Jackson v. State

2007 OK CR 24, 163 P.3d 596, 2007 Okla. Crim. App. LEXIS 23, 2007 WL 1806166
CourtCourt of Criminal Appeals of Oklahoma
DecidedJune 25, 2007
DocketD-2004-1173
StatusPublished
Cited by19 cases

This text of 2007 OK CR 24 (Jackson v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. State, 2007 OK CR 24, 163 P.3d 596, 2007 Okla. Crim. App. LEXIS 23, 2007 WL 1806166 (Okla. Ct. App. 2007).

Opinions

OPINION

C. JOHNSON, Viee-Presiding Judge.

1 1 Appellant, Elwood K. Jackson, Jr., was tried by a jury and convicted of three counts of First Degree Murder with Malice Aforethought 1 in the District Court of Comanche County, Case No. CF 2008-95. The State filed a Bill of Particulars alleging three aggravating circumstances: (1) the defendant knowingly created a great risk of death to more than one person;2 (2) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution;3 and (8) the existence of a probability that the defendant would commit eriminal acts of violence that would constitute a continuing threat to society.4 The jury found the existence of two aggravating cireumstances 5 as to each of the three counts and assessed punishment at death on each of the three counts. The trial court sentenced Appellant accordingly. From this Judgment and Sentence Appellant has appealed.6

[599]*599FACTS

12 On February 11, 2008, the bodies of Mack Donald Wright, John A. Limberger and Lena Jean Bohay were discovered by police in a residence in Lawton, Oklahoma. Wright's death was caused by blunt force trauma to the head. Limberger and Bohay each died as a result of multiple gunshot wounds to the head. The residence in which the bodies were found was a home owned by Appellant and rented to Wright and Limber-ger. Bohay was Limberger's girlfriend.

13 Almost a week earlier, on February 7, 2008, Lawton police were investigating a report that Wright and Limberger's residence had been burglarized. Appellant became a suspect when it was discovered that he had pawned a black onyx ring stolen from Wright and Limberger's house. On February 12, 2003, Appellant was picked up by Lawton police on a charge of false declaration of ownership concerning the pawned stolen ring and a subsequent interrogation led to his arrest on this charge. Appellant was interrogated numerous times during the following nine days while he was detained at the Law-ton Police Department. It was during these interrogations that evidence of his involvement in the homicides was revealed.

T 4 During the early interrogations, Appellant admitted to burglarizing Wright and Limberger's house several times and stealing small items and small amounts of money to support his addiction to crack cocaine. Although Appellant initially adamantly denied any involvement in the homicides, evidence to the contrary eventually began to emerge. Appellant finally admitted to killing all three victims and taking numerous items from the house.

15 On the morning of February 10, 2008, Appellant went to a car dealership in Lawton to talk to friend about employment and to borrow a gun from him. The friend loaned Appellant a 9 millimeter pistol. Later that morning Appellant took the gun with him to the victims' house. While he was in the house looking for things to steal, Appellant went into a bedroom where Wright was sleeping. When Wright woke up and saw him, Appellant struck Wright in the head several times with a fireplace poker he found in the bedroom. While Appellant was in Wright's bedroom, he heard Limberger enter the house. Wright was still alive and making noise so Appellant hit him a couple more times and put a pillow over his face. He then waited until Limberger was in his bedroom before he left Wright's bedroom. As he was walking down the hallway, the door to Limberger's bedroom opened. When Lim-berger looked out and saw Appellant he shot Limberger. It was not until Appellant went into Limberger's bedroom that he noticed another person in the room on the bed. This person was Bohay, and he shot her too.

T 6 When he left the house Appellant took several items including some traveler's checks that he had seen during a prior burglary but had not taken because he was afraid that they would be easily traceable if reported stolen. He also took Wright's mobile phone, Limberger's credit cards, driver's license, watch and necklace, and the fireplace poker he had used to kill Wright. Appellant cashed some of the stolen traveler's checks at a pawn store and this transaction was videotaped by the store's surveillance camera. The remaining traveler's checks as well as the other items taken were all either discarded or hidden. During the course of the investigation, Appellant told the detectives where he had deposited these items and all but the discarded travelers checks were recovered including the gun that Appellant had used to kill Limberger and Bohay.

VOIR DIRE ISSUE

T7 Appellant argues in his first proposition that the trial court applied an unconstitutional standard in excusing two prospective jurors for cause, based upon their moral reservations about the death penalty. He specifically complains that prospective jurors Biggers and Rodgers were excused based upon their answers to the trial court's questions about whether consideration of the death penalty would violate their consciences. In Witherspoon v. Illinois, 891 U.S. 510, 522-23, 88 S.Ct. 1770, 1776-77, 20 L.Ed.2d 776 [600]*600(1968), the Supreme Court held that it violates due process to exclude an otherwise eligible prospective juror based solely upon that juror's opposition to the death penalty. The only legitimate concern is, rather, whether each juror is willing to consider each of the authorized punishment alternatives, including the death penalty where appropriate. Mitchell v. State, 2006 OK CR 20, ¶ 39, 136 P.3d 671, 688-89. In addition, this Court has specifically condemned the "violence to your conscience" question as improper and confusing. See Mayes v. State, 1994 OK CR 44, ¶ 10, 887 P.2d 1288, 1297. However, while this error may warrant relief under appropriate - circumstances, see Cudjo v. State, 1996 OK CR 48, ¶¶ 11-12, 925 P.2d 895, 899, it does not necessarily require it. "This Court will not reverse based on an error of the trial court unless that error has resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right." Mayes, 1994 OK CR 44, ¶ 10, 887 P.2d at 1297; 20 O.S.2001, § 3001.1.

T8 Thus, Appellant's assertion that it is unconstitutional to remove prospective jurors based solely upon their moral reservations about the death penalty is correct. However, his claim that prospective jurors Biggers and Rodgers were excused for cause based solely on this unconstitutional consideration is not supported by the record. Rather, the record reflects that the trial court repeatedly told the prospective jurors that they were required by law to consider each of the three possible punishments if they were to sit on the jury. Although the court did question them about whether consideration of the death penalty would violate their consciences, this improper question was not the only question asked about their willingness to consider the death penalty.

T9 When asked if he could consider all three punishment options, Mr. Biggers responded that he could not. The trial court inquired further, "The Court's going to give you instructions, and those instructions are going to require that you consider all three of those. And you're going to have to take an oath to follow that. Is the following of that oath going to violate-violate your conscience? You think that's going to cause you a problem?" Mr. Biggers responded that it would cause a problem. At this point, the trial court responded that it was going to dismiss Mr.

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Jackson v. State
2007 OK CR 24 (Court of Criminal Appeals of Oklahoma, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
2007 OK CR 24, 163 P.3d 596, 2007 Okla. Crim. App. LEXIS 23, 2007 WL 1806166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-state-oklacrimapp-2007.