SMITH, Vice Presiding Judge:
¶ 1 On September 22, 1999, Victor Cornell Miller, Appellant, was charged, along with co-defendant John Fitzgerald Hanson, with two counts of First-Degree Malice Murder, in violation of 21 O.S.Supp.1998, § 701.7(A), or alternatively, First-Degree Felony Murder, in violation of 21 O.S.Supp.1998, § 701.7(B) (Counts I & II), in the District Court of Tulsa County, Case No. CF-1999-4583. Count I was for the murder of Mary Agnes Bowles. Count II was for the murder of Jerald Thurman. The co-defendants, who were charged with acting "in concert" on both counts, were tried separately.
¶ 2 John Hanson was originally tried by a jury in May of 2001. He was found guilty of First-Degree Malice Murder on Count I and First-Degree Felony Murder on Count II. The jury recommended a sentence of death on Count I and a sentence of life imprisonment without the possibility of parole on Count II, and Hanson was sentenced accordingly. On appeal this Court affirmed both murder convictions and Hanson's sentence of life without the possibility of parole on Count II, but reversed his death sentence on Count I and remanded the case for resentencing on this count. See Hanson v. State, 2003 OK CR 12, 72 P.3d 40. Hanson's resentencing jury trial was held in January of 2006, and he was again sentenced to death for the Count I murder of Mary Bowles. We affirmed this sentence in Hanson v. State, 2009 OK CR 13, 206 P.3d 1020.
¶ 3 Victor Miller was originally tried by a jury in April of 2002. He was found guilty of First-Degree Malice Murder on both counts (and also of First-Degree Felony Murder on both counts). The jury recommended that he be sentenced to imprisonment for life without the possibility of parole on Count I and that he be sentenced to death on Count II; and Miller was sentenced accordingly.
¶ 4 After various proceedings following this reversal and remand, Miller was re-tried on both first-degree murder counts in November of 2008, before the Honorable Dana L. Kuehn, District Judge. No new Bill of Particulars was filed. Instead, on August 8, 2008, the State filed a "Notice of Intent to Reurge Previously filed Motions and Notices," asserting that it was incorporating all relevant motions and notices filed in connection with Miller's original charges and trial, and noting that the Bill of Particulars was one of the filings being incorporated.
¶ 5 The record contains no argument or legal authority from the State regarding how or why it was authorized to re-seek the death penalty against Miller for the Count I murder of Mary Bowles — even though he had been "acquitted" of the death penalty on this count at his first trial. Remarkably, the record is likewise silent regarding any objection from defense counsel to the State's action in this regard; and the record contains no evidence of any discussion before the trial court, comment by the trial court, or decision by the trial court regarding the fact that Miller had already been acquitted of the death penalty on Count I. The issue simply was not addressed.
¶ 6 At his second trial, Miller was again convicted by a jury of First-Degree Malice Murder on both counts (and also of First-Degree Felony Murder on both counts). During the sentencing phase of this trial, Miller's jury found that the following four aggravating circumstances applied to both counts: (1) Miller was "previously convicted of a felony involving the use or threat of violence"; (2) Miller "knowingly created a great risk of death to more than one person"; (3) "the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution"; and (4) there is a "probability" that Miller will "commit criminal acts of violence that would constitute a continuing threat to society."
¶ 7 The following summary of facts is based entirely on the evidence presented at Victor Miller's 2008 retrial. Only evidence actually presented at this trial, along with reasonable inferences from this evidence, are included herein. It should be noted that Miller's 2008 jury was not presented with some evidence that was an important part of the previous trials regarding the crimes at issue — in particular, the testimony of Rashad Barnes — and also that some evidence was presented at Miller's 2008 retrial that had not been presented during the earlier trials (or at Hanson's re-sentencing).
¶ 8 On August 31, 1999, Mary Bowles, who was 77 years old, worked her regular volunteer shift at St. Francis Hospital in Tulsa. She clocked out at 3:51 p.m. Lucille Neville, a pharmacy technician at the hospital and longtime friend of Bowles, testified that Bowles' car — a 1993 tannish/gold-colored Buick LeSabre — was in front of her car that afternoon, going north on Yale Avenue. Bowles honked and waved at Neville while they both waited at a light, just before turning left onto the Skelly Bypass merge. The women parted ways when Bowles stayed on the service road, apparently going home. Bowles was scheduled to be back at the hospital at 9:30 a.m. the next morning. She never returned.
¶ 9 That same afternoon James Lavendusky and his father, Ken Lavendusky, were winterizing James' boat at his Tulsa home at 6802 North Mingo Road. The Lavendusky home and pecan farm were across the road from a dirt pit owned by Jerald Thurman. James testified that around 5:45-6:00 p.m., he heard three or four gunshots coming from the area toward the dirt pit. After a few seconds, he heard three or four more shots. When James looked up, he noticed Thurman's dump truck parked between Mingo Road and the entrance gate into the dirt pit area. Shortly thereafter, Ken went to talk to Thurman about getting some gravel.
¶ 10 James testified that he continued working on his boat until his dad started yelling and waving for him to come over. When James arrived he found Thurman's dump truck still running. Ken told James that Thurman had been shot and handed James a cell phone to talk to a 911 operator. James then saw Thurman on his back on the ground near the gate. James testified that before going over to the dirt pit, he noticed a car leaving the area, headed south on Mingo. James described the car as a silver or grayish-colored four-door sedan. He noticed a driver and something "dark" in the back seat.
¶ 11 Jim Moseby, Thurman's nephew, was driving a dump truck for Thurman that day. Moseby testified that he received a call from his uncle around 5:50 p.m. Thurman told Moseby that there was a car in the dirt pit that had been lingering there, that he was concerned about it, and that if the car was still there when Thurman was ready to leave, he was going to lock the gate on his way out.
¶ 12 When Moseby arrived at the dirt pit a short time later, he was met by the Lavenduskys, who told him that Thurman had been shot. Moseby, who was also a certified EMT (emergency medical technician), testified that he found his uncle lying outside the gate, with his head at the base of the tree where
¶ 13 Jerald Thurman, who was 44 years old, never recovered consciousness and died from his injuries on September 14, 1999, at Hillcrest Hospital. The medical examiner determined that he had four gunshot wounds: one through the back part of his head (going from right to left and passing through his brain), one entering his back at the base of his neck, one that entered his upper left arm, and one through his right hand.
¶ 14 Sundeep Patel testified that on August 31, 1999, he was a student and worked as a desk clerk at the Oasis Motel, which was owned by his parents.
¶ 15 Patel testified that there was another man with Hanson that day, but acknowledged at trial that he had never been able to identify anyone as being that second man. Patel testified that both men were black, but that he was focused on Hanson, who was the one he dealt with and whose identity Patel confirmed with his driver's license. Patel testified that he "wasn't worried about the other person" and never interacted with him. Patel testified that the other man came in with Hanson when Hanson first inquired about a room, but did not come back inside. When Patel looked out to see what the men were doing with his tools, both men were outside the car doing something under the hood. Patel testified that the two men arrived in and were working on a "champagne-colored" Buick LeSabre and that the car remained parked in the Oasis Motel parking lot for more than a week, until it was towed off by Tulsa police.
¶ 16 Patel was cross-examined extensively about whether there was anything in the lobby that blocked his view of the second man and the fact that he originally described the second man as weighing about 250 pounds. (Victor Miller weighed approximately 180 pounds at the time.) This Court notes that Patel's testimony and pictures of the Oasis Motel lobby in 1999 establish that Patel would have been behind a plexiglass window, which had some papers hanging on it about hotel policies, but that Patel would have been able to see anyone in the hotel's tiny lobby — if he had wanted to and was paying attention.
¶ 17 On September 2, 1999, Police were notified regarding the disappearance of Mary Bowles. Her body was discovered on September 7, 1999, in a ditch alongside 66th Street North in Tulsa, not far from North Mingo and Thurman's dirt pit. Bowles' body was significantly decomposed and skeletonized and had been subject to animal scavenger activity, to the point that it was not readily identifiable. However, investigating officers found an address book beneath the body with Mary Bowles' name on it, and her body was later conclusively identified through dental records. The medical examiner who examined Bowles' body concluded
¶ 18 On the morning of September 9, 1999, Bowles' car was spotted in the Oasis Motel parking lot by a Tulsa police officer and was towed off for processing. A thorough search of the car revealed two bloodstains on opposite sides of the rear seat bench and a bloodstain in the middle of the rear area carpet, all of which were consistent with the DNA of Bowles. In addition, a fingerprint was found on the latch portion of the driver's seatbelt buckle, which was later determined to be from John Hanson's right thumb, and another fingerprint was found on the latch portion of the seatbelt buckle for the front passenger's seat, which was later determined to be from Victor Miller's right thumb.
¶ 19 Also on September 9, 1999, Hanson and Miller were arrested at the Muskogee EconoLodge Motel, after an anonymous tip was called in to Tulsa police by Miller's wife, Phyllis Miller.
¶ 20 The State put on evidence at trial regarding certain armed robberies committed by Miller and Hanson around the time of August 31, 1999, in order to establish that the silver .38 was customarily used and carried by Miller, while the black 9-mm was customarily used and carried by Hanson. The trial court limited the breadth and content of this "other crimes" evidence, however, and repeatedly admonished the jury, before the evidence was presented, that the evidence regarding these other robberies was to be considered "solely on the issue of the defendant's alleged identity."
¶ 21 This evidence established that on August 23, 1999, Hanson and Miller robbed the Apache Junction Liquor Store, and Miller acquired the silver .38 during this robbery. The clerk at the time testified that Miller held a gun to her chest while he demanded the store's cash and that Miller later discovered the silver .38 under the counter and took it.
¶ 22 Phyllis Miller, Victor Miller's estranged wife, testified at his retrial regarding the events of the summer of 1999.
¶ 23 Phyllis testified that around 3:00 p.m. on August 31, 1999, she and Miller got into a loud argument in the Motel 6 parking lot about who was going to use their car that day.
¶ 24 Phyllis testified that it was after midnight when Miller and Hanson finally returned to the motel. Phyllis testified that Miller still had the silver revolver and was acting "[r]eal nervous, looking out the window, thinking somebody's out there, pacing the floor." Phyllis testified that Hanson got a different room at the motel, but that Miller stayed with her and put the silver revolver under his pillow. Phyllis testified that the next morning, Miller put the wires back on their car and asked her to take him to the Oasis Motel. When they got there, Miller took a blue rag and walked over to a beige-gold-looking car that was parked in the motel
¶ 25 Phyllis also testified about a later occasion, when she was recruited to help Miller and Hanson rob a bank by buying them a pack of manila envelopes and then acting as the getaway driver. She described the area where she was told to park (near the Tulsa Federal Employees Credit Union) and that after a while, the men came running back, got in the car, and told her to take off. Phyllis testified that she heard a "pop," which was a red dye pack going off in Hanson's bulging manila envelope of cash, and that Miller chided Hanson for "letting the lady put a pack in there." Miller then instructed her to take them to Muskogee, and they went to the home of some of his relatives, where Miller talked about the robbery. Phyllis testified that she and Miller then got into another big fight, because he wanted to take their car and leave her there, which made her mad, and that Miller then disabled their car, "tore everything up in it," and left with Hanson.
¶ 26 Phyllis testified that she got a tow truck to take her and the car back to Tulsa and that she made note of two Muskogee motels nearby, an EconoLodge and a Holiday Inn. Phyllis testified that she knew Miller and Hanson were headed to a motel and had already decided that she was going to call the police and turn them in, which she did.
¶ 27 Victor Miller testified in his own defense at trial. He began his direct testimony by acknowledging that he had "suffered felony convictions on many occasions." He admitted having felony convictions in five different state cases and also to 16 federal felony convictions, as a result of the series of armed robberies that he committed with John Hanson during the summer of 1999.
¶ 28 Miller acknowledged Phyllis Miller as his wife and admitted the truth of the overwhelming majority of her testimony about him, including her testimony about the places they had lived, their relationship, and Phyllis' participation in some (but not all) of the armed robberies that he had committed. Miller testified that he and Hanson robbed the Apache Liquor Store on August 23, 1999, and volunteered that he had robbed that same liquor store, without Hanson's help,
¶ 29 Miller acknowledged the loud argument that he had with Phyllis in the Motel 6 parking lot, but he described the date of this argument as "just about three days before I got arrested," which would have been September 6, 1999. Miller testified that Phyllis had been gone for much of the day, returning around 1:00 p.m., and that he was very angry with her because he wanted to use their car to "go plan some illegal activities" with Hanson, i.e., plan some bank robberies. Miller testified that the disagreement started inside, went on for a long time, got intense and loud, and eventually moved outside. Miller admitted that he ultimately pulled the spark plug wires out of their car, so Phyllis would not be able to drive it, and that he and Hanson left in Sherry Carter's van.
¶ 30 Although Miller maintained that his loud argument with Phyllis occurred on approximately September 6, 1999, i.e., well after the day of the murders on August 31, he also testified about where he was between the time he left that afternoon and the time he returned late that night. He described stopping at a liquor store to get malt liquor and beer to drink and then getting dropped off with Hanson at the home of Rashad Barnes in North Tulsa. Miller testified that they went out back and that he sat down "under the shade tree and started drinking my beer and thinking." Later, though Miller had no idea when, he and Hanson took a bus to downtown Tulsa and then he (but not Hanson) transferred to a different bus that took him back to the Motel 6.
¶ 31 Miller, like Phyllis, testified that the day after their big fight, he put the spark plug wires back on their car, and Phyllis drove him to the Oasis Motel, where the Buick LeSabre was parked. Miller testified that Hanson had called that morning and asked him to try to start that particular car and that Phyllis drove him to Barnes' place in North Tulsa, in order to get the car keys from Hanson.
¶ 33 Miller's testimony about the events leading up to his arrest was largely consistent with the testimony of State witnesses. Miller acknowledged his participation in the September 8, 1999 armed robbery of the Federal Employees Credit Union and did not seriously contest any of the State's evidence in this regard — except that he insisted that the dye pack in Hanson's envelope exploded just after they exited the credit union, rather than back in the car with Phyllis. Miller testified that they drove to his cousin's house in Muskogee afterward, that they divided up the money among the three of them, that he and Phyllis "got into quite a fuss" there, and that he and Hanson left her at the house in Muskogee, intending to buy a new car, because Miller saw someone writing down the license plate of the Oldsmobile just after the Credit Union robbery.
¶ 34 Regarding the murders of Jerald Thurman and Mary Bowles, however, Miller adamantly denied being involved or present and also denied having any knowledge, at the time, regarding what had happened.
¶ 35 This Court notes at the outset that in Proposition XII of "Appellant's Brief in Chief," Miller argues that the State violated his constitutional protection against double jeopardy when it sought the death penalty against him for the Count I murder of Mary Bowles. This Court further notes that
¶ 36 In Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), the United States Supreme Court held that because the sentencing stage of a capital murder trial is like a separate trial on the issue of punishment, if a jury rejects a State's attempt to obtain a death sentence (as it did in Bullington's first murder trial), this functions as an "acquittal" on the death penalty. Id. at 438-46, 101 S.Ct. at 1857-62. The Bullington Court wrote: "A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle ... are equally applicable when a jury has rejected the State's claim that the defendant deserves to die." Id. at 445, 101 S.Ct. at 1861. Hence the Bullington Court held that the Double Jeopardy Clause prohibits any attempt to re-seek the death penalty against a defendant who was previously acquitted of the death penalty on the crime at issue, i.e., who was sentenced to something less than death for the same crime in an earlier trial. See id. at 446, 101 S.Ct. at 1862 ("Having received `one fair opportunity to offer whatever proof it could assemble,' the State is not entitled to another." (citation omitted)).
¶ 37 This Court has recently recognized that Bullington continues to be the binding law of the land in this context.
¶ 38 Furthermore, this Court also recognizes that the State's unlawful and unconstitutional attempt to obtain a death sentence on Count I may have impacted Miller's retrial in ways that cannot be fully rectified by simply reversing his death sentence on Count I, e.g., by the improper admission of second-stage evidence that was relevant only to the State's attempt to obtain a death sentence on Count I — such as victim impact evidence regarding Mary Bowles.
¶ 39 This Court now takes up Miller's other claims on direct appeal — both those made by his appellate counsel and his pro se claims — beginning with Miller's double jeopardy/double punishment claim and then continuing with his numerous other claims, in roughly the order that they arise at trial.
¶ 40 In Proposition I, Miller asserts that although he was not charged with the murders of Bowles and Thurman in his earlier federal case — since there is no federal crime of simply "first-degree murder" — he was, in fact, "punished" for these murders in that earlier case. Miller was charged and convicted in federal district court of 16 federal crimes, based upon his involvement in seven different armed robberies during the summer of 1999. Miller maintains that his involvement in the murders of Bowles and Thurman was considered as part of the federal district court's decision to sentence him to "Life." Hence Miller argues that it violates his federal and state constitutional protections against "double jeopardy" to allow the State of Oklahoma to punish him for these murders, because he is already being punished for these same murders by the federal government.
¶ 41 Miller acknowledges the traditional doctrine of "dual sovereignty," which functions as an exception to the traditional double jeopardy prohibition of "double punishment," and which allows for the "double prosecution" and "double punishment" of the same defendant for the same criminal conduct when the prosecutions are pursued by different "sovereigns," such as the federal government and a state.
¶ 42 In Witte v. United States, 515 U.S. 389, 403-04, 115 S.Ct. 2199, 2208, 132 L.Ed.2d 351 (1995), the United States Supreme Court held that the sentencing consideration of "relevant conduct" that is not part of the offense for which a defendant is actually convicted, in order to sentence a defendant within a legislatively-authorized range, does not constitute "punishment" of that related conduct for double jeopardy purposes. In other words, only the offense of conviction is being "punished" for double jeopardy purposes. Id. Consequently, a single sovereign (such as the federal government) can constitutionally prosecute and punish a defendant for a criminal offense, even if the conduct comprising that offense has already been considered as part of the sentencing determination (on a different offense) in an earlier case brought by that same sovereign. Id. at 406, 115 S.Ct. at 2209. We find that if this kind of punishment consideration of certain conduct, followed by direct prosecution of that same conduct, by a single sovereign does not constitute prohibited "double punishment" for double jeopardy purposes, it certainly does not violate double jeopardy when the earlier punishment consideration was in the context of a prosecution by one sovereign, i.e., the United States, and the later direct prosecution of that same conduct is by a separate sovereign, i.e., the State of Oklahoma.
¶ 43 Regarding Miller's attempt to argue that somehow the fact that he couldn't have been prosecuted for the murders in his federal case means that his current case is an exception to the dual sovereignty "exception" to the proscription against double jeopardy... and that somehow this double negative means that he is immune from any State prosecution for these murders ... Miller acknowledges that this Court took up this same (odd) argument in Mack and explicitly rejected it.
¶ 44 This Court sees no reason to depart from Mack. Proposition I is rejected accordingly.
¶ 45 In Proposition II, Miller challenges the trial court's for-cause removal of 17 prospective jurors at his trial, based upon the court's finding that these jurors were unable or unwilling to consider the death penalty as a possible sentencing option for first-degree murder.
¶ 46 In Witherspoon v. Illinois, 391 U.S. 510, 519, 88 S.Ct. 1770, 1775, 20 L.Ed.2d 776 (1968), the Supreme Court noted that "a jury that must choose between life imprisonment and capital punishment can do little more — and must do nothing less — than express the conscience of the community on the ultimate question of life or death." The Witherspoon Court held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." Id. at 522, 88 S.Ct. at 1777. In Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985), the Supreme Court upheld this Witherspoon holding, but clarified that "the proper standard for determining when a prospective juror may be excluded for cause because of his or her views on capital punishment" is "whether the juror's views would `prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'" Id. at 424, 105 S.Ct. at 852 (quoting Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980)). In Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), the United States Supreme Court recognized that jurors who would never consider sentencing a defendant to death and jurors who would always vote for the death penalty for a first-degree murder conviction are both unfit to serve in a capital case.
¶ 47 Following these cases, this Court has repeatedly held that the standard for capital juror acceptability in Oklahoma is simply whether, in a first-degree murder case where the law and facts make a defendant eligible for the death penalty, each juror will be willing to consider each of Oklahoma's three authorized punishments: the death penalty, life imprisonment without the possibility of parole, and life imprisonment (with parole).
¶ 48 This Court has also acknowledged that "[t]he wrongful exclusion of an eligible juror in a capital case based solely upon that juror's opposition to the death penalty can never constitute `harmless error.'"
¶ 49 Miller's Proposition II claim is that the trial court erred by repeatedly refusing to give his counsel any opportunity to question or attempt to rehabilitate prospective jurors who gave equivocal, confusing, or inconsistent answers regarding their willingness and ability to consider the death penalty.
Id. at ¶ 44, 136 P.3d at 692 (citations omitted).
¶ 50 Voir dire is intended to serve two fundamental purposes in a criminal trial: (1) to allow the parties and the court to determine whether any prospective jurors
¶ 51 We recognize that the trial court is able to assess juror responses to questions firsthand, including non-verbal conduct that may not be memorialized in a transcript, which can be very significant in the capital context.
¶ 52 Voir dire in the current case was conducted as follows. The trial court began
¶ 53 In Proposition II, Miller challenges the "for cause" removal of 17 different prospective jurors from his panel. This Court finds that these 17 jurors can be broken down into three groups: (1) eight jurors who clearly indicated that they could not or would not consider the death penalty — who defense counsel was not allowed to question; (2) two jurors who gave conflicting responses regarding their ability and willingness to consider the death penalty — who defense counsel was allowed to question; and (3) seven jurors who gave equivocal, confusing, or inconsistent responses regarding their ability and willingness to consider the death penalty — who defense counsel was not allowed to question.
¶ 54 This Court recognizes that when a prospective juror's responses to trial court questioning (and on any questionnaire) clearly establish that he or she is ineligible to serve in a capital case — because that juror cannot or will not consider the death penalty or because that juror will "automatically" give the death penalty — it is entirely reasonable to prohibit further questioning of that juror by either party. In the current case, the trial court struck 12 prospective jurors who acknowledged, during the court's initial questioning, that if the defendant was convicted of first-degree murder, they would "automatically impose the penalty of death." Neither party was allowed to question these "automatic" jurors; the State did not object to the for-cause removal of these jurors; and this Court finds that these removals were entirely appropriate.
¶ 55 Similarly, the first group of jurors at issue in Miller's Proposition II claim is made up of jurors who clearly indicated that they could not or would not consider the death penalty. This Court finds that six prospective jurors were struck under circumstances where there was obviously no need for further questioning or "rehabilitation." In particular, this court finds that Juror V.R. (#3), Juror S.R. (#20), Juror M.F. (#28), Juror K.S. (#37), Juror P.P. (#69), and Juror S.W. (#71) were all unequivocal regarding their inability/unwillingness to consider the death penalty. These jurors clearly stated — in both their questionnaires and in answers to trial court questioning — that regardless of the law and the facts at issue, they would not consider the death penalty. This Court further finds that Juror R.J. (#59) should likewise be considered to be
¶ 56 Juror J.C. (#5) was unique among all the prospective jurors questioned at Miller's retrial, since she had already served as a juror in a capital case and had actually voted to sentence a defendant to death. Miller's counsel vigorously asserted that he should be allowed to at least question J.C., and he vigorously challenges the trial court's denial of this opportunity on appeal. Nevertheless, upon reviewing the record as a whole, this Court cannot find that the trial court abused its discretion in striking J.C. without allowing defense counsel (or the State) any opportunity to separately question her. Although J.C.'s prior experience as a capital juror suggested that she "could" consider a death sentence — since she had done it before — she clearly did not want to serve in another death penalty case. More importantly, J.C.'s statements that her current reservations about the death penalty were so strong that she would never again be able to sentence someone to death were enough to support the trial court's decision to strike her for cause, without allowing party questioning. Despite her past experience as a capital juror, J.C.'s answers, as a whole, in her questionnaire and at trial, were consistent and clear regarding her strong reservations about the death penalty and her belief that she could not (again) consider sentencing someone to death.
¶ 57 Because the record clearly established that these eight jurors were unable or unwilling to consider the death penalty, there was no reason to allow "rehabilitation" of these jurors by defense counsel.
¶ 58 The second group of "struck-for-cause" jurors within Miller's Proposition II claim consists of the two jurors who gave conflicting responses regarding their ability/willingness to consider the death penalty, but whom defense counsel was allowed to question: Juror D.D. (#60) and Juror E.M. (#45). Juror D.D. indicated on her questionnaire that she was in favor of the death penalty and could return a death penalty verdict. When questioned by the trial court, she again stated that she could consider the death penalty. During defense counsel's sentencing voir dire the next day, however, D.D. noted that she had "really agonized" over the issue overnight and that even though she believed in the death penalty, "I could not sit on a jury and say this person has to die; I couldn't do it." Defense counsel was unable to move D.D. away from her position that she could not consider a death sentence, even after further questioning. Thus the court's decision to strike D.D. for cause was correct and not an abuse of discretion.
¶ 59 Juror E.M. (#45), on the other hand, is a good example of a juror who was very "conflicted" about the death penalty, whose eligibility was difficult to determine.
¶ 60 This Court now takes up the "third group," i.e. the jurors who are the heart of Miller's Proposition II claim. Seven jurors were struck for cause at Miller's trial for being unable or unwilling to consider the death penalty — without defense counsel being allowed any opportunity to question or attempt to rehabilitate them — even though these jurors gave equivocal, confusing, or inconsistent responses regarding their ability and willingness to consider the death penalty.
¶ 61 Juror A.A. (#10) was in the first group of prospective jurors questioned at Miller's retrial (Group Yellow A). A.A. gave contradictory answers on her questionnaire regarding her willingness to consider the death penalty, which appear even more confusing and unclear in light of her answers
¶ 62 When the trial court completed its questioning of Group Yellow A, the court announced that it intended to excuse Juror A.A., as well as two other jurors. Defense counsel objected to the removal of all three and argued, at length, that he should at least be able to question A.A. and the other two jurors (one of which, i.e., Juror J.C., had previously served as a capital juror and voted for the death penalty). The court noted that it had reviewed the questionnaires of all three jurors and that "all of these jurors that we are talking about — Juror No. 10 [A.A.], not as much as Jurors No. 5 [J.C.] and 3 [V.R.] — made it very well-known in their questionnaires that they were completely unable to even consider the option of death." The court then announced it was striking all three jurors for cause and ordered the parties "not to ask any of those ladies any additional questions when they return to court."
¶ 63 Defense counsel then pointed out that A.A.'s questionnaire indicated she could assess the death penalty. The trial court responded:
Group Yellow A was then brought back into the courtroom, and the parties were allowed to conduct their own, quite extensive sentencing voir dire of the nine other prospective jurors, amounting to over 100 transcript pages.
¶ 64 Juror A.A. said only nine words on the record at trial and was never asked to explain the inconsistencies within her questionnaire or the inconsistencies between her questionnaire answers and her in-court answers. It is hard to understand how the trial court could have come to the conclusion that A.A. "made it perfectly clear to us" that she would not consider the death penalty, when she said so little in court and was never asked about the very contradictory answers she had given — even though the trial court acknowledged the strangeness of her questionnaire answers. Juror A.A. is the kind of juror who absolutely required more questioning in order to determine if she was an eligible capital juror. It is possible that further questioning would have revealed that since filling out her questionnaire, A.A. had reflected further and come to the personal conclusion that she was unable or unwilling to consider the death penalty; and her for-cause removal at that point would have been appropriate. But defense counsel was not allowed to ask A.A. why her in-court statements were so different from her questionnaire answers — or how to make sense of her inconsistent questionnaire answers in the first place.
¶ 65 This Court finds that Juror A.A.'s answers regarding her willingness to consider the death penalty were equivocal, inconsistent, and also confusing. Consequently, we further find that the trial court abused its discretion by denying defense counsel any opportunity to question and attempt to rehabilitate A.A., despite repeated requests from counsel to do so.
¶ 66 The importance of determining whether prospective jurors are eligible capital jurors dictates that when the record is unclear or inconsistent regarding the capital eligibility of a particular juror (such as A.A.), it is much more important to allow the parties to question that juror about his or her eligibility — whether he or she is able and willing to consider all three punishments options — than it is to allow the parties almost unbounded sentencing voir dire on other related topics (as occurred in this case). While trial courts have broad discretion to set limits on party sentencing voir dire regarding other death-penalty related issues, trial courts must ensure that adequate voir dire is allowed in order to confidently and correctly determine whether individual prospective jurors are eligible capital jurors.
¶ 67 This Court finds that the trial court also abused its discretion by denying defense counsel any opportunity to question Juror B.S. (#18),
¶ 68 This Court recognizes that denying defense counsel any opportunity to question prospective jurors regarding their capital eligibility is particularly troubling when the State has been allowed to question these same jurors — especially when the State was able to successfully use its own voir dire questioning to convince the trial court to strike these jurors "for cause" (for being unable/unwilling to consider the death penalty), even though these jurors had already "passed" the trial court's own initial, capital-eligibility screening. On at least three occasions during Miller's retrial, the trial court reviewed the questionnaire of the prospective juror at issue, questioned the juror in open court, determined that the juror was an eligible capital juror, allowed the State to question the juror — during which questioning the juror gave answers suggesting that he or she was not able/willing to consider the death penalty — and then granted the State's request to strike the juror for cause, after denying defense counsel's request to question and attempt to rehabilitate that same juror.
¶ 69 In other words, on at least three occasions the trial court allowed the State to use its voir dire questioning to show that a juror who had some misgivings regarding the death penalty (but whom the trial court had found to be "capital-eligible") should be struck "for cause" from the panel, without allowing defense counsel any corresponding opportunity to use further questioning to show that despite these misgivings, this same juror was, in fact, an eligible capital juror, who could and would consider all three sentencing options. As noted in the preceding section (regarding jurors whom both parties were allowed to question), this back-and-forth process is a familiar and common scenario within capital sentencing voir dire. And as long as both parties are given a fair and adequate opportunity to question the "waffling" jurors at issue — who often struggle mightily to honestly answer the morally difficult and sometimes confusing questions at issue — this process is consistent with due process and a defendant's 8th Amendment right to a reliable sentencing.
¶ 70 On the other hand, allowing the State to use its voir dire questioning to "establish" that a seemingly capital-eligible juror should, in fact, be struck for cause (for being unable/unwilling to consider the death penalty), without allowing defense counsel any opportunity to even attempt to establish, through counsel's own voir dire questioning, that the same juror should not be struck for cause raises serious due process and 8th Amendment reliability concerns. This Court finds that this happened at least three times during Miller's retrial.
¶ 71 Juror S.S. (#16) gave responses on her questionnaire that suggested she was quite opposed to the death penalty and would likely be ineligible to serve in a capital case. When she was initially questioned by the court at trial, however, S.S. indicated that she could consider all three punishments. After S.S. survived this initial round of questioning, the State questioned her and challenged S.S. on whether she could actually consider the death penalty. S.S. became confused and flustered, but then acknowledged her questionnaire responses and indicated that she couldn't consider the death penalty. The trial court, noting the inconsistency of S.S.'s responses, later re-questioned her. This time, after indicating that she had been "listening and listening," S.S. indicated she could consider the death penalty and that if the defendant "really done it," she could and would consider the death penalty. Nevertheless, when the State was allowed to question S.S. a second time (and review her questionnaire), S.S. eventually stated that she could not "consider and actually return a verdict of death."
¶ 72 At a bench conference immediately following this questioning, the trial court granted the State's request to strike S.S. for cause and denied multiple requests by defense counsel to voir dire S.S. — even though the State had been given two opportunities to question S.S., while defense counsel had no
This Court finds that S.S.'s "back-and-forth" answers were equivocal and inconsistent; hence defense counsel should have been allowed to question her. Denying defense counsel this opportunity was particularly inappropriate after the State was given two chances to question S.S. Thus the trial court abused its discretion when it denied defense counsel's repeated requests to question S.S.
¶ 73 Juror S.G. (#43) indicated on his questionnaire that he was in favor of the death penalty, adding, "If he committed the crime he should take the punishment." S.G. also noted that he personally could return a death sentence. When questioned by the court at trial, S.G. again stated that he could consider the death penalty. When questioned later by the State, however, about whether he could give "meaningful consideration" to all three penalties, S.G. stated, "I don't think I could do the death."
¶ 74 Juror J.V. (#51) gave answers on his questionnaire suggesting that he was very favorable toward the death penalty. He indicated that he was in favor of the death penalty for premeditated murder, but that for "an accidental death [it] would depend on circumstances."
When the State asked that J.V. be struck for cause on this basis, defense counsel objected and requested an opportunity to question J.V. The court denied this request, found that J.V. was "unequivocal" in his unwillingness to consider the death penalty, and struck him for cause on this basis. Once again, this Court finds that J.V. was not unequivocal and that the trial court abused
¶ 75 This Court concludes that the trial court abused its discretion by refusing to allow defense counsel any opportunity to question or attempt to rehabilitate Jurors A.A., B.S., R.L., L.D., S.S., S.G., and J.V., because these prospective jurors gave equivocal, confusing, and inconsistent responses regarding their ability and willingness to consider the death penalty. Furthermore, defense counsel was denied this opportunity regarding Jurors S.S., S.G., and J.V., even though the State was allowed to question these jurors. This Court finds that this violated due process and Miller's 8th Amendment right to a reliable sentencing. Hence Miller is entitled to sentencing relief on his Proposition II claim.
¶ 76 This Court recognizes that defense counsel will often be unable to rehabilitate equivocal/inconsistent jurors to the point that they will clearly state (and maintain) that they would be able and willing to consider imposing the death penalty in an appropriate case. Similarly, prosecutors will often be unable to rehabilitate prospective jurors who are inclined to give the death penalty in all (or nearly all) first-degree murder cases. Nevertheless, if both parties are allowed to question prospective jurors whose statements in court and on any questionnaire suggest that they may be ineligible to serve, this party voir dire could potentially make the eligibility/ineligibility of these jurors clear — thereby allowing the court to confidently and correctly rule on any motions to excuse these jurors for cause. On the other hand, if further questioning merely results in further demonstrating that a particular juror is unable to come to a definitive conclusion regarding his or her ability and willingness to consider all three penalties, the juror's answers will still give the trial court further opportunity to observe and evaluate the juror, in order to make a ruling on that juror's capital eligibility. And trial court rulings that are based on more juror answers and more observation are rightfully accorded more deference on appellate review.
¶ 77 In Proposition III, Miller asserts that it was reversible error for the trial court to deny defense counsel individual, sequestered voir dire. The State concedes that Miller adequately preserved this claim in the trial court. Nevertheless, Miller candidly acknowledges that this Court has never held that individual, sequestered voir dire is required in all capital cases. Although this Court has "encouraged" the use of jury questionnaires and individual voir dire in capital cases, "we have consistently refused to require trial courts to use questionnaires or individual voir dire" and have held that the decision whether to use either of these tools is within the discretion of the trial court.
¶ 78 Although Miller makes general arguments about the value of individual, sequestered voir dire, he cites no specific examples from his 2008 retrial suggesting that the refusal to provide such voir dire was inhibiting or prejudicial in his case. This Court notes that the use of jury questionnaires at Miller's retrial gave prospective jurors a valuable opportunity to candidly express their views on the death penalty and to provide personal background information, before even coming into court and being questioned along with other jurors. In addition, the trial court brought jurors in for voir dire in groups of twelve, rather than all at once, thereby limiting the potentially stifling impact of other jurors on any one juror's candor. This Court does not hesitate to conclude that the trial court did not abuse its discretion by refusing to provide individual,
¶ 79 In Proposition IV, Miller attempts to assert that the trial court abused its discretion in not allowing defense counsel to question jurors about whether they would consider all three penalty options even for a defendant who had murdered two victims. Miller would like to bring his case within the ambit of Jones v. State, 2006 OK CR 17, 134 P.3d 150, wherein this Court held that in a capital murder case involving two (or more) counts of first-degree murder, a defendant must be allowed to ask prospective jurors whether they would be willing to consider a sentence other than death for a defendant who had killed more than one victim.
¶ 80 However, Miller did not make or preserve this claim in the trial court. While questioning Juror M.D. (#66), defense counsel asked whether M.D. would consider someone to be "a weak juror" if he or she couldn't vote for the death penalty in a case where two innocent victims were killed. After M.D. indicated that she would not consider such a juror "weak," the trial court asked the parties to approach for a bench conference and challenged defense counsel about "getting into specifics." Rather than disagreeing with the trial court in this regard, however, defense counsel asserted that it was not his "intention" to get into specifics and raised no objection regarding the court's admonition that he "back off from specifics about this case" and "move along."
¶ 81 In Proposition V, Miller asserts that the evidence presented at trial was insufficient to convict him of the first-degree murders of Mary Bowles and Jerald Thurman. This Court evaluates such sufficiency claims by determining "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."
¶ 82 Miller notes, quite correctly, that the evidence presented at his 2008 trial was rather different from the evidence presented at his 2002 trial, which included substantial testimony from Rashad Barnes about things Hanson told Barnes.
¶ 83 Nevertheless, the evidence presented at Miller's 2008 retrial was more than sufficient to support his convictions for the first-degree murders of Thurman and Bowles. This Court acknowledges that the evidence presented at Miller's 2008 retrial regarding his involvement in these murders was overwhelmingly circumstantial and that no eyewitness testimony was presented regarding the actual shootings of the victims; nor was there any evidence that Hanson or Miller confessed or implicated each other. Yet this Court has already recognized that such direct evidence — i.e., eyewitness testimony, accomplice testimony, confession evidence, etc. — is itself not always the most reliable evidence and that circumstantial evidence can be more than sufficient to establish the commission of a crime by a defendant.
¶ 84 In Pavatt v. State, 2007 OK CR 19, ¶ 36, 159 P.3d 272, 285, this Court noted that fingerprint evidence and DNA evidence are both "merely" circumstantial evidence, yet the compelling nature of this kind of evidence to establish either guilt or innocence is widely recognized and accepted. In the current case, Miller himself accepted the fact that the State's fingerprint evidence established that he had touched the passenger-side seatbelt buckle in Bowles' car — and proceeded to try to explain why he had done so. Miller also specifically accepted that the State's ballistics evidence — which is also circumstantial evidence — established that Thurman was shot with the silver .38 (State's Exhibit 52) and that Bowles was shot with the black 9-mm (State's Exhibit 53). We recognize again here, as we recognized in Pavatt, as follows:
Id. at ¶ 36, 159 P.3d at 285. This Court finds that Miller's jury had plenty of evidence to support his convictions in the current case.
¶ 85 Regarding Miller's sufficiency challenge on appeal, Miller's jury was made quite aware of the limits of Sundeep Patel's testimony and that although Patel could convincingly identify Hanson as arriving at the Oasis Motel (in Bowles' car) shortly after 6:00 p.m. on August 31, 1999, Patel could not identify Miller as the man with Hanson that evening. Yet Miller's fingerprint was found in Bowles' car, in a location that Miller's testimony could not convincingly explain, and Hanson and Miller were clearly involved in a whole series of crimes (mostly robberies) as a two-person crime team during this time period. In addition, the State's evidence established that Miller customarily used the silver .38, which was used to kill Thurman, and that Hanson customarily used the black 9-mm, which was used to kill Bowles. And these two men — and no one else — were arrested together at a Muskogee motel on September 9, 1999, after robbing the Tulsa Federal Employees Credit Union one day earlier, still together and still in possession of these same guns, i.e., the murder weapons.
¶ 86 Furthermore, although Miller's jury was made quite aware of the limits of Phyllis Miller's testimony (and credibility problems and her own involvement with certain robberies), her basic testimony about the series of events leading up to Miller's departure with Hanson on August 31, 1999, Miller's behavior after his return to their motel room
¶ 87 Looking at the evidence in the light most favorable to the State, this Court does not hesitate to conclude that the evidence presented during Miller's 2008 retrial was more than sufficient to support his convictions for two counts of first-degree murder. Miller's jury had more than enough evidence to conclude that he himself shot Thurman and that he aided and abetted in the shooting of Bowles by Hanson. Proposition V is rejected accordingly.
¶ 88 In Proposition IX, Miller argues that the trial court's admission of "other crimes" evidence at trial — specifically, evidence regarding his involvement in four armed robberies during late August and early September of 1999 — violated his right to due process and a fair trial. Miller repeatedly challenged the admission of this evidence at trial, and the State does not contest that he adequately preserved this claim at trial. This Court reviews a trial court's decision to admit such "other crimes" evidence for an abuse of discretion.
¶ 89 This Court has repeatedly recognized that any criminal conviction obtained through a trial must be based upon evidence establishing that the defendant committed the charged crime(s), rather than evidence of other offenses.
¶ 90 In the current case, the trial court explicitly ruled that the evidence regarding Miller's involvement in the armed robberies was being admitted to help establish the identity of Miller as one of the perpetrators in the Thurman and Bowles homicides. The identity of the killer(s) of these victims was the major factual question at issue. Miller and Hanson were connected to the murders primarily by their fingerprints in Bowles' car and by the fact that they were found together, along with the murder weapons, at the Muskogee EconoLodge. Although Hanson was further connected with Bowles' car by the testimony of Sundeep Patel, Patel could not identify Miller as the man with Hanson on August 31, 1999. Thus it was critical that Miller be substantially connected with the murder weapons, particularly with the silver.38 used to kill Thurman, since this was the gun that Miller's wife testified he used and kept with him at the time.
¶ 92 The armed robbery evidence was probative on the critical issue of Miller's identity and was necessary to support his convictions. The evidence of these armed robberies was clear and convincing and was "visibly connected" to the murder charges at issue, through the use of the same guns by the same partners in crime. And the probative value of this evidence outweighed the potentially unfair prejudice resulting from its admission, particularly since no one was significantly injured or killed during the robberies. Miller's brief confuses the "identity" value of the robbery evidence in his case with cases involving other crimes evidence offered to establish a "highly peculiar method of committing a crime."
¶ 93 Rather, the connection between the armed robbery "other crimes" evidence and the murder charges at issue herein is primarily the use of the same distinctive guns by the same two men acting together.
¶ 94 In Proposition X, Miller challenges the State's use of "substitute" expert testimony at his 2008 trial, in particular, the State's use of substitute autopsy testimony and substitute ballistics testimony. Miller begins by arguing that the testimony of medical examiner Dr. Ronald Distefano, as a substitute for the medical examiner testimony of Dr. Mary Anzalone — who actually performed the autopsies of both victims and who testified at Miller's original trial in 2002 — violated his Sixth Amendment right to confront the witnesses against him. Miller then argues that the State's use of Mark Boese as a "ballistics expert" at his 2008 trial, as a substitute for the testimony of Dennis Fuller — who testified at Miller's 2002 trial — likewise violated his Sixth Amendment right to confront the witnesses against him. We will take up the State's use of these two substitute
¶ 95 Miller focuses his Proposition X claim upon the United States Supreme Court's decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which was decided prior to his 2008 retrial, and Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), which was decided afterward. The Court's landmark decision in Crawford emphasized that a defendant's right to cross-examine the witnesses against him is "the centerpiece of the Sixth Amendment's confrontation right."
¶ 96 In its 2009 decision in Melendez-Diaz, the Supreme Court further clarified the meaning and reach of Crawford, finding that an analyst's "certificate of analysis" (stating that a particular tested substance is cocaine or any other drug) is essentially an affidavit, which declares certain facts to be true about the tested substance.
¶ 97 In Bullcoming v. New Mexico, ___ U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), the Supreme Court held that the Confrontation Clause was violated when the prosecution introduced a forensic laboratory report certifying that the defendant's blood-alcohol concentration was well above the threshold required for aggravated DWI (driving while intoxicated), through the testimony of an analyst who was familiar with the procedures of the testing laboratory, but had not participated in or observed the testing of Bullcoming's blood.
¶ 98 This Court has followed the lead of the United States Supreme Court in its recent decisions in this area.
¶ 99 With this legal background, we review what occurred at Miller's 2008 retrial. Dr. Mary Anzalone and Dr. Ronald Distefano were both employed as medical examiners for the Tulsa Medical Examiner at the time of the September 1999 autopsies of Bowles and Thurman, but it was Dr. Anzalone who
¶ 100 It was clear prior to and throughout the testimony of Dr. Distefano that his testimony regarding the autopsies of Bowles and Thurman consisted almost entirely of presenting Dr. Anzalone's findings and conclusions. Although Dr. Distefano also testified regarding general principles of forensic pathology, all of his testimony regarding Bowles and Thurman was based upon his review of Dr. Anzalone's files regarding these victims, which included her autopsy reports, diagrams, notes, photographs, and x-rays taken of the bodies. Dr. Distefano noted that he was provided with "the prior testimony of Dr. Anzalone regarding her findings" and that he reviewed this testimony in order to be prepared "to present to this jury what Dr. Anzalone's findings were regarding the autopsy of Mary Bowles" and "to also be able to relay what Dr. Anzalone's findings were regarding the cause of death of Jerald Thurman." Dr. Distefano repeatedly referred to Dr. Anzalone's autopsy reports and notes during his testimony and also used some of her diagrams as demonstrative exhibits at trial. On the other hand, the only exhibits actually put into evidence from Dr. Anzalone's file were two digital photographs of x-rays taken of the victims, which were used to show the locations of the bullets found in the victims.
¶ 101 Miller's counsel objected to Dr. Distefano's testimony, but on two specific grounds that are not the same as his current Crawford challenge.
¶ 102 On the other hand, prior to Dr. Distefano's testimony, the State described Dr. Anzalone as "unavailable," and the district attorney stated that he had attempted to contact her, but had been unable to locate her.
¶ 103 Surprisingly, defense counsel did not then challenge Dr. Distefano's "personal knowledge" of the autopsies at issue, but instead objected that Dr. Anzalone was not truly "unavailable" and that the State had not exercised "due diligence" to obtain her testimony — since Dr. Distefano had testified that he remained in contact with Dr. Anzalone. The trial court again noted that it "never declared [Dr. Anzalone] unavailable" and that such a finding was not part of the court's ruling allowing Dr. Distefano's testimony.
¶ 104 Hence Miller did not properly preserve his current Confrontation Clause challenge to Dr. Distefano's substitute medical examiner testimony at trial. Although he raised other objections to Dr. Distefano's testimony, Miller did not raise the Sixth Amendment claim now being argued on appeal. Consequently, Miller has waived this claim regarding the testimony of Dr. Distefano, and we will review the current claim only for plain error.
¶ 105 On the other hand, this Court cannot ignore the clear and binding state of Confrontation Clause law as it currently exists in this country and in this State. Under these authorities (some decided well after Miller's 2008 retrial, but still binding upon his direct appeal), it is quite clear that it violated Miller's Sixth Amendment right to confront and cross-examine the witnesses against him to allow Dr. Distefano to present the autopsy findings of Dr. Anzalone, particularly since the trial court explicitly declined to find that Dr. Anzalone was "unavailable." (And there is uncertainty in the record regarding whether or not she was truly "unavailable.") We note that the current case is unlike the authorities relied upon by Miller in the important respect that he did have a prior opportunity to cross-examine Dr. Anzalone — and in an actual trial context — at his first trial in 2002. Nevertheless, because the current state of the law so clearly establishes that it violated the Confrontation Clause to allow Dr. Distefano to give voice to the analysis, findings, and conclusions of Dr. Anzalone in the manner that he did, we find that the trial court committed plain error in this regard. While it may have been entirely appropriate to have Dr. Distefano present the transcript testimony of Dr. Anzalone from Miller's 2002 trial — if she was unavailable to testify, as was done with various other unavailable witnesses during Miller's retrial — it clearly violated the Confrontation Clause to allow Dr. Distefano to testify as he did in this case.
¶ 106 This Court must now decide whether the constitutional error in this regard was, nevertheless, harmless beyond a reasonable doubt.
¶ 107 This Court notes that although there were many issues of contentious dispute in this highly-circumstantial, double-first-degree murder case, neither the competency of the medical examiner who conducted the autopsies, nor her conclusions about the cause of each victim's death were a matter of dispute at Miller's trials. The primary purpose of the medical examiner testimony at Miller's trials was to establish that both victims had multiple gunshot wounds and that one or more of these wounds caused the death of both victims.
¶ 108 This Court concludes, beyond a reasonable doubt, that the Confrontation Clause violation of allowing Dr. Distefano to present the autopsy findings and analysis of Dr. Anzalone at Miller's 2008 retrial was harmless. Although this approach to presenting Dr. Anzalone's findings and analysis clearly violated Miller's constitutional right to confront and cross-examine the witnesses against him — since Dr. Anzalone was not found to be "unavailable" — the actual content of Dr. Anzalone's findings and analysis was not a matter of dispute. This Court finds that even if the medical examiner evidence had been eliminated from Miller's 2008 retrial, it would not have changed the ultimate result of this trial.
¶ 109 Regarding Thurman, the State's other evidence established the discovery of a bleeding and unconscious Thurman at the dirt pit, the nature of his readily apparent (gunshot) injuries, the fact that he never regained consciousness and died two weeks later, and the fact that two bullets were recovered from his body — both of which were fired from a gun that was found in the hotel room where Miller and Hanson were arrested and that this same gun was regularly used and possessed by Miller at that time. Regarding Bowles, the State's other evidence likewise established her disappearance, the discovery and condition of her body, the circumstances surrounding the discovery of her car at the Oasis Motel (which contained a
¶ 110 This Court finds that Miller would have been convicted of both first-degree murder counts even without the medical examiner testimony. This Court further finds, beyond a reasonable doubt, that the medical examiner testimony at issue was not relevant to the aggravating circumstances alleged in the case and did not contribute to Miller's death sentences.
¶ 111 We turn now to the second portion of Miller's Proposition X claim, in which he challenges the forensic firearms identification testimony of Mark Boese, which matched the guns found with Miller and Hanson to the bullets found in the victims.
¶ 112 Once again, Miller did not object to Boese's testimony on the ground now raised, i.e., that Boese's "substitute testimony" violated his Confrontation Clause right to confront and cross-examine Fuller. Hence we review the current claim for plain error only.
¶ 113 Boese's testimony did not violate Miller's Sixth Amendment right to confront and cross-examine the witnesses against him. Boese testified about his experience and expertise in the field of forensic firearms identification, his familiarity with Fuller as a co-worker and qualified expert in this field, and how he reviewed the report generated by Fuller, but then did his own independent examination of the same evidence. Boese then testified that the two .38 bullets recovered from the body of Thurman matched the test-fired bullets from State's Exhibit 52 (the
¶ 114 This Court has found a harmless violation of the Sixth Amendment regarding the testimony of Dr. Distefano at Miller's retrial, and we now find that Boese's testimony did not violate Miller's constitutional right to cross-examine the witnesses against him. Miller's Proposition X claim is rejected accordingly.
¶ 115 In his Pro Se Proposition III claim, Miller asserts that the trial court erred in allowing Mark Boese to testify as a firearms expert at his retrial. This Court has already concluded that the trial court did not abuse its discretion in allowing Boese's forensic firearms identification testimony at Miller's retrial. Miller now proffers, in connection with his pro se Supplemental Application for Evidentiary Hearing, a newspaper article about Boese's subsequent termination from the Tulsa Police Department's forensic laboratory (Exhibit 3). This Court notes that Boese's testimony at Miller's retrial was entirely consistent with the testimony of firearms expert Dennis Fuller at Miller's original trial. Miller offers nothing to suggest that Boese's analysis in his case was unreliable or improperly conducted. Consequently, Miller fails to show any entitlement to an evidentiary hearing in this regard, and his Pro Se Proposition III claim regarding Boese's testimony is likewise rejected accordingly.
¶ 116 In Proposition XI, Miller claims that prosecutorial misconduct violated his right to due process and a fair trial. In particular, Miller raises the following claims of prosecutorial misconduct: (1) improper reference to "other crimes," (2) unnecessarily theatrical behavior, (3) improper assertion of personal opinion, (4) improper argument that a sentence less than death would be "meaningless," (5) improper appeal to jury sympathy, and (6) improper reference to a "diminished" presumption of innocence.
¶ 117 This Court has already rejected Miller's Proposition IX challenge to the "other crimes" evidence admitted at his trial. The only additional example of such evidence cited in Proposition XI is that while cross-examining Miller at trial, the prosecutor asked if Miller had previously testified "in an unrelated case ... for a guy by the name of Summers, Phillip Summers," and whether that other case was "a double murder case." Defense counsel objected on the basis of relevancy, arguing that the State was attempting to associate Miller with other homicides, and the trial court instructed the jury that it should disregard the fact that prior testimony by Miller "was in a murder case." The prosecutor then attempted to establish that Miller had personal animosity toward
¶ 118 Miller also challenges the unnecessarily "theatrical behavior" of the district attorney during his cross-examination of Miller.
¶ 119 In the third part of his prosecutorial misconduct claim, Miller objects to some stumbling language in the district attorney's final, first-stage closing argument, asserting that it constituted an improper expression of the prosecutor's personal opinion.
¶ 120 In the fifth part of his prosecutorial misconduct claim, Miller argues that the prosecutor improperly appealed to juror sympathy for the victims within his final first-stage argument to the jury. The challenged argument came up after the district attorney noted that because of Miller's federal sentence of life plus 157 years, "he ain't ever getting out."
¶ 121 This Court finds that the challenged prosecutorial remarks consisted mainly of an argument that the State was pursuing the case against Miller — despite the fact that he would never get out of federal prison — because it would be unfair/"unjust" to the victims not to pursue the case, because it was important for "the truth" about the murders of Thurman and Bowles to be established by verdicts in a criminal court. In the specific circumstances of this case, this was not misconduct, nor did it make Miller's retrial unfair.
¶ 122 Finally, in the sixth part of his prosecutorial misconduct claim, Miller argues that the district attorney's reference to a "diminished" presumption of innocence, during his final, first-stage closing argument, was improper and violated his right to a fair trial. The challenged remarks are as follows:
Defense counsel did not object. Hence this Court reviews only for plain error.
¶ 123 The parties raise a number of cases, with Miller claiming that this argument is similar to prosecutorial remarks that have been found improper and the State claiming that this argument is more akin to remarks that this Court has found acceptable. This Court concludes that although the meaning of the district attorney's remarks is not totally clear, his remarks are comparable to similar remarks that this Court has found inappropriate. In particular, the remarks are similar to remarks found to be "an unconstitutional restatement of the presumption of innocence" in Miller v. State, 1992 OK CR 77, ¶ 4, 843 P.2d 389, 390.
¶ 124 It appears that the district attorney was attempting to argue that the rebuttable presumption of innocence in Miller's case had been successfully rebutted by the State's evidence — and that the jury should find, on the basis of this evidence and beyond a reasonable doubt, that Miller is guilty. Unfortunately, this is not what the district attorney said. And to say that the presumption of innocence has been "diminished" and "no longer exists" is not the same thing as saying that this presumption has been "rebutted." Consequently, we find that the district attorney's argument was improper and clearly so.
¶ 125 Nevertheless, we do not further conclude that the guilt-stage of Miller's trial was rendered fundamentally unfair thereby or that the jury's first-stage guilty verdicts are unreliable. This Court emphasizes, in this regard, that the prosecutor's remarks were not objected to by defense counsel, that they were isolated and not emphasized at Miller's retrial, and that Miller's jury was clearly and properly instructed regarding the presumption of innocence.
¶ 126 In his Pro Se Proposition I claim, Miller raises two additional prosecutorial misconduct claims regarding the guilt stage of his trial. In Pro Se Proposition I, Miller asserts that the prosecutor committed misconduct at his trial by knowingly presenting the "false" testimony of Sundeep Patel and by falsely claiming that Phyllis Miller was not made any promises in return for her testimony. As noted supra, we evaluate such claims to determine whether the challenged action so infected the defendant's trial
¶ 127 Miller argues at length in his pro se brief that Patel's testimony was "false," to the extent that Patel claimed that his view of the second black man in the Oasis Motel lobby (i.e., the man with Hanson on August 31, 1999) was somehow "obstructed." This Court has already addressed the testimony of Patel at length. Defense counsel did a good job at trial of impeaching certain aspects of Patel's testimony, of demonstrating that his original description of the second man was rather different than Miller (particularly regarding his weight), and of establishing that Patel would have been able to see anyone standing in the hotel's tiny lobby — if he had wanted to do so and was paying attention. Miller fails to establish that Patel's retrial testimony was "false" or that the prosecutor committed misconduct in presenting this testimony. Miller's jury was made well aware of the limited value of Patel's testimony, and his trial was not rendered fundamentally unfair by the use of this testimony.
¶ 128 Miller also argues (pro se) that the prosecutor falsely claimed that Phyllis Miller "received no promises in return for her testimony." Although Miller may sincerely believe that Phyllis was promised some kind of "deal" in exchange for her testimony, he presents no evidence that this is the case. The State clearly acknowledged (during its first-stage closing argument) that Phyllis was involved in a number of the robberies committed by Miller and Hanson and that she could have been prosecuted for those robberies, but that the State chose to use her as a witness, rather than prosecute her as a defendant. It should be noted in this regard (and Miller's jury learned at his retrial) that Phyllis had to be arrested on a material witness warrant in Texas to obtain her testimony at Miller's retrial.
¶ 129 In Proposition XIII, Miller argues that the trial court abused its discretion by allowing the rebuttal testimony of Detective Michael Nance at trial. Defense counsel properly preserved this issue, by objecting to Nance's rebuttal testimony. This court notes that Nance was not actually a "surprise witness," since he was one of the lead detectives in the Thurman and Bowles homicide investigations, and he testified within the State's case in chief. We review the trial court's decision to allow Nance to testify as a rebuttal witness for abuse of discretion.
¶ 130 The defense presented only one witness at trial: Victor Miller himself. During his direct testimony, Miller maintained that on the day of his big argument with Phyllis, he drank beer and got high on cocaine in Sherry Carter's room, before returning to the Motel 6 room that he and Phyllis shared. When asked about Phyllis' testimony that he was acting very paranoid and looking out the window when he returned that night, Miller testified that this was "very possible." Miller continued, "I mean, I was smoking cocaine. I mean, cocaine do that. It makes you look out the window and imagine cocaine on the floor and all kinds of stuff, man, you know." Miller also testified on direct that he had used drugs on and off throughout most of his life.
¶ 131 During cross-examination, Miller acknowledged that he had not previously claimed that he smoked cocaine on the night
¶ 132 After Miller finished testifying, the State asserted that it wanted to call Detective Michael Nance to testify as a rebuttal witness. The trial court allowed both parties to argue (at length and outside the presence of the jury) about the propriety of Nance testifying as a rebuttal witness. The court ultimately ruled that Nance would be allowed to testify about the finding of the copper pad in Bowles' car, but not about the fact that he associated such copper padding with drug use. Detective Michael Nance then testified that Exhibit 115 was a photograph of a bag and a Brillo pad that were found in Bowles' car.
¶ 133 Miller argues that Nance's testimony was not proper rebuttal testimony and that it should not have been allowed.
¶ 134 This Court finds that whether or not Miller was ever in Bowles' car prior to the morning of September 1, 1999 — when Phyllis drove him to the Oasis Motel, and he wiped the car down with a blue rag — was one of the major factual disputes at trial. And Miller's first-stage testimony about his frequent use of crack and other forms of cocaine in 1999, about using cocaine on the night of his fight with Phyllis, that Hanson did not use crack, and then his recognition of Exhibit 115 as a photograph of the kind of copper padding that he associated with smoking crack in a pipe — and that he himself had used such padding in this way — all made Exhibit 115 and Nance's rebuttal testimony relevant and probative as further evidence that Miller (and not just Hanson) was in Bowles' car prior to the time it was left at the Oasis Motel.
¶ 135 This Court finds that the trial court did not abuse its discretion by allowing the rebuttal testimony of Nance. In addition, we find that any error in this regard would be harmless beyond a reasonable doubt, since Miller's only connection to the copper padding found in Bowles' car was his familiarity with its potential use in a crack pipe. There was no other "drug evidence" found in Bowles' car, nor was there any evidence otherwise linking Miller to the paper sack or copper wiring pictured in Exhibit 115. Proposition XIII is rejected accordingly.
¶ 136 In Proposition VI, Miller argues that the trial court committed plain error by failing to instruct his jurors that they were required to give separate consideration to the two first-degree murder charges at issue. In particular, Miller argues that the trial court should have instructed the jury with an instruction similar to the one discussed in Smith v. State, 2007 OK CR 16, ¶ 38, 157 P.3d 1155, 1168-69. Miller relies upon a 2010 unpublished opinion from this Court to support his claim that the trial court should have crafted this kind of instruction in the current case — despite the failure of his counsel to even request such an instruction. In fact, Miller is raising precisely the same claim that this Court rejected in Taylor v. State, 2011 OK CR 8, 248 P.3d 362.
¶ 137 We note that on January 25, 2011, this Court adopted various revisions to our uniform instructions for criminal cases. See In re: Adoption of the 2010 Revisions to the Oklahoma Uniform Jury Instructions — Criminal (Second Edition), 2011 OK CR 2. These revisions include a new uniform instruction specifically informing jurors that they must give "separate consideration" to each charge in a case. See OUJI-CR(2d) 9-6A.
¶ 138 In Proposition VII, Miller asserts that the district court erred in refusing to instruct his jury on the lesser offense of "accessory after the fact to first-degree murder." See 21 O.S.1991, § 173.
¶ 140 This Court finds that the trial court properly declined to instruct Miller's jury on the defense of accessory after the fact to first-degree murder. Miller's defense at trial was that he was totally innocent of the 1999 murders of Bowles and Thurman and that he did not know anything about the murders at the time or shortly afterward — not that he was an "accessory after the fact." Even at his 2008 retrial, Miller claimed he had "no idea" whether Hanson was involved in the murders. Although Miller's testimony about wiping down Bowles' car — at the request of Hanson and at a time when Miller knew that Hanson did not own a car — could possibly support a conviction for accessory after the fact to theft of that car, it does not establish a prima facie case of accessory after the fact to first-degree murder. The evidence did not suggest that Miller had no involvement in the murders, but then later learned that Hanson was involved, and then wiped down Bowles' car at Hanson's request, with the intent that Hanson "avoid or escape from arrest, trial, conviction, or punishment." See 21 O.S.1991, § 173.
¶ 141 Thus the current case is quite distinguishable from Glossip, wherein this Court declared that the defendant's jury should have been instructed upon Glossip's chosen defense of accessory after the fact to first-degree murder. Cf. Glossip, 2001 OK CR 21, ¶¶ 6, 29, 29 P.3d at 599, 604 (defendant's defense at trial was that he learned of the murder after the fact, failed to tell police what he knew, and assisted the killer "by helping conceal the murder scene"). This Court finds that the trial court did not abuse its discretion when it rejected Miller's request for a jury instruction on the lesser offense of accessory after the fact to first-degree murder. Proposition VII is rejected accordingly.
¶ 142 In Proposition VIII, Miller argues that the district court's use of the current uniform jury instruction regarding the consideration of circumstantial evidence, OUJI-CR(2d) 9-5, violated his right to due process. The current version of this instruction was promulgated in Easlick v. State, 2004 OK CR 21, 90 P.3d 556.
¶ 143 In Warner v. State, 2006 OK CR 40, 144 P.3d 838, this Court addressed a similar challenge, namely, a claim that applying the Easlick approach to sufficiency-of-the-evidence challenges violated ex post facto principles, equal protection, and due process, since defendant Warner's crimes took place long before Easlick. Id. at ¶ 33, 144 P.3d at 862. This Court recognized in Warner that changes in the law due to judicial construction, such as overturning prior cases, do "implicate[] the Due Process Clause and require[] consideration of ex post facto principles." Id. at ¶ 34, 144 P.3d at 862-63. However, in Warner we soundly rejected the defendant's claim that the Easlick decision is the kind of change in the law that could violate due process or ex post facto
¶ 144 This Court now further finds, for all the same reasons, that using the current version of OUJI-CR(2d) 9-5 in the trials of crimes committed prior to Easlick does not violate due process or ex post facto principles. Jurors prior to Easlick and subsequent to Easlick have been instructed by a separate uniform instruction that "[t]he law makes no distinction between the weight to be given to either direct or circumstantial evidence."
¶ 145 In Proposition XXIII, Miller asserts that he received ineffective assistance of counsel in both stages of his trial.
¶ 146 In particular, Miller asserts that his counsel was ineffective by: (1) failing to object to the prosecutor's "diminished" presumption of innocence argument; (2) failing to object to the prosecutor's (second-stage) "freebie" argument; (3) failing to request that the trial court instruct his jury that the two murder counts must be considered separately; and (4) failing to utilize available evidence to undermine the State's evidence of Miller's guilt.
¶ 147 This Court has already addressed Miller's (Proposition XI) claim about the prosecutor arguing that the presumption of innocence is so "diminished" that it "no longer exists." We concluded that although the district attorney's remarks were improper and plainly so, they did not render Miller's trial fundamentally unfair; nor did the remarks render the jury's first-stage verdicts unreliable. Thus Miller cannot show that he was prejudiced by defense counsel's failure to object to this argument; and we reject Miller's ineffective assistance claim regarding this argument.
¶ 148 Miller's second ineffective assistance claim (failing to object to the prosecutor's "freebie" argument) arose within the second stage of Miller's trial. Hence it is addressed infra, along with Miller's other sentencing-stage claims.
¶ 149 Regarding Miller's argument that his counsel was ineffective for failing to request that his jury be instructed that the two counts of murder must be considered separately, this Court has already held — in response to Miller's (Proposition VI) first-stage jury instruction claim — that it was not plain error for the trial court to fail to give this instruction. We now further find that Miller has shown neither deficient performance nor prejudice in this regard. Hence we also reject Miller's ineffective assistance claim regarding this instruction.
¶ 151 Ultimately, however, a review of the entirety of Phyllis Miller's testimony, in conjunction with the testimony of Victor Miller himself, strongly suggests that although Phyllis may not ever have had a firm grasp of when exactly the Motel 6 argument occurred, this argument did occur and did, in fact, occur on August 31, 1999 — even if Phyllis did not actually remember this date or even when the argument occurred in relation to other events. The combination of Phyllis and Victor Miller's testimony, along with all the other evidence presented at trial, was more than sufficient to establish that the Motel 6 argument occurred on the day of and just prior to the murders of Thurman and Bowles. In particular, the testimony of both Millers that on the day after their argument, Phyllis took Miller to the Oasis Motel — where he wiped down Bowles' car with the blue rag — strongly suggests that the argument must have occurred on August 31, 1999, since Hanson (and Miller) would not have allowed Bowles' non-operational, stolen vehicle to sit at the Oasis Motel for multiple days after her disappearance and murder, without making an effort to move the car somewhere less public or at least remove their fingerprints from it.
¶ 152 This Court firmly rejects Miller's claim that defense counsel was ineffective in his efforts to impeach Phyllis Miller regarding the date of her Motel 6 argument with Miller. Counsel was quite successful in impeaching Phyllis regarding her claim to remember that the argument was on August 31, 1999. Unfortunately for Miller, this impeachment did not persuade his jury, nor does it persuade this Court, that perhaps their argument actually did occur on a different day. More importantly, it does not change the fact that the State's evidence, as a whole, established, beyond a reasonable doubt, that on August 31, 1999, Miller and Hanson, through their joint activity, intentionally shot and killed Jerald Thurman and Mary Bowles. Thus this Court rejects all of Miller's Proposition XXIII guilt-stage ineffective assistance claims.
¶ 153 In his Pro Se Proposition II claim, Miller makes ten additional claims of ineffective assistance of counsel. In particular, Miller asserts (pro se) that his counsel was ineffective for: (1) failing to investigate, develop, and present mitigating evidence; (2) advising Miller to stipulate to stain evidence found in Bowles' car; (3) advising Miller to testify; (4) failing to make a "meaningful objection" to the "continuing threat" aggravating circumstance and failing to present rebuttal evidence regarding this aggravator; (5) opening the door to improper and prejudicial closing argument by the prosecutor; (6) failing to investigate and develop evidence supporting Miller's defense; (7) improperly denigrating Miller during direct questioning; (8) improperly referring to appeal of Miller's
¶ 154 Of the ten ineffective assistance claims raised pro se by Miller, the following eight claims involve the guilt stage of his trial: Claims 2, 3, 5, 6, 7, 8, 9, & 10. These claims are addressed herein.
¶ 155 In his second pro se claim of ineffective assistance, Miller asserts that his counsel was ineffective for advising him to stipulate to the bloodstain evidence found in Bowles' car, i.e., that Bowles could not be excluded as a DNA contributor to the multiple bloodstains found in the backseat area of her car. The transcript reflects that Miller personally agreed to stipulate to this evidence, and Miller totally fails to show either inadequate performance by his counsel or prejudice in this regard. This claim is rejected accordingly.
¶ 156 In his third pro se claim of ineffective assistance, Miller asserts that his counsel improperly advised him to testify at his retrial. In particular, Miller attempts to argue that he only testified at his retrial because his counsel told him that if he did not testify, the State would simply admit the transcript of his testimony from the original trial. Miller then argues, citing Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968), that because his testimony at his original trial was "induced" by the testimony of Rashad Barnes — which this Court has ruled should not have been admitted — the State actually could not have admitted his earlier testimony at the retrial, and that Miller's retrial testimony was based upon his counsel's mistaken and ineffective advice in this regard.
¶ 157 In Harrison, the United States Supreme Court recognized the "general evidentiary rule" that a defendant's testimony at a former trial is admissible against him in any later proceedings. Id. at 222, 88 S.Ct. at 2010. Nevertheless, the Harrison Court held that if a defendant's testimony at his first trial was "impelled" by the State's improper introduction of illegally obtained confessions, then the defendant's testimony at that first trial could not be used against him in a subsequent trial. Id. at 222-24, 88 S.Ct. at 2010-11.
¶ 158 Miller proffers his own affidavit, attached as Exhibit 2 to his pro se Supplemental Application for Evidentiary Hearing, in support of his claim. This Court addressed a parallel claim to Miller's in Mitchell v. State, 2010 OK CR 14, 235 P.3d 640. In Mitchell, the defendant claimed that his trial testimony should not have been admitted against him in a later resentencing, because his trial testimony was "induced" by the false and misleading testimony of Joyce Gilchrist. Id. at ¶ 51, 235 P.3d at 654. This Court concluded, however, that Mitchell originally testified for a number of reasons, not just to respond to Gilchrist's testimony, and hence that Mitchell's claim that he would not have testified "but for" her testimony was "untenable." Id. at ¶ 54, 235 P.3d at 654.
¶ 159 This Court likewise concludes that Miller chose to testify at his first trial to respond to a number of aspects of the State's case against him, including: the testimony of his wife about the day of their fight and their visit to the Oasis Motel the next day; the fact that his fingerprint was found in Bowles' car; the fact that he was arrested with Hanson
¶ 160 In his fifth pro se claim of ineffective assistance, Miller asserts that his counsel improperly "opened the door" to prejudicial and improper remarks by the prosecutor, by eliciting testimony from Miller, during the first stage of trial, that he was already serving a federal prison sentence of "life plus 157 years." The transcript makes quite clear that defense counsel made a strategic decision to inform the jury, during the guilt stage of this retrial, that Miller was already in federal prison and would never be released from custody.
¶ 161 In his sixth pro se claim of ineffective assistance, Miller asserts that his counsel failed to investigate, develop, and present evidence in support of his defense. Miller argues, in particular, that his counsel should have done a better job of convincing his jury that it was reasonable to believe that Miller was looking for a "kill switch" in Bowles' car when he, quite innocently, deposited his thumbprint on her front passenger seatbelt buckle.
¶ 162 In his seventh pro se claim of ineffective assistance, Miller asserts that his counsel improperly denigrated him during his direct questioning, when he asked Miller to "tell us a little bit about the work that you were doing back in 1999 other than robberies." Yet the jury already knew that Miller was involved in a string of armed robberies during 1999. Miller fails to establish that this candid phrasing of counsel's request was either inadequate performance or prejudicial to Miller. This claim is rejected accordingly.
¶ 163 In his eighth pro se claim of ineffective assistance, Miller asserts that his counsel improperly referred to appeal of his case. When defense counsel was asked by the court (just prior to the reading of first-stage jury instructions) whether he would waive the recording of the jury instructions, defense counsel answered, "Your Honor, we would like to, but my appellate staff would not approve of that, so we can't." This Court does not accept Miller's argument that this statement somehow conveyed to the jury defense counsel's belief that Miller was guilty. Thus Miller fails to establish either inadequate performance or prejudice in this regard, and this claim is rejected accordingly.
¶ 164 In his ninth pro se claim of ineffective assistance, Miller asserts that his counsel was ineffective for failing to request a mistrial based upon the State's use of Sundeep Patel's "false" testimony. This Court has already addressed Miller's characterization of Patel's testimony as "false" and rejected
¶ 165 In his tenth pro se claim of ineffective assistance, Miller asserts that his counsel was ineffective for telling the jury, during first-stage closing argument, that Patel "wasn't trying to lie to anybody." Miller fails to establish either inadequate performance or prejudice regarding his counsel's characterization of Patel as not "trying" to lie to anybody, and this claim is rejected accordingly.
¶ 166 Thus this Court rejects all of Miller's claims of guilt-stage ineffective assistance, as asserted within both Proposition XXIII and Pro Se Proposition II.
¶ 167 In Proposition XXIV, Miller argues that even if individual errors or acts of misconduct that occurred during his 2008 retrial do not merit reversal of his convictions and his death sentences, the combined effect of these errors and this misconduct deprived him of a fair trial and a fair sentencing, requiring the reversal of his convictions and his sentences. We here take up Miller's cumulative error claim regarding the guilt stage of his trial.
¶ 168 This Court found, in response to Miller's Proposition II, that the trial court abused its discretion by refusing to allow defense counsel any opportunity to question or attempt to rehabilitate seven different prospective jurors — who gave equivocal, confusing, or inconsistent responses regarding their ability and willingness to consider the death penalty. However, Miller's brief seeks only sentencing relief on this claim, rather than relief from his convictions; and Miller does not claim that this error had any impact on the guilt stage of his trial. Hence this Court does not consider this error within our analysis of the cumulative effect of errors made during the guilt stage of trial.
¶ 169 In response to Miller's Proposition X claim, this Court found that it violated the Confrontation Clause to allow Dr. Distefano to present the autopsy findings and analysis of Dr. Anzalone, but that this constitutional error was harmless. And in response to Miller's Proposition XI claim, this Court found that although the district attorney's "diminished" presumption of innocence argument was improper, it did not render Miller's trial unfair, nor did it render any of the verdicts in his case unreliable. This Court now finds, beyond a reasonable doubt, that even when these and any other first-stage errors and misconduct are considered cumulatively, they are, nevertheless, still harmless. Although the evidence presented at Miller's 2008 retrial was overwhelmingly circumstantial, it was extensive and thorough and proved powerfully and convincingly that he is guilty of the first-degree murders of both Jerald Thurman and Mary Bowles. Miller's Proposition XXIV cumulative error claim regarding his convictions is rejected accordingly.
¶ 170 In Proposition XVII, Miller argues that there was insufficient evidence to support the aggravating circumstance that the murders of Bowles and Thurman were "committed for the purpose of avoiding or preventing a lawful arrest or prosecution," under 21 O.S.1991, § 701.12(5). Because this Court has already determined that Miller's death sentence for the murder of Bowles must be struck down, this claim is moot in regard to the murder of Bowles. This Court will address this claim only in regard to the murder of Thurman.
¶ 171 In evaluating a challenge to the sufficiency of the evidence in support of an aggravating circumstance, we review the evidence in the light most favorable to the State, to determine whether any rational trier of fact could have found the aggravator
¶ 172 The evidence presented at trial established that Mary Bowles was alive and in her Buick LeSabre around 4:00 p.m. on August 31, 1999, and that by 6:30 p.m. that same day, Hanson and an associate (almost certainly Miller) were in possession of Bowles' car at the Oasis Motel in Tulsa, and that Miller and Hanson had both been inside her car, since they both left a fingerprint inside.
¶ 173 The trial evidence likewise supports a rational conclusion that Bowles was shot by Hanson a short time later, with the black 9mm, in a ditch alongside 66th Street North in Tulsa, not far from Thurman's dirt pit. The fact that two spent cartridges matching Hanson's gun were found nearby, together with the fact that a spent 9-mm bullet from this same gun was found buried in the dirt beneath Bowles' body, strongly suggests that Bowles was shot and killed at this location. This inferred fact and the finding of Bowles' blood in the backseat area of her car likewise suggest that Bowles was still alive when Thurman came upon the trio — and that Thurman would have had little trouble surmising that something was very wrong and that the elderly Bowles was not with these two young men at this secluded spot willingly, i.e., that she had been kidnapped.
¶ 174 More importantly, Miller knew that he and Hanson had stolen Bowles' car and kidnapped her in the process, and the sight of Thurman shutting the gate and apparently making a call on his cell phone almost certainly made Miller fear that if swift action wasn't taken, he and Hanson were in danger of being arrested and prosecuted for their crimes. Hence Miller attempted to ensure that they would be able to leave the area and that Thurman would never be able to identify them or testify against them, by shooting Thurman multiple times with his trusty .38. Although Miller and Hanson had previously committed multiple armed robberies without ever killing anyone, things did not go so well on August 31, 1999 — perhaps because Thurman simply came by at the wrong time.
¶ 176 In Proposition XVIII, Miller argues that the State's evidence was insufficient to support the aggravating circumstance that the murders of Bowles and Thurman "created a great risk of death to more than one person," under 21 O.S.1991, § 701.12(2). Once again, because we have already held that Miller's death sentence for the murder of Bowles must be struck down, we review this claim only in regard to the murder of Thurman. And we evaluate this sufficiency challenge to determine whether any rational trier of fact could have found this aggravating circumstance beyond a reasonable doubt.
¶ 177 This Court addressed the appropriateness of this aggravator in regard to the murder of Bowles in Hanson v. State, 2009 OK CR 13, 206 P.3d 1020. Our approach in that case is likewise appropriate for the parallel issue in this case:
Id. at ¶ 42, 206 P.3d at 1033 (all citations omitted). We emphasized, in Hanson, that the "great risk of death to another" aggravator is only established where the homicidal act at issue puts another person at great risk of death, because of that other person's "close proximity" to the victim at the time of the homicidal act. Id. at ¶¶ 42-43, 206 P.3d at 1033. And we concluded that because Thurman had already been shot and left at the dirt pit when — after driving a short distance away — Hanson shot Bowles in a roadside ditch, Hanson's act of shooting Bowles did not put Thurman at great risk of death. Id. at ¶ 43, 206 P.3d at 1033.
¶ 178 We now likewise find that there is no evidence that Miller's act of shooting Thurman put Bowles at great risk of death. Although the evidence strongly suggests that Bowles was alive and present at the dirt pit when Miller shot Thurman, there is no evidence whatsoever that the shooting of Thurman put Bowles (or anyone else) in danger of being injured or killed by the shots fired at Thurman. Even the State does not claim that Bowles was in danger of being injured or killed by Miller's act of shooting Thurman.
¶ 179 Rather, the State argues that this aggravator is appropriate here because "the defendant's murder of Jerald Thurman certainly put [Bowles] in jeopardy, namely, as a witness who could identify the defendant as the perpetrator of the murder" and who, consequently, later became "the recipient of the same callous act of murder." The State's theory is that because Bowles was a witness to the murder of Thurman, she became a likely next victim. Unfortunately, this assertion (even if factually correct) comes nowhere near establishing that Miller's act of shooting Thurman put Bowles at "great risk of death" from that same act, so as to support this aggravator in regard to the murder of Thurman. We rejected a parallel "danger-due-to-witnessing-a crime" argument in the context of this same aggravator (and this same criminal episode) in Hanson:
See id. at ¶ 43, 206 P.3d at 1033.
¶ 180 We take this same approach and now reach a parallel conclusion to that of Hanson. Although it seems likely that Bowles would have been left alive "but for" the murder of Thurman, which she happened to witness, that is not enough. Because there is no evidence that Miller's act of shooting Thurman placed Bowles "at great risk of death," this Court cannot uphold this aggravator.
¶ 181 Thus this Court must strike down this aggravator and determine what relief should be granted in this case. Yet this Court has already found other serious error in regard to Miller's death sentence. Consequently, we decline to here determine whether Miller's death sentence could be upheld, despite the insufficiency of the evidence on this single aggravator, as if it were the only second-stage error at issue.
¶ 182 In Proposition XIV, Miller raises three challenges regarding the victim impact evidence presented at his trial. First, he claims that Jerald Thurman's stepmother should not have been allowed to testify as a victim impact witness, because stepparents are not part of a victim's "immediate family" under Oklahoma law. Second, Miller claims that the victim impact testimony of Sarah Mooney improperly and prejudicially suggested that Miller caused the death of Mooney's mother, Ora Lee Parker. Third, Miller asserts that the standard for admissibility of victim impact evidence in Oklahoma is unworkable and that such evidence has no place in Oklahoma's capital sentencing scheme.
¶ 183 Regarding Miller's first challenge, the State proposed to present victim impact testimony from four members of Thurman's family: his wife (Sherry Thurman), his son (Jake Thurman), his sister (Trish Hampton), and his stepmother (Betty Thurman, i.e., "Betty"). Defense counsel objected that a stepmother did not qualify as "immediate family" eligible to give victim impact testimony and argued that although Betty could be designated a "family representative," the State could not present both immediate family members and a family representative. The State responded that Betty would be testifying about the impact of Thurman's death on herself (not as a family representative) and that she qualified as a "family member."
¶ 185 In Hanson v. State, 2003 OK CR 12, 72 P.3d 40, in connection with the original trial of Miller's co-defendant, this Court recognized this list and noted:
Id. at ¶ 28, 72 P.3d at 55 (all citations omitted). We also specifically held that a niece of the victim (Mary Bowles) could be designated as a "family representative" and could give evidence about the effect of the victim's death on her mother (i.e., on the sister of Bowles); but the niece (Sarah Mooney) could not present evidence about the effect of the victim's death on herself, other nieces and nephews, or the children of these nieces and nephews, since such persons aren't covered by the term "immediate family" in this context. Id. at ¶¶ 27-28, 72 P.3d at 54-55.
¶ 186 This Court finds that stepparents are not included as "members of the immediate family" of the victim, as that term is defined under Oklahoma law in this context. Although the list is quite expansive regarding "children" of the victim, since it includes biological children, adopted children, and stepchildren, the list is not so expansive regarding "parents." We conclude that under the plain language of the governing Oklahoma statute, a stepparent does not qualify as a "parent" for the purpose of being allowed to give victim impact evidence about the effect of a victim's death on himself/herself.
¶ 187 Although a stepparent could be designated as a "family representative" — as could a niece, nephew, cousin, grandchild, or any person at all — this designation would not change the fact that any evidence given by such a person could not be about the impact of the victim's death on himself/herself, but only about the impact of the victim's death on persons who are on the statutory list of "immediate family members."
¶ 188 In Hanson, this Court found that the error of allowing a niece of the victim to testify on her own behalf — and on behalf of other persons not on the statutory list of "immediate family" — when considered "[i]n combinations with other errors, ... requires relief." Id. at ¶ 28, 72 P.3d at 55. As in Hanson, this Court need not decide whether the impact of Betty Thurman's stepparent testimony, "standing alone," requires reversal of Miller's death sentence for killing Jerald Thurman. Rather, we will consider the impact of this error in combination with the other errors affecting Miller's death sentence, infra, within our analysis of Miller's Proposition XXIV (second-stage) cumulative error claim.
¶ 189 In the second part of Proposition XIV, Miller challenges the testimony of Sarah Mooney, niece of Mary Bowles, who testified as a family representative about the impact of Bowles' death on her mother, i.e., on Bowles' sister, Ora Lee Parker.
¶ 190 As the State has conceded regarding Proposition XII, the district attorney should not have been allowed to re-seek the death penalty for the murder of Bowles at Miller's 2008 retrial, because Miller was "acquitted" of the death penalty for this murder at his first trial. Consequently, as the parties agreed at oral argument, the State should not have been allowed to present any victim impact testimony regarding the impact of Bowles' murder on her family. Hence Mooney's testimony was entirely irrelevant to the
¶ 191 Mooney read a prepared victim impact statement to the jury.
¶ 192 But Mooney's testimony continued; and Mooney described the impact of Bowles' abduction and murder on her mother as follows:
Defense counsel did not ask any questions.
¶ 193 It is hard to overstate the potential emotional impact of Mooney's testimony on Miller's jury. Although four different victim impact witnesses testified regarding the loss of Thurman — and described what a beloved, generous, funny, and admirable man he was, how much he loved life, how hard he worked, how dedicated he was to his family, and how devastating Thurman's death has been to his family (emotionally, personally, financially, and in terms of the family business) — Miller does not challenge the content of the testimony of any of these witnesses.
¶ 194 Mooney's testimony revealed that she blames Miller not only for the loss of her Aunt Mary, but also for the loss of her mother. Mooney told the jury how overwhelming it was for her mother during the time from Bowles' disappearance until the finding of her body. She described her mother's fear, panic, and anxiety and how she became physically ill and could not eat or sleep, "which aggravated some of her preexisting
¶ 195 In addition, Mooney concluded by noting that in her last conversations with her mother, before her mother's death, her mother talked about her love for Bowles and told both Mooney and her minister "that the murder had caused her to question her own beliefs" and that "she felt that she had lost her faith." Hence Mooney blamed Miller not only for the loss of her elderly mother, but for her mother's despair at the end of her life, which shook her mother's religious beliefs and caused her to feel that she had lost her faith.
¶ 196 Once again, this Court notes that the issue before us is not simply whether Mooney's testimony went "too far" in terms of victim impact testimony regarding the murder of Bowles.
¶ 197 It is extremely difficult to see how testimony as poignant and emotionally gripping as that of Sarah Mooney could have failed to powerfully affect Miller's jurors in terms of both sentencing determinations that they had before them at the time. This Court can affirm Miller's death sentence for the murder of Thurman only if we can conclude, beyond a reasonable doubt, that Mooney's testimony was "harmless" and had no effect on the jury's decision to sentence Miller to death for the murder of Thurman, i.e., only if we can conclude, beyond a reasonable doubt, that there is no reasonable probability that Miller could have avoided a death sentence for the murder of Thurman, even if Mooney had not testified at his retrial.
¶ 198 In the third part of Proposition XIV, Miller asserts that the standard for admissibility of victim impact evidence in Oklahoma is unworkable and that victim impact evidence has no place in Oklahoma's capital sentencing scheme. Miller's basic argument is that such evidence does not fit within the capital sentencer's obligation to balance aggravating and mitigating circumstances, since victim impact evidence is not a proper aggravating circumstance, but neither is it a mitigating circumstance.
¶ 199 In Proposition XV, Miller asserts that the district court failed to fully comply with this Court's decision in Wallace v. State, 1995 OK CR 19, 893 P.2d 504, regarding his decision to waive the presentation of mitigating evidence during the second stage of his trial. We begin by emphasizing that Miller did not actually waive all mitigating evidence, since he testified on his own behalf during the second stage and read a prepared statement to the jury, which contained some potentially mitigating evidence (an expression of sympathy for the families of the victims, a statement of regret regarding his armed robberies, an assertion that he is a changed man, etc.). Miller later testified, on cross-examination, about growing up "just surrounded by a bunch of criminals" and that he was just "a kid" when he committed his first armed robberies. (Miller did not, however, admit to playing any role in the shooting deaths of Bowles and Thurman.) Nevertheless, because Miller chose not to present any mitigating evidence from members of his family (such as the two sisters who testified at his first trial) or any expert testimony about his background and upbringing (such as the psychologist who testified at his first trial), the trial court conducted a hearing to determine whether Miller was making a knowing and intelligent waiver in this regard. The hearing transcript reflects that the trial judge had our Wallace decision in front of her at the hearing and was following it.
¶ 200 In Wallace, this Court was dealing with a defendant who refused to allow his attorney to present any evidence during the second stage of his capital trial and who was, in fact, requesting the death penalty. Id. at ¶ 2, 893 P.2d at 508. After holding that a capital defendant could constitutionally choose to waive the presentation of any mitigating evidence, id. at ¶ 18, 893 P.2d at 512, this Court established a seven-step procedure to be followed by the trial court in this situation, in order to ensure: that the defendant has an understanding of what mitigating evidence is and its role in a capital sentencing proceeding, that defense counsel has attempted to determine if any mitigating evidence exists, and that the defendant is making a knowing and intelligent waiver of the presentation of such evidence. See id. at ¶ 21, 893 P.2d at 512-13.
¶ 201 Miller did not actually waive all mitigating evidence; he declined to present certain kinds of mitigating evidence and certain witnesses. Thus it is not clear that a Wallace hearing was even required. Nevertheless, after reviewing Wallace and the hearing held in Miller's case, we conclude that the trial court complied with the Wallace procedure and, more importantly, that the record clearly establishes that Miller's waiver of the mitigating evidence at issue was voluntary and was also knowing and intelligent.
¶ 202 In Proposition XVI, Miller argues that the trial court erred in refusing to instruct his jury on the meaning of a sentence of "life without the possibility of parole." Because Miller requested such an instruction at trial, he has adequately preserved this claim, and we will review it for an abuse of discretion.
¶ 204 In the fourth part of his Proposition XI prosecutorial misconduct claim, Miller objects to an argument made by the district attorney during his final, second-stage closing argument. We evaluate such claims to determine whether the challenged action so infected the defendant's trial that it was rendered fundamentally unfair, such that the jury's verdicts cannot be relied upon.
¶ 205 The challenged prosecutorial argument to the jury was as follows:
Because defense counsel did not object to this argument at trial, we review it only for plain error.
¶ 206 This Court has already ruled, in conjunction with the re-sentencing trial of Miller's co-defendant, that arguments like the one challenged here are improper. In Hanson v. State, 2009 OK CR 13, ¶ 22, 206 P.3d 1020, 1029, this Court addressed a parallel prosecutorial misconduct claim, i.e., that it was improper for the prosecutor to argue that since Hanson was already serving a sentence of life without parole, only a death sentence could redress the murder of Bowles. In Hanson's trial, however, defense counsel objected to this argument, and the trial court sustained the objection. This Court concluded: "The trial court correctly sustained defense counsel's first objection. We agree that it is improper for a prosecutor to argue that a sentence less than death is meaningless and would not hold a defendant accountable for a victim's death when he is already serving a life sentence." Id. at ¶ 24, 206 P.3d at 1029 (emphasis added). Nevertheless, because the court sustained counsel's original objection, and because it was unclear from the record whether Hanson's jury was ever actually exposed to the improper argument, this Court determined that we could not find that Hanson was actually prejudiced by the argument. See id. at ¶¶ 23-26, 206 P.3d at 1029.
¶ 207 Miller's case, however, does not leave open the possibility that perhaps the jury was not actually exposed to the district attorney's
¶ 208 Consequently, it is entirely possible that the district attorney's "freebie argument" was based upon a false premise, i.e., that the murders of Thurman and Bowles were not taken into account within Miller's federal sentence of "life plus 157 years." This makes the district attorney's improper argument particularly troubling, especially because the argument is emotionally powerful. The district attorney argued that if the jury did not sentence Miller to death, he would receive no punishment whatsoever for the first-degree murders of Thurman and Bowles, i.e., that these murders would be "a freebie," because Miller would get no real, additional punishment for them. Although we decline to find that this argument, standing alone, constituted plain error at the time — since the Hanson decision was not handed down until 2009 — we find that the argument was improper and potentially prejudicial. We will consider the potential impact of this improper prosecutorial argument within our analysis of Miller's Proposition XXIV (second-stage) cumulative error claim.
¶ 209 In Proposition XXI, Miller argues that he had a common law and a statutory right of allocution to directly address the sentencing judge in his case, before judgment was rendered, and that this right was improperly denied. Miller maintains that his statutory right of allocution is found at 22 O.S.2001, § 970.
¶ 210 Miller did request "his right of allocution" at his formal sentencing, before judgment was pronounced in his case. After "noting" this request, but without ruling upon it, the trial court pronounced judgment in the case and sentenced Miller to death on Count I and on Count II. After this judgment was pronounced, and as the court was explaining Miller's appeal rights, Miller personally asked if he was "going to get to exercise my right to allocution," to which the court responded that it had "denied" that request. After taking a break to research the issue and being provided with this Court's decision in Malone v. State, 2002 OK CR 34, 58 P.3d 208, the court found that it had been "incorrect" in denying Miller's request for allocution and offered to let him address the court. Miller, again speaking on his own behalf, declined this invitation, arguing that because the trial court had already formally announced his death sentence, "this Court has no further jurisdiction over this matter and for me to even attempt allocution at this point, I feel that the Court would be biased and the attempt at allocution will be futile." Upon questioning by the court, defense counsel acknowledged that he did not know of any reason that judgment should not be pronounced against his client, but that he would stand on the position of his client.
¶ 211 In the portion of Malone discussed at the time of Miller's sentencing, this Court stated as follows:
2002 OK CR 34, ¶ 6, 58 P.3d at 209 (emphasis added). Thus despite the concession by the trial court and the parallel concession by the State in its brief on appeal, Malone did not hold that a defendant in Miller's position, i.e., a capital defendant, has a right to personally address the sentencing judge at the time of formal sentencing, in order to make a statement of allocution. Hence Malone does not resolve whether or not Miller had a right to the allocution he sought.
¶ 212 Miller argues that the current case gives this Court the opportunity to address the meaning of the "right of allocution" within the context of a capital case.
¶ 213 In Proposition XXII, Miller argues that the death penalty is unconstitutional. He acknowledges that this Court has repeatedly rejected this claim in the past.
¶ 214 In Proposition XXIII, Miller asserts that he received ineffective assistance of counsel in the sentencing stage of his trial, because his counsel failed to object to the prosecutor's improper "freebie" argument. In addition, in his Pro Se Proposition I, Miller asserts that his counsel was ineffective in the second stage for failing to investigate, develop, and present mitigating evidence. In order to establish ineffective assistance, Miller must demonstrate that the performance of his counsel was deficient and unreasonable and that he was prejudiced thereby.
¶ 215 This Court has already addressed Miller's (Proposition XI) claim regarding the prosecutor's "freebie" argument. We concluded that the argument was improper and also potentially misleading — since it is possible that the murders of Bowles and Thurman were taken into account within Miller's federal sentence of "life." We now find that defense counsel's performance was deficient
¶ 216 In his first pro se claim of ineffective assistance (within Pro Se Proposition I), Miller asserts that his counsel failed to investigate, develop, and present mitigating evidence. This Court has already found (regarding Proposition XV) that Miller validly waived the presentation of mitigating evidence beyond that of his own testimony at this retrial. The record reflects that defense counsel was prepared to present mitigating evidence regarding Miller's background and family life (as he did at the first trial), but that Miller did not want his counsel to do so. Hence Miller fails to show ineffective assistance in this regard.
¶ 217 Although Miller attempts to supplement the record, through his pro se Supplemental Application for Evidentiary Hearing, with additional "mitigating" evidence that he maintains his counsel should have presented during the second-stage of his 2008 retrial, this Court's finding that Miller validly waived the presentation of any such material precludes Miller's attempt to now present additional evidence in support of his ineffective assistance claim in this regard. Consequently, this attempt to enhance his pro se ineffective assistance claim must fail. (This Court addresses Miller's pro se application for an evidentiary hearing infra, at the conclusion of this Opinion.)
¶ 218 In his fourth pro se claim of ineffective assistance (within Pro Se Proposition I), Miller asserts that his counsel failed to argue that the "continuing threat" aggravating circumstance is unconstitutional, failed to make a "meaningful objection" to this aggravator, and failed to present rebuttal evidence to this aggravator. However, Miller fails to adequately develop and present this claim and totally fails to show either inadequate performance or prejudice in this regard. This claim is rejected accordingly.
¶ 219 In Proposition XXIV, Miller argues that even if individual errors and misconduct during his 2008 retrial do not merit reversal of his convictions or his death sentences, the combined effect of these errors and misconduct deprived him of a fair trial and a fair sentencing, requiring the reversal of his convictions and his sentences. This Court has already rejected Miller's cumulative error claim regarding the guilt stage of his retrial. We now take up his cumulative error claim regarding the capital sentencing stage of his retrial.
¶ 220 The State has conceded that Miller's death sentence on Count I (for the murder of Bowles) must be reversed; and this Court has already found multiple examples of serious error and also prosecutorial misconduct potentially impacting Miller's death sentence on Count II (for the murder of Thurman). We find herein that even if this Court could decline to reverse Miller's death sentence on Count II when these errors and this misconduct are considered individually, we cannot possibly conclude that the cumulative effect of all this error and this misconduct is "harmless" when it is considered cumulatively.
¶ 221 Regarding voir dire in this case, this Court has found that the trial court abused its discretion by refusing to allow defense counsel any opportunity to question seven different prospective jurors, who gave equivocal, confusing, or inconsistent answers regarding their ability and willingness to consider the death penalty. Regarding the aggravating circumstances found by the jury, this Court has found that the evidence in this case is insufficient to support the "great risk of death to more than one person" aggravating circumstance regarding the murder of Thurman; hence this aggravator must be struck down. Regarding the victim impact evidence presented at Miller's retrial, this Court has found that stepmother Betty
¶ 222 Furthermore, we have found that the victim impact testimony of Sarah Mooney was entirely irrelevant to the only capital sentencing question properly before Miller's retrial jury and that Mooney's testimony about her mother (the sister of Bowles) was poignant, emotionally gripping, and compelling. Again, it is hard for this Court to overestimate the potential prejudice from hearing Sarah Mooney testify that she blames Miller not only for the death of her beloved aunt, Mary Bowles, but also for the suffering and death of her own beloved mother — and that she likewise blames Miller for her mother's despair at the end of her life and her mother's loss of her religious faith.
¶ 223 Regarding Miller's prosecutorial misconduct claims, this Court has found that the district attorney's second-stage "freebie" argument — that if the jury did not sentence Miller to death, he would not be punished at all for the murders of Thurman and Bowles — was improper, quite possibly false, and emotionally powerful in a potentially prejudicial way. We have likewise found that defense counsel's failure to object to this improper argument was deficient performance and potentially prejudicial, i.e., that defense counsel's failure to object to the improper argument constitutes ineffective assistance of counsel.
¶ 224 Although Miller has now been tried two times and been sentenced to death for the murder of Jerald Thurman two times, this Court cannot allow this death sentence to stand in the face of this much serious and potentially prejudicial error. It only takes only one juror refusing to vote for death for a defendant to avoid a death sentence in a particular trial. Given the circumstances of Miller's retrial, this Court cannot conclude, beyond a reasonable doubt, that all these errors did not make the difference in the sentencing vote of any of his 12 jurors. Consequently, Miller's death sentence on Count II, as well as his death sentence on Count I, must be struck down.
¶ 225 The question is not whether the State presented enough evidence to establish that Miller was eligible to be sentenced to death for the murder of Thurman. It certainly did. The question is not whether a jury could properly find that the mitigating evidence at issue in this case is outweighed by the (properly found) aggravating circumstances in this case. This could certainly happen. The question is whether this Court is convinced, beyond a reasonable doubt, that this is what would have happened if Miller's 2008 retrial had been properly and constitutionally conducted, which, unfortunately, it was not. This Court concludes that we simply cannot affirm Miller's death sentence under these circumstances. Hence we find that Miller's case should be remanded for a capital resentencing proceeding on Count II only.
¶ 226 The Court acknowledges that two of its judges disagree with this conclusion and have filed separate writings in this case. Regarding the separate writing of Presiding Judge Lewis, his opinion focuses exclusively on the Proposition II voir dire issue and simply dismisses the "ad hoc litany" of second-stage errors and misconduct found herein, calls this Court's thorough analysis of all these other issues "unconvincing" (without offering any actual analysis or explanation), and then summarily concludes, without apparent hesitation, that all these errors "had no prejudicial effect."
¶ 227 The presiding judge's separate opinion contains a long quotation from the United States Supreme Court's decision in Uttecht v. Brown, 551 U.S. 1, 127 S.Ct. 2218, 167 L.Ed.2d 1014 (2007). This Court fully agrees with and has sought to be faithful to the governing principle of broadly-defined deference to trial court determinations that is emphasized in Brown. This Court notes, however, that the capital-eligibility voir dire and factual circumstances at issue in Brown are very different from what occurred in
¶ 228 This Court also notes that the presiding judge's separate writing repeatedly quotes from cases in a way that does not fairly represent the legal authorities at issue. He quotes portions of this Court's opinions in Stouffer v. State, Postelle v. State, and Harmon v. State to suggest that as long as the trial court asks appropriate capital-eligibility questions during the court's voir dire, there is no need to grant defense counsel any opportunity to attempt to rehabilitate prospective jurors — as if it does not matter how prospective jurors answered the court's questions. In Stouffer, Postelle, and Harmon, this Court specifically found that the prospective jurors at issue were ultimately unequivocal in their answers to the trial court that they would not be able to consider the death penalty. See Stouffer v. State, 2006 OK CR 46, ¶¶ 20-22, 147 P.3d 245, 257-58; Postelle v. State, 2011 OK CR 30, ¶ 50, 267 P.3d 114, 135, and Harmon v. State, 2011 OK CR 6, ¶ 20, 248 P.3d 918, 930. As we herein make clear, if a prospective juror's answers to trial court questioning (and on any court-approved questionnaire) demonstrate that the juror is unequivocal in his or her unwillingness to consider the death penalty, the trial court need not grant any opportunity for rehabilitation. But whether further questioning of a prospective juror is needed (either by the trial court or by a party) depends not merely upon whether the court asked appropriate questions, but upon what the prospective juror's answers revealed about his or her ability and willingness to consider the various penalties at issue. The juror's answers always matter.
¶ 229 Finally, regarding Judge Lumpkin's separate writing, Judge Lumpkin, like Presiding Judge Lewis, totally fails to address the prejudicial impact of the State being allowed to re-seek a death sentence on Count I, in violation of Double Jeopardy — a grave error that is now conceded by the State — which allowed Miller's jury to hear the very powerful testimony of Sarah Mooney (about how she blames Miller for the death of her beloved mother and her mother's loss of religious faith), which was legally irrelevant to the only capital-sentencing issue that was properly before that jury. Furthermore, many of the statements made within Judge Lumpkin's opinion are inaccurate, such as the remark that "[n]o legal authority is cited" for this Court's conclusion regarding Miller's Proposition II claim "because there is none." It is equally inaccurate to suggest that this Court finds an abuse of discretion on this same claim "[b]ecause we [] find the record confusing," rather than because Miller's counsel was not allowed to question prospective jurors who were confused (and equivocal and inconsistent). The opinion also refers to the trial court "denying the defense further attempts at rehabilitation," when the issue at stake was the denial of any attempt to rehabilitate. Similarly, Judge Lumpkin's long quotation regarding structural error seems out of place, since this Court's Opinion does not purport to be granting relief based upon "structural error" and contains a clear discussion of the appropriate "harmless error"
¶ 230 This Court has thoughtfully considered the separate writings of both Presiding Judge Lewis and Judge Lumpkin in regard to the current decision and the Court's analysis herein. Nevertheless, these writings do not change this Court's analysis or our firm conclusion regarding the legally and constitutionally appropriate result in the current case.
¶ 231 On January 18, 2011, Miller's counsel on appeal filed an
¶ 232 Miller's Application for Evidentiary Hearing attaches and relies upon two documents that are not part of the record: (1) a "Supplemental Offense Report" from the Tulsa Police Department, and (2) an Affidavit from Hurldine Walton (mother of Victor Miller). Both of the documents are offered in support of Miller's first-stage ineffective assistance claim, in which he asserts that his counsel did an inadequate job of presenting evidence and persuading his jury that he should be acquitted. Because we are affirming Miller's first-degree murder convictions, we have thoroughly reviewed his Application and attached documents, and we address them herein.
¶ 233 The proffered "Supplemental Offense Report" from the Tulsa Police Department is dated September 13, 1999, and was prepared in connection with the armed robbery of the Tulsa Federal Employees Credit Union on September 8, 1999 (and cross-references numerous other 1999 robberies for which Miller and Hanson were considered to be suspects).
¶ 234 Miller argues that this Supplemental Offense Report thereby supports his version of events that the fight with his wife and their trip to the Oasis Motel the next day occurred well after August 31, 1999. This Court finds that even though the report suggests that Miller may have driven his Oldsmobile to (or near) the Oasis Motel shortly before the credit union robbery — perhaps to verify that Bowles' car was still in the parking lot and had not been disturbed or discovered by police — this report would not have made any difference at Miller's trial. The referenced car sighting occurred at night,
¶ 235 The fact that an unnamed witness may have seen Miller's car leaving the area of the Oasis Motel approximately six days after Bowles' car was first left there — and where the car remained on September 6, 1999 — would not have significantly changed the overall balance of the powerful circumstantial evidence presented at trial to establish, beyond a reasonable doubt, that on August 31, 1999, after Miller and Hanson hijacked Bowles' car and kidnapped Bowles, Miller shot and killed Thurman, and Hanson shot and killed Bowles. This Court concludes that even if defense counsel had obtained and presented this Supplemental Offense Report, there is no reasonable probability that it would have changed the result of Miller's trial regarding either his convictions or his sentences. Consequently, Miller cannot establish either prejudice or ineffective assistance in regard to the proffered Supplemental Offense Report.
¶ 236 The potential significance of the affidavit from Miller's mother, Hurldine Walton, is even less. The affidavit states that Walton was available and expected to testify at Miller's original trial, but that "[a]t some point during the trial I was told that my testimony was not necessary." Walton's affidavit further states that Phyllis Miller called Walton in 1999 and told her there had been a robbery and that the police were looking for Victor. Walton's affidavit asserts that she later provided detectives with Phyllis' phone number and that "[a] day or two later," a very emotional Phyllis Miller called her again and told Walton that police detectives had taken her (Phyllis) "into a room with bright lights and told her that she had to connect Victor to the recent murder of a lady or that her children would be taken from her and she would go to jail." Walton's affidavit states that Phyllis told her that the detectives called her vulgar names and "forced [her] to say things connecting Victor to the murder."
¶ 237 It should be noted at the outset that, according to the affidavit, Miller's counsel (who was the same for both trials) was aware of the availability of Miller's mother to testify and actually considered presenting her testimony at the first trial. Defense counsel did not fail to discover Walton as a possible witness; rather, counsel presumably made a strategic decision not to present her testimony. This is not surprising. The evidentiary value of Miller's mother testifying that her son's wife told her that she was pressured and "forced" to connect Miller to the murder of Bowles is not very significant in the context of this case. This Court notes that portions of Walton's affidavit are consistent with Phyllis' trial testimony, since Phyllis testified that police detectives told her "all kind[s] of stuff," scared her, and "terrorized" her. In addition, this Court notes that Phyllis did not directly implicate Miller in the murders. Rather, Phyllis provided "indirect" evidence regarding Miller's actions, schedule, demeanor, situation (being "carless"), etc., on August 31, 1999, and similar circumstantial evidence regarding Miller's regular criminal partnership with Hanson, their customary weapons, etc., most of which was entirely consistent with Miller's own trial testimony. As such, Phyllis' testimony indirectly implicating Miller (based on circumstantial evidence) could not be readily "impeached" with evidence that she was pressured to directly implicate him.
¶ 238 This Court concludes that the proffered affidavit does not suggest either that the performance of Miller's counsel was inadequate or that Miller was prejudiced by his counsel's failure to present Walton's testimony at trial. Thus Miller fails to show, by clear and convincing evidence, a strong possibility that his retrial counsel was ineffective for failing to present either the Supplemental Offense Report or Walton's testimony. Consequently,
¶ 239 Miller's pro se Supplemental Application for Evidentiary Hearing attaches and
¶ 240 We begin with proffered documents that could potentially relate to the guilt-phase of Miller's trial. Regarding the article about the later termination of Mark Boese (Exhibit 3), this Court has already rejected Miller's Pro Se Proposition III claim that the trial court erred in allowing Boese to testify as a firearms expert at Miller's retrial, noting that Boese's retrial testimony was entirely consistent with the testimony of firearms expert Dennis Fuller at Miller's original trial. We note that Miller offers nothing to suggest that Boese's analysis in his case was unreliable or improperly conducted. Hence Miller has failed to show any entitlement to an evidentiary hearing in this regard.
¶ 241 In his Exhibit 2 affidavit, Miller asserts that he only testified at his retrial because his counsel (wrongly) told him that if he did not testify, the State would simply present a transcript of his testimony from his original trial. This Court has already addressed Miller's Pro Se Proposition II(3) claim in this regard in detail; and this Court has already concluded that the challenged advice from counsel would not have been incorrect or inadequate performance. Consequently, Miller's ineffective assistance claim on this issue cannot prevail, and his request for an evidentiary hearing on this claim is likewise rejected.
¶ 242 Miller also proffers an affidavit containing his personal assertion that his retrial counsel "coerced" him into stipulating to the blood stain evidence found in Bowles' car (Exhibit 1). This Court has already found, in connection with Miller's Pro Se Proposition II(2) claim, that Miller personally agreed to stipulate to this evidence and that he has totally failed to show either inadequate performance by his counsel or prejudice in this regard. We now likewise reject his request for an evidentiary hearing in this regard.
¶ 243 All of the other non-record documents proffered by Miller are offered as "mitigating evidence," in support of his Pro Se Proposition II(1) claim that his counsel was ineffective for failing to develop and present such evidence during the second stage of his retrial. This Court has already found (in connection with Proposition XV) that Miller adequately waived the presentation of all such mitigating evidence, beyond that of his own testimony. Regarding the proffered documents, this Court notes that Miller does not actually claim that his counsel failed to investigate or develop such evidence, but rather that his counsel "failed to present an acceptable plan to me for presentation of mitigating evidence" (Miller's Affidavit, Exhibit 1). Miller apparently did not like the advice he received from his counsel regarding the presentation of such evidence. This comes nowhere close to showing "a strong possibility" that his counsel was ineffective in this regard.
¶ 244 This Court finds that Miller has failed to show that there is a strong possibility that his trial counsel was ineffective based upon any of the materials attached to his pro se application for an evidentiary hearing and has failed to show that he should be granted an evidentiary hearing regarding any of the claims made in his pro se brief. Consequently,
¶ 245 Victor Millers
¶ 246 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2013), the
LEWIS, P.J., and LUMPKIN, J., concur in part/dissent in part.
C. JOHNSON, J., and A. JOHNSON, J.: concur.
LEWIS, Presiding Judge, Concurs in Part, Dissents in Part:
¶ 1 Appellant has shown no error warranting reversal of his conviction or death sentence for the murder of Jerald Thurman. The rule of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), which concerns us in Appellant's Proposition Two, is nothing more, or less, than this:
Witherspoon, 391 U.S. at 522, 88 S.Ct. at 1777.
¶ 2 The Court's exhaustive analysis of the trial court's voir dire and subsequent exclusion of several jurors opens with a critical concession that the trial court did not exclude any juror in violation of Witherspoon or the Eighth Amendment. The Court then finds the trial court abused its discretion by denying defense counsel an opportunity to question jurors before excluding them. The trial court thus reached an apparently correct constitutional result by incorrect means, when it denied the defense an opportunity to question some seven (7) prospective jurors who were, it certainly seems, properly excluded anyway.
¶ 3 The manner and extent of voir dire, much less the complex process of capital voir dire, cannot be prescribed by any definite, unyielding rule, Strube v. State, 1987 OK CR 144, ¶ 9, 739 P.2d 1013, 1015, but rests in the sound discretion of the trial judge. Sanchez v. State, 2009 OK CR 31, ¶ 44, 223 P.3d 980, 997. An abuse of discretion is "a clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented." C.L.F. v. State, 1999 OK CR 12, ¶ 5, 989 P.2d 945, 946. Respecting the exercise of that discretion, the prevailing law in capital cases, at least until today, has been very clear.
Stouffer v. State, 2006 OK CR 46, ¶ 17, 147 P.3d 245, 257 (internal citations omitted; emphasis added).
¶ 4 Even more recently, in Postelle v. State, 2011 OK CR 30, 267 P.3d 114, the Court said:
Postelle, 2011 OK CR 30, ¶ 51, 267 P.3d at 135-36 (quoting Coddington v. State, 2011 OK CR 17, ¶ 10, 254 P.3d 684, 695)(emphasis added); see also, Harmon v. State, 2011 OK CR 6, 248 P.3d 918, 930, where the Court said:
Harmon, 2011 OK CR 6 ¶ 21, 248 P.3d at 930 (quoting Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301-02) (emphasis added).
¶ 5 In Brown v. Sirmons, 515 F.3d 1072 (10th Cir.2008), Chief Judge Henry said for the Tenth Circuit Court of Appeals:
Brown, 515 F.3d at 1079 (internal citations and quotations omitted; emphasis added); see also, id. at 1081 (noting that capital habeas petitioner "concedes there is no constitutional right to rehabilitate" a juror in capital voir dire).
¶ 6 The majority incorrectly suggests that a trial court earns additional appellate court deference to its decisions to exclude jurors under Witherspoon to the degree that it first allows defense counsel to engage in rehabilitative mini-inquisitions on every juror who vacillates on a questionnaire or during the prescribed death qualification questions.
Uttecht v. Brown, 551 U.S. 1, 7, 127 S.Ct. 2218, 2223, 167 L.Ed.2d 1014 (2007) (internal citations and quotations omitted; brackets in original; emphasis added).
¶ 7 Our reliance on the trial judge's peculiar ability to observe the demeanor and credibility of potential jurors is particularly warranted when there is "every indication that the judge indeed applied the correct standard." Darden v. Wainwright, 477 U.S. 168, 203, 106 S.Ct. 2464, 2483, 91 L.Ed.2d 144 (1986)(quoting Witt, 469 U.S. at 431, 105 S.Ct. at 856). There is no showing here that the trial court's questioning was insufficient to permit an informed decision about the qualifications of these prospective jurors. The majority's recitation of the trial court's conduct of voir dire proves way too much; it shows an extensive, thoughtful investigation of the jurors' qualifications.
¶ 8 The majority cites an aberrant and impoverished precedent in Mitchell v. State, 2006 OK CR 20, 136 P.3d 671. The trial court's voir dire in Mitchell was one-sided to a degree approaching judicial bias; it was "far from even-handed," granting "almost totally unconstrained questioning/argument from the State during voir dire" while all but categorically denying such voir dire to the defense. Id., 2006 OK CR 20, ¶ 48, 136 P.3d at 694. The trial court in Mitchell also "allow[ed] and even assist[ed] in protracted attempts to rehabilitate jurors who expressed an unwillingness to consider" any sentence but death. Id., 2006 OK CR 20, ¶ 47, 136 P.3d at 694. Mitchell is invoked today to reverse a trial court that was committed to seating a fair death-qualified jury and succeeded in doing so, even according to the majority.
¶ 9 Nor did the Court see "this same claim," or resolve it the same way, in Cudjo v. State, 1996 OK CR 43, 925 P.2d 895. In Cudjo, the trial court limited its death qualification voir dire to a single, legally erroneous question. The only two venire-persons who expressed any reservations about the death penalty in response to this single question were then immediately excused. Id., 1996 OK CR 43, ¶ 11, 925 P.2d at 899. Finding a clear violation of Witherspoon based on an erroneous trial court examination, the Court in Cudjo held that "[w]ithout further inquiry into their views regarding the death penalty, we cannot conclude [the excluded jurors'] views would have prevented or substantially impaired the performance of their duties as jurors." Id.
¶ 10 In profound contrast to Mitchell and Cudjo, the trial court here asked the legally correct questions and excluded jurors who stated that they could not follow the law. Neither Mitchell, nor Cudjo, nor any controlling Supreme Court case holds that a trial court's denial of defense requests to question prospective capital jurors who were properly excluded under Witherspoon denies "due process" or a "reliable sentencing hearing." Form has conquered substance, and appellate strict scrutiny has supplanted trial court discretion, in death-qualifying voir dire.
¶ 11 I concur that double jeopardy bars Appellant's death sentence in the Mary Bowles murder. But the ad hoc litany of "serious and potentially prejudicial" errors cited by the majority to reverse the death sentence in the murder of Jerald Thurman is unconvincing. These errors had no prejudicial effect on the reliability or fundamental fairness of the sentence for this heinous crime. I therefore respectfully dissent to remand for re-sentencing in Count II.
LUMPKIN, JUDGE: Concur in Part/Dissent in Part
¶ 1 I concur in affirming the first degree murder convictions in Counts I and II and in the reversal and modification of the death sentence to life without the possibility of parole in Count I. However, I dissent to the reversal of the death sentence and remand for resentencing in Count II.
¶ 3 No legal authority is cited supporting this conclusion, because there is none. There is no constitutional or statutory mandate that defense counsel be given the opportunity to attempt to rehabilitate jurors excused for their inability to impose the death penalty.
¶ 4 While paying lip service to our well established appellate review of jury selection issues, this opinion deliberately fails to apply that law. Prior to this opinion, this Court has consistently held that the manner and extent of voir dire are within the trial court's discretion. Coddington v. State, 2011 OK CR 17, ¶ 5, 254 P.3d 684, 694. See also Postelle v. State, 2011 OK CR 30, ¶ 43, 267 P.3d 114, 134; Grant v. State, 2009 OK CR 11, ¶ 24, 205 P.3d 1, 13; Patton v. State, 1998 OK CR 66, ¶ 9, 973 P.2d 270, 280. The trial court's decision to disqualify a prospective juror for cause will not be overturned unless an abuse of discretion is shown. Mitchell v. State, 2010 OK CR 14, ¶ 19, 235 P.3d 640, 647-648; Bernay v. State, 1999 OK CR 37, ¶ 10, 989 P.2d 998, 1005.
¶ 5 "Where the trial court has appropriately questioned prospective jurors regarding their eligibility to serve on a capital jury, it is not error to deny defense counsel a chance to rehabilitate jurors excused for inability to impose the death penalty." Coddington, 2011 OK CR 17, ¶ 10, 254 P.3d at 695; Littlejohn v. State, 2004 OK CR 6, ¶ 49, 85 P.3d 287, 301-02. See also Postelle, 2011 OK CR 30, ¶ 51, 267 P.3d at 135-136; Mitchell, 2010 OK CR 14, ¶ 31, 235 P.3d at 649. It has been this Court's opinion that "[b]ecause the trial court is in a position to assess each juror's response to questions, including non-verbal responses which may not appear in a cold transcript, we defer to the trial court's personal observations." Coddington, 2011 OK CR 17, ¶ 5, 254 P.3d at 694 citing Harmon v. State, 2011 OK CR 6, ¶ 14, 248 P.3d 918, 929. Because we might find the record confusing is not grounds for finding an abuse of discretion. "Despite the lack of clarity in the written record, there are situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Jones v. State, 2009 OK CR 1, ¶ 14, 201 P.3d 869, 877. "This Court will look to the entirety of the juror's voir dire examination to determine if the trial court properly excused the juror for cause. As the trial court personally observes the jurors and their responses, this Court will not disturb its decision absent an abuse of discretion." Id. See also DeRosa v. State, 2004 OK CR 19, ¶ 40 n. 82, 89 P.3d 1124, 1141 n. 82 ("[t]he Wainwright Court recognized the difficulty of assessing jurors like Stanfill, noting that `many veniremen simply cannot be asked enough questions to reach the point where their bias has been made `unmistakeably clear.' 469 U.S. at 424-25, 105 S.Ct. at 852. The Court explained that this is the reason `why deference must be paid to the trial judge who sees and hears the juror.' Id. at 426, 105 S.Ct. at 853"). "Because of the obvious difficulty in reviewing juror candidness, we must rely and place great weight upon the trial court's opinion of the jurors." Mitchell, 2010 OK CR 14, ¶ 13, 235 P.3d at 647-648.
¶ 6 In the present case, the trial court conducted a very thorough voir dire, asking
¶ 7 Even if I were to find error, it would be subject to a harmless error analysis. In Robinson v. State, 2011 OK CR 15, ¶ 4, 255 P.3d 425, 428 this Court recognized "[t]here is a strong presumption that errors which occur during trial are subject to harmless error analysis, as long as a defendant is represented by counsel and is tried by an impartial judge. Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999); Rose v. Clark, 478 U.S. 570, 579, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986)." We further stated:
2011 OK CR 15, ¶ 4, 255 P.3d at 428.
¶ 8 The wrongful exclusion of an eligible juror in a capital case, based solely upon that juror's opposition to the death penalty, otherwise known as a Witherspoon error, was added to the above list by Gray v. Mississippi, 481 U.S. 648, 668, 107 S.Ct. 2045, 2057, 95 L.Ed.2d 622 (1987). In DeRosa, 2004 OK CR 19, ¶ 36 n. 78, 89 P.3d at 1140 n. 78 this Court recognized that a Witherspoon error is not subject to a harmless error analysis.
¶ 9 In the present case, the opinion relies on Witherspoon but does not find an actual Witherspoon error. Therefore, any error in the manner in which the trial court conducted voir dire and excused potential jurors for cause is subject to a harmless error analysis. Under a harmless error analysis, a reviewing court must determine whether the error was harmless beyond a reasonable doubt. Bartell v. State, 1994 OK CR 59, ¶¶ 13-14, 881 P.2d 92, 97 citing Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967).
¶ 10 Here, the trial court's failure to allow defense counsel the opportunity to attempt to rehabilitate potential jurors was harmless beyond a reasonable doubt. The trial court treated the State and the defense even handedly, denying both parties an opportunity for additional questioning of potential jurors who were firm in their responses to the trial court about their ability to consider all three punishment options. The prospective jurors excused for cause were ultimately unequivocal in their stated ability to consider all three punishment options. There has been no allegation that the jury that actually decided Appellant's punishment was not impartial. As the opportunity to attempt to rehabilitate potential jurors is not a constitutional issue, any claim of jury partiality must focus on the jurors who ultimately sat. See Rojem v. State, 2006 OK CR 7, ¶ 36, 130 P.3d 287, 295 (since the loss of peremptory challenges is "not of constitutional dimension", "[a]ny
¶ 11 In Proposition XVIII, the opinion strikes down the great risk of death aggravator. As to Count I, the issue is moot as the sentence in that count has been modified to life without parole. As to Count II, the opinion finds the evidence insufficient to support the aggravator, stating that the shooting of Mr. Thurman at the dirt pit, with Ms. Bowles alive and present, did not put Bowles in danger of being injured or killed. As I stated in my separate writing to Hanson, objecting to the invalidation of the aggravator in that case:
2009 OK CR 13, ¶¶ 2-3, 206 P.3d 1020, 1036 (Lumpkin, J. concur in part/dissent in part).
¶ 12 In the present case, I find the evidence supported the aggravator as Appellant's act of shooting Thurman put Bowles at a great risk of death. Thus there is factual evidence to support the jury's verdict and under our case law we should uphold that decision. I find the aggravator valid and would remove the issue from any cumulative error discussion.
¶ 13 In Proposition XI, the opinion reviews the prosecutor's "freebie argument" for plain error but fails to set forth and follow the established standard of review. See Hogan v. State, 2006 OK CR 19, ¶ 38, 139 P.3d 907, 923. Applying a plain error analysis, I find no error in the prosecutor's comment. The argument was merely a request for the separate punishment of death, based upon the facts in this case, even taking into account Appellant's federal sentence. There was nothing misleading about the argument. That the argument may have been "emotionally powerful" is no reason for finding it improper. Further, the defense first raised the issue of the prior sentences and the State had a right to respond in an appropriate manner, which it did. The opinion's determination that the comment was error is based upon unsupported assumptions. I find no error in the argument and no reason for it to be considered in a cumulative error claim.
¶ 14 Similarly, I disagree with the conclusion in Proposition XXIII, that defense counsel's failure to object to the "freebie argument" was deficient performance. The comment was based on the evidence and any objection would have been overruled. Trial counsel will not be found ineffective for failing to raise objections which would have been overruled. Eizember v. State, 2007 OK CR 29, ¶ 155, 164 P.3d 208, 244.
¶ 15 Finally, I recede from participation in the numerous comments in this opinion which are mere dicta, speculation or assumptions not necessary to the adjudication of the issues presented in Appellant's claims of error.
Id. at ¶ 53, 139 P.3d at 927. The United States Supreme Court has likewise reaffirmed the binding nature of Bullington. See Sattazahn v. Pennsylvania, 537 U.S. 101, 109, 123 S.Ct. 732, 738, 154 L.Ed.2d 588 (2003) ("Under the Bullington line of cases ..., the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an `acquittal.'").
Nevertheless, E.M. was ultimately dismissed two days later, during general voir dire, after it became quite apparent that she did not want to serve. After defense counsel talked to her about the idea of civic responsibility, E.M. stated that she did not feel "qualified" and "I won't budge on my personal beliefs about the death penalty." When pushed further about whether she would "consider it," E.M. responded, "I don't want to, no." E.M. indicated that she did not like the way defense counsel was making her feel "guilty," that she was willing to do her civic duty, but that she was not "capable to be a good juror." The trial court then granted the State's motion to dismiss E.M. for cause, over defense objection. The court described E.M. as "very angry," "very adverse," and even "hateful in her responses."
Id. at 424-25, 105 S.Ct. at 852-53. And the more that a trial judge has been able to see and hear a particular juror, the more deference that should be accorded to that judge's decision.
Id. at ¶ 39, 188 P.3d at 219 (citing Warner v. State, 1977 OK CR 257, ¶ 19, 568 P.2d 1284, 1286).
Crawford v. Washington, 541 U.S. 36, 61-62, 124 S.Ct. 1354, 1370-71, 158 L.Ed.2d 177 (2004).
The district attorney then rephrased his argument, noting he was acting as "a representative of the State," and defense counsel did not make any further objection in this regard.
Miller v. State, 1992 OK CR 77, ¶ 3, 843 P.2d 389, 390 (emphasis added). This Court found that this statement was "misleading and if relied upon by the jury, it would serve to deny Appellant an important constitutional right." Id. at ¶ 5, 843 P.2d at 390. We then reversed the defendant's conviction, even though counsel failed to object at trial. Id. at ¶ 4, 843 P.2d at 390.
I submit to you ... that we are in a little different position today than we were when we first started this trial and it was your duty at that time, under the law of this land, ... to actively in your minds presume that man over there not to be guilty of the offense of rape in the first degree, but, you know, things have changed since that time. I submit to you at this time, under the law and under the evidence, that that presumption has been removed, that that presumption no longer exists, that that presumption has been removed by evidence and he is standing before you now guilty. That presumption is not there anymore. Mahorney v. Wallman, 917 F.2d 469, 471 (10th Cir. 1990) (emphasis added). Defense counsel's objection to this argument was overruled, as was his request for an admonishment and a mistrial. Id. The Tenth Circuit Court of Appeals found that the argument constituted misconduct and that "the essence of the error" was that the remarks "conveyed to the jury the idea that the presumption [of innocence] had been eliminated from the case prior to deliberations." Id. at 473. This Court invoked and relied upon Mahorney within its analysis in Miller. See Miller, 1992 OK CR 77, ¶ 5, 843 P.2d at 390.
Gilbert v. State, 1997 OK CR 71, ¶ 90, 951 P.2d 98, 120. This Court found that this prosecutorial argument "does not say the presumption does not apply, ... but only that the evidence shows the defendant is guilty." Id. at ¶ 92, 951 P.2d at 120. Unlike the remarks in Gilbert, the remarks in the current case stated that the presumption of innocence "no longer exists," because it had been "diminished" by the evidence in the case.
The "Notes on Use" for this instruction state that "[t]his Instruction should be given if two or more charges against the same defendant are tried together."
When the defendant appears for judgment, he must be informed by the court, or by the clerk under its direction, of the nature of the indictment or information, and his plea and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him.
See 22 O.S.2011, § 970 (reflecting no amendments since original adoption in 1910).
