119 P.3d 1268 (Okla.Crim.App. 2005), D-2003-776, Gore v. State

Docket Nº:D-2003-776.
Citation:119 P.3d 1268
Party Name:Glen Dale GORE, Appellant v. STATE of Oklahoma, Appellee.
Case Date:August 29, 2005
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 1268

119 P.3d 1268 (Okla.Crim.App. 2005)

Glen Dale GORE, Appellant

v.

STATE of Oklahoma, Appellee.

No. D-2003-776.

Court of Criminal Appeals of Oklahoma

August 29, 2005

        As Corrected Aug. 30, 2005.

Page 1269

[Copyrighted Material Omitted]

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        An Appeal from the District Court of Pontotoc County; the Honorable Thomas S. Landrith, District Judge.

        David Smith, Ken Adair, Norman, OK, counsel for appellant at trial.

        William Peterson, District Attorney, Richard Wintory, Lynn Loftis, Assistant District Attorneys, Oklahoma City, OK, Chris Ross, Assistant District Attorney, Ada, Oklahoma, counsel for the State at trial.

        Gloyd L. McCoy, Oklahoma City, OK, counsel for appellant on appeal.

        W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, counsel for the State on appeal.

         OPINION

        LUMPKIN, Vice-Presiding Judge.

        ¶ 1 Appellant Glenn Dale Gore was tried by jury and convicted of First Degree Murder (21 O.S.1981, § 701.7), Case No. CF-2001-126, in the District Court of Pontotoc County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. 1

        ¶ 2 Appellant was convicted of the 1982 murder of twenty-one year old Debra Sue Carter in Ada, Oklahoma. During the fall of that year, Carter moved into a garage apartment and worked three jobs to support herself. One of her jobs was as a bartender/waitress at the Coach Light Club in Ada.

        ¶ 3 Appellant was a regular patron at the Coach Light Club and was there the night of December 7, 1982. Business was slow that night so the club closed early. Carter was last seen in her car in the parking lot talking to Appellant who stood outside her car. Some of the people leaving the club saw nothing out of the ordinary in Carter and Appellant talking. Others saw Carter push Appellant away in order to close her car door and drive off. Carter left the club alone and drove home. Appellant went back inside the club and subsequently left with Ron West, who had earlier given Appellant a ride to the club. Appellant and West went to the Waffler restaurant where they ate breakfast. Once they were finished, Appellant asked West to drive him to his mother's home. Following Appellant's directions, West drove toward the west part of town. Appellant told West he did not need to take him all the way to his mother's home and he asked to be let out at a nearby church. West complied, and watched Appellant walk around his car and head in a westerly direction.

        ¶ 4 In the meantime, several of those leaving the Coach Light Club went home with Gina Vietta to continue their party. Vietta, Carter's friend, asked Carter to join them but she declined. Between approximately 2:30 a.m. and 3:00 a.m., Vietta received a

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phone call from Carter asking her to come and pick her up at her apartment because someone was there who made her uncomfortable. Vietta asked who was there with her, but Carter did not immediately respond, telling Vietta to "hold on". Vietta then heard muffled noises over the phone and told Carter she was on her way. However, before Vietta could leave, Carter phoned again and said she had decided to stay home. When Vietta again asked who was there with her, Carter changed the subject and told Vietta to phone her in the morning so she would not be late for work.

        ¶ 5 At approximately 11:20 a.m., December 8, 1982, Donna Johnson went to visit Carter, her long-time friend. Johnson stepped in glass as she walked up the stairs to Carter's apartment. She noticed the front screen door to the apartment was open and the window in the wooden front door had been broken out. Johnson heard the radio playing and found the front door unlocked. When Carter did not answer, Johnson looked inside and saw the apartment in disarray. Sofa cushions and clothes were strewn on the floor. Written on a wall was "Jim Smith next will die". Written on the kitchen table was "don't look fore us or ealse" (sic). The victim's jeans and a blouse were found on the kitchen floor.

        ¶ 6 The victim's bedroom showed signs of a struggle. Her bed was out of place, pushed up toward the door to the bedroom almost to the point of blocking entry to the room. The comforter and sheets from the bed were on the floor. The victim's bra and panties were also found on the floor. The panties had one leg torn completely through. A bloody palm print was discovered on the wall approximately eighteen (18) inches from the floor. Carter was found on the floor on the far side of the bedroom, lying on her stomach, nude except for one sock covered foot. On her back was written "Duke Graham" in ketchup. Shampoo residue appeared to be on her buttocks. On her chest was written "DIE" in fingernail polish. A blood-soaked washcloth was stuffed into her mouth and down her throat. A belt and an electrical cord from an electric blanket were found underneath the body. Next to the body was a crumpled bed sheet. Wrapped inside the sheet was a ketchup bottle with the lid missing. Also found on the floor near the body was a shampoo bottle with the lid missing. A bracelet was found on the victim's wrist and money was found on the floor of the bedroom.

        ¶ 7 During the subsequent autopsy, numerous fresh bruises and scrapes were found on the victim's face--on her forehead, above her right eye, along her right cheek, along the left side of her mouth, under her chin, and on the back of her neck. Bruises and bite marks were found inside her mouth and on her tongue. A narrow ligature mark was found around her neck. Fresh bruises were also found on her chest, arms, hips, knees, and on the inside and outside of her thighs. Fresh bruises were found around her vaginal area. Intact sperm were found in her vagina and rectum. Also, the lid to a ketchup bottle was found in her anal canal. The washcloth in her mouth was found to have been pushed down her throat blocking her airway. The medical examiner testified that all of the victim's injuries were inflicted prior to her death. He determined the cause of her death was asphyxiation from the ligature strangulation.

        ¶ 8 Testimony from an expert on crime scene reconstruction showed a substantial amount of time had been taken by the perpetrator to "stage" the crime scene to make it look as though two (2) people were involved in the crime. Evidence offered to support this testimony included glass broken both on the inside and outside of the window in the apartment front door, and the writing on the victim, on the wall and on the kitchen table.

        ¶ 9 In 1988 Ronald Williamson and Dennis Fritz were convicted of the murder of Debra Carter. Consistent with police interviews immediately after the crime, Appellant testified at the preliminary hearing for Williamson and Fritz that on the night of the murder Carter had asked him to dance with her because Williamson was bothering her. Appellant

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was the only witness to place Williamson and Carter together the night of the homicide. By the time of Williamson's trial, Appellant was incarcerated on an unrelated offense and therefore unavailable to testify. His preliminary hearing testimony was read to the jury. Upon being convicted, Williamson was sentenced to the death penalty and Fritz was sentenced to life imprisonment. 2 In 1997, Williamson's conviction was reversed by the Tenth Circuit Court of Appeals and the State was ordered to retry him or permanently release him from custody. See Williamson v. Ward, 110 F.3d 1508 (10th Cir.1997).

        ¶ 10 In preparation for a possible new trial, samples of hair and bodily fluids taken from Williamson and Fritz were submitted for the newly available DNA analysis. Williamson's defense counsel, Mark Barrett, also sought to interview Appellant and obtain samples for DNA testing. Barrett interviewed Appellant at the Lexington Correctional Center where Appellant was incarcerated. Barrett informed Appellant that DNA evidence was being developed to exonerate Williamson. Appellant refused Barrett's request to provide samples of his hair and bodily fluids for DNA testing. Barrett also asked Appellant about his earlier claims against Williamson. During several conversations with Barrett, Appellant repudiated his earlier testimony with statements ranging from he didn't know if Williamson was at the Coach Light the night of December 7, to Williamson was not at the club that night, to he didn't know if Williamson was there or not.

        ¶ 11 The results of the DNA testing excluded Williamson and Fritz as the donors of the sperm found in the victim and the case against them was ultimately dismissed. On the same day the DNA results were made public, Appellant walked away from his work release detail in Purcell, Oklahoma. Approximately one week later, Appellant contacted an attorney and turned himself in to authorities. Subsequent DNA testing of samples taken from Appellant showed he was the donor of the sperm found inside the victim. Appellant was subsequently charged with, and convicted, of Carter's rape and murder.

         ¶ 12 Having thoroughly reviewed Appellant's allegations of error and the entire record in this case, we find relief is warranted based upon the first assignment of error. Appellant contends the trial court erred in sustaining the State's Motion in Limine prohibiting the defense from presenting any evidence tending to show that Williamson and Fritz or Ricky Simmons committed the crime. Prior to trial, Appellant filed an offer of proof listing 19 witnesses. 3 This proffered evidence consisted of Williamson's confession to the murder, and testimony...

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