720 P.2d 328 (Okla.Crim.App. 1986), F-84-95, VanWoundenberg v. State

Docket Nº:F-84-95.
Citation:720 P.2d 328
Party Name:Sammy VanWOUNDENBERG, Appellant, v. STATE of Oklahoma, Appellee.
Case Date:June 03, 1986
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 328

720 P.2d 328 (Okla.Crim.App. 1986)

Sammy VanWOUNDENBERG, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-84-95.

Court of Criminal Appeals of Oklahoma.

June 3, 1986.

Rehearing Denied July 17, 1986.

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[Copyrighted Material Omitted]

Page 330

Elaine Meek, Asst. Appellate Public Defender, Norman, for appellant.

Michael C. Turpen, Atty. Gen., Tomilou Gentry Liddell, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

BUSSEY, Judge:

The appellant, Sammy VanWoundenberg, was convicted in the District Court of Muskogee

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County, Case No. CRF-83-64, of First Degree Murder, for which he received a sentence of death. From this judgment and sentence he appeals.

The evidence shows that Mark Allen Berry was strangled to death around 4:30 a.m. on February 6, 1983 in the Muskogee City-Federal Jail. Berry, Dennis Brown and Terrance James had been arrested for a federal charge of theft of government property, and were incarcerated together. Brown and James believed that Berry was responsible for their arrest, and so on February 5, 1983, they were discussing beating up Berry when the appellant joined the discussion. Brown testified that the appellant urged them to strangle Berry and hang him to make the death appear to be a suicide. He then provided a wire from a broom and demonstrated how to use it to strangle Berry. Early the next morning the appellant entered the cell of Brown and James and asked if they were ready; he then stuck a piece of paper over the lens of the surveillance camera. Brown then got Berry to play cards with him, and when they were playing, James walked up behind Berry, wrapped the wire around his neck and strangled him while Brown held the victim's feet, and placed his hand over Berry's mouth.

Another inmate testified that he heard the appellant warn James and Brown that someone was coming. So James pulled Berry into that inmate's cell and continued the strangulation. After Berry appeared to be dead, James, Brown and the appellant hung Berry's body in a shower stall.

As his first assignment of error, the appellant alleges that insufficient evidence was presented at the preliminary hearing to show probable cause that he committed first degree murder. A preliminary hearing does not require evidence sufficient to warrant a conviction. The evidence need show only that an offense has been committed and there is reason to believe the accused committed the offense. Edwards v. State, 655 P.2d 1048 (Okl.Cr.1982). The preliminary hearing transcript reveals that the magistrate properly found sufficient evidence to bind the appellant over for trial on a charge of first degree murder. Sexson v. State, 620 P.2d 1326 (Okl.Cr.1980). Therefore, appellant's first assignment of error is without merit.

As his next assignment of error, the appellant argues that the trial court erred in refusing to grant his motion for severance. Granting or denying such a motion is discretionary with the trial court and its ruling will not be disturbed on appeal unless the appellant makes a clear showing of abuse of discretion resulting in prejudice. Cooper v. State, 584 P.2d 234 (Okl.Cr.1978). The appellant cites Murray v. State, 528 P.2d 739 (Okl.Cr.1974) and contends that his defense was antagonistic to that of his codefendant because the appellant claimed James committed the offense, and James claimed he was under the influence of drugs and could not remember if the appellant was involved. James also testified that the appellant helped hang the victim's body on the shower stall. There was some evidence that Berry might not have been dead at this time. In Murray the respective defenses of the codefendants were mutually antagonistic. Defenses are antagonistic where each defendant is attempting to exculpate himself and inculpate his codefendant. Master v. State, 702 P.2d 375 (Okl.Cr.1985). Here the record clearly shows that James admitted killing Berry, and denied knowing if the appellant participated. As the appellant cannot show antagonistic defenses, this assignment of error is meritless.

The appellant contends as his third assignment of error that he was denied a trial by a fair and impartial cross-section of the community due to the exclusion of potential jurors solely because they were opposed to capital punishment. Relying on Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983), mod. 758 F.2d 226 (8th Cir.1985), he asserts that such juries are guilt-prone, exclude identifiable groups including women and blacks who traditionally have been opposed to the death penalty, and that questioning panel members at the beginning of the trial unduly focuses the minds

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of the jurors on the sentencing phase before any evidence as to guilt has been introduced. The Supreme Court of the United States recently addressed this identical issue in Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) which rejects this argument, reversing the case on which the appellant relies.

In our view, it is simply not possible to define jury impartiality, for constitutional purposes, by reference to some hypothetical mix of individual viewpoints. Prospective jurors come from many different backgrounds, and have many different attitudes and predispositions. But the Constitution presupposes that a jury selected from a fair cross-section of the community is impartial, regardless of the mix of individual viewpoints actually represented on the jury, so long as the jurors can conscientiously and properly carry out their sworn duty to apply the law to the facts of the particular case.

Lockhart, 476 U.S. at ----, 106 S.Ct. at 1770, 90 L.Ed. 137. We therefore find the appellant's assignment of error to be meritless.

As a fourth assignment of error, the appellant complains that the trial court improperly excused a prospective juror in violation of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). The record reveals the following questions and responses:

THE COURT: Mr. McGraw, you and the other jurors in the back have been very patient. Have you heard anything so far that you think might cause you a problem with this case?

JUROR MCGRAW: I think I have, sir.

THE COURT: Does it have to do with my question about the death penalty in a case where the law and the evidence so provided?

JUROR MCGRAW: Yes, sir.

THE COURT: Do you feel like if you were on a case as a juror and you found beyond a reasonable doubt that the defendant on trial in that case was guilty of Murder in the First Degree, are your reservations about the death penalty such that you just simply couldn't sit down and agree to do or even seriously consider a death penalty?

JUROR MCGRAW: I don't think I could. (Tr. 354).

Mr. McGraw was then excused over the objection of defense counsel. The rule is clear that a prospective juror who is irrevocably committed, prior to trial, to vote against the death penalty may be properly excused. Dutton v. State, 674 P.2d 1134 (Okl.Cr.1984). In that case a prospective juror gave exactly the same answer when asked if she could ever vote to impose the death penalty. We find that because Mr. McGraw indicated by his answers that he was irrevocably committed to vote against the death penalty, he was properly excused.

The appellant next complains that the trial court erred in refusing to allow defense counsel to rehabilitate prospective jurors who were excused for cause when they indicated that they were unwilling to consider the death penalty. We addressed this same issue in Banks v. State, 701 P.2d 418 (Okl.Cr.1985). That the manner and extent of voir dire rests largely in the discretion of the court, is well settled. Unless the questions counsel wishes to ask are dictated into the record, and a ruling is obtained from the trial court, we are unable to determine if that court abused its discretion in refusing to permit the questions to be asked. Banks at 423. In the six instances in the case before us, cited by the appellant, defense counsel requested that he be allowed to voir dire the prospective juror in only one instance. (Tr. 113). That prospective juror clearly indicated that he could not consider the death penalty, and when defense counsel continued the questioning, the trial court properly stopped him. In the other five instances, defense counsel asked that the court note his exception to the excusal of each of those prospective jurors. Defense counsel neither asked that he be allowed voir dire, nor did he dictate any questions into the record. This assignment of error is meritless.

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As his next assignment of error, the appellant alleges that insufficient evidence was presented to convict him of first degree murder.

In Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the United States Supreme Court held that due process requires a reviewing court to determine "whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt."

Spuehler v. State, 709 P.2d 202, 203-204 (Okl.Cr.1985). Title 21 O.S.1981, § 172 provides:

All persons concerned in the commission of crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, though not present, are principals.

"Aiding and abetting" involves acts, words or gestures encouraging the commission of the offense, either before or at the time of the offense. Rounds v. State, 679 P.2d 283 (Okl.Cr.1984). The evidence reveals that the appellant encouraged his codefendant and Brown to strangle the victim, and showed them how to do it, provided the wire, and suggested the victim be hanged to make his death appear to be a suicide. He covered the lens of a surveillance camera so that the murder would not be observed. His voice was recognized by an inmate...

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