Dunkle v. State, F-2004-621.

• Decision Date: 07 July 2006
• Docket Number: No. F-2004-621.,F-2004-621.
• Citation: 139 P.3d 228,2006 OK CR 29
• Parties: Laura L. DUNKLE, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 228

139 P.3d 228

2006 OK CR 29

Laura L. DUNKLE, Appellant v. STATE of Oklahoma, Appellee.

No. F-2004-621.

Court of Criminal Appeals of Oklahoma.

July 7, 2006.

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Douglas J. Smith, Norman, OK, attorney for defendant at trial.

Lesley March, Assistant District Attorney, Robert E. Christian, District Attorney, Chickasha, OK, attorney for the State at trial.

Jamie D. Pybas, Appellate Defense Counsel, Norman, OK, attorney for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Donald D. Self, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

CHAPEL, Presiding Judge.

¶ 1 Laura L. Dunkle was tried by jury and convicted of First-Degree Murder, under 21 O.S.2001, § 701.7, in Grady County, Case No. CF-2003-147. In accordance with the jury's recommendation, the Honorable Richard G. Van Dyck sentenced Dunkle to life imprisonment without the possibility of parole. Dunkle appeals her conviction and her sentence.

¶ 2 Gary Benton White, age 46, was killed by a single gunshot wound to the chest, shortly after midnight on May 6, 2003, just outside the home he was sharing with his fiancée, Laura Dunkle, in Dibble, Oklahoma. Dunkle gave various statements at the scene and later that morning about what happened. She consistently denied shooting White, maintaining instead that he either shot himself or that he was shot accidentally as she attempted to prevent him from shooting himself.

¶ 3 Shortly after midnight on the morning of May 6, 2003, Dunkle frantically called her friend, Lois Merrel, asking her to call 911 and get an ambulance, because there had been an accident and Gary had been shot. Merrel testified that Dunkle said that she had tried 911 herself and could not get through.¹ Merrel also testified that Dunkle referred to Gary having a gun in his hand, a cigarette in his mouth, and carrying his lunch pail as he headed toward his truck to go to work, when he stumbled on the wobbly back steps and accidentally shot himself.² Merrell called 911 and later went to Dunkle's home.

¶ 4 Sergeant Tommy Payne, of the Grady County Sheriff's Office, was the first to arrive at the scene. He testified that Dunkle flagged him down and led him to where Gary White was laying flat on his back, with his feet toward the back steps of the trailer home, with a single gunshot wound to his chest. Payne could not get a pulse and believed White was dead.³ When asked what had happened, Dunkle stated, "He shot himself." When asked where the gun was, Dunkle stated, "It's around here somewhere." Payne then located the gun, a Colt .45 caliber semi-automatic pistol, behind where Dunkle was standing, near the foot of the steps of the home and over five feet and to the left of White's left foot. The gun was chambered and cocked in the firing position.⁴

¶ 5 When Payne asked Dunkle where it had happened, she responded, "In the kitchen." When he entered the home, Payne noticed a .45 caliber shell casing laying in the threshold of the doorway leading to the steps. On an island in the kitchen, Payne discovered a small, open suitcase containing other guns. There was no sign of a struggle or blood inside the kitchen. At that point Corporal John Foster, of the Grady County Sheriff's Office, arrived and accompanied Dunkle over to his patrol car, where he asked her what happened.

¶ 6 Dunkle told Foster that she had awakened her boyfriend, Gary White, around 10:00 p.m., so that he could get ready for work. She stated that she made coffee and did the dishes and that they talked about their future plans. Dunkle stated that she told White she was going to go lay down in the bedroom of her two sleeping sons, which she did. Dunkle stated that she later saw White in the hallway outside the bedroom door, carrying the small attaché case in which he kept his guns, and that he said something she couldn't understand. Dunkle stated that she got up and followed him into the kitchen, because she had a feeling something bad was going to happen.

¶ 7 Dunkle stated that White had his gun case open on the kitchen island and was trying to load the gun. Dunkle stated that she said, "No, don't you do that," and tried to get the gun away from him, but he pushed her down. She stated that as she got up, White went out the back door and down the steps, and she saw a flash of light, and something hit the rocks just outside the trailer when the gun went off. When asked if White was facing her when the gun went off, Dunkle stated that it was "pitch black" and she couldn't see "nothing." At this point Foster asked Dunkle if she would be willing to allow him to tape record what she was telling him, because he could not write as fast as she was speaking. Dunkle agreed to do so, and they got in Foster's patrol car, so they could record what was said.

¶ 8 The tape recording of Dunkle's subsequent conversation with Foster, along with a transcription of this recording, was entered into evidence at trial. Dunkle added a number of details to her account, including that White had to come back into the house to get something he had forgotten and that she couldn't hear what he said at the bedroom door due to noise from a fan. Dunkle added that after being shoved down on her first attempt to get the gun from White, she tried to get the gun a second time, using a maneuver she learned in a CLEET mandate class, in a struggle with White near the back door. Dunkle stated that she and White were both outside on the steps when the gun went off, and that after the flash of light, she saw White holding his sides and coughing.⁵ Dunkle also talked about various other matters, including what a wonderful guy White was, how good he was with her children, how respectful he was of guns, that they were to be married on May 26, 2003, and that White was "the happiest guy in the world."⁶ Dunkle's demeanor varied widely during the interview.

¶ 9 Foster testified that by the conclusion of this interview, he became suspicious that Dunkle could be a suspect in the shooting, due to some of the inconsistencies in her statements. Consequently, Foster asked Dunkle if she would be willing to write out her statement and then read her the printed Miranda warnings at the top of the voluntary statement form that he provided, listing the time as 1:15 a.m. Foster testified that Dunkle advised him that she understood her rights and that she was still willing to talk to him. Dunkle then provided a written statement, which was admitted at trial.⁷

¶ 10 Around 4:00 a.m. that morning, O.S.B.I. Special Agent Tom Linn arrived at the scene. Linn testified regarding his observations of the scene and the victim, including the presence of a set of keys laying near the outstretched right arm of White.⁸ He obtained permission from Dunkle to search her home and did so. He then approach Dunkle, who was in Undersheriff Irene Perske's car, and asked if she was willing to be further interviewed by Linn and Perske about the incident, to which Dunkle agreed. Dunkle was then taken to the OSBI office in the Grady County Law Enforcement Center by Perske, after indicating that she preferred to ride with Perske.⁹ Dunkle was then interviewed extensively by Linn, while Perske remained in the room, beginning around 5:00 a.m.¹⁰

¶ 11 Linn acknowledged at trial that he did not read Dunkle her Miranda rights.¹¹ He testified at length about Dunkle's various statements during this interview, relying mainly on his report of the interview, which he began preparing a few days later.¹² During the interview Dunkle provided more information about her relationship with White, his job as a truck driver hauling gravel, and her children and background. She again summarized the events of the previous evening and the circumstances surrounding the shooting. Most of Dunkle's story was consistent with her earlier accounts, in particular, that she thought White was going to shoot himself.¹³

¶ 12 Linn noted, however, that in Dunkle's first version to him, she described seeing a flash of light after White ran down the steps, and that she thought he was having a heart attack when she saw him bending over at the waist. Linn noted that Dunkle also described laying down next to White, to talk to him while they waited for help, and that because she was feeling nervous and stressed, she removed a cigarette and lighter from his left front shirt pocket (near the gunshot wound) and smoked the cigarette as she waited.

¶ 13 Linn testified that he told Dunkle that her account was inconsistent with evidence at the scene and that she then "revised" her story. Linn testified that Dunkle provided more details in this second account, including the placement of White's hands and her hands on the gun at the time it fired — even getting Dunkle to demonstrate the specific placement of their hands on a wooden replica of a revolver. Linn testified that Dunkle stated, "I don't remember taking control of the gun and shooting him by touching the trigger. The gun fired by accident. It was an accident." Linn testified that in this version Dunkle stated that White was on the bottom step when the gun fired, though shortly thereafter Dunkle provided another version of the story, in which she was on the top step and White was on the ground when the gun fired.

¶ 14 Linn testified that he continued to insist that Dunkle's account didn't match the scene and to push for more details, until Dunkle stated, shortly before 8:00 a.m., that she would give them more details after she asked an attorney one question. At this point they stopped interviewing her and made a number of attempts to contact attorneys. At 8:51 a.m., attorney Greg McCracken returned one of their calls, and Dunkle spoke to him on the phone, after telling the officers that they could remain in the room. During this call Dunkle told McCracken that her boyfriend had been shot and that the officers were threatening to charge her...