hypnotic suggestion. In order to ensure against the dangers of hypnosis, therefore, this Court will consider testimony from witnesses who have been questioned under hypnosis regarding the subject of their offered testimony to be inadmissible in criminal trials from the time of the hypnotic session forward.

¶19 In subsequent cases the Arizona courts have held that hypnosis does not render a witness incompetent to testify to those facts demonstrably recalled prior to hypnosis. State ex rel. Collins v. Superior Court, 132 Ariz. 180, 644 P.2d 1266 (1982); State v. Young, 135 Ariz. 437, 661 P.2d 1138 (Ariz. App. 1982). We adopt that holding in the case at hand with regard to the subject matter of Ms. Henderson's posthypnotic testimony, which includes her in-court identification of appellant. The identification was inadmissible and the trial court erred in permitting it to be made. Nevertheless, this error is not grave enough to predicate reversal of the conviction. The evidence apart from Ms. Henderson's identification is far too overwhelming for us to conclude that her identification determined the verdict.

IV.

¶20 Appellant argues in his Fourth assignment of error that evidence regarding appellant's character and prior offenses was improperly admitted at trial and resulted in prejudice to him. The alleged improper evidence was introduced through the testimony of Sharon Briscoe, a witness for the State, who in one instance remarked [677 P.2d 1086] that appellant was one of several people gathered at her apartment the day of the murders to plan the erection of an amphetamine laboratory. Although not objected to, and therefore not preserved for appellate review, we nevertheless find that the witness' explanation was relevant and therefore properly admissible. Relevant evidence is evidence that has any tendency to make more or less probable a material fact in issue. President v. State, 602 P.2d 222 (Okl.Cr. 1979).

¶21 Testimony given at trial revealed that money was needed to set up the amphetamine laboratory, and the apparent motive behind the murders was robbery. We find that the evidence of the amphetamine laboratory was explanatory of the motive for the commission of the murders. The fact that the evidence of the lab reflected in some part on appellants character is outweighed by the probative value of disclosing the motive of robbery for committing the murders.

¶22 In another statement Ms. Briscoe explained that she slept with appellant, and he complains that this was an improper comment on his character. It has long been the rule that the State may not attack the defendant's character unless the defendant puts his character in issue by introducing evidence of good character. Doser v. State, 88 Okl.Cr. 299, 203 P.2d 451 (1949). Although there are certain times where such a remark would be improper, we do not think Ms. Briscoe's comment in the context in which it was made can be construed as an attack on appellant's character.

¶23 During Ms. Briscoe's testimony, it also surfaced that appellant had a prior record, was on probation for an unspecified offense, and at the time of the murders had an upcoming court appearance. Appellant's trial counsel diligently objected to such testimony when it was offered, the objections were sustained, and the jury was admonished not to consider it.

¶24 We note that the remarks were not elicited by the prosecutor. Moreover, even though they were improper, as they could be construed as offered to prove the character of appellant in order to show he acted in conformity therewith, we do not believe that the evidence in any way affected the verdict. In the instant case, the court's admonishment to the jury cured any error. Kitchens v. State, 513 P.2d 1300 (Okl.Cr. 1973).

V.

¶25 Appellant filed a motion for new trial based on newly discovered evidence which he claims was erroneously overruled by the trial court. Whether or not a motion for new trial based on newly discovered evidence is granted is largely within the discretion of the trial judge. Garcia v. State, 545 P.2d 1295 (Okl.Cr. 1976). Marlow v. City of Tulsa, 564 P.2d 243 (Okl.Cr. 1977), enunciates the following guidelines for determining whether a trial court abused its discretion in overruling a motion for new trial: 1) Is the evidence material? 2) Did the accused or his counsel exercise due diligence to discover the evidence before the trial? 3) Is it cumulative? 4) Is there a reasonable probability that if the newly discovered evidence had been introduced at the trial it would have changed the results. Id. at 245.

¶26 In the present case, appellant secured an affidavit from codefendant, Johnny Gillum. Gillum stated that appellant was asleep in the backseat of Sharon Briscoe's car when the murders occurred and had no knowledge of them until the crimes had been carried out. He further stated that the man seen and identified by Terry Henderson was not appellant, but William Starr Jordan.

¶27 Gillum's trial was held several days after appellant's; he was found guilty and sentenced to life imprisonment. Appellant argues that had Gillum been called to testify in appellant's trial prior to his own, he would have refused to incriminate himself through his testimony.

¶28 It is our opinion that the trial court did not err when it overruled the motion for new trial. The facts of this case [677 P.2d 1087] indicating appellant's guilt are so strong that there is no reasonable probability that the jury's verdict would change if the new evidence were introduced. Testimony from at least five witnesses implicated appellant in the murders through conversations they had with him or overheard, and observations they made both before and after the murders occurred. Under these circumstances we find no abuse of discretion on the part of the trial court in overruling appellant's motion for new trial.

VI.

¶29 Appellant submits that the prosecutor went beyond the scope of evidence during closing arguments in both stages of the trial to arouse passions and prejudices of the jurors and also expressed his personal opinion of appellant's guilt. Our review of the closing arguments reveals that the appellant's claims are for the most part unfounded. Prosecutors are entitled to make reasonable comments on the interpretations of the evidence. See Cobbs v. State, 629 P.2d 368 (Okl.Cr. 1981). When the prosecutor stated that he represented the victims, the one instance where we agree that the prosecutor deviated from the above-stated rule, the defense counsel failed to object. Had he objected our conclusion would be no different, however, as the comment made was improper but could not have affected the verdict. Accordingly, appellant was not denied a fair and impartial trial by the remarks of the prosecutor and reversal or modification is not justified.

VII.

¶30 Five of the photographs of the victims introduced by the State at trial are claimed by appellant to be gruesome and admitted into evidence solely to arouse the passions and prejudice of the jury. The photographs depict the victims as they were found at the crime scene and the facial view of one victim at the autopsy. The general rule as to admissibility of photographs is that they are admissible when they are relevant to issues before the court and when their probative value is not outweighed by danger of prejudice to the accused. Vierrether v. State, 583 P.2d 1112 (Okl.Cr. 1978).

¶31 The probative value of photographs of murder victims can be manifested numerous ways including showing the nature, extent, and location of wounds, Glidewell v. State, 626 P.2d 1351 (Okl.Cr. 1981), depicting the crime scene, Deason v. State, 576 P.2d 778 (Okl.Cr. 1978), and corroborating the medical examiner's testimony. Bills v. State, 585 P.2d 1366 (Okl.Cr. 1978). The probative value of the photographs in the instant case is derived from each of the elements of the cited cases. Thus, the photographs possess probative value, which is not outweighed by prejudice to appellant.

VIII.

¶32 One of the State's photographic exhibits depicted an O.S.B.I. agent holding a string stretched to a hole in the wall in order to illustrate the trajectory of a bullet in relation to the dead body of Averil Bourque. Appellant claims that such a posed photograph was inadmissible at trial under the rule that posed photographs showing various assumed positions intended only to illustrate a hypothetical situation are inadmissible as evidence. The rationale of the rule forbidding admission of such photographs is to guard against "stage setting" for the purpose of re-enacting the crime as the State theorizes it happened. Roberts v. State, 82 Okl.Cr. 75, 166 P.2d 111 (1946).

¶33 Although it is our opinion that the photograph should not have been admitted into evidence because its purpose was no more than to show the State's theory of what happened in Averil Bourque's bedroom the night of the murder, we do not find the photograph to be nearly as offensive as the one admitted in Roberts. There being no apparent prejudicial effect that could have arisen from admission of the photograph into evidence, we find no basis on which to grant relief.

[677 P.2d 1088]

IX.

¶34 Title 21 O.S. 1981 § 701.13 [21-701.13](C) requires this Court to make three determinations in addition to consideration of appellant's assigned errors. The first determination is whether the death penalty was imposed under the influence of passion, prejudice, or any other arbitrary factor. We have carefully reviewed the transcript in this regard and find it devoid of prejudice or bias. And, while it is true that the victims resided in a small community where there may be strong feeling concerning a crime such as this, we are confident that the penalty imposed was not influenced by passion, prejudice, or any other arbitrary factor.

¶35 Second, a determination must be made on whether the evidence supports the jury's findings of statutory aggravating circumstances. The following aggravating circumstances were found by the jury: (1) the defendant knowingly created a great risk of death to more than one person; (2) the defendant had previously been convicted of a felony involving the use or threat of violence to the person; and (3) the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Additionally, a fourth aggravating circumstances, the murder was heinous, atrocious, or cruel, was found to exist in the case of Averil Bourque.

¶36 It is apparent from the facts of the case that the three murders created a risk of death to more than one person as the three victims resided in the same house and were all present when appellant and his two codefendants arrived to rob them. The jury's finding in this regard is adequately supported.

¶37 During the second stage of the trial, the State admitted a certified judgment and sentence of appellant's 1973 conviction for armed robbery. This particular conviction supports the jury's finding that appellant had previously been convicted of a felony involving the use or threat of violence to the person. Furthermore, the calloused manner in which the crimes were committed supports the finding that there is a probability that appellant would commit future acts of violence which would be a continuing threat to society.

¶38 Averil Bourque's death was the result of multiple gunshot wounds. She was shot once in the left breast, once in the right ear, and twice between the eyes. The wounds in the ear and between the eyes were at close range as evidenced by powder burns surrounding the wounds. A death occurring at close range by two gunshots between the eyes amply supports a finding that the death occurred in a heinous, atrocious or cruel manner.

¶39 Finally, after considering whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, which is the third determination that this Court must make, we conclude that it is not. The death penalty was upheld in Stafford v. State, 669 P.2d 285 (Okl.Cr. 1983), Stafford v. State, 665 P.2d 1205 (Okl.Cr. 1983), and Hays v. State, 617 P.2d 223 (Okl.Cr. 1980), which are all cases where the victims of robberies were shot and killed as occurred in the instant case. Furthermore, the factors which existed in the cases where this Court has either modified the death sentence to life¹ or reversed the conviction² are not present in the case at hand. Thus, we find that the assessed death penalty is neither excessive nor disproportionate.

¶40 For the reasons hereinstated, the judgment and sentence appealed from should be, and the same is hereby, AFFIRMED.

Footnotes:

¹ Jones v. State, 660 P.2d 634 (Okl.Cr. 1983); Driskell v. State, 659 P.2d 343 (Okl.Cr. 1983); Boutwell v. State, 659 P.2d 322 (Okl.Cr. 1983); Munn v. State, 658 P.2d 482 (Okl.Cr. 1983); Odum v. State, 651 P.2d 703 (Okl.Cr. 1983); Burrows v. State, 640 P.2d 533 (Okl.Cr. 1982); Franks v. State, 636 P.2d 361 (Okl.Cr. 1981); Irwin v. State, 617 P.2d 588 (Okl.Cr. 1980).

² Coleman v. State, 670 P.2d 596 (Okl.Cr. 1983); Hall v. State, 650 P.2d 893 (Okl.Cr. 1982); Brewer v. State, 650 P.2d 54 (Okl.Cr. 1982); Hager v. State, 612 P.2d 1369 (Okl.Cr. 1980).

BUSSEY, Presiding Judge, specially concurring:,

[677 P.2d 1089]

¶1 I agree that the judgment and sentence should be affirmed and that the record is free from any error which would justify reversal or modification. The aggravating circumstances amply support the imposition of the death penalty. I do not, however, agree that the in-court identification of the defendant by witness Henderson was so tainted, as to render it inadmissible for I am of the opinion that the identification was based on her observations of the defendant at the crime scene. In this regard her testimony was merely cumulative of that established by other evidence.

BUSSEY, P.J., specially concurs.

CORNISH, J., concurs.

ROBISON v. STATE
1991 OK CR 111
818 P.2d 1250
Case Number: PC-89-1293
Decided: 10/10/1991
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Stephens County; George W. Lindley, District Judge.

Olan Randle Robinson, appellant, was tried by jury for the crime of Murder in the First Degree, three counts, in Case No. CRF-80-165 in the District Court of Stephens County before the Honorable George W. Lindley, District Judge. The jury returned verdicts of guilty on all three counts and set punishment at death by lethal injection, also in all three counts. The trial court sentenced appellant accordingly. This Court affirmed the Judgment and Sentence. Robison v. State, 677 P.2d 1080 (Okl.Cr. 1984). Thereafter, the United States Supreme Court denied certiorari. Robison v. Oklahoma, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). Appellant's application for post-conviction relief was denied by the Stephens County District Court on September 6, 1985. This Court affirmed that denial of relief on November 25, 1985, in an unpublished order. The order of the District Court denying post-conviction relief is AFFIRMED.

Randy Alan Bauman, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen., A. Diane Hammons, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

[818 P.2d 1251]

¶1 OLAN RANDLE ROBISON, appellant, was tried by jury for the crime of Murder in the First Degree, three counts, in Case No. CRF-80-165 in the District Court of Stephens County. The jury returned verdicts of guilty on all three counts and set punishment at death by lethal injection, also on all three counts. The trial court sentenced appellant accordingly. This Court affirmed the Judgment and Sentence. Robison v. State, 677 P.2d 1080 (Okl.Cr. 1984). Thereafter, the United States Supreme Court denied certiorari. Robison v. Oklahoma, 467 U.S. 1246, 104 S.Ct. 3524, 82 L.Ed.2d 831 (1984). Appellant's application for post-conviction relief was denied by the Stephens County District Court on September 6, 1985. This Court affirmed that denial of relief on November 25, 1985, in an unpublished order.

¶2 On March 11, 1986, appellant filed a Writ of Habeas Corpus in the United States District Court for the Western District of Oklahoma. That Writ was denied by unpublished opinion on June 16, 1986. The appellant appealed that denial of relief on July 16, 1986, to the United States Court of Appeals for the Tenth Circuit. On September 25, 1987, the Tenth Circuit Court of Appeals affirmed the decision in part and reversed in part, with an order remanding a portion of the case for further consideration. Robison v. Maynard, 829 F.2d 1501 (10th Cir. 1987). The sole issue remanded concerned effective assistance of appellate counsel.

¶3 On December 27, 1988, the United States District Court for the Western District of Oklahoma entered an order finding that one of appellant's death sentences was invalid but denied appellant relief on the remanded issue. Appellant filed a notice of intent to appeal on May 9, 1989, and the appeal is still pending.

¶4 Appellant filed his second Application for Post Conviction Relief in the Stephens County District Court on December 21, 1988. Supplements to the Application were filed on February 21, 1989, and on March 3, 1989. On March 3, 1989, an evidentiary hearing was conducted and final briefing was completed in September, 1989. On November 14, 1989, the Stephens County District Court entered an order denying appellant post-conviction relief. From that order denying relief, appellant appeals to this Court.

¶5 In his first assignment of error, appellant contends that his competency was called into question prior to trial, yet he was denied a statutorily required post-examination competency hearing.

¶6 Our review of the record indicates that there was never a judicial finding pursuant to 22 O.S. 1981 § 1175.1 [22-1175.1], et seq., that a doubt as to appellant's competency existed. Rather, it appears that appellant was allowed a psychiatric examination by agreement of the parties and not by commitment of the court. Indeed, as the District Court of Stephens County noted in its exhaustive order denying relief, appellant's competency was never called into issue at trial. Furthermore, this issue has not been properly preserved for our review as it was not raised on direct appeal or in appellant's first application for post-conviction relief. In Coleman v. State, 693 P.2d 4, 5 (Okl.Cr. 1984), this Court held that the doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been or which could have been raised on direct appeal. See also 22 O.S. 1981 § 1086 [22-1086].

¶7 In his second assignment of error, appellant argues for the first time that his jury was recluded from fully considering the mitigating evidence presented at trial because of an "anti-sympathy" instruction given by the trial court. We again note Coleman, supra, that precludes appellant's ability from raising this claim for the first [818 P.2d 1252] time on his second application for post-conviction relief. Our finding on this assignment of error is further supported by the United States Supreme Court's ruling in Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990). In Saffle, the Supreme Court clearly rejected the Tenth Circuit Court of Appeals reasoning in Parks v. Brown, 860 F.2d 1545 (10th Cir. 1988), concerning the effect of the "anti-sympathy" instruction on a particular jury. The Supreme Court further held that in any event, such an issue was not proper for collateral relief because it did not fall within either of the two exceptions to the general principle that new rules will not be applied on collateral review.

¶8 In his next assignment of error, appellant contends that he was denied his constitutional rights because his court appointed appellate counsel had previously, as a judge, sentenced him in other cases. Again, this issue is barred by the doctrine of res judicata because it was not raised on direct appeal or on appellant's first application for post-conviction relief. Coleman, supra.

¶9 In reference to the preceding assignment of error, the District Court of Stephens County conducted an evidentiary hearing prior to its ruling denying relief on appellant's second application for post-conviction relief. Prior to that hearing, appellant had filed a Motion to Disqualify the Honorable George W. Lindley. Judge Lindley had presided over appellant's trial and had denied appellant's first application for post-conviction relief. Appellant maintains that Judge Lindley was directly involved in the appointment of his appellate counsel. Appellant avers that the propriety of the appointment and retention of his counsel was a principal subject of the post-conviction proceeding. Appellant asserts that it was established that he had written to his appointed appellate counsel expressing his dissatisfaction and requesting counsel to withdraw, but at a meeting between Judge Lindley and trial counsel, Judge Lindley directed counsel to continue his representation. Appellant specifically argues that Judge Lindley should have disqualified himself because appellant needed his testimony concerning the appointment of counsel. Judge Lindley refused to disqualify himself finding that the testimony that appellant wanted to elicit was not material, but merely cumulative.

¶10 We have reviewed the record of the evidentiary hearing and find that it does not indicate, nor has appellant demonstrated, any prejudice which denied him due process or fundamental fairness. Our review of the appellant's proffer of proof reveals that the testimony appellant sought from Judge Lindley would have clearly been either cumulative of the testimony given by appellant's appellate counsel or immaterial. We find no violation of 22 O.S. 1981 § 1084 [22-1084], nor are any of the conditions listed in 20 O.S. 1981 § 1401 [20-1401], which require the disqualification of a judge, present in this case. This assignment of error is without merit.

¶11 Finally, appellant suggests that the Oklahoma death penalty scheme is unconstitutional. This argument has been raised previously and addressed by both state and federal courts in appellant's case. Thus, we find the procedural bar of Coleman, supra, to preclude a reconsideration of this issue.

¶12 Having carefully reviewed the appeal. and being sufficiently advised in the premises, this Court finds that the order of the district court denying post-conviction relief should be, and hereby is AFFIRMED.

LANE, P.J., LUMPKIN, V.P.J., and BRETT, J., concur.

PARKS, J., specially concurs.

PARKS, Judge, specially concurring:

¶1 In disposing of the first portion of appellant's third assignment of error, the majority holds that the issue is barred by res judicata. I agree with this conclusion. However, for the reasons stated below, I would also note that there appears to have been no conflict of interest regarding appellate counsel's representation of appellant.

¶2 The record reveals that in 1977 appellant entered pleas of guilty, pursuant to a plea [818 P.2d 1253] agreement, to two (2) felony charges in Stephens County District Court before then District Judge Hegel Branch, Jr. Following appellant's conviction in the present case, Mr. Branch, as an attorney in private practice, was appointed to represent appellant on direct appeal. Branch was not aware of the prior cases at the time of his appointment, but was advised of such in a letter from appellant in mid-1981. However, appellant never filed a request for the appointment of new counsel and did not raise the issue in any previous plea for relief.

¶3 Following the evidentiary hearing in the instant action, the district court made detailed findings which set forth the above facts. The court also noted that appellant's prior cases, over which Judge Branch presided, were not related to the present proceedings and were not referred to during appellant's murder trial.¹ Therefore, the present case is clearly distinguishable from Worthen v. State, 715 P.2d 81 (Okl.Cr. 1986), the case upon which appellant's relies in this assignment. Accordingly, even had this issue been timely raised, would find that it is without merit.

¶4 I also wish to reiterate my opinion that the so-called "anti-sympathy" instruction in the second stage of trial is unnecessary and confusing to the jury where mitigating evidence has been introduced. See Fox v. State, 779 P.2d 562, 579 (Okl.Cr. 1989) (Parks, P.J., concurring in part/dissenting in part). As a matter of stare decisis, however, I yield my view to that of the majority of this Court.

Footnotes:

¹ The only prior conviction referred to during appellant's murder trial was one for armed robbery in 1973. Robison v. State, 677 P.2d 1080, 1088 (Okl.Cr. 1984).

Robison v. Maynard
1992 OK CIV APP 142
857 P.2d 817
64 OBJ 2515
Case Number: 79261
Decided: 11/03/1992

OLAN RANDLE ROBISON, APPELLEE,
v.
GARY MAYNARD, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF THE OKLAHOMA DEPARTMENT OF CORRECTIONS, DAN REYNOLDS, INDIVIDUALLY AND IN HIS CAPACITY AS WARDEN OF THE OKLAHOMA STATE PENITENTIARY, APPELLANTS,
and
FRED JORDAN, IN HIS CAPACITY AS CHIEF MEDICAL EXAMINER OF THE STATE OF OKLAHOMA, DEFENDANT.

Appeal from the District Court of Pittsburg County; Robert A. Layden, Trial Judge.

¶0 The trial court ordered the warden of the state penitentiary to "ensure that the body will not be autopsied" after entering a temporary injunction prohibiting the release of the body of plaintiff, a convicted murderer scheduled for imminent execution by lethal injection, to the medical examiner in order to protect plaintiff's right to dispose of his body in the manner he chooses. 21 O.S. 1991 § 1151 . The warden was under a statutory mandate to cooperate with the medical examiner and to assist in making a body available for investigation. 63 O.S. 1991 § 940 . The medical examiner must exercise his discretion in making a determination whether an autopsy is necessary in the performance of his statutory duty to investigate all "deaths of any inmates occurring in any place of penal incarceration" and "deaths of persons whose bodies are to be cremated." 63 O.S. 1991 § 938 (g), (h). Discretionary powers of public officials will not be controlled by injunction unless there is a showing of fraud or bad faith.

REVERSED.

Randy Alan Bauman, Oklahoma City, for appellee.
Neal Leader, Asst. Atty. Gen., Oklahoma City, for appellants.

MEMORANDUM OPINION

STUBBLEFIELD, Judge.

¶1 Plaintiff Olan Randle Robison was sentenced to death by the District Court of Stephens County, and the execution was to be carried out on March 13, 1992, at the state penitentiary at McAlester. On March 11, 1992, he filed a petition seeking a declaratory judgment affirming his right to direct the manner - cremation - by which his body was to be disposed. He also sought relief by injunction and/or restraining order preventing various defendants from permitting or performing an autopsy after his execution.

¶2 After hearing on March 12, 1992, the trial court granted a temporary injunction and, in open court, ordered Dan Reynolds, Warden of the Oklahoma State Penitentiary "not to turn the body of the petitioner over to the State Medical Examiner for purposes of conducting an autopsy." After hearing on March 13, the trial court entered an order that the Warden "ensure that the body will not be autopsied by the Chief Medical Examiner or any other person, unless allowed by Order of this Court, or by Order or Writ issued by a higher court." The Warden and the Director of the Department of Corrections appeal.

¶3 In the response to the petition in error, it was proposed that the appeal should be dismissed as moot because counsel for Plaintiff had dismissed the underlying action, and Plaintiff's body had been autopsied and released for burial. However, Plaintiff's counsel stated that there was "no objection to continuing this appeal in the interest of deciding an issue of continuing concern." Defendants ask this court to review the merits of the controversy because (1) the challenged event is "capable of repetition, yet evading review," Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S.Ct. 279, 283, 55 L.Ed. 310 (1911), quoted in Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 713, 35 L.Ed.2d 147 (1973), and (2) the question presented is of "broad public interest." Marquette v. Marquette, 686 P.2d 990, 992 (Okla. Ct. App. 1984).

¶4 We are persuaded that, indeed, a question of public interest is presented. Furthermore, the issue is capable of costly, repetitive litigation. Therefore, we will decide the case on the merits.

¶5 Defendants first propose that the trial court erred in finding that the provisions of 63 O.S. 1991 § 938 , do not require the medical examiner's office to conduct an investigation into Plaintiff's death. Plaintiff proposed to the trial court and proposes to this court that his death, the result of an execution observed by many people, would not be an unexplained death and, therefore, the provisions of the "Unexplained Deaths Act," which require an autopsy, were not applicable. Defendants, on the other hand, contend that the trial court erred in relying on the chapter heading of "Unexplained Deaths" in interpreting section 938.

¶6 Title 63 O.S. 1991 § 938 , provides:

All human deaths of the types listed herein shall be investigated as provided by this act:

. . . .

(g) deaths of any inmates occurring in any place of penal incarceration; and

(h) deaths of persons whose bodies are to be cremated. . . .

¶7 Unquestionably, Plaintiff's death occurred in a place of penal incarceration, and his body was to be cremated. Thus, the statute requires "investigation" unless it can be determined that section 938 and related statutes deal only with "unexplained deaths" as stated in the chapter title.

¶8 In enacting S.B. No. 81, 1961 Okla. Sess. Laws, ch. 30, the codifiers entitled the chapter, "Board of Unexplained Deaths." The intent for the enactment was stated as: "AN ACT relating to unexplained deaths; creating a board with authority to employ a state medical examiner . . . with authority to investigate such deaths. . . ." Official Session Laws 604 (1961).

¶9 Although the heading preceding the chapter number in the Oklahoma Session Laws 1972 517 (West), retains the title, "Public Health and Safety - Unexplained Deaths," the legislature changed the law in 1972 by enactment of H.B. No. 1401, 1972 Okla. Sess. Laws, ch. 246 (emphasis added), which was described as follows:

AN ACT RELATING TO PUBLIC HEALTH AND SAFETY;

AMENDING 63 O.S. 1971 §§ 931 , 933 THROUGH 951, AND 954; CHANGING BOARD OF UNEXPLAINED DEATHS TO THE BOARD OF MEDICOLEGAL INVESTIGATIONS; . . . PROVIDING FOR CHIEF MEDICAL EXAMINER, FIXING HIS QUALIFICATIONS, AND DEFINING HIS AUTHORITY AND DUTIES; . . . PROVIDING FOR INVESTIGATIONS TO DETERMINE CAUSE AND/OR MANNER OF CERTAIN HUMAN DEATHS; PROVIDING FOR AUTOPSIES. . . .

Thus, the legislature specifically changed the "title" of the body of law, 63 O.S. 1991 §§ 931 , 933 through 951 , and 954 , from "Unexplained Deaths" to "Medicolegal Investigations." Furthermore, the court in Allen v. Board of Trustees of Oklahoma Uniform Retirement System for Justices and Judges, 769 P.2d 1302, 1305 (Okla. 1988), stated:

Under the constitutional mandate of Art. 5, § 43 , Okl. Const., the Legislature must revise Oklahoma laws every ten years. If the substance of the revision is not otherwise prohibited by the Constitution the revision will stand as authorized. A statute's incorporation in a decennial compilation purges or cures any defect present in that enactment's title. By relation back the incorporation gives the statute validity from the date of the original enactment in a flawed form. (Footnotes omitted.)

The statutes applicable herein have been incorporated into both the 1981 and 1991 decennial compilations. Thus, any potential defect in the enactment's title has been cured. Accordingly, Plaintiff's emphasis and the trial court's focus on the term, "unexplained deaths," were misplaced.

¶10 Defendants also propose that the trial court erred, when under the guise of issuing a temporary injunction, it substituted its judgment and discretion for that of the medical examiner as to whether an investigation into the cause and manner of Plaintiff's death required an autopsy. Again, we agree with Defendants' contention.

¶11 Title 63 O.S. 1991 § 941 , requires the medical examiner to conduct an investigation into any death which is specified for investigation under the terms of the act. Section 944 (emphasis added) states:

When necessary in connection with an investigation to determine the cause and/or manner of death and when the public interest requires it, the Chief Medical Examiner [or] his designee . . . shall require and authorize an autopsy to be conducted.

¶12 Plaintiff argues for a conjunctive reading of the language "investigation to determine the cause and/or manner of death and when the public interest requires it." He contends that where there has been a legal execution the first requirement has been satisfied because the "cause and/or manner of death" is known, and thus the medical examiner has no discretion to perform an autopsy on the single public-interest criterion. We do not agree.

¶13 When read in context of the mandates of section 938, section 941 provides that the medical examiner shall immediately conduct an investigation into the cause and manner of death when he is notified of the death of an inmate who died "in any place of penal incarceration." Therefore, by statutory mandate the medical examiner must determine the cause and/or manner of death when an inmate has been executed under the laws of this state.

¶14 The Deputy Chief Medical Examiner testified that the Office of the Chief Medical Examiner "take[s] jurisdiction for at least the reason that the death [has] occurred in penal incarceration" and that "it has been the long standing policy . . . that it is always in the public interest to [perform] an autopsy on any death that occurs in penal incarceration." The medical examiner testified as to the purpose of investigating a death known to be an execution by the State of Oklahoma:

It is my opinion and the opinion of our agency that any time the State takes a person's life by legal execution that it is always in the public interest that an autopsy and complete toxicology be [performed] and that it be [performed] by an authority that is totally independent of the agency that conducted the execution and that has no interest at all or . . . is not in any way under control of that agency in order to protect the public interest.

¶15 The medical examiner explained the various aspects of public interest that would be protected by conducting an autopsy. He further testified that the autopsy would not interfere in any way with the ability of Plaintiff's family to dispose of the body as he chose. Thus, there is undisputed evidence that a person's right to dispose of his body in the manner in which he chooses, 21 O.S. 1991 § 1151 , is not infringed upon by allowing the Chief Medical Examiner to perform his mandatory investigation.

¶16 It is well established in Oklahoma that discretionary powers of public officials will not be controlled by injunction "in absence of any showing that their action is fraudulent or in bad faith." White v. Pottawatomie County, 199 Okla. 103, 184 P.2d 446 (1947) (syllabus 5); see also Moore v. Porterfield, 125 Okla. 217, 257 P. 307 (1927) (syllabus 2); International Ass'n of Fire Fighters, Local No. 1881 v. Haralson, 558 P.2d 415 (Okla. Ct. App. 1976). Herein, the record is devoid of any evidence of fraudulent intent or bad faith. Indeed, the Warden, all law enforcement officers and state and county officials are under a statutory mandate to cooperate with the medical examiner and to assist in making a body available for investigation. 63 O.S. 1991 § 940 . Here, the evidence strongly supports a conclusion that the only breach of duty in the exercise of discretion would have been if the medical examiner had not (1) performed an investigation, including autopsy, (2) affirmatively established the cause of death, (3) ruled out any possibility that the State had failed to protect the rights of the inmate during his incarceration, and (4) established that the execution had been carried out in the manner prescribed by law.

¶17 Based upon the foregoing, we find that the trial court erred in granting the temporary injunction to prevent Defendants from fulfilling their statutory obligations, which had the effect of preventing the Chief Medical Examiner from performing his statutory duties to investigate the type of death which occurred herein.

¶18 REVERSED.

¶19 BACON, C.J., and BOUDREAU, J., concur.