Allen v. State

• Decision Date: 18 March 1991
• Docket Number: No. C-88-37,C-88-37
• Citation: 1991 OK CR 35,821 P.2d 371
• Parties: Gary Thomas ALLEN, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 371

821 P.2d 371

Gary Thomas ALLEN, Appellant, v. STATE of Oklahoma, Appellee.

No. C-88-37.

Court of Criminal Appeals of Oklahoma.

March 18, 1991.

Rehearing Denied Dec. 19, 1991.

An appeal from the District Court of Oklahoma County; William R. Saied, District Judge.

GARY THOMAS ALLEN, Appellant, plead guilty to the crimes of Murder in the First Degree, Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony in Case Nos. CRF-86-6295 and CRF-86-6469 in the District Court of Oklahoma County before the Honorable William R. Saied, District Judge. Appellant was sentenced to serve a term of life for Assault with a Dangerous Weapon After Former Conviction of a Felony and a term of ten (10) years for Possession of a Firearm After Former Conviction of a Felony. The trial court assessed the death penalty for the Murder, finding the existence of three aggravating circumstances which outweighed the mitigating evidence offered by Appellant: 1) that the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) that there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. Appellant has perfected this appeal from the denial of his request to withdraw his guilty plea. All three Judgments are AFFIRMED, as are the SENTENCES for Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony. The sentence of death for Murder in the First Degree is vacated and the case is REMANDED for resentencing in accord with this opinion.

Pete Gelvin, Asst. Public Defender, Oklahoma County Public Defender's Office, Oklahoma City, for appellant.

Robert H. Henry, Atty. Gen. and Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

LANE, Presiding Judge:

On November 10, 1987, Appellant pled guilty to charges of Murder in the First Degree (21 O.S.Supp.1985, § 701.7), Assault with a Dangerous Weapon After Former Conviction of a Felony (21 O.S.1981, § 645) and Possession of a Firearm After Former Conviction of a Felony (21 O.S.1981, § 1283.) He entered his pleas before the Honorable William R. Saied in Oklahoma County District Court Cases CRF-86-6295 and CRF-86-6469. After the acceptance of the pleas, the court conducted a non-jury trial to determine punishment.

Following the evidence presented by both sides, the trial court sentenced Appellant to serve a term of life for the Assault charge and a term of ten (10) years for the Firearms charge. The trial court assessed the death penalty for the Murder, finding the existence of three aggravating circumstances which outweighed the mitigating evidence offered by Appellant: 1) that the defendant was previously convicted of a felony involving the use or threat of violence to the person; 2) that the defendant knowingly created a great risk of death to more than one person; and 3) that there existed a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.

Appellant filed his request to withdraw his guilty plea to the murder within the statutory time period. Upon the denial of that request, he has appealed to this Court. Although we find that the trial court properly denied Appellant's request to withdraw his guilty plea, we find that Appellant has raised an issue which requires relief from this Court with regard to his death sentence. Accordingly, we need only address the errors which relate to the acceptance of the plea, along with the error which is dispositive of the sentencing stage of the proceedings.

Appellant was charged with First Degree Murder for the killing of his girlfriend, LaWanna Gail Titsworth, outside of an Oklahoma City day care center. After shooting Titsworth four times, Appellant walked away from the center, down a nearby alley. Police officers found him soon after the killing and attempted an arrest, during which Appellant attacked one of the officers. During the attack, Appellant grabbed the officer's gun. While struggling over the gun, Appellant was shot in the head. The gun used to kill Titsworth was found in Appellant's pocket.

We are concerned in this proceeding only with Appellant's plea to the murder charge. Although Appellant has raised issues in the present proceedings concerning his pleas to the crimes of Assault with a Dangerous Weapon After Former Conviction of a Felony and Possession of a Firearm After Former Conviction of a Felony, he did not seek to withdraw these pleas in the trial court. The only reason for withdrawal of the pleas raised at the trial court was the sufficiency of the evidence supporting the death penalty. Accordingly, Appellant has not properly invoked the jurisdiction of this Court with regard to the counts other than the murder charge. See Rule 4.1, Rules of the Court of Criminal Appeals.

We will deal first with Appellant's claim that the trial court did not sufficiently inquire into Appellant's mental competency at the time the plea was entered. This claim is not borne out by the record. Prior to entering the plea in question, Appellant underwent a full-blown competency evaluation at the request of his counsel. He was admitted to Eastern State Hospital for treatment. After a four month stay at the hospital, during which time he received treatment, Appellant was pronounced competent after a jury trial on the issue. The competency trial occurred on October 19 and 20. The instant plea was entered less than one month later.

At the time the plea was entered, the trial court inquired as to any past or present mental illness, asking both counsel and Appellant. The court was told of Appellant's head injury and recent treatment at Eastern State Hospital. The fact that Appellant had suffered a head injury was explained, as was the fact that Appellant had not taken his medication, described as a mild pain reliever, that day. Additional inquiry by the court failed to draw a response from any party which would indicate that there was any doubt concerning Appellant's present competence. As was the case in Bromley v. State, 757 P.2d 382, 384 (Okl.Cr.1988), "[n]othing in the transcript suggests that appellant was incapable of appreciating the nature of his action and the consequences of his guilty plea." Based on the totality of the record before us, we find that the trial court more than adequately explored the issue of Appellant's competence to enter a plea. Ocampo v. State, 778 P.2d 920 (Okl.Cr.1989).

As his next attack on the entry of his guilty plea, Appellant claims that the court failed to establish that he was aware of the elements of the crime of First Degree Murder and that there was no factual basis to support a finding that Appellant acted with malice aforethought. Appellant argues that the facts of this case would also support a conviction for Manslaughter in the First Degree and that had he known the elements of these charges, his plea would have been different. We disagree.

At the plea hearing, Appellant testified, "I shot and killed Gail Titsworth. I had no justifiable cause." Despite this statement, Appellant now appears to claim that although he did kill Titsworth, he never intended to do so. In support of this argument, Appellant details several circumstances which he claims would have supported a finding that the killing occurred as the result of the "heat of passion" rather than the more serious crime of First Degree Murder. We find that these circumstances do not meet the appropriate criteria for a manslaughter conviction.

We have previously held that the "heat of passion must render the mind incapable of forming a design to effect death before the defense of manslaughter is established." Walker v. State, 723 P.2d 273, 284 (Okl.Cr.1986), cert. denied 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 600 (1987). The elements of the defense include proof of adequate provocation, the existence of a strong passion or an emotion such as anger, rage or resentment, the lack of reasonable opportunity for the cooling of the passion and a causal connection between the provocation, the passion and the homicide.

Appellant's attempt to establish these criteria in the present case fall largely short of the mark. He points out that he had argued with the deceased during the days and weeks prior to the killing and that they were arguing outside the day care center immediately prior to the killing. He claims that he was intoxicated and had been depressed on the day of the shooting. Finally, he claims that his efforts to comfort the victim between the first two shots and the next two, should prove to the court that he had no design to effect the death of his girlfriend.

More than anything else, it is this final argument which compels us to conclude that Appellant was not entitled to consideration for a Manslaughter conviction. Assuming for the sake of argument alone that Appellant initially did not intend to kill Titsworth but was acting irrationally because of the "heat of his passion," the fact that after first shooting Titsworth and then checking to see her condition, Appellant shot her two more times as she sought to get away from him by going into the day care center and then ran away from the scene of his crime, dispels any notion that the murder was committed with anything other than malice aforethought. Such premeditation may be formed instantaneously as the killing is being committed. Carter v. State, 698 P.2d 22, 24 (Okl.Cr.1985). Taking Appellant's arguments in the best possible light, the fact that he fired more shots after he apparently realized what he was doing leads us to the unmistakable conclusion that he fully intended the consequences of his acts.

While it is true that a guilty...