871 P.2d 79 (Okla. Crim. App. 1994)
In December 1988, Wanda Jean Allen was charged in the District Court of Oklahoma County with first-degree murder and felonious possession of a firearm after former conviction of a felony.1
The charges arose from the December 1, 1988 shooting of Gloria Leathers outside the police station in the Village, Oklahoma.2 Allen and Leathers had been in a homosexual relationship that Leathers wished to end after a dispute over a welfare check.3
Leathers gathered her belongings at the shared residence with police assistance and proceeded to the station.4 Allen followed separately by car.5 Outside the station Allen approached Leathers to discuss the move.6 Allen produced a pistol and fired a single shot into Leathers' abdomen.7 Allen fled and remained at large until December 5, 1988, the same day Leathers died from the wound.8
Allen was arrested that day and later gave a videotaped statement to police in which she drew a rough diagram of vehicle positions that was not preserved.9 Allen was tried by jury in Case No. CRF-88-6621.10 The jury convicted her on both counts, found two aggravating circumstances, and recommended death for the murder and ten years for the firearm offense.11 The trial court imposed those sentences.12
Allen perfected an appeal to the Oklahoma Court of Criminal Appeals under docket F-89-549, asserting errors concerning incomplete transcripts of pre-trial and trial proceedings, denial of a defense investigator, jury selection, exclusion of defense evidence, admission of the videotape, prosecutorial argument, ineffective assistance, and sentencing-phase procedures.13
In the punishment phase the State introduced evidence of Allen's 1981 guilty plea to first-degree manslaughter in the death of Detra Pettus.14 Allen had pistol-whipped Pettus and shot her in the abdomen during a confrontation that also ended with Allen discarding the weapon in a dumpster.15 Allen presented mitigation evidence concerning her family relationships, work history, mental state, remorse, and childhood background.16
Whether failure to transcribe specific pre-trial hearings, portions of voir dire, and trial proceedings requires reversal in a capital case?17
In capital cases a complete stenographic record shall be taken in all capital proceedings.18 The record allows the appellate court to conduct mandatory sentence review under 21 O.S. 1991, § 701.13 and to determine whether the death sentence was imposed under improper influence and whether the evidence supports the aggravating circumstances.19 Failure to transcribe is subject to harmless error analysis when alternate means exist for the court to make the required determination.20
No. The missing transcripts involved arraignment, motions for blood samples and handwriting exemplars, the motion for an investigator, the motion to suppress, and isolated off-record discussions during voir dire and trial.2122 Those discussions concerned a juror's health, a family illness, jury instructions, and a stipulation.23 The court could determine from the existing record that Allen received the preliminary hearing transcript, that no constitutional violation occurred at arraignment or the motion hearings, and that the off-record discussions did not involve death penalty views or influence the jury.24 Any error was therefore harmless beyond a reasonable doubt.25
Failure to transcribe the specified proceedings does not require reversal of the murder conviction.26
Whether the trial court erred in denying appointment of a private investigator at public expense?27
A defendant must establish by clear and convincing evidence that denial of a state-appointed investigator at public expense caused prejudice to the defense.28 The motion must provide specific reasons why an investigator is necessary.29 The theories advanced at trial must also lack merit in light of the evidence presented.30
No. Allen's motion for a private investigator did not give specific reasons why one was necessary.3132 Trial counsel's post-trial affidavit indicated the investigator was sought to investigate self-defense and manslaughter theories.33 Allen's own testimony showed she followed Leathers to the police station after Leathers had withdrawn from the confrontation, retrieved a pistol from her vehicle, and confronted Leathers rather than escaping.34 Other evidence, including the absence of blood in Allen's vehicle and the positioning of the garden rake, contradicted her account.35
In light of the overwhelming evidence of guilt, Allen failed to establish prejudice by clear and convincing evidence.36
The trial court did not err in denying appointment of a private investigator.37
Whether the prosecution violated Batson v. Kentucky by exercising a peremptory challenge against a black prospective juror?38
Once a prima facie case of discriminatory selection is established under Batson v. Kentucky, the prosecution may rebut by offering a racially neutral explanation for the peremptory challenge.39 The explanation need not rise to the level justifying excusal for cause.40 The trial court's findings are entitled to great deference.41
No. Allen is African-American.42 The prosecution exercised a peremptory challenge against a black venire person and offered neutral reasons including a facial expression of raised eyebrows when discussing the death penalty, hesitation about the death penalty, avoidance of eye contact with prosecutors, and dozing off during general voir dire.43 These reasons are sufficiently race-neutral under Batson and supported by precedent recognizing hesitancy about the death penalty and indications of inattention or reluctance as valid bases for peremptory challenges.44
The prosecution did not violate Batson v. Kentucky.45
Whether the trial court erred in limiting voir dire questions about life without parole and lesser included offenses?46
The purpose of voir dire is to ascertain whether there are grounds to challenge prospective jurors for bias and to permit the intelligent exercise of peremptory challenges.47 A trial court does not abuse its discretion by refusing questions on lesser included offenses when every juror questioned indicates he or she can follow the law given by the court.48
No. Defense counsel had the opportunity to pose appropriate questions to each juror concerning the punishment options, including life without parole.4950 Although counsel was not permitted to ask a specific question about lesser included offenses, every juror who was asked indicated he or she could follow the law given by the trial court.51 This demonstrates that each could consider a lesser included instruction and shows no abuse of discretion in limiting the questions.52
The trial court did not err in limiting voir dire questions.53
Whether the trial court improperly excused prospective jurors who expressed reservations about the death penalty?54
Not all who oppose the death penalty are subject to removal for cause in capital cases.55 Those who firmly believe the death penalty is unjust may nevertheless serve as jurors so long as they state clearly that they are willing to temporarily set aside their own beliefs in deference to the rule of law.56 When a juror's answers are unclear and contradictory, the trial judge's impressions are entitled to deference.57
No. Prospective juror Webb gave contradictory answers and ultimately stated she could not consider all punishment options and would rule out one or more.5859 Prospective juror Alexander repeatedly indicated confusion about the procedure and reluctance to consider the death penalty, stating she did not think she could impose it even if she thought it was the most appropriate punishment.60 The trial judge had a definite impression that these jurors would be unable to fulfill their oaths, and the responses sufficiently demonstrated that their beliefs about capital punishment would substantially impair their ability to serve as jurors.61
The trial court did not improperly excuse the prospective jurors.62
Whether the trial court erred in excluding testimony from the decedent's mother to corroborate the defendant's claimed fear of the decedent?63
Evidence offered to corroborate a defendant's claimed fear is properly excluded when the defendant's own testimony demonstrates that self-defense was not available as a matter of law.64 This occurs when the defendant re-initiated the confrontation after the victim had withdrawn and the defendant retrieved a weapon rather than escaping.65
No. Allen sought to introduce testimony from Ruby Wilson that Leathers had told her she killed a woman in Tulsa ten years earlier.6667 Allen testified she feared Leathers because of that claim.68 After Leathers withdrew by leaving the residence with her mother and going to the police station, Allen followed her, approached her at the station, retrieved a pistol from her vehicle, and confronted Leathers rather than escaping.69 Even limiting review to Allen's version, she lost the right of self-defense by re-initiating the encounter and obtaining a tactical advantage with a deadly weapon.70
Because self-defense was not warranted, exclusion of the corroborative hearsay was not error.71
The trial court did not err in excluding the testimony.72
Related opinions on this issue
Judge Lane dissents from the majority's treatment of self-defense issues.73 He states that Allen assumed the risk of cross-examination to present evidence necessary to raise self-defense.74 The trial judge was satisfied she presented sufficient evidence and instructed the jury accordingly.75
The record supports that discretionary determination.76 The majority substitutes its own factual spin and announces the trial court erred by finding enough evidence to take the theory to the jury.77 The simple truth is the record supports the trial court's decision.78
The most serious error is the failure to instruct the jury that once self-defense is raised the State bears the burden to disprove it beyond a reasonable doubt, requiring reversal and remand for a new trial.79
Whether the trial court erred in admitting a videotaped confession without an accompanying diagram drawn by the defendant?80
Admission of a videotaped confession without a diagram drawn by the defendant is not reversible error when the defendant used hand gestures and the table during the interview to indicate positions and later testified at trial contradicting police diagrams and demonstrating her version to the jury.81 This allows the jury to receive all facts and circumstances surrounding the confession.82
No. Allen drew a rough diagram on the videotape that was not preserved.8384 Before drawing the diagram she used her hands and the table to indicate relative positions of the vehicles.85 She also testified at trial, contradicting police diagrams and demonstrating to the jury where she recalled the vehicles being parked.86 This allowed her to communicate her version of events, so any error in admitting the videotape without the diagram was harmless beyond a reasonable doubt.87
The trial court did not err in admitting the videotaped confession.88
Whether the prosecutor committed misconduct in closing arguments by commenting on evidence, the defendant's relationship with the decedent, and the jury's role in sentencing?89
Prosecutorial comments during closing argument do not constitute fundamental error warranting reversal when they constitute fair comment on the evidence.90 They must not improperly diminish the jury's role under Caldwell v. Mississippi and must not inflame the jury in light of the overwhelming evidence of guilt.91
No. The prosecutor commented on the path of the bullet making Allen's version unlikely, the absence of blood in her vehicle, her status as the dominant person in the relationship, her changing stories, and a postcard she sent threatening the decedent.9293 These comments were supported by evidence, including the medical examiner's testimony, the criminalist's processing of the vehicle, and the postcard itself.94 The prosecutor also told the jury it would return a death verdict rather than kill Allen, but in context emphasized the difficulty of the decision and did not improperly describe the jury's role.95 No fundamental error occurred given the overwhelming evidence.96
The prosecutor did not commit misconduct warranting reversal.97
Whether trial counsel rendered ineffective assistance due to inadequate compensation, failure to investigate, and other alleged deficiencies?98
To establish ineffective assistance, a defendant must show both that counsel's performance was deficient and that there is a reasonable probability the result would have been different but for the errors.99 Inability of a client to pay does not automatically create a conflict of interest.100 Counsel cannot be ineffective for failing to raise claims when the client neglected to supply essential facts within the client's possession.101
No. Allen's trial counsel was paid only $800 of an agreed fee and moved to withdraw.102103 Counsel did not investigate the Tulsa homicide or Allen's life history for mitigation.104 Allen herself did not inform counsel of her troubled childhood, low IQ, or head injury before trial.105 Several exhibits would have been harmful, showing Allen fought constantly, carried a knife, and assaulted others.106
Because self-defense lacked merit and Allen failed to supply the facts, she cannot show prejudice under Strickland v. Washington.107
Trial counsel did not render ineffective assistance.108
Whether the evidence supported the aggravating circumstances of prior violent felony conviction and continuing threat to society?109
The evidence supports the aggravating circumstances of a prior felony conviction involving the use or threat of violence and continuing threat to society when the State presents evidence of a prior manslaughter conviction involving similar conduct and additional evidence from the current offense showing a pattern of escalating violence and threats.110
Yes. In the punishment phase the State introduced Allen's 1981 guilty plea to first-degree manslaughter in the death of Detra Pettus.111112 Allen pistol-whipped Pettus and shot her in the abdomen at close range during a confrontation arising from a verbal disagreement.113 Allen discarded the weapon in a dumpster.114
This was combined with evidence from the current case that Allen argued with Leathers, followed her when she tried to leave, approached her at the police station, shot her in the abdomen, fled, hid the weapon, wrote threatening cards and letters, and told Leathers' son she would not rest until Leathers was dead.115 This evidence supports both aggravating circumstances.116
The evidence supported the aggravating circumstances.117