Smith v. State

• Decision Date: 26 April 2007
• Docket Number: No. D-2003-1120.,D-2003-1120.
• Citation: 2007 OK CR 16,157 P.3d 1155
• Parties: Michael DeWayne SMITH, Appellant v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

157 P.3d 1155

2007 OK CR 16

Michael DeWayne SMITH, Appellant v. STATE of Oklahoma, Appellee.

No. D-2003-1120.

Court of Criminal Appeals of Oklahoma.

April 26, 2007.

An Appeal from the District Court of Oklahoma County; The Honorable Twyla Mason Gray, District Judge.

MICHAEL DEWAYNE SMITH,

Appellant, was tried by jury and convicted for the crimes of First Degree Murder, Burglary in the First Degree, Robbery With a Firearm, and Arson in the First Degree in Case No. CF-2002-1329, in the District Court of Oklahoma County. The Honorable Twyla Mason Gray, District Judge, presided and sentenced Smith to death on the murder counts, twenty years imprisonment on the burglary count, thirty years on the robbery count, and thirty-five years on the arson count, all in accordance with the jury's verdict. Smith perfected this appeal. Judgment and Sentence is

AFFIRMED.

L. Wayne Woodyard, Silas R. Lyman, II, Oklahoma Indigent Defense System, Capital Trial Division, Sapulpa, OK, attorneys for defendant at trial.

Stephen Deutsch, James Siderias, Assistant District Attorneys, District Attorney's Office, Oklahoma City, OK, attorneys for the State at trial.

Traci J. Quick, L. Wayne Woodyard, Capital Defense Counsel, Oklahoma Indigent Defense System, Capital Trial Division, Sapulpa, OK, attorneys for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, OK, attorneys for appellee on appeal.

OPINION

A. JOHNSON, Judge.

¶ 1 Appellant Michael DeWayne Smith, was tried by jury for the following crimes: Burglary in the First Degree in violation of 21 O.S.2001, § 1431 (Count 1); two counts of Murder in the First Degree in violation of 21 O.S.2001, § 701.7 (Counts 2 and 3); Robbery with a Firearm in violation of 21 O.S.2001, § 801 (Count 4); and Arson in the First Degree in violation of 21 O.S.2001, § 1401 (Count 5), in Case Number CF-2002-1329 in the District Court of Oklahoma County. The jury returned verdicts of guilty on all five counts. In the penalty stage of the trial the jury found the existence of two aggravating circumstances and set punishment at death for the murders.¹ The jury fixed the punishment for the burglary at twenty years imprisonment; for the robbery at thirty years; and for the arson at thirty-five years with a fine of $25,000.00. The Honorable Twyla Mason Gray sentenced Smith on each count in accordance with the jury's verdicts.

¶ 2 Smith raises eleven claims of error on appeal. We find no merit in any of the claims and affirm the judgment and sentence.

I. FACTS

¶ 3 The Appellant, Michael DeWayne Smith, was a member of the Oak Grove Posse, a subset of the Crips gang in Oklahoma City. On November 8, 2000, three members of the Oak Grove Posse attempted to rob Tran's Food Mart in south Oklahoma City. The three robbers were Teron "T-Nok" Armstrong, Kenneth "Peanut" Kinchion, and Dewayne "Pudgy-O" Shirley. During the course of the robbery attempt, the owner of the store shot and killed Armstrong. Kinchion and Shirley were eventually arrested. Smith was not involved in the attempted robbery but had close personal ties to Armstrong.

¶ 4 On Friday, February 22, 2002, two days before the trial of Kinchion and Shirley was scheduled to start, Smith left his apartment in the Del Mar Apartments in Oklahoma City early in the morning. His roommate, Marcus Berry (also known as Marcus Compton), saw Smith take a .357 caliber revolver with him. Smith went first to Janet Moore's apartment looking for her son Phillip Zachary who he believed was a police informant. Smith had earlier told Berry that "snitches need to be dead."

¶ 5 The evidence supports the conclusion that Smith arrived at Moore's apartment sometime before 6:30 a.m. Shoe prints indicated that Smith kicked in her front door and then her bedroom door. Moore began screaming, and, at approximately 6:30 a.m., a downstairs neighbor heard arguing between a man and a woman and then a single "pop" followed by footsteps.

¶ 6 Later that morning around 7:30 a.m. Smith arrived at A-Z Mart, a convenience store approximately fifteen miles from the Del Mar Apartments. A-Z Mart was immediately next door to Tran's Food Mart, the site of the earlier robbery attempt where Armstrong had been killed. The clerk on duty that morning at A-Z Mart was Sarath "Babu" Pulluru. Pulluru was filling in for the store owner who was taking the day off. Smith told detectives that he emptied two pistols into Pulluru, took some money, and used bottles of Ronsonol lighter fluid to start fires in the store. Smith said he set fire to the cash register, Pulluru's body, and a back room in order to destroy evidence. Shoeprints at the scene tracked Pulluru's blood from the cash register area, where his body was found, down the aisle to where the Ronsonol lighter fluid was displayed for sale. The bloody shoe prints at the A-Z Mart were similar to the shoe prints found at Moore's apartment.

¶ 7 At 1:00 or 2:00 a.m. the next morning, Smith returned to his apartment and told Berry that he had killed Janet Moore. He also told Berry that he had done something else to "take care of business," that he had avenged his family.

¶ 8 At 3:00 or 4:00 a.m., Smith went to Sheena Johnson's apartment and told her that he had killed two people that day. During that conversation, Smith told her that he had killed Phillip Zachary's aunt because Zachary had been "snitching." Johnson had already learned of Moore's murder and told Smith that the victim was Zachary's mother, not his aunt. In response, Smith shrugged his shoulders, and said "oh well." Smith showed Johnson how he held his gun when he shot Moore and went on to say that he had also killed a person at a "chink" store. During his description of the second homicide, Smith mentioned something about one of his fellow gang members having his head blown off during a robbery. He said he would kill anyone who crossed his family. Smith also mentioned that someone had been on television "dissing" his set in regard to that robbery. Subsequently, Johnson contacted CrimeStoppers and reported the conversation. When she made that report, Smith was already in police custody on a different matter.

¶ 9 Three days after Smith was detained, detectives interviewed him. Smith was given Miranda warnings, waived them, and agreed to talk. During the interview, Smith first denied committing the murders, then admitted only to being present, and finally admitted committing both murders. He explained he killed both victims in retaliation for wrongs done him or his family. He told detectives he went to Moore's apartment looking for her son, that Moore panicked and started screaming, so he had to kill her. He said he killed Pulluru in retaliation against the store owner who shot Armstrong and in retaliation for disrespectful comments about Armstrong in the press attributed to someone from the A-Z Mart Mart. According to Smith, as he fired off the initial barrage of bullets, Pulluru asked "what did I do?" Smith told him: "[M]y mother-f* * * * * * little homey, my people on the set, like, bam, bam, before he died I let him know, like this is for my little homey that's dead. Bam, bam, bam." Smith also told detectives that he had disposed of the clothes he had worn during the murders, that he had wiped down Moore's apartment to eliminate fingerprints, and that he set fire to whatever he had touched in the A-Z Mart to destroy evidence.

II. JURY SELECTION ISSUES

¶ 10 In his first assignment of error, Smith contends that the State's proffered race-neutral reasons for striking a potential alternate juror with a peremptory challenge was pretextual, and that the juror's excusal from the jury violated the Equal Protection Clause of the United States Constitution under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

¶ 11 Batson establishes the following three part analysis: (1) the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race; (2) after the requisite showing is made, the burden shifts to the prosecutor to articulate a race-neutral reason related to the case for striking the juror in question; and (3) the trial court must then determine whether the defendant carried his burden of proving deliberate discrimination. 476 U.S. at 96-98, 106 S.Ct. at 1723-24, 90 L.Ed.2d at 87-88. As for the second requirement, the United States Supreme Court noted the race-neutral explanation by the prosecutor need not rise to the level justifying excusal for cause, but it must be a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges. Neill v. State, 1994 OK CR 69, ¶ 17, 896 P.2d 537, 546 (quoting Batson, 476 U.S. at 98, n. 20, 106 S.Ct. at 1723, n. 20, 90 L.Ed.2d at 88-89, n. 20). The trial court's findings as to discriminatory intent are entitled to great deference, id., and our review is for clear error only. Pennington v. State, 1995 OK CR 79, ¶ 29, 913 P.2d 1356, 1365. We review the record in the light most favorable to the trial court's ruling. Neill, 1994 OK CR 69, ¶ 17, 896 P.2d at 546.

¶ 12 The record here shows the prosecutor offered several explanations for striking the potential alternate juror. A neutral explanation in the context of this analysis means one based on something other than the race of the juror. Short v. State, 1999 OK CR 15, ¶ 13, 980 P.2d 1081, 1091. At this step in the inquiry, the issue is the facial validity of the prosecutor's explanation. Id. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason given is deemed race neutral. Id. (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395, 406 (1991)); Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 839 (1995).

¶ 13 Here, the prosecutor used a peremptory challenge to excuse the venireman. In exercising the challenge, the...