Hunter v. State

• Citation: 829 P.2d 64,1992 OK CR 19
• Decision Date: 27 March 1992
• Docket Number: No. F-88-410,F-88-410
• Parties: Thomas HUNTER, Appellant, v. STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 64

829 P.2d 64

Thomas HUNTER, Appellant, v. STATE of Oklahoma, Appellee.

No. F-88-410.

Court of Criminal Appeals of Oklahoma.

March 27, 1992.

An Appeal from the District Court of Cleveland County; E.M. McDanel, District Judge.

Thomas Hunter, Appellant, was tried by jury for the crime of Murder in the First Degree in Case No. CRF-87-1453-M in the District Court of Cleveland County before the Honorable E.M. McDanel, District Judge. The jury returned a verdict of guilty and, finding the existence of two aggravating circumstances, set punishment at death. The aggravating circumstances found were that the defendant had been previously convicted of a felony involving the use of threat of violence and that a probability existed that the defendant would commit criminal acts of violence indicating that he is a continuing threat to society. The trial court sentenced appellant in accordance with the jury's verdict and from this Judgment and Sentence, appellant appeals. This case is REVERSED and REMANDED for a new trial.

Patti Palmer Chief Deputy Appellate Public Defender, Norman, for appellant.

Robert H. Henry, Atty. Gen., Sandra D. Howard, Asst. Atty. Gen., Oklahoma City, for appellee.

OPINION

JOHNSON, Judge:

Thomas Hunter, appellant, was tried by jury for the crime of Murder in the First Degree in violation of 21 O.S.1981, § 701.7, in Case No. CRF-87-1453-M in the District Court of Cleveland County. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at death, finding the existence of two aggravating circumstances: (1) that the appellant had been previously convicted of a felony involving the use or threat of violence; and (2) that a probability existed that the appellant would constitute a continuing threat to society. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant appeals.

This case must be REVERSED and REMANDED for a new trial, so only a brief recitation of the facts will be necessary.

I.

On October 29, 1987, the appellant was charged with malice aforethought murder. The Bill of Particulars was not filed until March 9, 1988, with trial set for March 16, 1988. The appointed defense counsel moved to quash the Bill due to the delay in filing which resulted in defense counsel being "lulled into expectation no death case would be involved."

Appellant was accused of the murder of his fiancee, Mary Carter, on October 26, 1987. There is no dispute that Mary Carter died as a result of a single gun shot to her head by appellant. Testimony at trial indicates that the fiancee died either instantaneously or within minutes. On the night of this death, the couple had been drinking and various witnesses testified that the couple was happy and talking of going to Dallas and getting married. Others testified that all was not perfect in paradise and, in fact, Mary Carter, the night before had sex and spent the night with a friend of the appellant. The death occurred when the couple left Norman for Dallas on the night of the 26th and with Mary Carter driving the van. The appellant stated that he got the gun out of the glove compartment and while he moved it to the back end, it accidentally discharged and Mary's death occurred.

Initially, we are very disturbed by the fact that the prosecution in the present case did not file the Bill of Particulars seeking the death penalty until seven days prior to trial. At present, there is no set time prior to trial within which the State must file a Bill of Particulars. 21 O.S.1989, § 701.10. However, both parties agree that the notice need only be given within a reasonable time prior to trial. We find that giving notice that the State intends to seek the death penalty seven days prior to trial is clearly unreasonable. By comparison, the State is required to give ten days notice of its intention to use evidence of other crimes. See Burks v. State, 594 P.2d 771 (Okl.Cr.1979). It is our opinion the State knows or should know no later than the preliminary hearing whether or not they intend to seek the death penalty in a particular case. We find the notice in the present case simply inadequate. The defendant has the right to a fair trial; how can one properly prepare for a death case trial in one week. This Court adopts the standard that the State must file the Bill of Particulars prior to or at the arraignment of the defendant. The trial court may for good cause shown, extend this time but should use its sound discretion in so doing.

II.

On February 16, 1988, appellant filed a motion for production, requesting the State to produce all technical reports, including ballistics reports. The motion was granted by the trial court on February 29, 1988. The ballistics report provided to the defense was prepared by Frank Carr, a firearm examiner with the Oklahoma City police department. When asked by defense counsel at the preliminary hearing whether one could conclude that only one shot had been fired, Officer Carr responded, "Yes." (PH Tr. 94-95)

Prior to trial, Officer Carr left the police department and the State had Officer Roy Golightly reexamine the physical evidence so that he might be able to testify at trial. During a phone conversation on the first day of trial, Officer Golightly informed the district attorney's office that he had observed a primer dent on one of the four live rounds remaining in the gun. A primer dent on a bullet indicates that when the trigger had been pulled, the bullet did not discharge, leaving only a dent on the end of the bullet.

During an in-camera hearing on the morning of the second day of trial, in a motion to offer the newly discovered evidence, the prosecutor argued that he had never been informed of the indentation by Officer Carr and that he was unaware of such evidence until Officer Golightly discovered it. The prosecutor argued that the relevance of the bullet's indentation depended on the location of that bullet within the gun's chamber. The prosecutor stated that just that morning he had contacted Detective Ed Johnson, the investigator who had secured the gun. The prosecutor claimed that Detective Johnson had fortunately made notes of the location of the rounds in the chamber, and that after conferring with Detective Johnson and Officer Golightly, the live round with the dented primer was found in the chamber in front of the round which was under the hammer, i.e., the fired round. In other words, the prosecutor stated that he would argue that appellant had been required to pull the trigger twice because the first round failed to discharge. The prosecutor's argument was later referred to as the "click-bang" theory. The prosecutor stated that he would be presenting the evidence later that morning or early in the afternoon.

Defense counsel objected strenuously, claiming that the ballistics report they had received from Officer Carr did not contain any type of disclosure relative to any type of indented bullet in the gun's chamber, nor was he given any evidence as to the location of the bullets in the chamber. Defense counsel further argued that he was not informed of any diagramming of the rounds performed by Detective Johnson, nor did Detective Johnson testify as to any type of diagram during the preliminary hearing. Defense counsel concluded that the evidence was discoverable prior to the preliminary hearing, and thus, did not qualify as newly discovered evidence and finally, its introduction would be in violation of the trial court's production order. The trial court overruled appellant's objection and allowed the State to present the evidence to the jury.

During various arguments to the jury, the prosecutor made several statements concerning his "click-bang" theory:

All it means is that in the instant that it took to pull that trigger once, let alone twice, the Defendant formed the thought to pull that trigger deliberately with the intention to send the bullet into the back of [M.C.'s] brain, and thereby take her life. (Tr. III 9)

[W]hen you are viewing the circumstantial evidence on that issue, all of the evidence that the State presents must be consistent with its theory that when he pulled the trigger that second time, he intended to kill [M.C.]. (Tr. III 16)

It doesn't matter where that gun came from. What matters is, why he pulled the trigger twice. (Tr. III 21)

[H]e put that gun to her head and he pulled the trigger and, thud; and so he pulled the trigger again, and in that brief instant, [M.C.] had turned to the left because that's where the door was. (Tr. III 22)

You will also have an opportunity ... to examine the three remaining live rounds. I ask you to look at them because one of them is worth a thousand stories. (Tr. III 27)

On May 9, 1988, the appellant argued his Motion For a New Trial. Appellant presented Raymond Cooper, an expert firearm examiner from Dallas, Texas. Mr. Cooper testified that he had had an opportunity to examine the revolver and bullets that were examined by Detective Golightly. Mr. Cooper testified that he found the revolver in normal working order. Mr. Cooper further testified that there was no way to determine whether or not the indentation had been made by the gun involved, a fact which had been argued at trial. Most importantly, however, Mr. Cooper testified that, in conjunction with Detective Golightly the bullet with the indentation was examined and it was determined that the bullet was, in fact, a live round and not defective. The experts concluded that if the indented bullet had received a full force strike from the hammer of the gun, it would have detonated. The State presented no evidence contesting this point.

During his argument to the trial court, defense counsel claimed that as a result of the court's ruling during trial, the State had been able to argue it's theory of "click-bang" in support of the element of premeditation. Defense counsel claimed that...