VanWoundenberg v. State

1986 OK CR 81, 720 P.2d 328, 1986 Okla. Crim. App. LEXIS 269
CourtCourt of Criminal Appeals of Oklahoma
DecidedJune 3, 1986
DocketF-84-95
StatusPublished
Cited by148 cases

This text of 1986 OK CR 81 (VanWoundenberg 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
VanWoundenberg v. State, 1986 OK CR 81, 720 P.2d 328, 1986 Okla. Crim. App. LEXIS 269 (Okla. Ct. App. 1986).

Opinions

OPINION

BUSSEY, Judge:

The appellant, Sammy VanWoundenberg, was convicted in the District Court of Mus[331]*331kogee County, Case No. CRF-83-64, of First Degree Murder, for which he received a sentence of death. From this judgment and sentence he appeals.

The evidence shows that Mark Allen Berry was strangled to death around 4:30 a.m. on February 6, 1983 in the Muskogee City-Federal Jail. Berry, Dennis Brown and Terrance James had been arrested for a federal charge of theft of government property, and were incarcerated together. Brown and James believed that Berry was responsible for their arrest, and so on February 5, 1983, they were discussing beating up Berry when the appellant joined the discussion. Brown testified that the appellant urged them to strangle Berry and hang him to make the death appear to be a suicide. He then provided a wire from a broom and demonstrated how to use it to strangle Berry. Early the next morning the appellant entered the cell of Brown and James and asked if they were ready; he then stuck a piece of paper over the lens of the surveillance camera. Brown then got Berry to play cards with him, and when they were playing, James walked up behind Berry, wrapped the wire around his neck and strangled him while Brown held the victim’s feet, and placed his hand over Berry’s mouth.

Another inmate testified that he heard the appellant warn James and Brown that someone was coming. So James pulled Berry into that inmate’s cell and continued the strangulation. After Berry appeared to be dead, James, Brown and the appellant hung Berry’s body in a shower stall.

As his first assignment of error, the appellant alleges that insufficient evidence was presented at the preliminary hearing to show probable cause that he committed first degree murder. A preliminary hearing does not require evidence sufficient to warrant a conviction. The evidence need show only that an offense has been committed and there is reason to believe the accused committed the offense. Edwards v. State, 655 P.2d 1048 (Okl.Cr.1982). The preliminary hearing transcript reveals that the magistrate properly found sufficient evidence to bind the appellant over for trial on a charge of first degree murder. Sexson v. State, 620 P.2d 1326 (Okl.Cr.1980). Therefore, appellant’s first assignment of error is without merit.

As his next assignment of error, the appellant argues that the trial court erred in refusing to grant his motion for severance. Granting or denying such a motion is discretionary with the trial court and its ruling will not be disturbed on appeal unless the appellant makes a clear showing of abuse of discretion resulting in prejudice. Cooper v. State, 584 P.2d 234 (Okl.Cr.1978). The appellant cites Murray v. State, 528 P.2d 739 (Okl.Cr.1974) and contends that his defense was antagonistic to that of his codefendant because the appellant claimed James committed the offense, and James claimed he was under the influence of drugs and could not remember if the appellant was involved. James also testified that the appellant helped hang the victim’s body on the shower stall. There was some evidence that Berry might not have been dead at this time. In Murray the respective defenses of the codefendants were mutually antagonistic. Defenses are antagonistic where each defendant is attempting to exculpate himself and inculpate his codefendant. Master v. State, 702 P.2d 375 (Okl.Cr.1985). Here the record clearly shows that James admitted killing Berry, and denied knowing if the appellant participated. As the appellant cannot show antagonistic defenses, this assignment of error is meritless.

The appellant contends as his third assignment of error that he was denied a trial by a fair and impartial cross-section of the community due to the exclusion of potential jurors solely because they were opposed to capital punishment. Relying on Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), mod. 758 F.2d 226 (8th Cir.1985), he asserts that such juries are guilt-prone, exclude identifiable groups including women and blacks who traditionally have been opposed to the death penalty, and that questioning panel members at the beginning of the trial unduly focuses the minds [332]*332of the jurors on the sentencing phase before any evidence as to guilt has been introduced. The Supreme Court of the United States recently addressed this identical issue in Lockhart v. McCree, — U.S. —, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) which rejects this argument, reversing the case on which the appellant relies.

In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.

Lockhart, — U.S. at —, 106 S.Ct. at 1770, 90 L.Ed. 137. We therefore find the appellant’s assignment of error to be merit-less.

As a fourth assignment of error, the appellant complains that the trial court improperly excused a prospective juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The record reveals the following questions and responses:

THE COURT: Mr. McGraw, you and the other jurors in the back have been very patient. Have you heard anything so far that you think might cause you a problem with this case?
JUROR MCGRAW: I think I have, sir.
THE COURT: Does it have to do with my question about the death penalty in a case where the law and the evidence so provided?
JUROR MCGRAW: Yes, sir.
THE COURT: Do you feel like if you were on a case as a juror and you found beyond a reasonable doubt that the defendant on trial in that case was guilty of Murder in the First Degree, are your reservations about the death penalty such that you just simply couldn’t sit down and agree to do or even seriously consider a death penalty?
JUROR MCGRAW: I don’t think I could. (Tr. 354).

Mr. McGraw was then excused over the objection of defense counsel. The rule is clear that a prospective juror who is irrevocably committed, prior to trial, to vote against the death penalty may be properly excused. Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984). In that case a prospective juror gave exactly the same answer when asked if she could ever vote to impose the death penalty. We find that because Mr. McGraw indicated by his answers that he was irrevocably committed to vote against the death penalty, he was properly excused.

The appellant next complains that the trial court erred in refusing to allow defense counsel to rehabilitate prospective jurors who were excused for cause when they indicated that they were unwilling to consider the death penalty. We addressed this same issue in Banks v. State, 701 P.2d 418 (Okl.Cr.1985). That the manner and extent of voir dire rests largely in the discretion of the court, is well settled.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

STATE v. TUBBY
2016 OK CR 17 (Court of Criminal Appeals of Oklahoma, 2016)
Williams v. Trammell
782 F.3d 1184 (Tenth Circuit, 2015)
Malone v. State
2007 OK CR 34 (Court of Criminal Appeals of Oklahoma, 2007)
Torres v. Mullin
317 F.3d 1145 (Tenth Circuit, 2003)
Frederick v. State
2001 OK CR 34 (Court of Criminal Appeals of Oklahoma, 2001)
Myers v. State
2000 OK CR 25 (Court of Criminal Appeals of Oklahoma, 2000)
Van Woudenberg Ex Rel. Foor v. Gibson
211 F.3d 560 (Tenth Circuit, 2000)
Cummings v. State
1998 OK CR 45 (Court of Criminal Appeals of Oklahoma, 1998)
Torres v. States
1998 OK CR 40 (Court of Criminal Appeals of Oklahoma, 1998)
Wingfield v. Massie
Tenth Circuit, 1997
Conoyer v. State
933 P.2d 904 (Court of Criminal Appeals of Oklahoma, 1997)
Johnson v. State
928 P.2d 309 (Court of Criminal Appeals of Oklahoma, 1996)
Al-Mosawi v. State
1996 OK CR 59 (Court of Criminal Appeals of Oklahoma, 1996)
Smallwood v. State
1995 OK CR 60 (Court of Criminal Appeals of Oklahoma, 1995)
Hammon v. State
1995 OK CR 33 (Court of Criminal Appeals of Oklahoma, 1995)
Clayton v. State
1995 OK CR 3 (Court of Criminal Appeals of Oklahoma, 1995)
Carter v. State
1994 OK CR 49 (Court of Criminal Appeals of Oklahoma, 1994)
Fowler v. State
1994 OK CR 27 (Court of Criminal Appeals of Oklahoma, 1994)
Ellis v. State
1992 OK CR 45 (Court of Criminal Appeals of Oklahoma, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
1986 OK CR 81, 720 P.2d 328, 1986 Okla. Crim. App. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanwoundenberg-v-state-oklacrimapp-1986.