Johnson v. State, F-80-100

• Decision Date: 12 March 1982
• Docket Number: No. F-80-100,F-80-100
• Citation: 665 P.2d 815
• Parties: Kenneth Ray JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 815

665 P.2d 815

Kenneth Ray JOHNSON, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-80-100.

Court of Criminal Appeals of Oklahoma.

March 12, 1982.

Opinion on Rehearing Feb. 8, 1983.

An appeal from the District Court of Tulsa County, Jay D. Dalton, Judge.

Kenneth Ray Johnson, appellant, was convicted of Murder in the First Degree.

He was sentenced to death, and appeals. The jury's verdict of guilty is AFFIRMED. The death sentence is vacated. This cause shall be REMANDED to the district court for a new sentencing proceeding

Johnie O'Neal, Asst. Public Defender, Tulsa, for appellant.

Jan Eric Cartwright, Atty. Gen., Susan Talbot, Asst. Atty. Gen., Chief, Crim. Appellate Div., Oklahoma City, for appellee.

OPINION

CORNISH, Judge:

The appellant, Johnson, was convicted of Murder in the First Degree. The jury imposed a penalty of death.

The facts are relatively uncomplicated, though tragic. On June 19, 1979, the appellant and three cohorts robbed a U-Tote-M store in Tulsa, Oklahoma. At gunpoint the appellant told the store clerk to remove all of the money from the cash register. The clerk was unable to immediately open the cash register so the appellant shot him in the stomach. In spite of the fact that the clerk was shot and bleeding to death, the appellant demanded that he open the store safe. When the safe was opened Johnson grabbed the money and ran from the store. Prior to his death, the clerk was able to reach the phone and call the police. The appellant was later apprehended and voluntarily admitted to his participation in the robbery and the shooting of the store clerk.

The appellant raises thirty propositions of error. Because of the result reached in this case we need not address every assignment of error raised on appeal.

I.

The appellant challenges the legality of his warrantless arrest for lack of probable cause. Officer Parks arrested the appellant based upon information provided by Kenneth Hall. Hall, a friend of Johnson, informed the police that Johnson had told him about a robbery he had committed at a U-Tote-M store. Hall also stated that Johnson admitted shooting the store clerk during the robbery. Additionally, Hall's typewritten statement substantiated evidence the police had obtained during their investigation of the robbery.

Johnson's arrest is not rendered invalid because of the failure by the police to obtain a warrant. Title 22 O.S.Supp.1980, § 196(3), provides that "[a] peace officer may, without a warrant, arrest a person ... when a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it." A police officer may make a warrantless arrest of a person if the officer has probable cause to believe that the arrestee has committed a felony. See Leigh v. State, 587 P.2d 1379 (Okl.Cr.1978).

In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the United States Supreme Court addressed the validity of warrantless arrests. The Court stated "[t]he balance struck by common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact." The court further stated that the necessary inquiry is not "whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest."

In our judgment the police had probable cause to believe Johnson had committed the U-Tote-M store robbery. The police were given information from a named informant, which substantially coincided with the evidence they had obtained during their investigations. Therefore, we find that Johnson's voluntary confession was pursuant to a valid arrest.

II.

The appellant's next argument is one of first impression. He argues that either a preliminary hearing or a pretrial hearing should have been held on the bill of particulars. In support of this proposition the appellant cites Carter v. State, 292 P.2d 435 (Okl.Cr.1956). This Court in Carter held that a defendant charged in the information with "after former conviction of a felony" has a fundamental right to be informed of this additional charge in the preliminary complaint and in the preliminary hearing.

The rationale for requiring the State to introduce proof of an after former conviction at the preliminary hearing is to inform the defendant that he will be tried as a habitual offender. The bill of particulars filed in a death penalty case serves to inform the defendant of the aggravating circumstances the State intends to prove at the sentencing proceeding. Additionally, Title 21 O.S.Supp.1980, § 701.10 mandates that "only such evidence in aggravation as the State has made known to the defendant prior to his trial shall be admissible." This procedure utilized in death penalty cases eliminates any element of surprise.

We find that the procedures used to inform the appellant of the aggravating circumstances did not violate his rights under the Fourteenth Amendment due process or his right under the Sixth and Fourteenth Amendments to be informed of the nature of the charges against him. Therefore, we hold that there is no statutory or constitutional requirement to provide the appellant with a preliminary hearing on the bill of particulars. This Court is not willing to judicially impose such a requirement.

III.

We have carefully reviewed the appellant's Propositions I, II, III, VI, VII, and XII. These propositions have not been adequately supported by argument or citation of authority. A brief must state the precise error and a sufficient record for this Court to understand the issue presented. It is the duty of counsel to give the page of the record at which the matter in controversy can be found and clearly present the argument and cite authority in support thereof. Cox v. State, 3 Okl.Cr. 129, 104 P. 1074 (1909); Rules of the Court of Criminal Appeals, Rule 1.7. The record has been fully examined and the appellant was not deprived of any fundamental right; therefore, we will not address the aforementioned propositions. Crutchfield v. State, 553 P.2d 504 (1976), cert. denied 429 U.S. 928, 97 S.Ct. 335, 50 L.Ed.2d 299.

IV.

The appellant next contends that the method by which the jury was impaneled was violative of the Supreme Court's ruling in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). In Witherspoon the Supreme Court held "that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction."

The appellant specifically objects to the exclusion for cause of juror Kay. The following transpired during the trial judge's voir dire of Juror Kay:

THE COURT: In a case where the law and the evidence warrant, in a proper case, could you without doing violence to your conscience agree to a verdict imposing the death penalty?

MRS. KAY: I think it would bother me too much.

THE COURT: You feel then that you could not follow the law in that regard; is that correct?

MRS. KAY: Yes.

THE COURT: Your reservations about the death penalty, are they such, regardless of the law, the facts and circumstances of the case you would not inflict the death penalty? Is that what you're telling me?

MRS. KAY: Well, I think it needs to be, but I don't think I would be good.

THE COURT: Well, to be good, are you saying that you just could not do it regardless of circumstances or anything, the law, the facts, the circumstances, if it comes down to that? You just could not do it, period? Is that what you're saying?

MRS. KAY: Right.

The Supreme Court further stated in Witherspoon that "the most that can be demanded of a venireman ... is that he be willing to consider all the penalties ... and not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings." Supra, fn. 21, 88 S.Ct. at 1777 fn. 21. In this case, the record supports the trial court's ruling to exclude Juror Kay. It appears from the record that Juror Kay was irrevocably committed against the imposition of the death penalty, even if the evidence and the law sanctioned such a finding.

V.

It is argued that the testimony of Andy Workman should have been suppressed because he had been subjected to hypnosis. The use of medical hypnosis in criminal prosecutions has become a controversial issue in recent years. This Court has addressed the admissibility of statements made by the accused while under hypnosis in Jones v. State, 542 P.2d 1316, 1327 (Okl.Cr.1975). In Jones we held that statements made while in a hypnotic state are inadmissible "when offered for establishing the truth of the statements."

This case does not require this Court to reach the issue of whether the results of hypnotic testing are admissible in a criminal prosecution. We find that the testimony of Workman was not tainted by the hypnotic testing. Workman merely testified that on the night of the U-Tote-M robbery he was awakened by his daughter and saw "some people messing around the laundry" room. He also testified that he saw three black men walk from the laundry room, and cross the street to the U-Tote-M store. Workman made these same statements to the police on the night of the robbery prior to any hypnotic testing. Workman did not attempt to identify the appellant nor establish the appellant's guilt or innocence. We find that the hypnotic testing did not in any manner affect Workman's testimony; therefore, this proposition is without merit.

VI.

The State also introduced evidence of statements made by the victim shortly before his death. Officer Johnson testified about the information the victim had given to him when he arrived at the scene of the robbery. The appellant contends that this testimony by Officer Johnson was...