Scott v. State
Scott v. State
Opinion of the Court
OPINION
Appellant, Sidney Soren Scott, was tried by jury in the District Court of McIntosh
On February 15, 1990, Appellant and several friends
Preparing to leave, decedent discovered he had a flat tire. He knocked on the door to Monks’ room to see if anyone in the group could help him change the tire. Boggs, Seymour, Edwin Monks and Dean Monks agreed to help him. Decedent returned to McDonald’s trailer to get change for a ten dollar bill so he could give the men five dollars for helping him. According to McDonald decedent had eleven dollars on him at this time. McDonald began watching decedent from a window to make sure he was alright.
After his tire was changed, decedent joined the party for a short time. McDonald walked to Monks’ room to check on decedent. He stayed a few minutes and returned to his trailer. Later, several people saw Appellant take possession of a lock blade knife which he had misplaced earlier. Appellant then got into a fight with Bishop and announced he was leaving. He said decedent was giving him a ride home. McDonald saw a man who could have been Appellant get into decedent’s truck with him. The two drove north away from the motel. A short time later the others returned to Stigler.
Decedent was found early the next morning a few miles north of the motel. His throat was cut and he had bled to death. He was lying off the road partially in the ditch. There were signs of a struggle and his wallet was missing. The checkbook, where he carried his cash, was found empty at the murder scene. Decedent’s truck was found a few miles east of the murder scene. A rag was stuck in the gas tank and the front half of the truck, including the cab, had been burned. Between 6:30 and 7:00 a.m. LaDonna Ford and Bobby Gray saw Appellant on their way to work. He was walking south on the road to Quinton.
After noon on February 16, 1990, Appellant rejoined the group from the previous evening’s party. He first told Rinker in private and then announced to the group that he had killed the “old man” for eleven dollars. Describing the murder Appellant said he first struggled with decedent then cut him “from ear to ear” and left him “flopping” in a ditch gasping for breath. Then he took decedent’s wallet and drove his truck a few miles east where he burned it by sticking a rag in the gas tank before walking home. Appellant also stated he became sexually aroused when killing decedent. Appellant displayed the knife which had been returned to him the previous night and declared it was the murder weapon. He asked the others to dispose of it and to lie that he had been with them the entire night after the party. He then disappeared for a couple of days.
At Appellant’s request Edwin Monks threw the knife into a strip mine pond where
ISSUES RELATING TO JURY SELECTION
In his third proposition of error Appellant argues he was sentenced by a jury predisposed to impose the death sentence. He contends the trial court erred in its individual voir dire of venire members, excusing of four prospective jurors and refusal to allow defense counsel an opportunity to rehabilitate them. After general voir dire and the acceptance of the jurors for cause, but before either side exercised peremptory challenges, the trial court conducted individual voir dire of the jurors on whether they could impose the death penalty. He asked each prospective juror substantially the same question:
Mr. Scott the defendant in this case, is charged as I have said with Murder in the First Degree. If you find him guilty of First Degree Murder, then you will have the duty to assess punishment in this case. The punishment for First Degree Murder is either death, or life imprisonment without parole, or life imprisonment; it will be up to the jury to assess and impose the punishment. In a case where the law and evidence warrant, in a proper case, could you, without doing violence to your conscience, agree to a verdict imposing the death penalty?2
Jurors Welch, McGechie, Combs, and Collins did not affirmatively respond to this question.
Court: Let me ask you this, Ms. Welch, if you found beyond a reasonable doubt that the defendant is guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong that regardless of the law, the facts and the circumstances of the case, you would not impose the death penalty?
Juror Welch: I don’t know. I just really don’t know.
Court: Well, only you can answer that, Ms. Welch; We can’t answer that for you.
Juror Welch: I don’t believe I could.
Court: Let me ask you the second question, if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under the evidence, the facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, facts and circumstances of the case, you would not impose the death penalty?
Juror McGechie: Sir, I couldn’t make that decision about somebody else’s life. I just couldn’t.
Court: Alright. Let me ask you, Mr. Combs; if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under*1289 the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, facts and circumstances of the ease, you would not impose the death penalty?
Juror Combs: No, I don’t guess I — if I serve on it I will turn in my best knowledge of what it should be. If that answers the question.
Court: Alright. Let me ask you; if you found beyond a reasonable doubt that the defendant was guilty of Murder in the First Degree and if under the evidence, facts and circumstances of the case, the law would permit you to consider a sentence of death; are your reservations about the death penalty so strong, that regardless of the law, the facts and circumstances of the case, you would not impose the death penalty?
Juror Collins: I don’t really know; I just don’t know if I could or not.
This Court recently addressed the manner in which trial courts conduct death qualifying voir dire in Mayes v. State, 887 P.2d 1288 (Okl.Cr. 1994). In Mayes this Court held inquiries whether imposition of the death penalty would do violence to a juror’s conscience are at best confusing and error. Id. at 1297. However, the error can be cured by follow up questions which properly assess the potential juror’s ability to set aside personal feelings and follow the law. Id. This Court held that the follow up question asked by the trial court in Mayes, in language virtually identical to that in the present case, cured the error.
Appellant next argues the trial court abused its discretion in excusing for cause the four prospective jurors because they gave equivocal answers to the follow up questions. Removal for cause of even one venire member who has conscientious scruples against the death penalty but is nevertheless able to set aside those scruples and consider the penalty of death and is therefore eligible to serve on the jury is error of constitutional magnitude not subject to harmless error analysis. Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622, 638 (1987). When reviewing cases where the answers of potential jurors are unclear or equivocal this Court traditionally defers to the impressions of the trial court who can better assess whether a potential juror would be unable to fulfill his or her oath. Allen v. State, 871 P.2d 79, 91 (Okl.Cr. 1994); Simpson v. State, 827 P.2d 171, 175 (Okl.Cr. 1992); Duvall v. State, 825 P.2d 621, 631 (Okl.Cr. 1991), cert. denied, — U.S. -, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992); Battenfield v. State, 816 P.2d 555, 559 (Okl. Cr. 1991), reh’g denied, 826 P.2d 612 (OkI.Cr. 1992), cert. denied, 503 U.S. 943, 112 S.Ct. 1491, 117 L.Ed.2d 632 (1992). Equivocal answers, such as those given by the prospective jurors in the present case, are sufficient to dismiss a juror for cause. See Carter v. State, 879 P.2d 1234, 1243-1244 (Okl.Cr. 1994); Banks v. State, 701 P.2d 418, 422-423 (Okl.Cr. 1985), cert. denied, 502 U.S. 1036,112 S.Ct. 883, 116 L.Ed.2d 787; Dutton v. State, 674 P.2d 1134, 1138 (Okl.Cr. 1984). After considering the entire record surrounding the exclusion of the four prospective jurors, and giving appropriate deference to the trial court’s decision, we hold the exclusion of the four prospective jurors was not error. Allen, 871 P.2d at 91; Battenfield, 816 P.2d at 559.
Finally, Appellant claims the trial court erred when it refused to allow defense
ISSUES RELATING TO GUILT-INNOCENCE
In his first proposition of error, Appellant contends insufficient evidence exists to support his conviction and death sentence. Specifically, Appellant argues: his conviction and sentence are improperly based on his out of court confessions
It is well settled that a conviction cannot be obtained based solely upon the uncorroborated confession of the defendant. Wong Sun v. United States, 371 U.S. 471, 488-489, 83 S.Ct. 407, 418, 9 L.Ed.2d 441, 456 (1963); Opper v. United States, 348 U.S. 84, 92, 75 S.Ct. 158, 164, 99 L.Ed. 101, 108 (1954); Williamson v. State, 812 P.2d 384, 396 (Okl.Cr. 1991), cert, denied, - U.S. -, 112 S.Ct. 1592, 118 L.Ed.2d 308 (1992), reh’g denied, -U.S.-, 112 S.Ct. 2325, 119 L.Ed.2d 244 (1992); Stout v. State, 693 P.2d 617, 622-623 (Okl.Cr. 1984),' cert. denied, 472 U.S. 1022,105 S.Ct. 3489, 87 L.Ed.2d 623 (1985). Appellant contends his confessions made to State witnesses on February 16, 1990, are uncorroborated by direct forensic evidence placing him at the murder scene, and hence are inadmissible. This Court has recently addressed the sufficiency of the evidence based in part upon a defendant’s out of court statements. In Fontenot v. State, 881 P.2d 69, 77-78 (OM.Cr. 1994) we stated,
[We] reaffirm this Court’s prior adoption of the standard which requires only that a confession be supported by “substantial independent evidence which would tend to establish ... [its] trustworthiness ...”6
In the present case substantial independent evidence was presented by the State to establish the trustworthiness of Appellant’s confessions. When last seen by McDonald, decedent left the motel heading north accompanied by a man who matched Appellant’s general description. Decedent was found north of the motel off the road and partially in a ditch, his throat viciously slashed. The mortal wound was made by two separate cuts. The medical examiner testified decedent probably did not die immediately and would have continued to breath and struggle until losing consciousness. He further testified other cuts and bruises on decedent could have been the result of a struggle prior to death. Decedent carried a small amount of cash in his checkbook and a wallet when he was last seen by McDonald but no money or
Appellant next contends his confessions were not properly corroborated because the credibility of testifying State witnesses was at issue. In essence he contends the State’s witnesses were lying and hence they could.not corroborate his confessions. Appellant confuses corroboration with credibility. As noted above, Appellant’s confessions were properly corroborated. Once substantial independent evidence was presented by the State, the witnesses could properly testify what Appellant told them the morning after the murder. Whether or not to believe these witnesses was up to the jury who could properly judge their credibility based upon their testimony and demeanor on the stand. Worcester v. State, 669 P.2d 283, 285 (Okl.Cr. 1983); Humphrey v. State, 452 P.2d 590, 592 (Okl.Cr. 1969). It is obvious from the verdict and sentence that the jury chose to believe the State’s witnesses despite defense counsel’s attempts on cross-examination to expose biases and lack of credibility. Appellant provides no authority or persuasive reason to invade the province of the jury on this issue and we decline to do so.
Upon review of the record there is sufficient evidence that any rational trier of fact could find Appellant guilty of Murder in the First Degree beyond a reasonable doubt. The State’s evidence proved Appellant had a motive to rob decedent. Further, he was the last person seen with decedent and was seen walking from the direction of the murder the next morning. Most importantly, he repeatedly confessed to the killing. While minor discrepancies exist between the testimony of certain State witnesses, they all related substantially the same story regarding the confession of Appellant. The information Appellant provided in his confessions, before any of the witnesses knew of the crime or its circumstances, was virtually identical to the evidence developed from the crime scene.
ISSUES RELATING TO EXAMINATION OF WITNESSES
In his second proposition of error Appellant contends the trial court erred in limiting defense counsel’s questioning of Rinker in both the first and second stages of trial. In the first stage defense counsel sought to question Rinker about an arrest
It is undisputed defendants are to be allowed to cross examine witnesses to expose
In reaching its decision the trial court noted charges were pending and Rink-er had not been convicted as a result of the arrest. While we have consistently held it is improper to impeach a witness with former arrests, McDonald v. State, 764 P.2d 202, 206 (Okl.Cr. 1988), Appellant correctly points out inquiry into prior arrests is permissible to expose bias. Carolina v. State, 839 P.2d 663, 665-666 (Okl.Cr. 1992); Beck, 824 P.2d at 388-389. See also United States v. Abel, 469 U.S. 45, 53, 105 S.Ct. 465, 469, 83 L.Ed.2d 450, 458 (1984). This does not mean Appellant is entitled to cross examine witnesses about prior arrests. As we stated in Beck,
The trial court in ruling on evidentiary issues regarding bias evidence for purposes of impeachment, and this Court in reviewing those rulings, shall determine: first, is the fact situation such that the showing of bias to impeach a witness is relevant under 12 O.S.1981, § 2401; second, is the evidence admissible under 12 O.S.1981, § 2402; and third, even though admissible, should it be excluded under 12 O.S.1981, § 2403.
824 P.2d at 389. See also, Abel, 469 U.S. at 53, 105 S.Ct. at 468-469, 83 L.Ed.2d at 458; Carolina, 839 P.2d at 666.
Appellant fails to show a Sixth Amendment violation in the first stage of trial. Evidence of Rinker’s arrest was not relevant to the fact situation of this case. As noted above sufficient evidence existed to prove Appellant murdered decedent.
However, it was error to prevent inquiry into Rinker’s arrest for purposes of the second stage of trial. Both aggravating circumstances alleged and found in the case
When a confrontation clause violation occurs this Court must consider certain factors to determine whether the error is harmless beyond a reasonable doubt. Beck, 824 P.2d at 390. See .also Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674, 686; Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710 (1967), reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967). In the present case the factors are: the importance of Rinker’s testimony; whether his testimony was cumulative; the presence or absence of evidence corroborating or contradicting his testimony on materi
Contrary to Appellant’s claim, Rink-er was not the State’s primary or indispensable witness in the second stage. The State presented other evidence to support a finding of the aggravating circumstance to avoid prosecution. In the first stage of trial Edwin Monks testified Appellant told the group he got eleven dollars from decedent. Cooper testified she asked Appellant whether it was worth eleven dollars to kill decedent. Appellant told the group he struggled with decedent. In the second stage the prosecutor cross examined Appellant’s mother about a citation Appellant received two days prior, to the murder. She confirmed Appellant received a citation for carrying a concealed weapon. This evidence indicates Appellant had a motive to rob and did rob decedent.
On the issue of the second aggravating circumstance, continuing threat to society, Appellant again argues Rinker’s testimony was indispensable and vital to the jury’s finding. Applying the Beck test, we find Rink-er’s arrest and possible bias or motivation was not relevant to proving this aggravating circumstance. Moreover, the State proved, through various witnesses and exhibits, that Appellant had killed decedent in a vicious manner, had participated in prior unrelated criminal acts, and had threatened witnesses while incarcerated prior to trial. This evidence is sufficient to prove Appellant is a continuing threat to society. See infra.
The trial court did not allow defense counsel to impeach Rinker’s truthfulness with his juvenile record during the second stage. Defense counsel informed the trial court such evidence was necessary to show Rinker had a propensity to lie and fabricate. The trial court prevented such questioning, emphasizing that juvenile records are never admissible. This ruling was error. The plain language of 12 O.S.1981, § 2609(D) states that generally juvenile records are not admissible.
After an independent examination of •the entire record we conclude preclusion of inquiry into these records was harmless beyond a reasonable doubt. We note the trial court did not prevent defense counsel from asking whether Rinker had made a deal with the prosecution or expected to receive leniency for his testimony. Nor did defense counsel make an offer of proof concerning questions to be asked and anticipated responses to assist the trial court’s decision. Through extensive cross examination in both stages of trial defense counsel placed Rinker’s lack of credibility at issue very effectively. Finally, Rinker’s testimony was corroborated by other witnesses who related Appellant’s numerous confessions and actions following the murder.
ISSUES RELATING TO PUNISHMENT
In his fourth proposition of error Appellant requests this Court to reconsider the constitutionality of the aggravating circumstance “continuing threat to society.” He contends this aggravating circumstance is vague and not sufficiently tailored. The constitutionality of this aggravating circumstance has been upheld by the United States Supreme Court in Barefoot v. Estelle, 463 U.S. 880, 896-899, 103 S.Ct. 3383, 3396-3397, 77 L.Ed.2d 1090, 1106-1107 (1983), and by this Court. Malone v. State, 876 P.2d 707, 715-716 (Okl.Cr. 1994) and cases cited therein.
After reviewing these cases and the application of this aggravating circumstance, the phrase “the existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” is clear and does not require further definition. The phrase directs the jury to examine the accused’s conduct in the offense of which he was convicted as well as other relevant conduct relating to the safety of society as a whole. Id. at 716.
Appellant next contends the State failed to prove the aggravating circumstance that “the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution.” 21 O.S.1981, § 701.12(5). He claims the State’s evidence in both stages of trial failed to prove this aggravating circumstance.
To support a finding of this aggravating circumstance there must be a predicate crime, separate from the murder, for which the defendant seeks to avoid arrest or prosecution. Barnett v. State, 853 P.2d 226, 233 (Okl.Cr. 1993). Central to proof of the predicate crime is the defendant’s intent. Munson v. State, 758 P.2d 324, 335 (Okl.Cr. 1988), cert, denied, 488 U.S. 1019, 109 S.Ct. 820, 102 L.Ed.2d 809 (1989); Stouffer v. State, 738 P,2d at 1361-1362; Banks v. State, 701 P.2d at 426. We have consistently held a defendant’s intent can be inferred from circumstantial evidence. Snow v. State, 876 P.2d 291, 299 (Okl.Cr. 1994) and cases cited therein. This Court will review circumstantial evidence to determine whether any reasonable hypothesis exists other than the defendant’s intent to commit the predicate crime. Id.; Riley v. State, 760 P.2d 198, 199 (Okl.Cr. 1988). In the present case the underlying crime for which Appellant is alleged to have murdered in order to avoid prosecution is robbery.
The first stage evidence showed Appellant was in need of approximately one hundred
Appellant next contends the second stage evidence was likewise insufficient to prove he murdered decedent to avoid prosecution. He argues the judgment and sentence for escape admitted during the second stage was critical to proving his propensity to avoid responsibility for his past criminal actions and the inference he murdered decedent to avoid arrest. Appellant claims the State failed to prove he was the same individual listed on the judgment and sentence admitted to prove he had previously been convicted of escape from a penal institution. He claims all trial documents list him as Sidney S. Scott while the judgment and sentence reads Sidney Soren Scott.
In his sixth proposition of error Appellant speculates insufficient evidence in aggravation exists to support his death sentence absent the existence of the aggravating circumstance to avoid arrest or prosecution. As discussed above, sufficient evidence does exist to support the aggravating circumstance to avoid arrest or prosecution.
To support the aggravating circumstance of continuing threat to society the State must prove the defendant’s behavior demonstrated a threat to society and a probability this threat would continue to exist,
We find sufficient evidence existed to support the aggravating circumstance of continuing threat to society. The fatal wound was vicious and did not result in immediate death. Appellant confessed several times he killed decedent for eleven dollars. He also told Rinker he became sexually aroused when killing decedent. The State presented evidence Appellant had been convicted of escape from a penal institution and destroyed evidence in the present case. From this the jury could logically conclude he had committed a prior crime for which he was being incarcerated and his propensity to avoid responsibility for his crimes. Evidence was presented he was previously incarcerated in Arizona and received a citation for carrying a concealed weapon two days prior to the murder. Finally, evidence was presented he claimed to have killed previously and made threats to witnesses while in custody prior to trial.
Both aggravating circumstances are supported by the evidence. Weighing of aggravating circumstances against mitigating circumstances will be addressed in the Mandatory Sentence Review. There is no merit to this proposition.
In his final proposition of error Appellant challenges the constitutionality of several second stage instructions. While acknowledging this Court has held such instructions are constitutional,
In his first challenge Appellant claims incorporation of the first stage anti-sympathy instruction
Appellant next contends the instructions given the jury on mitigating circum
In his third challenge Appellant contends the instructions failed to inform the jury that it did not have to find mitigating circumstances by unanimous decision. Appellant argues that, because the jury must find aggravating circumstances unanimously, the instructions would lead them to believe they must also find the mitigating circumstances by unanimous decision. This precise argument has been rejected by this Court. See Harjo, 882 P.2d at 1081; Mayes, 887 P.2d at 1320-1321; Stiles, 829 P.2d at 997. There is no merit to this contention.
Finally, Appellant claims the instructions as given set forth an improper burden for weighing the mitigating circumstances against the aggravating circumstances.
MANDATORY SENTENCE REVIEW
Pursuant to 21 O.S.Supp.1987, § 701.13(C), we must now determine (1)
. Keith Boggs, Ronald Seymour, and Edwin Monks drove from Stigler to Quinton. There they were joined by Janie Bishop, Ramona Cooper, Neal Rinker, Dean Monks and Appellant.
. The trial court asked the quoted question of Juror Welch. Substantially similar questions were asked of Jurors McGechie, Combs and Collins.
. The trial court in Mayes asked:
Are you — or let me simply ask it this way. If you found beyond a reasonable doubt that the Defendant was guilty of murder in the first degree, and if under the evidence, facts and circumstances of the case the law would permit you to consider a sentence of death, are your reservations about the death penalty such that, regardless of the law, the facts and the circumstances of the case, you would not consider inflicting the death penalty? Id. at 1297.
. Appellant confessed to and described the murder at least three times: in private with Rinker; before the entire group; and while walking with Bishop, Cooper, Seymour and Edwin Monks.
. Both Appellant and the State develop their arguments on this proposition based upon the corpus delicti rule. See Williamson, 812 P.2d at 396; Stout, 693 P.2d at 622-623; Goforth v. State, 644 P.2d 114, 118 (OkI.Cr. 1982). In Fon-tenot, 881P.2dat77, this Court rejected the rule requiring proof of the corpus delicti as a predicate for corroborating a defendant's out of court statements.
.Appellant also argues the evidence presented did not meet the heightened standard of proof required in death cases, citing Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944, 961 (1976) and Caldwell v. Mississippi, 472 U.S. 320, 340-341, 105 S.Ct. 2633, 2645-2646, 86 L.Ed.2d 231, 246-247 (1985). Appellant misreads these cases. Woodson dictates imposition of the penalty of death requires heightened reliability free from arbitrariness. Caldwell addresses prosecutorial comments calculated to reduce the jury's sense of responsibility for imposing the death penalty. Neither case requires a standard higher than beyond a reasonable doubt in the guilt-innocence phase of a death penalty trial.
. Rinker was arrested after the murder. The record does not reveal the charge against Rinker, only that disposition of the charge was pending at the time of trial.
. Throughout trial defense counsel made repeated statements that no proof, other than testimony, linked Appellant to the murder. Such was not true. As noted above crime scene evi-
. The State alleged two aggravating circumstances: the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, 21 O.S.1981, § 701.12(5); and the existence of a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society, 21 O.S. 1981, § 701.12(7).
. Appellant's motive and intent are central to proving Appellant murdered in an attempt to avoid arrest or prosecution for robbing decedent. See infra.
. 12 O.S.1981, § 2609(D) reads:
Evidence of juvenile adjudications is not admissible under this Code. The court in a criminal case may, however, allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
. Appellant lists the Information, First Stage Guilty form, Second Stage Punishment form, and Second Stage Aggravating Circumstance form as the documents which read Sidney S. Scott.
. See Snow, 876 P.2d at 298; Allen, 871 P.2d at 100; Castro, 844 P.2d at 172; Clayton v. State, 840 P.2d 18, 35 (Okl.Cr. 1992), cert. denied, - U.S. -, 113 S.Ct. 1655, 123 L.Ed.2d 275 (1993); Boyd v. State, 839 P.2d 1363, 1368 (Okl. Cr. 1992), cert. denied, - U.S. -, 113 S.Ct. 3005, 125 L.Ed.2d 697 (1993); Battenfield, 816 P.2d at 567; Bo/tz v. State, 806 P.2d 1117, 1125 (Okl.Cr. 1991), cert. denied, 502 U.S. 846, 112 S.Ct. 143, 116 L.Ed.2d 109 (1991); Munson v. State, 758 P.2d at 335; Ross v. State, 717 P.2d 117, 123-124 (Okl.Cr. 1986), aff'd, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
. See Revilla v. State, 877 P.2d 1143, 1155 (Okl. Cr. 1994); Snow, 876 P.2d at 298; Allen, 871 P.2d at 100; Workman v. State, 824 P.2d 378, 383-384 (Okl.Cr. 1991), cert. denied, - U.S. -, 113 S.Ct. 258, 121 L.Ed.2d 189 (1992); Battenfield, 816 P.2d at 566; Sellers, 809 P.2d at 690; Boltz, 806 P.2d at 1125; Fox v. State, 779 P.2d at 577.
. See Brief of Appellant at 88 wherein he cites Thomas v. State, 811 P.2d 1337 (Okl.Cr. 1991), cert. denied, 502 U.S. 1041, 112 S.Ct. 895, 116 L.Ed.2d 798 (1992).
. Instruction No. 19 is taken verbatim from OUJI-CR No. 907.
. Supplemental Instruction No. 10 is taken verbatim from OUJI-CR No. 442.
. Supplemental Instruction No. 6 is taken verbatim from OUJI-CR No. 438. Supplemental Instruction No. 7 is derived from OUJI-CR No. 439 and reads:
Evidence has been offered as to the following mitigating circumstances:
1. The age of defendant at time of crime;
2. Capacity of defendant to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was impaired as a result of intoxication;
3. Education and work history of defendant;
4. Defendant has never previously been convicted of a crime of violence;
5. The defendant's family history;
6. The defendant's potential for rehabilitation.
Whether these circumstances existed, and whether these circumstances are mitigating, must be decided by you.
. Supplemental Instruction No. 8 is taken verbatim from OUJI-CR No. 440. Supplemental Instruction No. 9 is taken verbatim from OUJI-CR No. 441.
Concurring Opinion
concurring in result.
I write to address my views as to the majority’s treatment of Appellant’s Proposition II, the restrictions on cross examination of witness Rinker. I fail to see how the evidence of his arrest between the time of the murder and the trial would be admissible for impeachment in the second stage of trial and not in the first. The majority finds that the evidence .is admissible in the second stage to show bias or motivation to testify. I find that it is admissible in the first stage for the same reason.
The majority relied upon statements referring to 12 O.S.1981, §§ 2401-2403 contained in Beck v. State, 824 P.2d 385 (Okl.Cr. 1991) which I do not believe apply to the current case. In Beck, the defendant had asked questions as to whether or not a witness had received favorable treatment on charges in exchange for his testimony. Favorable treatment was denied. The defendant then attempted to introduce evidence that in spite of the testimony certain charges were either not filed or were subsequently dropped against the witness. It is the introduction of this extrinsic evidence to which the quoted language relates. We do not have that situation here. Here, the trial court prohibited Appellant from asking about favorable treatment on arrests. The identified language from Beck would only apply if the questions had been asked, there was a denial of favorable treatment being offered and Appellant then tried to introduce evidence of favorable treatment.
However, Beck does stand for the proposition that sometimes evidence that would not be admissible under the evidence code may be admissible for the purpose of showing the witness is biased or had motivation to testify in a certain manner. This concept was reinforced in Carolina v. State, 839 P.2d 663 (Okl.Cr. 1992) where we held that the State could cross examine on prior arrests and pending charges to show bias of defense witnesses.
Once we establish that the denied questioning may be permitted we must then look to see if the trial court abused its discretion in prohibiting the appellant from inquiring into the arrests. I would find that it was an abuse of discretion. I would then make a determination as to whether the error was verdict determinative or fit in the area of harmless error. When examined in the light of the entire case I find that the error is harmless beyond a reasonable doubt.
I concur in results.
Reference
- Full Case Name
- Sidney Soren SCOTT, Appellant, v. STATE of Oklahoma, Appellee
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- Published