Liles v. State, F-83-427

• Decision Date: 20 June 1985
• Docket Number: No. F-83-427,F-83-427
• Parties: Mark Roy LILES, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 1025

702 P.2d 1025

Mark Roy LILES, Appellant, v. STATE of Oklahoma, Appellee.

No. F-83-427.

Court of Criminal Appeals of Oklahoma.

June 20, 1985.

Rehearing Denied July 16, 1985.

As Corrected Sept. 13, 1985.

Patti Palmer, Deputy Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Susan Stewart Dickerson, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

Mark Roy Liles was convicted of Murder in the First Degree in Oklahoma County District Court. Punishment was assessed as death by lethal injection.

On August 29, 1982, appellant told police officer Larry Koonce that he killed Joe Yarbrough on August 27, 1982, as part of a robbery plot. Appellant had come to Oklahoma City from West Virginia with his brother Daniel Liles, and Daniel's girlfriend, Gail Conner. Mark had asked Gail to bring Yarbrough to the motel room so he could knock him in the head and rob him. Gail had met Yarbrough at a club where she worked for two days and told Mark about the roll of bills he carried. At the appointed time, she brought him to the motel room. As they walked in, Daniel stood behind the entry door and Mark came out of the restroom. According to appellant's statement, Yarbrough pulled a knife when he saw Daniel. Daniel grabbed Yarbrough from behind as he was requested to do by Mark. Mark then bounded for Yarbrough and stabbed him seven times in the chest with a 1953 Italian Stiletto switchblade. Yarbrough was fatally wounded and was left bleeding to death in the motel room while the two Liles, who had taken decedent's wallet and keys, went to burglarize Yarbrough's motorcycle shop. At the shop, the Liles traded decedent's car for his van, and also took jewelry, coins, T-shirts and two guns. Upon returning to their motel room, they stuffed Yarbrough's body into a footlocker and dumped it by the South Canadian River. Gail Conner was taken to the interstate highway and she left Oklahoma.

Later the same day, Yarbrough's best friend, Dennis Russell, saw the Liles in the van, and was finally able to stop them after a chase by colliding his vehicle into theirs. Two days later while in jail, appellant requested to speak with the police and told Detective Koonce the above facts, and stated, as his brother Daniel also later stated, that his brother knew nothing of the robbery plot prior to Yarbrough's arrival at their motel room. Daniel's statement differed in that he did not mention Yarbrough pulling a knife in the motel room.

Appellant and Daniel were tried together. Daniel received life imprisonment for his part and has appealed separately, Case No. F-83-746.

During the sentencing phase, the jury found the existence of two aggravating circumstances warranting the death penalty. These were, according to 21 O.S.1981, § 701.12: one, that the murder was especially heinous, atrocious, or cruel; and, two, the existence of a probability that the defendant would commit criminal acts of violence that could constitute a continuing threat to society. The jury added to their verdict the following statement:

We the members of the jury, as a body, feel the crime committed against the victim to be cruel by the pitiless means in which his life was taken as evidenced by the number of wounds inflicted to his body and the subsequent pain which he suffered before death. We feel it is atrocious due to the serious physical abuse inflicted upon the victim.

Appellant makes a number of assignments of error regarding the sentencing proceedings. First, appellant claims that his statutory and his state and federal constitutional rights were violated by the State's failure to provide a complete notice of evidence to be used in the sentencing phase of his trial to prove there existed a probability that he would commit acts of violence that would constitute a continuing threat to society. We note that trial counsel failed to object at trial to the introduction of the evidence of which he now complains. Appellant urges that his counsel's failure to object at trial should not be considered a waiver of this error because it was due to the surprise this error created.

Section 701.10, 21 O.S.1981, provides that, "Only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible." In Johnson v. State, 665 P.2d 815 (Okl.Cr.1982) (remanded on other grounds), we recognized that due process requires the defendant be notified of what the State intends to prove at trial.

Prior to trial, the State filed written notice that it would offer evidence to prove a prior arrest and conviction for possession of a sawed-off shotgun in Brookshire, Texas. At trial, the arresting officer testified of the arrest and the circumstances surrounding the incident. He testified that prior to arrest he had watched appellant for approximately five hours because of a tip from an informant who claimed to have overheard appellant plan a robbery. A felony charge was reduced to a misdemeanor due to a procedural error and appellant pled guilty to the charge. We find the notice he received was adequate to apprise him of this evidence.

Other evidence introduced at appellant's trial of which he now complains were statements he made to Detective Koonce which were not made a part of his written statement. These statements concerned such matters as being put out of the Marine Corps, being previously involved in prostitution and narcotics related activities, and involvement in fights. His statement to Detective Koonce that he had also done things he would never divulge to anyone was also related to the jury. Detective Koonce was endorsed as a witness throughout the course of the proceedings against appellant. He testified at the preliminary hearing, first stage of jury trial, and then at the second stage of trial. Appellant's attorney had ample opportunity to cross-examine this witness regarding appellant's statements to him. He volunteered in his testimony at preliminary hearing that he and appellant had discussed a number of things, including being "kicked out" of the Marines. However, defense counsel cut off his statements and continued cross-examination on other matters.

Admissions of a defendant regarding unrelated criminal activity is relevant and admissible in the punishment stage of a capital case. Johnson v. State, supra. The danger of surprise to appellant was nearly nonexistent under the circumstances, and any error in introduction was waived by his failure to object. Jones v. State, 660 P.2d 634 (Okl.Cr.1983).

Appellant complains there was insufficient evidence to support the jury's finding beyond a reasonable doubt the existence of the aggravating circumstance that the appellant would commit criminal acts of violence that would constitute a continuing threat to society. Section 701.13(C)(2), Title 21 O.S.1981, directs that we review the evidence in a capital case to consider whether it supports the judge or jury's finding of an aggravating circumstance.

The test on appeal for the sufficiency of evidence is whether a prima facie case has been established. Renfro v. State, 607 P.2d 703 (Okl.Cr.1980). If that test is satisfied, then the jury must resolve the questions of fact. Id.

The nature and circumstances of the killing itself may provide probative evidence of future acts of violence. Robison v. State, 677 P.2d 1080 (Okl.Cr.1984); Stafford v. State, 669 P.2d 285 (Okl.Cr.1983), remanded on other grounds, 467 U.S. 1212, 104 S.Ct. 2652, 81 L.Ed.2d 359 (1984) 697 P.2d 165 (1985); Stafford v. State, 665 P.2d 1205 (Okl.Cr.1983), remanded on other grounds, 467 U.S. 1212, 104 S.Ct. 2651, 81 L.Ed.2d 359 (1984) 56 O.B.A.J. 1152 (1985); Ake v. State, 663 P.2d 1 (Okl.Cr.1983), reversed on other grounds 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In each of these cases we found that the calloused nature of the defendant's acts supported the jury's finding of this aggravating circumstance. In the present case, appellant persuaded Conner to lure decedent to their motel room where he lay in wait to attack his unsuspecting victim. By his own admission, he brutally assailed Yarbrough, engaging his brother's help to render their victim defenseless. The calculated and cold bloodedness of the attack certainly reflects a calloused nature.

Other evidence which supported the jury's finding of the potential future violence included such things as: 1) appellant's prior conviction for possession of a sawed-off shotgun; 2) his possession on arrest of two guns he had stolen from decedent's shop; 3) an apparent attempt to locate and use these weapons when being stopped in the van by Russell; and, 4) his previous dangerous conduct as he reported it to Detective Koonce. We find the evidence amply supports the jury's finding of this aggravating circumstance.

Appellant now claims that the jury should have had an instruction specifically defining the elements of the aggravating circumstance that there existed the probability that the appellant would commit acts of violence which would constitute a continuing threat to society. We have previously addressed this question, Chaney v. State, 612 P.2d 269, 279 (Okl.Cr.1980), and reaffirm our position that this aggravating circumstance is specific, not vague, and is readily understandable. ¹ Having failed to request such an instruction at trial, appellant has waived this assignment of error. Parks v. State, 651 P.2d 686 (Okl.Cr.1982).

Next appellant challenges the constitutionality of the aggravating circumstance of "probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society," claiming it allows a jury unlimited discretion in meting out the death penalty.

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), when the particular aggravating circumstance appellant now challenges was interpreted to allow a defendant to bring to the jury's attention whatever mitigating...