736 P.2d 161 (Okla.Crim.App. 1987), F-84-760, Moore v. State

Docket Nº:F-84-760.
Citation:736 P.2d 161
Party Name:Scotty Lee MOORE, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:April 15, 1987
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma
 
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Page 161

736 P.2d 161 (Okla.Crim.App. 1987)

Scotty Lee MOORE, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F-84-760.

Court of Criminal Appeals of Oklahoma.

April 15, 1987.

Rehearing Denied May 15, 1987.

Page 162

[Copyrighted Material Omitted]

Page 163

Pete Gelvin, Asst. Public Defender, Oklahoma City, for appellant.

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

OPINION

BUSSEY, Judge:

Scotty Lee Moore was convicted in the District Court of Oklahoma County of Murder in the First Degree. Punishment was assessed at death as the jury recommended to the trial court.

Moore was found guilty of killing Alex Fernandez, a desk clerk at a motel in Oklahoma City who had fired appellant from working at the motel a month prior to the homicide. At the time of the killings, Vicki Caster, appellant's cousin and girlfriend, was in his company. She offered incriminating evidence against appellant after having been granted immunity.

She stated that they entered the motel where Fernandez worked in the late evening of November 17, or early morning of November 18, 1983, for the purpose of robbing it. Appellant took a loaded .22 caliber rifle into the motel which he had stolen during a burglary in Dodge City, Kansas. Caster gathered up the cash at the motel desk while appellant took Fernandez to a back room. Contrary to appellant's promise to Caster, he used the weapon against Fernandez by shooting him five times in the head as the victim lay face down on the floor. Appellant later described with intrigue the appearance of balls of blood as the shots entered Fernandez's head.

Fernandez's body was not discovered until 7:00 a.m. the morning of November 18, 1983. The rifle appellant used to kill Fernandez was later recovered from appellant's brother-in-law to whom Moore had given the gun for safekeeping for his nephew.

I

Appellant first assigns as error the introduction into evidence of two 8"' x 10"' photographs which depict the victim face down on the floor shot in the head with blood splatterings in the surrounding areas. He claims their prejudicial value outweighed probative content, that the points they proved could have been stipulated by the parties, and that smaller, less damaging

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photographs were available but not used.

This Court has consistently upheld the admission of photographs which depict the wounds of a homicide victim. In Thompson v. State, 711 P.2d 936 (Okl.Cr.1985), we noted that admission of photographs lies within the trial court's discretion whose decision is to be disturbed only upon abuse of that discretion. If such evidence is gruesome and the probative value is substantially outweighed by its prejudicial effect, only then will an abuse be found. Id.

Corroboration of the medical examiner's testimony as to cause of death, which was supplied by the pictures herein, gives probative value to photographs. Furthermore, the pictures in the present case corroborated Caster's testimony as to how and where Fernandez was killed. The 8"' x 10"' photographs better presented the wounds than the 5"' x 7"' ones did, and their use was justified. The photographs were not unnecessarily gruesome and their admission was not an abuse of discretion.

II

Appellant requested prior to trial funds to hire a ballistics expert in order to cast doubt on the testimony of the State's ballistics expert. The State's expert compared the projectiles which wounded the victim with the rifle retrieved from appellant's brother-in-law's possession and testified he believed the projectiles were consistent with having been fired by this particular gun. The expert could not make a conclusive statement. Appellant contends the trial court violated 22 O.S.Supp.1986, § 464(B), in not granting his motion for the funds in order that he might be able to refute what he characterizes as "the strongest evidence tending to corroborate Caster."

Appellant's defense at trial was that he was not involved in the robbery/murder and that Caster may have been the perpetrator. (This was his own description of his defense as stated in Appellant's Brief). The ballistics evidence was not antagonistic to his defense, nor did appellant establish prior to trial that the "expert witness is necessary to prepare the defense." 22 O.S.Supp.1986, § 464(B).

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court required an indigent to show that his insanity defense would be a significant factor at trial before the State was required to provide funds for access to psychiatric assistance in preparing for trial. We held in Plunkett v. State, 719 P.2d 834 (Okl.Cr.1986), that when scientific evidence is the subject of the expert's testimony, the danger of an inaccurate resolution of the evidentiary issues is not necessarily present, and funds for...

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