Smith v. State

1983 OK CR 19, 659 P.2d 330, 1983 Okla. Crim. App. LEXIS 200

• Court: Court of Criminal Appeals of Oklahoma
• Decided: February 10, 1983
• Docket: F-78-331
• Status: Published

Opinions

OPINION

BUSSEY, Presiding Judge:

The appellant, Larry Dean Smith, was tried before a jury and convicted in the District Court of Ottawa County, Oklahoma, Case No. CRF-77-677, of Murder in the First Degree. He was sentenced to suffer the penalty of death, and appeals.

The charges and conviction stem from the death of Willard Denning, whose charred body was found in the back of his burned pickup camper on September 6, 1977. The camper was parked at a chat dump in Picher, Oklahoma. The appellant admitted subsequent to his arrest that he was present at the time the pickup was set ablaze, but maintained he did not participate in the murder. This statement was introduced into evidence at trial.

The appellant argues thirteen points of error on appeal. We shall consider the allegations in a different order than presented us in the briefs.

The appellant alleges the trial court erred in overruling his motion for a continuance.

In his attempt to suppress both the confession he had given the police and the evidence obtained from the seizure of the motorcycle he had been riding the day of the murder, the appellant subpoenaed the arresting officer. The officer was hospitalized, and was required to remain there for an indefinite period of time.' He was thus unable to appear as a witness, and the appellant moved for a continuance.

The trial court denied the appellant’s motion on the grounds that the appellant had already entered a plea to the charge without objection, thereby waiving his right to object to an unlawful arrest. Stone v. State, 461 P.2d 962 (Okl.Cr.1969); Miles v. State, 416 P.2d 964 (Okl.Cr.1966).

The appellant argues that his plea prior to objecting to the legality of his arrest should not be used to deny his right to present witnesses concerning matters other than his arrest. We note, however, that the arresting officer was not present when the appellant gave his confession. Officers who assisted in the seizure of the motorcycle and who obtained the appellant’s confession did testify during an in camera hearing on the appellant’s motion to suppress the confession and motorcycle. The missing officer’s testimony would have added little, if anything, to the evidence adduced concerning these matters. The decision to grant a continuance lies within the discretion of the trial court. Lemmon v. State, 538 P.2d 596 (Okl.Cr.1975). We find no abuse of that discretion in this case.

Next, the appellant argues the State failed to establish the corpus delicti of the murder independent of the confession at both the preliminary hearing and the trial.

As we stated in Jones v. State, 555 P.2d 63 (Okl.Cr.1976) and the cases cited therein, corroborative evidence need not, independent of a confession, be sufficient to establish the corpus delicti beyond a reasonable doubt. Once substantial evidence of the corpus delicti is introduced, a defendant’s confession is admissible, if together they provide a basis for a finding of both the corpus delicti and the defendant’s guilt beyond a reasonable doubt.

In the present case, evidence independent of the appellant’s confession produced by the State included the medical examiner’s report, which concluded Den-ning died from smoke and/or fire inhalation; photographs of the charred body and pickup camper, which photographs also indicated that Denning’s belongings had been rummaged through and strewn about behind the pickup; and pictures of tools belonging to Denning which were partially buried in the sand a short distance from the pickup.

This evidence established that Denning met an unnatural and violent death, and that indices of foul play abounded. It sufficiently met the “substantial evidence” test described above to permit the introduction of the confession for purposes of proving the corpus delicti and the appellant’s guilt. See, Goforth v. State, 644 P.2d 114 (Okl.Cr.1982). The trial court properly overruled the appellant’s demurrers at the preliminary hearing and the trial.

The appellant’s next two assignments of error concern his intent to cause Denning’s death.

Initially, he argues that the trial court should have directed a verdict of Not Guilty in the trial, because the State failed to prove he possessed the requisite intent to constitute murder in the first degree. Evidence adduced at trial revealed that the appellant and his accomplice, Ralph Go-forth, rode a motorcycle to a chat dump in Picher, Oklahoma, where Denning was camped; that Denning was beaten; that the appellant and Goforth rummaged through Denning’s belongings with intent to rob him of his possessions; that they tried to steal Denning’s pickup, but were unsuccessful in their attempts to start it; that the pickup was then set ablaze; and that the appellant and Goforth fled from the location, knowing that their beaten victim was lying in the camper part of the burning pickup.

The events surrounding this gruesome deed clearly provide sufficient indication of the appellant’s intention to effect Denning’s death.

The appellant’s testimony, if believed, would establish that his accomplice beat Denning and set the truck on fire without the appellant’s aid, thereby inferring he lacked the necessary mens rea to commit murder in the first degree. Nonetheless, the appellant was present throughout the entire episode. He voluntarily left the scene, knowing that, in all likelihood, Den-ning would be engulfed in the flames of the burning vehicle and annihilated thereby. The appellant’s participation in the crime rendered him a principal under our laws.¹ He is therefore subject to the same charges and punishment as though he had committed the murder himself.² The jury was justified in its conclusion from the facts and circumstances surrounding the appellant’s actions that he intended to effect Denning’s death. Clouse v. State, 389 P.2d 1002 (Okl.Cr.1964).

The appellant’s argument that the trial court should have instructed on murder in the second degree presents the same issue of intent. The requested instruction was,

You are instructed that homicide is murder in the second degree when perpetrated by an act imminently dangerous to another person and evidencing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual.

As stated above, when the appellant and his accomplice rode away from the scene, leaving Denning lying in the back of a burning pickup, they must have known he would not live. The evidence clearly does not suggest a passive disregard to Denning’s life, but rather an active intention that he should die. The instruction on murder in the second degree was not warranted. Parks v. State, 651 P.2d 686 (Okl.Cr.1982).

In his next assignment of error, the appellant alleges the voir dire did not conform to the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), we noted that Witherspoon permits a juror to be excused for cause if the juror’s opposition to the death penalty is so great that the juror would refuse to return a verdict of guilty where it was warranted, due to the possibility of the death penalty being imposed; or is so strong that the juror had decided in advance not to impose the death penalty, regardless of the facts of the case. It appears from the transcript of the voir dire that the appellant was under the impression that only the former of these was a legitimate ground, because each time a question was asked regarding the imposition of punishment, he objected. The trial court properly overruled the objections. Witherspoon, supra.

Fourteen prospective jurors were excused because of their objections to the death penalty.³ The appellant specifically mentions three on appeal.⁴’⁵

The appellant did not object to the excusing of any of the three.⁶ As we stated in Hays v. State, 617 P.2d 223 (Okl.Cr.1980), error of this nature must be raised by objection, lest it be waived.

The next assignment of error relates to the photographs that were admitted. There were eight different views of the burnt truck, two photographs of the motorcycle the men were riding, and two views of the body lying inside the camper shell of the pickup. Whenever a photograph is a faithful reproduction of that which it purports to reproduce and is probative, it is admissible for whatever value it may have to the jury. Pate v. State, 361 P.2d 1086 (Okl.Cr.1961). Photographs which are principally designed to appeal to the jury’s emotions, rather than to prove a fact, are not admissible. Pate v. State, supra, Vierrether v. State, 583 P.2d 1112 (Okl.Cr.1978). In the present case, however, the danger of prejudice was low, as the photographs have little emotional content. The assignment of error is without merit.

The appellant’s next assignment of error concerns the conduct of the prosecutor. The appellant claims that the prosecutor stationed several uniformed police officers about the courtroom, and that the prosecutor himself wore a firearm throughout the trial.

The appellant failed to object to the presence of the officers in the courtroom. Having so failed to make a timely objection, the error was waived. Hart v. State, 535 P.2d 302 (Okl.Cr.1975).

There was also no objection to the prosecutor’s firearm, if one was indeed worn into the courtroom. However, since it is possible, according to appellant’s theory, that the jury saw the weapon and the appellant did not (once again, assuming ar-guendo that the prosecutor wore one), we shall more fully address the issue.

Testimony concerning the pistol was presented at the hearing on the motion for a new trial. The appellant’s witness, an attorney who also signed an affidavit, stated that he had been told by the prosecutor that the prosecutor had received threats prior to the trial and that the prosecutor carried a pistol at all times. The witness did not see the prosecutor wear the weapon into the courtroom, nor did he see it displayed in the courtroom, but thought the jury may have seen it.

On the other hand, the State presented testimony that the prosecutor checked his gun to his secretary prior to going into court; and that, in any event, the holster was situated in such a position on his hip that it was covered at all times by his coat, and not visible to the jury.

The appellant has failed to sufficiently establish his claim. The disputed record will not support a conclusion that the prosecutor displayed a pistol to the jury. As the decision to grant a new trial rests within the discretion of the district court, we will not reverse that decision absent abuse of the discretion. Lemmon v. State, 538 P.2d 596 (Okl.Cr.1975). We find no such abuse.

During the deliberations on sentencing, the jury sent a note to the trial court asking whether they could recommend a life sentence without parole. The judge replied that such a recommendation would not be binding. In his next assignment of error the appellant maintains that the judge’s answer led the jury to believe that only a sentence of death would be acceptable, and that it was reversible error for the court to send the jury a note instead of calling them into open court to answer their question, in accordance with 22 O.S. 1981, § 894.⁷

In Boyd v. State, 572 P.2d 276 (Okl.Cr.1977), we stated that the purpose of Section 894 was to prevent communications from being made to the jury without the parties being present to protect their interests. In the instant case, the record reflects that the defense attorney was aware of the judge’s answer and specifically agreed to it. (Tr. 285-286) Thus, the trial court’s actions complied with the purpose and intent of Section 894. In addition, the appellant made no objection to either the form or content of the judge’s answer. Therefore, any right to allege error on appeal was waived. Gaines v. State, 568 P.2d 1290 (Okl.Cr.1977); Choate v. State, 476 P.2d 384 (Okl.Cr.1970).

The appellant also argues that the trial court sent the jury a note telling them that if they did not reach a verdict within ten minutes he would discharge them and impose a life sentence. The only support of this assertion to be found in the record is an affidavit of the appellate attorney. At the hearing on the motion for new trial, the judge who presided over the appellant’s trial stated into the record that he did not send such a note.

The appellant maintains in his supplemental brief that, the judge’s statement notwithstanding, such a note did indeed exist, which, to his prejudice, has been lost. He speculates that the note allegedly written and sent to the jury effectively suggested that the judge believed the appellant should receive the death penalty.

The appellant cites Thurman v. State, 78 Okl.Cr. 98, 144 P.2d 125 (1943), and Avants v. State, 544 P.2d 539 (Okl.Cr.1975) for the proposition that where the record necessary for review is lost or destroyed, at no fault of a defendant, and cannot be substituted, a new trial will be granted. However, to find these cases controlling in the present requires that we agree with the appellant upon the preliminary question of whether the note indeed ever existed. This we cannot do.

The facts in this case simply do not bear the appellant’s contention out. Although we believe the argument is made in good faith, we cannot accept it, in light of the lack of evidence of the existence of the note. It would be a dangerous practice for us to accept wholesale the assertions of appellate counsel in these situations. The frivolity and spuriousness of the appeals which could be perpetuated by such a philosophy would be bridled only by counsel’s imagination. The assignment of error cannot stand.

The appellant alleges in his supplemental brief he was denied effective assistance of counsel. The standard for effectiveness of counsel in this State at the time of appellant’s trial was the “farce or mockery of justice” test. We shall thus gauge the performance of appellant’s trial counsel on that basis, although we note that our decision would be the same were we to apply the “reasonably competent assistance of counsel test” established in Johnson v. State, 620 P.2d 1311 (Okl.Cr.1980).

Having fully reviewed the record, we are convinced that the appellant received effective assistance of counsel. Effective assistance of counsel does not mean a defendant must have received victorious or flawless counsel. Davison v. State of Oklahoma, 428 F.Supp. 34 (W.D.Okl.1976). It is not uncommon for defense counsel to not introduce evidence after the State has rested. Thus, counsel’s failure to do so in the instant case does not of itself constitute ineffective assistance. Trial counsel for the appellant vigorously cross-examined witnesses for the State and adequately defended the appellant in the face of strong evidence of his guilt. The assignment of error is meritless.

The final three assignments may be joined with our consideration of the appropriateness of the death penalty as required by 21 O.S.1981, § 701.13. The ninth assignment is that the State failed to prove the aggravating circumstance beyond a reasonable doubt; the tenth is that there was an accumulation of error resulting in prejudice to the defendant; and the final assignment is that the sentence is excessive. The statute requires this Court to determine whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factor; whether the record supports the finding of the aggravating circumstance; and whether the application of the death penalty in this particular case is excessive or disproportionate when compared to the results of other cases.

A careful consideration of the record leads this Court to conclude that the remaining assignments of error are without merit, and the statutory questions must be answered in the negative. The defendant received a fair and impartial trial. He was ably represented by counsel, and there was no prejudicial evidence or testimony improperly admitted against him. The jury was properly instructed concerning the findings it was required to make before it could return a verdict of guilt and before it could impose the death penalty.

The only aggravating circumstances given the jury was that the crime was especially heinous, atrocious or cruel. The instruction defining that circumstance was similar to the one approved in Chaney v. State, supra. Looking at the crime in the light of that instruction, we hold the jury was justified in finding that the killing was especially heinous, atrocious or cruel. The victim was beaten into helplessness and left in the bed of his pickup truck, and the truck was then set on fire. He died from the inhalation of flames and smoke. It is clear that the defendant either intended to inflict a high degree of pain or else he was utterly indifferent to his victim’s suffering. See, Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980), at 1167-1168.

We cannot overlook the fact that the appellant’s co-defendant, Ralph Go-forth, who was tried before a separate jury, received a penalty of life imprisonment. See, Goforth v. State, 644 P.2d 114 (Okl.Cr.1982). The evidence against Goforth was as strong as that against the appellant. Indeed, Goforth and the appellant each identified the other as the main culprit. See Goforth, supra. The crucial distinguishing factor between Goforth’s penalty and that which the appellant received is the fact that Goforth was sixteen years of age when the murder was committed, whereas the appellant was nineteen. Obviously the jury in Goforth’s case considered his age to be a persuasive mitigating factor. In the appellant’s case, no such determination was made.

We do not allow the punishment given the appellant’s co-defendant to persuade us that the penalty of death is inappropriate in the appellant’s case. The facts and circumstances of this case provide a sufficient justification for imposition of the death penalty. The fact that another jury gave lieniency to the appellant’s younger co-defendant for his participation in this crime does not detract from the persuasiveness of the evidence adduced against the appellant.

The murder in this case is comparable to Parks v. State, 651 P.2d 686 (Okl.Cr.1982), wherein we affirmed the death sentence imposed for the defendant’s murder of a service station attendant; Jones v. State, 648 P.2d 1251 (Okl.Cr.1982), wherein we affirmed the death sentence imposed upon the defendant for murdering a man in a tavern; Hays v. State, 617 P.2d 223 (Okl.Cr.1980), in which we held the defendant’s act of shooting a shoe store owner twice in the head during a robbery justified the sentence of death; Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980) 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982) (remanded for resentenc-ing), wherein, the defendant’s youth notwithstanding, we determined the death penalty was appropriate punishment for the murder of an Oklahoma Highway Patrolman; and Chaney v. State, 612 P.2d 269 (Okl.Cr.1980), in which we affirmed the death sentence imposed for the defendant’s murder of two women. We also note that the present case is unlike the recent case of Odum v. State, 651 P.2d 703 (Okl.Cr.1982) in which we modified the defendant’s death sentence to life imprisonment because the facts of the case did not support the aggravating circumstance that the murder was especially heinous, atrocious and criiel. In this case, the beaten victim was left inside a camper and set afire. The autopsy of the victim’s charred remains revealed the presence of soot in the victim’s lungs, which indicated that he had inhaled fire and smoke before his demise.

We have also compared this case to other capital cases which have been modified to life or reversed for other reasons.⁸

The sentence is not disproportionate to the crime. Accordingly, the judgment and sentence is AFFIRMED.

CORNISH, J., concurs. BRETT, J., concurs in part and dissents in part.

1 . Title 21 O.S.1981, § 172 states:

All persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.

2 . We note in this regard that we must examine the penalty meeted the appellant for his role in this case in light of the recent case of Enmund v. Florida, - U.S. -, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). In that case, the Supreme Court held that the Eighth and Fourteenth Amendments to the Constitution prohibited the imposition of the penalty of death on a principal in a felony murder who was neither present nor intended any killings to take place during the commission of the crime which he had helped plan.

We find Enmund distinguishable from the present case. The appellant must have known the consequences of leaving a badly beaten man lying inside a burning pickup truck in a deserted chat dump. It is obvious to this Court that the appellant intended to visit death upon his victim. We do not find the appellant’s sentence to be excessive in relation to his role in effecting Denning’s death. Enmund, supra.

3 . Ms. Prather, Ms. Frogue, Mr. Rollins, Mr. Hunnicutt, Mr. Allton, Mr. Atkinson, Ms. Woo-drome, Ms. Garrett, Ms. Duree, Mr. Boyer, Mr. Pollock, Ms. Brooks, Ms. Kuder, Ms. Cook. A fifteenth prospective juror, Mr. Gowin, said he was opposed to the death penalty, but he could return a verdict of guilty. He was seated.

4 . Ms. Prather, Mr. Rollins, Mr. Hunnicutt.

5 . Of the eleven persons who were excused but not mentioned by the appellant, ten said they could not return a verdict of guilt and the other said he could vote for guilt, but could not impose the death penalty. All were properly excused under Witherspoon.

6 . Although the appellant was granted a “continuing objection” to the form and substance of the questions asked by the trial court, such an objection did not cover the issue of the improper dismissal. The issue is whether the trial court was justified in dismissing the veniremen without further pursuing their answers to determine whether the jurors fell under one of the two Witherspoon exceptions.

7 . Title 22 O.S. 1981, § 894 states:

After the jury have retired for deliberation, if there be a disagreement between them as to any part of the testimony or if they desire to be informed on a point of law arising in the cause, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to the district attorney and the defendant or his counsel, or after they have been called.

8 . Hall v. State, 650 P.2d 893 (Okl.Cr.1982); Brewer v. State, 650 P.2d 54 (Okl.Cr.1982); Burrows v. State, 640 P.2d 533 (Okl.Cr.1982); Franks v. State, 636 P.2d 361 (Okl.Cr.1981); Irvin v. State, 617 P.2d 588 (Okl.Cr.1980); Hager v. State, 612 P.2d 1369 (Okl.Cr.1980).