Moore v. State, F-84-760

• Decision Date: 15 April 1987
• Docket Number: No. F-84-760,F-84-760
• Parties: Scotty Lee MOORE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 161

736 P.2d 161

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.

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 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 a second expert is not usually warranted.

In the present case, the expert presented the bases for his opinions and was above-board in expressing the inconclusiveness of his findings. His testimony was neutral in nature and easily understood. Due to appellant's failure to establish the necessity to his defense of the expert's assistance prior to trial, its lack of significance to his defense, and the neutral, scientific nature of the evidence, the necessity of an expert's assistance was not present.

III

In Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3376, 73 L.Ed.2d 1140 (1982), the United States Supreme Court held that the Eighth Amendment forbids the imposition of the death penalty against one who "aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force be used." The jury in this case had a choice of finding appellant guilty of malice aforethought, or of felony murder. They found appellant guilty of felony murder. He now contends that since the jury rejected a finding of malice aforethought murder, his culpability was not proven to be great enough to allow imposition of the death penalty under Enmund. He cites Cabana v. Bullock, 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986), in which the Supreme Court condemned jury instructions which would allow a conviction of capital murder regardless of intent, and based solely upon the defendant having aided his accomplice at some point in an assault which led to the killing.

Appellant's contentions fly in the face of the sentencing instructions. The jury was advised:

In this case, the State has the burden of proving beyond a reasonable doubt that the Defendant, Scotty Lee Moore, either participated in the planning of the killing of Alex Fernandez or actually fired the shots into the body of Alex Fernandez resulting in his death, before you may consider the imposition of the death penalty.

If you do not so find or should you entertain a reasonable doubt thereof, then in either of said latter events, the sentence must be imprisonment for life.

This instruction held the jury to an even stricter standard than Enmund requires since they were to find beyond a reasonable doubt that he planned the killing or killed before the death penalty could be considered. There was a great deal of direct and circumstantial evidence from which the jury could have found, and in fact did find, this level of culpability.

IV

Appellant summarily presented prior to trial a motion to quash the jury panel from which his petit jury was drawn. He asserted then and now on appeal that he was denied a jury representative of a fair cross-section of the community in violation of the Sixth and Fourteenth Amendments. His claim is that individuals seventy years of age and older are systematically excluded because 38 O.S.1981, § 28(A) provides that they may not be compelled to serve as jurors. Trial counsel did not support his motion with statistical evidence, but only suggested that people seventy years of age or older probably constituted six percent of the population. He also offered a stipulation entered into with the State that several individuals had been excused from serving on the basis of age.

In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Supreme Court articulated the constitutional principle that criminal defendants are entitled to juries drawn from a fair cross-section of the community. When underrepresentation of venires of distinctive groups in the community is due to their systematic exclusion, a defendant's Sixth Amendment rights are infringed. In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the Court delineated the elements a defendant must show to establish a prima facie violation of the fair-cross-section requirement as:

(1) that the group alleged to be excluded is a 'distinctive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to the systematic exclusion of the group in the jury selection process.

Id. at 364, 99 S.Ct. at 668, 58 L.Ed.2d at 587. Appellant fails to establish any of the elements listed above.

In both Taylor and Duren, the defendants established that the underrepresented group, which was women, was sufficiently numerous and distinct that if they were eliminated from jury panels, the fair-cross-section requirement could not be satisfied. This has not been demonstrated herein.

Appellant's trial counsel guessed that the group he said was underrepresented constituted six percent of the community. The State has presented 1980 census data showing that 10.45 percent of Oklahoma County's population consisted of individuals sixty-five years of age and older. Those who may be exempted from jury service due to age would be an even smaller percentage since the above figure would be further reduced by subtracting 1) those persons sixty-five to seventy years of age, 2) those...