Rojem v. State

2009 OK CR 15, 207 P.3d 385, 2009 Okla. Crim. App. LEXIS 15, 2009 WL 997221
CourtCourt of Criminal Appeals of Oklahoma
DecidedApril 15, 2009
DocketD-2007-660
StatusPublished
Cited by13 cases

This text of 2009 OK CR 15 (Rojem 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
Rojem v. State, 2009 OK CR 15, 207 P.3d 385, 2009 Okla. Crim. App. LEXIS 15, 2009 WL 997221 (Okla. Ct. App. 2009).

Opinions

OPINION

CHAPEL, Judge.

T1 Richard Norman Rojem, Jr. was tried by jury and convicted of kidnapping, rape and first degree murder in the District Court of Washita County, Case No. CRF-84-35. On appeal, this Court affirmed the convie-tions and sentences.1 The United States Court of Appeals for the Tenth Cireuit granted relief from the death sentence.2 A resen-tencing trial was held in Washita County, Rojem was again sentenced to death, and this Court reversed that sentence and remanded the case for resentencing (Rojem 2).3 Pursuant to Rojem's motion for change of venue, the second resentencing hearing was held in Custer County, Case No. CF-2006-370. The jury in Rojem's second resentenc-ing trial found that (1) Rojem was previously convicted of a felony involving the use or threat of violence to the person; (2) the murder was especially heinous atrocious or cruel, and (8) the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. In accordance with the jury's recommendation the Honorable Charles L. Goodwin imposed the death penalty. Rojem appeals from this sentence.

2 A full recitation of the facts of this case is set forth in Rojem v. State.4 Briefly, Rojem took Layla Cummings, his former step-daughter, from her Elk City apartment on July 6 or 7, 1984. She was found face-down in a field near Burns Flat around 9:00 a.m. on July 7th, wearing a pink nightgown. She was gagged, had been sexually assaulted, and was stabbed several times.

Issues Regarding Jury Selection

13 In Proposition III Rojem claims the trial court committed reversible error by improperly denying his challenge for cause against two prospective jurors. After the challenges were denied, Rojem removed the prospective jurors from the jury panel using peremptory challenges. He claims these rulings were error and violated his constitutional right to due process, a fair trial and a reliable sentencing proceeding as well as his statutory right to nine peremptory challenges.5 Rojem used his remaining peremptory challenges, requested two additional challenges, and specified which sitting jurors he would excuse and why they were unacceptable to him. This issue is thus preserved for appellate review.6 The trial court has broad discretion when considering a request to excuse a juror for cause.7 A juror should be able to consider all penalties, and his or her views should not prevent or substantially impair the performance of his or her duties as a juror in accordance with her instruction and oath.8 In reviewing these claims, we look to the juror's entire voir dire record.9

14 Rojem first argues that the trial court erred in refusing to excuse panelist M for cause. He claims M was confused by [389]*389the concept of aggravating cireumstances and mitigating evidence. The record shows that this is true, but shows that much of M's confusion was in response to the specific wording of defense counsel's questions. Reading the extensive record of M's voir dire as a whole, it is clear that M initially had difficulty understanding the meaning of "mitigating," and thought it referred to guilt. She alluded to this several times, wondering why the trial court wanted her to consider what she clearly thought was evidence going to guilt although Rojem had been convicted and his guilt already determined. Defense counsel, apparently trying not to complicate the issue, phrased questions about mitigating cireumstances in the language of the instructions. This did not lessen M's confusion. The trial court suggested that defense counsel rephrase the questions. Counsel explained that the State would present evidence in support of the aggravating cireum-stances and Rojem would present evidence which would support a punishment of less than death. M then said she could listen to all the evidence presented and consider all three possible punishments. She also stated she could fairly consider all three punishments even though Rojem was guilty of the unjustified, intentional and premeditated murder of a child. When asked whether she'd want someone like herself on the jury, M stated that she wasn't sure how to answer the question. She said she had no problem being fair and taking everything under consideration but she had never before been in a courtroom. The totality of the record does not support Rojem's claim that M refused to consider mitigating cireumstances. Rather, M stated she could consider all the mitigating evidence, once she understood what it was. The trial court did not abuse its discretion in refusing to exeuse M for cause.

T5 Rojem also claims the trial court should have excused panelist H for cause. H admitted that she had researched Rojem's case on the Internet, and stated that though it would be difficult to set aside what she had learned she could do so. She stated she did not remember many details about the case. On her juror questionnaire H had written that she felt she was an advocate for children because she is a special education teacher and has a disabled daughter. When asked about this statement during voir dire H said she felt the questionnaire questions were a little misleading. After thinking about the questions and listening to the voir dire process, H stated she had an open mind and could listen to all the evidence presented. She said that although she felt parole was a gray area, she could give meaningful consideration to a life sentence and was not leaning toward any particular sentence. Nothing in the record supports Rojem's claim that H could not set aside any knowledge she had of the case, consider mitigating evidence, or fairly consider all three punishments. The trial court did not abuse its discretion in refusing to excuse H for cause.

T6 In summary, both panelists M and H initially expressed reservations about aspects of capital punishment which would cast doubt on their fitness for jury service. However, each panelist said she could consider all the evidence presented and give meaningful and fair consideration to all three punishments. The trial court did not err in denying Ro-jem's challenges for cause.

Issues Relating to the Sentencing Stage of Trial

T7 Rojem argues in Proposition I that the trial court violated his constitutional right to present a defense to the State's case for death. Rojem's primary expert witness was Dr. Cunningham, a forensic psychologist. Cunningham created a developmental profile for Rojem explaining the formative basis for his decision-making, as well as a risk assessment profile to determine his potential for future dangerousness in prison. To assist in forming and expressing his opinions, Cunningham used as a model a nationally-known study done by the United States Department of Justice (DOJ) which is used in federal and state courts and by researchers nationwide. Cunningham and defense counsel intended to present his testimony by means of question and answer using as a demonstrative aid a PowerPoint presentation. The PowerPoint slides, offered as defense exhibits 20 and 21, contained explanations of the processes Cunningham used in forming his opinions, the results of his interviews and examinations [390]*390surrounding Rojem, and his conclusions. The slides were designed in PowerPoint "bullet" fashion, allowing more information to appear on the sereen as the witness reached different points in his testimony.

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Rojem v. State
2009 OK CR 15 (Court of Criminal Appeals of Oklahoma, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
2009 OK CR 15, 207 P.3d 385, 2009 Okla. Crim. App. LEXIS 15, 2009 WL 997221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rojem-v-state-oklacrimapp-2009.