Selsor v. State

• Decision Date: 10 April 2000
• Docket Number: No. F-98-531.,F-98-531.
• Citation: 2000 OK CR 9,2 P.3d 344
• Parties: Michael Bascum SELSOR, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

2 P.3d 344

2000 OK CR 9

Michael Bascum SELSOR, Appellant, v. STATE of Oklahoma, Appellee.

No. F-98-531.

Court of Criminal Appeals of Oklahoma.

April 10, 2000.

Rehearing Denied May 10, 2000.

James C. Bowen, Oklahoma Indigent Defense System, Capital Trial Division, Kent Hudson, Tulsa, for Defendant at Trial.

Steve Sewell and John Priddy, Assistant District Attorneys, for the State at Trial.

Jamie D. Pybas, Julie L. Gardner, Appellate Defense Counsel, Capital Direct Appeals Division, Oklahoma Indigent Defense System, for Appellant on Appeal.

W.A. Drew Edmondson, Attorney General, Robert Whittaker, Assistant Attorney General, for Appellee on Appeal.

OPINION

CHAPEL, Judge:

¶ 1 On September 19, 1975, Michael Selsor was charged (along with codefendant Richard Dodson) with: First Degree Murder in violation of 21 O.S. Supp.1973, § 701.1 in Tulsa County District Court Case No. CRF-75-2181; Shooting with Intent to Kill in violation of 21 O.S.1971, § 652 in Tulsa County District Court Case No. CRF-75-2182; and Robbery with Firearms in violation of 21 O.S.1971, § 801 in Tulsa County District Court Case No. CRF-75-2183. Selsor was tried by jury and convicted in each case. In accordance with the jury's recommendation, the Honorable William W. Means sentenced Selsor to death for First Degree Murder, twenty (20) years imprisonment for Shooting with Intent to Kill, and twenty-five (25) years imprisonment for Robbery with Firearms. Selsor appealed. On appeal, Selsor's convictions were affirmed, but his death sentence was modified to life imprisonment.¹

¶ 2 Selsor filed two consecutive applications for post-conviction relief. The Tulsa County District Court denied each application, and this Court affirmed. Selsor then petitioned for federal habeas relief in the United States District Court for the Northern District of Oklahoma. After the petition was denied, Selsor appealed to the Tenth Circuit Court of Appeals, which remanded Selsor's petition to the District Court for a hearing.² The district court again denied Selsor's petition, and Selsor again appealed. His petition for habeas corpus was granted by the Tenth Circuit, which provided for his retrial "within a reasonable amount of time."³

¶ 3 Prior to Selsor's retrial, the State filed a Bill of Particulars alleging four aggravating circumstances to support a sentence of death. Selsor filed a Motion to Strike the Bill of Particulars, asserting that the retroactive application of the current death penalty statutes violated prohibitions against ex post facto laws. After the trial court denied Selsor's motion, he petitioned this Court for a Writ of Prohibition and/or Mandamus. This Court issued a stay, ordered a response from the district court, then denied Selsor's petition on the merits.⁴

¶ 4 Selsor was tried by jury and convicted of First Degree Murder in violation of 21 O.S.Supp.1973, § 701, Shooting with Intent to Kill in violation of 21 O.S.1971, § 652, and Robbery with Firearms in violation of 21 O.S.1971, § 801. The jury found two aggravating circumstances: i, that Selsor knowingly created a great risk of death to more than one person; and ii, that Selsor committed the murder to avoid or prevent lawful arrest. In accordance with the jury's recommendation, the Honorable E.R. Turnbull sentenced Selsor to death for First Degree Murder, life imprisonment for Shooting with Intent to Kill, and twenty (20) years imprisonment for Robbery with Firearms.

FACTS

¶ 5 At approximately 11:00 p.m. on September 15, 1975, Selsor and Richard Eugene Dodson robbed the U-TOTE-M convenience store at 5950 33rd West Avenue in Tulsa. Selsor and Dodson entered the store, each armed with a .22 caliber handgun. Employee Clayton Chandler was working at the cash register. Selsor approached Chandler, pulled his gun, and demanded the contents of the register. Dodson located employee Ina Morris, who was restocking the walk-in cooler. Dodson pointed his gun at her and ordered her to get down. Morris replied, "You've got to be kidding me." Dodson then fired a shot striking Morris in the shoulder.

¶ 6 Chandler loaded a sack with money and handed it to Selsor, who then shot Chandler several times in the chest killing him. Upon hearing the shots, Dodson emptied his weapon through the cooler door at Morris. Morris was shot in the head, neck and shoulder, but survived. Selsor and Dodson then fled.

¶ 7 On September 22, 1975, Selsor and Dodson were arrested in Santa Barbara, California. Selsor confessed this and other crimes to Detective John Evans of the Santa Barbara Police Department. In his confession, Selsor admitted that before entering the store, he and Dodson had agreed to leave no witnesses.

ISSUES RELATING TO JURY SELECTION

¶ 8 Selsor asserts in Proposition VII that he was denied a fair trial and a reliable sentencing determination because the trial court denied his motion for individual voir dire. In overruling the motion at the hearing, the trial court nevertheless stated that it would keep the motion under advisement should a need for individual voir dire arise at trial. Such matters fall within the trial court's discretion.⁵

¶ 9 Selsor specifically complains that he was prejudiced by the denial of individual voir dire after four members of the panel, purportedly educated by previous venire persons on how to avoid jury service, were successful in being excused. Upon learning what was occurring, the trial court admonished prospective jurors to answer questions honestly, because based upon past experience jurors may have answered questions untruthfully to avoid jury service. To Selsor, these facts establish that "one cannot be confident that the jury was picked fairly."

¶ 10 Selsor's argument is speculative. He has not established that the trial court abused its discretion or that he was prejudiced. The jury was selected fairly. Selsor's attorneys extensively questioned the prospective jurors. Selsor was presumably satisfied with the selection process and result because he did not renew his request for individual voir dire or exercise all of his peremptory challenges at trial. This proposition is denied.

ISSUES RELATING TO SELSOR'S RETRIAL AND THE EX POST FACTO CLAUSE

¶ 11 In Propositions I-V, Selsor makes several interrelated arguments that he was not eligible to be sentenced to death and that he was tried pursuant to the wrong First Degree Murder statute. Specifically, Selsor argues that his conviction and death sentence violated the State and Federal Constitutions because: i, the retroactive application of the current death penalty statute violated ex post facto laws; ii, the retroactive application of the current death penalty statute violated ex post facto provisions, the multiple punishments provision of the Double Jeopardy Clause, and principles of equal protection and due process; iii, the retroactive application of this Court's decision overruling Riggs v. Branch violated due process; iv, sentencing Selsor to death violated the fundamental fairness doctrine; and v, the Information did not inform Selsor of the homicide theory upon which the State would rely to obtain a conviction, and the jury instructions were defective because they did not identify all the elements of the offense with which he was charged.

¶ 12 Selsor has previously litigated some of these issues due to the unique procedural history of his case. In 1975, Selsor was charged with First Degree Murder, Shooting with Intent to Kill, and Robbery with Firearms. Selsor was tried, convicted of all three charges, and sentenced to death for the murder charge. On appeal, Selsor's conviction was affirmed, but his death sentence was modified to life imprisonment due to the unconstitutionality of the then-existing death penalty statute, 21 O.S.Supp.1973, § 701.3.⁶ Selsor thereafter attacked his convictions and sentences for approximately twenty (20) years in state and federal court and finally won a new trial.⁷ He was held pending retrial on the original Information charging him with First Degree Murder in violation of 21 O.S.Supp.1973, 701.1(2). The State sought the death penalty on retrial. Selsor filed a Motion to Strike, asserting that since there was no valid death penalty statute in effect when he allegedly committed First Degree Murder, to expose him to the death penalty on retrial would violate constitutional prohibitions against ex post facto laws. Selsor petitioned this Court for relief after the district court denied his Motion to Strike. In denying Selsor's petition,⁸ this Court rejected several issues he once again pursues in this appeal.

¶ 13 Precisely as in Selsor v. Turnbull, Selsor here argues in Proposition II that the retroactive application of the current death penalty statute violates ex post facto provisions and equal protection. This Court's analysis in Selsor v. Turnbull is dispositive. First, this Court determined that the retroactive application of the current death penalty statutes did not violate the ex post facto provisions of the State and Federal Constitutions because the "newly enacted death penalty statutes (1) did not increase the elements of First Degree Murder, (2) did not increase but in fact decreased the conditions and quantum of punishment, and (3) did not decrease but in fact increased the quantity and degree of proof necessary to establish guilt."⁹

¶ 14 Second, this Court denied Selsor's equal protection claim, as he was

simply no longer similarly situated to those defendants subject to Oklahoma's unconstitutional death penalty statute, 21 O.S.Supp.1973, § 701.3, or to those defendants whose sentences were modified in accordance with Riggs. [Selsor's] Judgment and Sentence has been vacated and he stands before this Court similarly situated to defendants awaiting trial under current murder and death penalty statutes.¹⁰

¶ 15 In Selsor v. Turnbull, this Court also anticipated and resolved two issues Selsor failed specifically to raise then but which he raises now in Proposit...