Lockett v. State

• Citation: 2002 OK CR 30,53 P.3d 418
• Decision Date: 14 August 2002
• Docket Number: No. D-2000-1330.,D-2000-1330.
• Parties: Clayton Derrell LOCKETT, Appellant. v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

53 P.3d 418

2002 OK CR 30

Clayton Derrell LOCKETT, Appellant. v. STATE of Oklahoma, Appellee.

No. D-2000-1330.

Court of Criminal Appeals of Oklahoma.

August 14, 2002.

Rehearing Denied September 10, 2002.

Gary J. James, Oklahoma City, OK, for appellant at trial.

Mark L. Gibson, Brian Surber, Perry, OK, for the State at trial.

Robert Wade Jackson, Steven M. Presson, Norman, OK, for Appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, David M. Brockman, Assistant Attorney General, Oklahoma City, OK, for Appellee on appeal.

OPINION

STRUBHAR, Judge.

¶ 1 Appellant, Clayton Derrell Lockett, was charged in the District Court of Noble County, Case No. CF-99-53, with Conspiracy (Count I), First Degree Burglary (Count II), Assault with a Dangerous Weapon (Counts III, IV and V), Forcible Oral Sodomy (Counts VI, XV and XVI), First Degree Rape (Counts VII, VIII, IX and XIV), Kidnapping (Counts X, XI, XII and XIII), Robbery by Force and Fear (Counts XVII and XVIII) and First Degree Murder (Count XIX). Counts I—XVIII were alleged to have occurred after former conviction of two or more felonies. With regard to First Degree Murder, Count XIX, the State filed a Bill of Particulars alleging five aggravating circumstances: 1) that Appellant was previously convicted of a felony involving the use or threat of violence,¹ 2) that Appellant knowingly created a great risk of death to more than one person,² 3) that the murder was especially heinous, atrocious or cruel,³ 4) that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution,⁴ and 5) that there exists a probability that Appellant would commit criminal acts of violence that would constitute a continuing threat to society.⁵

¶ 2 The jury found Appellant guilty on all counts and assessed punishment at forty-five years on Count I, sixty years on each of Counts II and V, seventy-five years on Count III, ninety days on Count IV, one hundred fifty years on each of Counts VI and XVI, one hundred seventy-five years on Count VII, two hundred fifty years on each of Counts VIII and XIV, two hundred years on Count IX, one hundred years on each of Counts X, XI, XII and XIII, three hundred years on Count XV, and eighty-five years on each of Counts XVII and XVIII. With regard to Count XIX, First Degree Murder, the jury found the existence of each alleged aggravating circumstance and assessed punishment at death. The trial court sentenced Appellant accordingly, ordering the sentences be served consecutively.

FACTS

¶ 3 At around 10:30 p.m. on June 3, 1999, Bobby Bornt was asleep on the couch at his house in Perry, Oklahoma, when his front door was kicked in. Three men, Appellant, Shawn Mathis and Alfonzo Lockett, entered his house and immediately started beating and kicking him. Bornt recognized Appellant because Appellant had recently covered a tattoo for him. Appellant was carrying a shotgun which he used to hit Bornt. After the beating, Bornt's attackers used duct tape to secure his hands behind his back and they gagged him and left him on the couch while they ransacked the house looking for drugs. As Bornt lay restrained on the couch his friend, Summer Hair, approached the open door. She was pulled inside, hit in the face and thrown against a wall. One of the men put a gun to her head and ordered her to call to her friend, Stephanie Neiman, who was outside sitting in her pickup. When Neiman came inside, they hit her several times to get the keys to her pickup and the code to disarm the alarm on her pickup.

¶ 4 The men put all three victims in the bedroom where Bornt's nine-month old son, Sam, had been sleeping. Alfonzo Lockett came into the bedroom and got Hair. He took her into the bathroom where he made her perform oral sodomy on him. He then took her into Bornt's bedroom where he told her to get undressed and he raped her. When he was finished, he left her there and Appellant came into the bedroom. He raped her vaginally and anally and he made her perform oral sodomy on him. When he was finished, he told her to get dressed and she went back into Sam's bedroom with the others. Alfonzo Lockett came into the bedroom and used duct tape to secure Hair's and Neiman's hands behind their backs. He also put tape across their mouths.

¶ 5 Appellant instructed Mathis to look in the garage for a shovel. When he returned with a shovel, the victims were loaded into Bornt's and Neiman's pickups. Bornt and his son were placed in his pickup with Appellant. Hair and Neiman were placed in Neiman's pickup with Mathis and Alfonzo Lockett. They took off driving with Appellant in the lead. They left Perry and drove to a rural area in Kay County. Appellant stopped on a country road where he got out of the pickup he was driving and went over to Neiman's pickup. He made Hair get out and go with him to a ditch where he raped her and forced her to perform oral sex on him. When he was finished, he took her back to Bornt's pickup. While Hair was sitting in the pickup, Mathis got her and took her back to Neiman's pickup where he made her perform oral sex on him. He grabbed her head and said, "In order for you to live, this is what you have got to do."

¶ 6 While stopped on the country road, Appellant told Mathis to get the shovel and start digging. When Mathis was digging in the ditch, Bornt heard Appellant say, "Someone has got to go." Neiman was taken to the hole dug by Mathis and Appellant shot her. The gun jammed and Appellant came back up to the pickup to fix it. While he was doing this, Bornt could hear Neiman's muffled screams. When the gun was fixed, Appellant went back down to the ditch and shot Neiman again. While Mathis buried Neiman's body, Appellant and Alfonzo Lockett warned Bornt and Hair that if they told anyone they would be killed too. They then drove both pickups to another location where they left Neiman's pickup. All of them rode back to Bornt's house in his pickup. Appellant, Mathis and Alfonzo Lockett dropped off Bornt, his son and Hair at Bornt's house and they left in Bornt's pickup.

¶ 7 The following day, Bornt and Hair told the Perry police what had happened. Neiman's pickup and her body were recovered and Appellant, Mathis and Alfonzo Lockett were subsequently arrested. Appellant was interviewed by the police three times. The first time he terminated the interview and asked for an attorney. He later reinitiated the interview and although he denied shooting Neiman during the second interview, he confessed to having killed her in a third interview.

VOIR DIRE ISSUE

¶ 8 Appellant concedes and the record reflects that the majority of the voir dire was conducted in open court and in his presence. However, several times, jurors were questioned individually, usually in chambers, without Appellant there. In each instance, defense counsel was present and lodged no objection to Appellant's absence. Appellant complains in his first proposition that he did not waive his right to be present during the entire voir dire and that by conducting portions of the voir dire in his absence, the trial court violated his constitutional and statutory rights.

¶ 9 The Unites States Supreme Court has acknowledged that voir dire is a critical stage of the criminal proceeding, during which the defendant has a constitutional right to be present. See Gomez v. United States, 490 U.S. 858, 873, 109 S.Ct. 2237, 2246, 104 L.Ed.2d 923 (1989),

citing Lewis v. United States, 146 U.S. 370, 374, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892). In addressing the constitutional right to be present during this portion of the trial, the Supreme Court noted early on that, "defense may be made easier if the accused is permitted to be present at the examination of jurors ... for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself." Snyder v. Com. of Mass., 291 U.S. 97, 106, 54 S.Ct. 330, 331, 78 L.Ed. 674 (1934). The Court went on to state that a defendant has a due process right to be present where his presence "bears, or may fairly be assumed to bear, a relation, reasonably substantial, to his opportunity to defend." Id. The Court added, however, that it did not intend to hold in any way that "the Fourteenth Amendment assures the privilege of presence when presence would be useless, or the benefit but a shadow." Id.,

291 U.S. at 106-107,

54 S.Ct. at 331. "So far as the Fourteenth Amendment is concerned, the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only." Id.,

291 U.S. at 107-108,

54 S.Ct. at 333. See also Bland v. State, 2000 OK CR 11, ¶ 19, 4 P.3d 702, 712,

cert. denied, 531 U.S. 1099, 121 S.Ct. 832, 148 L.Ed.2d 714 (2001); Perry v. State, 1995 OK CR 20, ¶ 25, 893 P.2d 521, 527-28.

¶ 10 Appellant also complains that the portions of the voir dire conducted outside his presence violated 22 O.S.1991, § 583 which requires that a defendant be personally present at his trial if the prosecution is for a felony. This statute has never been interpreted to require a defendant's presence during all communications with jurors. See Bland, 2000 OK CR 11,

at ¶ 20, 4 P.3d at 712.

¶ 11 Nineteen jurors were examined by the trial court outside Appellant's presence. Most were questioned about whether they had been prejudiced by pretrial publicity and others were questioned about issues which were of embarrassment to them or which the trial court did not want brought up before the entire panel. Of the jurors questioned in Appellant's absence, ten were excused for cause upon a finding by the trial court that they could not be fair to Appellant. The jurors who were not excused for cause were allowed to remain on the panel where they were later questioned by the prosecutor and defense counsel within the presence of Appellant. Of the jurors who were not excused by the trial court for cause, only...