OPINION
BRETT, Presiding Judge:
The primary issue to be resolved in this case is whether the facts support a conviction for Murder in the First Degree under the felony-murder doctrine, statutorily enacted in Laws 1976, 1st Ex.Sess., ch. 1, § 1, now 21 O.S.Supp.1980, § 701.7(B). The appellant was convicted in Oklahoma County District Court, their case no. CRF — 77-3602, of First Degree Murder in January of 1978. A sentence of death was returned by the jury and imposed by the Honorable Harold C. Theus in February of 1978, after a finding of the following aggravating circumstances: that he had been convicted of previous felonies involving the use or threat of violence; that he had created a great risk of death to more than one individual; that the probability exists that he would be a continuing threat to society.
In its disposition of this appeal, this Court has examined numerous assignments of error1 and determined either that they are without merit or a discussion of them would be superfluous within the confines of this opinion.
On the evening of September 29, 1977, somewhere between 9:15 and 9:25 p. m., the appellant committed an armed robbery at Jim’s Supermarket, 4513 South May Avenue, in Oklahoma City. At approximately 9:35 p. m. on September 29, Officer James Peck, who was unaware of the robbery, stopped appellant’s blue Chevrolet in the vicinity of S.W. 35 and Kentucky after observing him speeding and running stop signs from the first point of observation, in the vicinity of S.W. 40 and Pennsylvania. The appellant rolled out onto the pavement and pointed his pistol at Peck, then got up, approached Peck and stuck his pistol in the officer’s chfe. Appellant removed Peck’s Smith and Wesson .38 from the officer’s holster and Officer Peck grabbed the gun barrel and slammed it into the appellant’s forehead, although the appellant retained possession of the gun. Then the officer [364]*364pushed the appellant to the ground and ran. While he was running, Officer Peck heard shots from two (2) different guns, and then he saw the appellant get into his Chevrolet, and drive off without the aid of headlights, turning north onto Kentucky. Officer Peck was prevented from pursuit because of failure of his automobile’s carburetor. Bullets from a .38 and a .22 were found at the scene of the altercation between the appellant and Officer Peek.
Appellant’s third confrontation came somewhere between 9:20 and 9:40 p. m., when he ran a stop sign and crashed with Susan Harris’ vehicle at S.W. 23 and Villa. A passenger in the Harris car, the driver’s three-month-old daughter, was killed as a result of that collision. Witnesses testified that the appellant’s vehicle was speeding with its lights off when it ran the stop sign.
The appellant challenges his conviction under the felony-murder statute in his eighth assignment of error. The charging information recites three (3) underlying bases, as follow: the robbery of Jim’s Supermarket, escape from lawful custody, and the robbery of Officer Jim Peck.
First, escape from lawful custody must be examined for its appropriateness as the basis of first degree murder. Under Laws 1976, ch. 175, § 1, now 21 O.S.Supp. 1980, § 443, there are escapes which would support a first degree murder charge. The escapes prohibited under this section, however, refer to escapes from the custody of the Department of Corrections or while awaiting charges or trial. The facts of this case do not support such a felony charge. Rather, these facts support the misdemean- or charge of eluding a peace officer, 21 O.S.1971, § 540A,2 and, as such, do not provide the proper basis for first degree murder.
In considering the remaining felonies charged, this Court must determine whether there is a causal link by which these crimes were associated with the traffic fatality. No underlying felony can provide the foundation for a charge of felony-murder unless there is a causal link between the two crimes. Wade v. State, 581 P.2d 914 (Okl.Cr.1978); and Clark v. State, 558 P.2d 674 (Okl.Cr.1977). In Wade, the underlying felony was possession of a firearm in an establishment where liquor is sold, which firearm was also the weapon used by the defendant in shooting the victim in that same liquor establishment. The case of Clark v. State, supra, involved an armed robbery of a bank where hostages were taken. Within a few miles and minutes, the perpetrators shot a hostage to avoid detection and implement their escape. In both cases the nexus of the underlying crime to the homicide was clearly established, and the underlying crime was closely related to the homicide.
As this Court said in Wade v. State, supra, the application of the felony-murder doctrine:
... is subject to the limitation that there must be a nexus between the underlying felony and the death of the victim. The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide. Wade, supra, at 916.
Looking first to the robbery of Jim’s Supermarket, the evidence reveals that the appellant left that scene unpursued, and several minutes and some distance later was stopped by Officer Peck for two traffic offenses, speeding and running stop signs. Not only was there no hot pursuit from the grocery store robbery, neither was Officer Peck aware of that robbery when he stopped the appellant. Before an arrest could be completed, the appellant disarmed Officer Peck, the officer ran, and the appellant drove off, without the use of his headlights, and unpursued by Officer Peck, who had run some distance in his flight from the appellant’s shots. The appellant then drove from S.W. 35 and Kentucky to the fatal site at S.W. 23 and Villa.
[365]*365A fatal car accident also led to a first degree murder conviction in Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966), where punishment was set at life imprisonment. In that case, the defendant led the police on a high speed chase from the scene of the robbery. In addressing the continuing nature of the underlying felony, that court said, “[T]he ‘perpetration of a robbery’ does not come to an end the split second the victim surrenders his money to the gunman, and most certainly the ‘robbery’ continues where, as in the instant case, the robbers are trying desperately to avoid arrest by police officers who are in extremely hot pursuit.” (our emphasis). Whitman, supra, 420 P.2d at 419. See also State v. Beal, 470 S.W.2d 509 (Missouri 1971), where the chase also began at the scene of the crime.
Obvious distinctions set this case apart from Whitman. In Whitman, the defendant was pursued from the scene of the robbery. With speeds up to 100 m. p. h., he ran at least six stop signs and several signal-light-controlled intersections during his flight from the police. The chase ended with the fatal accident. In the case before this Court, the appellant was not pursued as he left the grocery store robbery nor was he being chased by a police car at the time of the accident. He was stopped by Officer Peck for an unrelated traffic violation, and he left the scene of his altercation with Officer Peck unpursued. Later he was involved in the fatal accident.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
BRETT, Presiding Judge:
The primary issue to be resolved in this case is whether the facts support a conviction for Murder in the First Degree under the felony-murder doctrine, statutorily enacted in Laws 1976, 1st Ex.Sess., ch. 1, § 1, now 21 O.S.Supp.1980, § 701.7(B). The appellant was convicted in Oklahoma County District Court, their case no. CRF — 77-3602, of First Degree Murder in January of 1978. A sentence of death was returned by the jury and imposed by the Honorable Harold C. Theus in February of 1978, after a finding of the following aggravating circumstances: that he had been convicted of previous felonies involving the use or threat of violence; that he had created a great risk of death to more than one individual; that the probability exists that he would be a continuing threat to society.
In its disposition of this appeal, this Court has examined numerous assignments of error1 and determined either that they are without merit or a discussion of them would be superfluous within the confines of this opinion.
On the evening of September 29, 1977, somewhere between 9:15 and 9:25 p. m., the appellant committed an armed robbery at Jim’s Supermarket, 4513 South May Avenue, in Oklahoma City. At approximately 9:35 p. m. on September 29, Officer James Peck, who was unaware of the robbery, stopped appellant’s blue Chevrolet in the vicinity of S.W. 35 and Kentucky after observing him speeding and running stop signs from the first point of observation, in the vicinity of S.W. 40 and Pennsylvania. The appellant rolled out onto the pavement and pointed his pistol at Peck, then got up, approached Peck and stuck his pistol in the officer’s chfe. Appellant removed Peck’s Smith and Wesson .38 from the officer’s holster and Officer Peck grabbed the gun barrel and slammed it into the appellant’s forehead, although the appellant retained possession of the gun. Then the officer [364]*364pushed the appellant to the ground and ran. While he was running, Officer Peck heard shots from two (2) different guns, and then he saw the appellant get into his Chevrolet, and drive off without the aid of headlights, turning north onto Kentucky. Officer Peck was prevented from pursuit because of failure of his automobile’s carburetor. Bullets from a .38 and a .22 were found at the scene of the altercation between the appellant and Officer Peek.
Appellant’s third confrontation came somewhere between 9:20 and 9:40 p. m., when he ran a stop sign and crashed with Susan Harris’ vehicle at S.W. 23 and Villa. A passenger in the Harris car, the driver’s three-month-old daughter, was killed as a result of that collision. Witnesses testified that the appellant’s vehicle was speeding with its lights off when it ran the stop sign.
The appellant challenges his conviction under the felony-murder statute in his eighth assignment of error. The charging information recites three (3) underlying bases, as follow: the robbery of Jim’s Supermarket, escape from lawful custody, and the robbery of Officer Jim Peck.
First, escape from lawful custody must be examined for its appropriateness as the basis of first degree murder. Under Laws 1976, ch. 175, § 1, now 21 O.S.Supp. 1980, § 443, there are escapes which would support a first degree murder charge. The escapes prohibited under this section, however, refer to escapes from the custody of the Department of Corrections or while awaiting charges or trial. The facts of this case do not support such a felony charge. Rather, these facts support the misdemean- or charge of eluding a peace officer, 21 O.S.1971, § 540A,2 and, as such, do not provide the proper basis for first degree murder.
In considering the remaining felonies charged, this Court must determine whether there is a causal link by which these crimes were associated with the traffic fatality. No underlying felony can provide the foundation for a charge of felony-murder unless there is a causal link between the two crimes. Wade v. State, 581 P.2d 914 (Okl.Cr.1978); and Clark v. State, 558 P.2d 674 (Okl.Cr.1977). In Wade, the underlying felony was possession of a firearm in an establishment where liquor is sold, which firearm was also the weapon used by the defendant in shooting the victim in that same liquor establishment. The case of Clark v. State, supra, involved an armed robbery of a bank where hostages were taken. Within a few miles and minutes, the perpetrators shot a hostage to avoid detection and implement their escape. In both cases the nexus of the underlying crime to the homicide was clearly established, and the underlying crime was closely related to the homicide.
As this Court said in Wade v. State, supra, the application of the felony-murder doctrine:
... is subject to the limitation that there must be a nexus between the underlying felony and the death of the victim. The felony must be inherently or potentially dangerous to human life, inherently dangerous as determined by the elements of the offense or potentially dangerous in light of the facts and circumstances surrounding both the felony and the homicide. Wade, supra, at 916.
Looking first to the robbery of Jim’s Supermarket, the evidence reveals that the appellant left that scene unpursued, and several minutes and some distance later was stopped by Officer Peck for two traffic offenses, speeding and running stop signs. Not only was there no hot pursuit from the grocery store robbery, neither was Officer Peck aware of that robbery when he stopped the appellant. Before an arrest could be completed, the appellant disarmed Officer Peck, the officer ran, and the appellant drove off, without the use of his headlights, and unpursued by Officer Peck, who had run some distance in his flight from the appellant’s shots. The appellant then drove from S.W. 35 and Kentucky to the fatal site at S.W. 23 and Villa.
[365]*365A fatal car accident also led to a first degree murder conviction in Whitman v. People, 161 Colo. 110, 420 P.2d 416 (1966), where punishment was set at life imprisonment. In that case, the defendant led the police on a high speed chase from the scene of the robbery. In addressing the continuing nature of the underlying felony, that court said, “[T]he ‘perpetration of a robbery’ does not come to an end the split second the victim surrenders his money to the gunman, and most certainly the ‘robbery’ continues where, as in the instant case, the robbers are trying desperately to avoid arrest by police officers who are in extremely hot pursuit.” (our emphasis). Whitman, supra, 420 P.2d at 419. See also State v. Beal, 470 S.W.2d 509 (Missouri 1971), where the chase also began at the scene of the crime.
Obvious distinctions set this case apart from Whitman. In Whitman, the defendant was pursued from the scene of the robbery. With speeds up to 100 m. p. h., he ran at least six stop signs and several signal-light-controlled intersections during his flight from the police. The chase ended with the fatal accident. In the case before this Court, the appellant was not pursued as he left the grocery store robbery nor was he being chased by a police car at the time of the accident. He was stopped by Officer Peck for an unrelated traffic violation, and he left the scene of his altercation with Officer Peck unpursued. Later he was involved in the fatal accident.
If there was no causal connection joining the armed robbery and the killing of Brandi Michelle Harris, that robbery cannot support a first degree murder conviction in the appeal now before this Court. In State v. Diebold, 152 Wash. 68, 277 P. 394 (1929), a conviction for murder in the second degree was reversed. The defendant had taken a car without the consent of the owner, driven it five miles, eaten in a cafe, and was returning the car at the time of the accident. The Washington court held that the underlying crime was complete when the defendant arrived at the restaurant. Also noteworthy in the Diebold case is the absence of a hot pursuit.
As indicated in Diebold, supra, the homicide which is charged on the basis of an underlying felony must have been committed in the course of the perpetration of that underlying crime. At the time of the killing, the accused must be engaged in some act which is required for the full execution of that underlying crime, and the killing must be the consequence of that crime. If such a legal relationship does not exist between the killing and the crime committed, the underlying offense cannot support the resulting homicide.
In the case now before this Court, there is no nexus which ties either the armed robbery of the grocery store or the robbery of Officer Peck to the death of Brandi Michelle Harris. The question is not whether the defendant was guilty of a crime in causing the death of Brandi Harris but whether the evidence supports a conviction of murder in the first degree and a sentence of death. It does not. The armed robberies were complete. There was no hot pursuit nor a high speed chase of the appellant as he left the scene of either crime. This was not one continuing transaction but was a series of unrelated incidents. It is inconceivable that the Legislature intended that the first degree murder statute should apply to the circumstances of this case.
A number of additional arguments urged by the appellant should be discussed, the first of which is the duplicity of the information, in which three distinct underlying felonies were charged in one count. The appellant’s demurrer, motion to quash and set aside the information to the first information, and motion to strike the amended information were all overruled. The State’s position, that the appellant’s argument is rendered moot by his admission to the charged predicate crimes, is unpersuasive because it circumvents the primary issue, which is whether the commission of any of these predicate crimes was the proximate cause of the homicide.
With certain restrictions, different offenses may be charged in a single infor[366]*366mation under separate counts. Dodson v. State, 562 P.2d 916 (Okl.Cr.1977). This Court has said that a defendant is constitutionally entitled to a verdict in which all of the jurors are in agreement upon the same criminal act or transaction. See Cody v. State, 361 P.2d 307 (Okl.Cr.1961). The State’s failure to allege these acts in separate counts and the trial court’s failure to properly instruct the jury regarding its responsibility to determine which act was the predicate felony denied the appellant his due process, as it pertains to the first degree murder charge.
The seventh allegation is that the 8 x 10 photograph of the deceased infant, State’s Exhibit No. 15, was introduced into evidence for the sole purpose of arousing prejudice in the minds of the jurors. The defense preserved this alleged error by both a motion in limine and an objection at the time of admission, with exceptions noted. Identification of the deceased was not in issue and neither was “the way she looked,” although these State arguments prevailed at the trial. The admission of this photograph was an abuse of discretion in that it provided no proof and was prejudicial. See Oxendine v. State, 335 P.2d 940 (Okl.Cr. 1958). This Court cannot conceive of any probative value inherent to this photograph and can only imagine that the State used it to evoke the sympathy of the jury for this beautiful young victim.
Photographs of a homicide victim “are inadmissible unless they are relevant to some material issue and would reasonably assist the jury in the determination of the defendant’s guilt, and this relevancy must outweigh the danger that the jury would substitute emotion for reason as a basis of their verdict.” Oxendine, supra, at 943. The fact that the Oxendine photos were taken subsequent to the victim’s death does not preclude the use of that rule regarding a picture of the victim prior to death. The horror of the homicide can be equally evoked with a photo of a victim who is a beautiful baby as it can be with gruesome death pictures. The emotional effect is as potentially damaging.
In his eleventh proposition, the appellant cites numerous arguments made by the prosecutor in his statements to the jury at the close of the first stage. This Court has examined those statements and finds that those comments aimed at the vindication of community outrage were prejudicial and that the objection entered by the appellant should have been sustained. See Chase v. State, 541 P.2d 867 (Okl.Cr.1975); and Potter v. State, 511 P.2d 1120 (Okl.Cr.1973). “Counsel generally has the right to discuss fully the evidence and arising inferences.” Reeves v. State, 601 P.2d 113 (Okl.Cr.1979). Counsel exceeded the limitations of that right in this case.
Finally, there is merit to the argument that the verdict forms, submitted over the appellant’s objection in the second stage of the trial, resulted in a directed verdict if any aggravating circumstances were found. The aggravating circumstances appeared only on the same verdict form as the sentence of death. But the jury was instructed to check and sign any aggravating circumstances which they found,3 so that the finding of aggravating circumstances resulted in a signing of the death sentence verdict form. And when the jury found aggravating circumstances, the act of using the death sentence verdict form to indicate their findings could have resulted in a failure to fully consider mitigating circumstances and led to an erroneous recommendation of the death sentence.
[367]*367It is the State’s contention that the jury was instructed on the appropriate use of the verdict forms and on the weighing of aggravating and mitigating factors.4 The State then argues that the situation in this case conforms to that of Jurek v. Texas, 428 U.S. 262, 49 L.Ed.2d 929, 96 S.Ct. 2950 (1976). However, the statutory scheme in Texas distinguishes that case. In Jurek, the answers to certain aggravating factors would yield a sentence of death, while in Oklahoma, aggravation and mitigation are weighed against each other. The resulting prejudice, of including a sentence of death on the same form as the aggravating circumstances, is apparent.
The evidence supports the guilt of the appellant of the crime of murder in the second degree under the following definition: “When perpetrated by an act imminently dangerous to another person and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.” Laws 1976,1st Ex.Sess., ch. 1, § 2, now 21 O.S.Supp.1980, § 701.8. Therefore, this conviction is modified from Murder in the First Degree to Murder in the Second Degree and the sentence is reduced from death to life imprisonment. As modified, the judgment and sentence is AFFIRMED.
BUSSEY, J., concurs in results.
CORNISH, J., specially concurs.