Thompson v. State, F-84-29

Decision Date29 August 1986
Docket NumberNo. F-84-29,F-84-29
Citation724 P.2d 780,1986 OK CR 130
PartiesWilliam Wayne THOMPSON, Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
OPINION

BRETT, Judge:

Having been certified to stand trial as an adult, William Wayne Thompson was tried for First Degree Murder [21 O.S.1981, § 701.7(A) ] in Grady County District Court, Case No. CRF-83-45. The jury found him guilty as charged and fixed his punishment at death. Judgment and sentence were rendered accordingly and appellant appeals. We affirm.

The evidence at trial showed that appellant, his brother Anthony James Mann, Bobby Glass, and Richard Jones murdered Charles Keene, the appellant's former brother-in-law, in the early morning hours of January 23, 1983. Keene was shot once in the head and once in the chest, and his throat, chest, and abdomen had been cut. He also had multiple bruises and abrasions, especially about his face and head, and his left leg was broken. Keene's body was chained to a concrete block and thrown into the Washita River, where it remained undiscovered until February 18, 1983. The four co-defendants were tried separately. Each received the death penalty.

Appellant raises three assignments of error that pertain to the guilt stage of the trial. He first argues that the prosecutor "set the stage for a long line of requests for sympathy for the victim during voir dire." As trial counsel failed to object to any of these statements or questions, the alleged error has not been properly preserved for review. See Nuckols v. State, 690 P.2d 463 (Okl.Cr.1984). We conclude from our examination of the record that there was no fundamental error.

Appellant relies on Grigsby v. Mabry, 569 F.Supp. 1273 (E.D.Ark.1983) for the proposition that excluding potential jurors simply because they are opposed to capital punishment denies the accused of a trial by a fair and impartial cross-section of the community. Since this appeal was filed, the Grigsby case has been affirmed by the circuit court, 758 F.2d 226 (8th Cir.1985), but reversed by the Supreme Court sub nom. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). The United States Supreme Court rejected this proposition as did this Court in Foster v. State, 714 P.2d 1031 (Okl.Cr.1986). Moreover, this argument was not raised at trial and cannot, therefore, be raised on appeal. See Nuckols, 690 P.2d at 469.

Appellant's final assignment of error that would affect the conviction is that the trial court committed reversible error by admitting into evidence a video tape depicting the recovery of the victim's body from the river and three color photographs of the victim. Trial counsel objected to the exhibits on the basis that all were gruesome and more prejudicial than useful, that they only emphasized and re-emphasized matters that were covered less graphically by the medical examiner. The trial court found that the probative value of the photographs and video tape outweighed their prejudicial effect and that they were relevant to show the condition and location of the body at the time it was recovered.

We have viewed the video tape and did not find it to be gruesome. No close-up views of the body were shown to the jury. Admitting the tape into evidence was not error. Nor was it error to admit the photograph of the victim showing the chain wrapped around his legs and a concrete block as that picture was not particularly gruesome.

The other two color photographs, however, were gruesome. Admitting them into evidence served no purpose other than to inflame the jury. We do not understand why an experienced prosecutor would risk reversal of the whole case by introducing such ghastly, color photographs with so little probative value. We fail to see how they could possibly assist the jury in the determination of defendant's guilt. The trial court's admission of these two photographs was error. See Oxendine v. State, 335 P.2d 940 (Okl.Cr.1958).

Nevertheless, the evidence against the appellant was so strong that the error does not require reversal. See Newbury v. State, 695 P.2d 531 (Okl.Cr.1985). Two witnesses--Donetta Bradford, appellant's girlfriend, and Charlesetta Garcia, Bobby Glass' girlfriend--testified that appellant told them that he had shot Charles in the head and cut his throat. Charlotte Mann, Anthony Mann's former wife, heard appellant tell his mother that Charles Keene was dead, that he had killed him, and that Vicki--the victim's ex-wife and the appellant's sister--did not have to worry about him anymore.

When appellant and the other co-defendants left their house on the evening of the murder, appellant told Bradford, "We're going to kill Charles." When they returned several hours later, appellant was wet from the chest down, his nose was bleeding, and he no longer had on the cap he had been wearing when he left.

Myrtle and Malcolm "Possum" Brown, who lived near the Washita River, returned from a vacation and retired early the night Charles Keene was killed. They were awakened by a gunshot and barking dogs. A man pounded on the door and shouted, "Possum, let me in. They're going to kill me." The Browns looked outside and saw three or four men beating another man. They heard one of the men say, "This is for the way you treated our sister." Mr. Brown telephoned the sheriff, but the men left soon after they realized the Browns were home and witnessing the fray. It was too dark for the Browns to identify any of the men.

The O.S.B.I. analyzed a stain on the Browns' front porch carpet and discovered it was caused by human blood group A, the same blood type of the victim. An expended .45 caliber Winchester Western cartridge case was found in the Browns' front yard; the same type of ammunition was used to kill Charles Keene. In the Browns' dogpen, fabric was found that had the same type design as the cap appellant had worn the night of the homicide.

The above recitation of facts is by no means exhaustive, but is demonstrative of how strong the evidence against appellant was. In view of this evidence, we cannot say that the two color photographs, although gruesome, affected the jury's determination that appellant was guilty as charged.

Finding no errors which would affect the conviction of first degree murder, we affirm that judgment. We turn now to a review of the sentencing.

Appellant alleges four categories of prosecutorial misconduct: comments requesting sympathy for the victim, comments arousing societal alarm, injecting matters not in evidence through improper cross-examination, and unfair characterization of the appellant. None of the statements falling in the first category were preserved for review as trial counsel made no objection. Having reviewed the record for fundamental error, we conclude that none of the comments warrant reversal or modification. See Nuckols, 690 P.2d at 471.

The comments that appellant claims were designed to arouse societal alarm were in fact, as the trial judge ruled them to be, comments on the appellant's propensity to commit acts of violence in the future. As that was one of the aggravating circumstances alleged and supported by evidence, we find the comments to be a fair comment on the evidence and within the permissible range of closing argument.

The alleged improper cross-examination was of character witnesses called by the defense. Most of the questions were proper under 12 O.S.1981, § 2405, which states that "[i]nquiry is allowable on cross-examination into relevant specific instances of conduct."

One question, however, was clearly improper. The prosecutor asked one defense witness whether he was related to Cecil Leroy Cloud. When the witness responded that Mr. Cloud was his father's step-brother, the prosecutor said, "That's the same Cecil Leroy Cloud that we sent to the pen for shooting with intent to kill, correct." We agree with appellate counsel that "[i]njection of the criminal record of a distant relative of a witness has no place in a criminal proceeding, and could not be termed anything other than an intentional effort at hurting the case of the accused." Notwithstanding, no objection was made at trial and we believe that such an obviously "cheap shot" discredited the prosecutor more than the witness. The error was not prejudicial and does not warrant modification of the sentence.

Appellant further complains that the prosecutor consistently sought to characterize him as being emotionally older than his chronological age. Defense counsel stressed appellant's youth as a mitigating factor, arguing that he should not be given the death penalty because he was young enough to change and improve himself. Defense counsel also tried to argue that appellant was a "normal little boy ... just like other little boys." The prosecutor's arguments to the contrary were proper inferences from the evidence. The evidence did not show William Wayne Thompson to be a typical sixteen-year-old, and the State properly argued that fact.

The appellant's next proposition is that the execution of William Wayne Thompson, who was fifteen at the time of the offense, would constitute cruel and/or unusual punishment under the Eighth and Fourteenth Amendments to the United States Constitution and under Article Two, Section Nine of the Oklahoma Constitution. The same arguments now made by appellant were made by appellate counsel in Eddings v. State, 616 P.2d 1159 (Okl.Cr.1980). This Court, unanimously rejecting the arguments, found that imposition of the death penalty on a minor certified to stand trial as an adult constitutes neither cruel nor unusual punishment. Id. at 1166-67.

The United States Supreme Court granted certiorari on the issue, Eddings v. Oklahoma, 450 U.S. 1040, 101 S.Ct. 1756, 68 L.Ed.2d 237 (1981), but then decided...

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