Cooper v. State, F-92-533

• Decision Date: 10 January 1995
• Docket Number: No. F-92-533,F-92-533
• Citation: 889 P.2d 293
• Parties: Byron Keith COOPER, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 293

889 P.2d 293

Byron Keith COOPER, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-92-533.

Court of Criminal Appeals of Oklahoma.

Jan. 10, 1995.

Rehearing Denied Feb. 13, 1995.

As Clarified March 24, 1995.

An Appeal from the District Court of Oklahoma County; Richard J. Freeman, District Judge.

Byron Keith Cooper, Appellant, was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7(A)) in Case No. CRF-89-5084-7, in the District Court of Oklahoma County. The jury found the existence of five aggravating circumstances and recommended punishment of death. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal. The Judgment and sentence for First Degree Murder is AFFIRMED.

Robert A. Ravitz, Public Defender, Robert Mildfelt, Asst. Public Defender, Oklahoma City, Trial Counsel for appellant.

Brad Miller, Kayce Gisinger, Asst. Dist. Attys., Oklahoma City, Trial Counsel for appellee.

Pamela Wagner, Asst. Public Defender, Oklahoma City, Appellate Counsel for appellant.

Susan Brimer Loving, Atty. Gen., A. Diane Blalock, Asst. Atty. Gen., Oklahoma City, Appellate Counsel for appellee.

OPINION

LUMPKIN, Presiding Judge:

Appellant Byron Keith Cooper was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1989, § 701.7) in the District Court of Oklahoma County, Case No. CF-89-5084. The jury found the existence of five (5) aggravating circumstances (Appellant was previously convicted of a felony involving the use or threat of violence; the murder was especially heinous, atrocious and cruel; the murder was committed to avoid arrest or prosecution; the murder was committed while Appellant was serving a sentence for a conviction of a felony; and Appellant posed a continuing threat to society) and recommended punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. We affirm.¹

I. FACTS

Eighty-six-year-old Harold Sheppard was found dead in his home at Northeast 13th and Fonshill streets by a friend who was helping him with plans to renovate his home. The victim's wife had died years earlier and his daughter lived in another state. Mr. Sheppard lived only with his little dog, which authorities found protecting the victim's body. He was found on September 8, 1989; based on interviews with people in the neighborhood, authorities estimate he died on September 4, after being stabbed to death that same evening.

A former cocaine dealer who sold drugs in the area frequented by Appellant witnessed Appellant's arrest by detectives on September 19. The dealer testified that a week or two before the arrest, Appellant had approached him, showed him a credit card with someone else's name on it, and offered to purchase merchandise in exchange for cocaine. The dealer could not remember the name on the credit card, but remembered the first name started with "H." The dealer initially refused; but after Appellant persisted, said he could use a watch. A short time later that same day, Appellant returned with a gold Seiko watch. An acquaintance who happened to be present during the exchange said he wanted a watch, too. Appellant told him he would get him one.

On September 5, the day after Mr. Sheppard was killed, Appellant used Mr. Sheppard's J.C. Penney credit card to purchase watches. One watch, a gold Seiko, was bought at the J.C. Penney store in Shepherd Mall; the other at the Penney store in Crossroads Mall. Both were purchased the same day. Authorities became aware of the purchases less than two weeks later, when the victim's daughter received the bill for the purchases. The clerk at the Shepherd Mall store remembered the purchase at her store. In fact, she was suspicious because Appellant did not look like the kind of customer to whom Penney would issue a credit card. She attempted to call Harold Sheppard, the name on the card, during the remainder of the week; no one ever answered the telephone. She later gave authorities Appellant's description and a composite drawing, which was distributed to law enforcement personnel.

On September 19, detectives spotted Appellant in the vicinity of Northeast 4th and Laird. When they turned their car around to investigate further, Appellant began running from them. When he was apprehended a short time later, he was carrying a portion of a car antenna commonly used as a pipe to smoke crack cocaine.

Appellant was questioned by authorities for several hours. During the interrogation, Appellant admitted murdering not only Harold Sheppard, but also Monteen Warner, whose body was discovered on September 17, 1989 at her home at 1021 Northeast 6th Street (evidence of the Warner homicide was not presented until the second stage). However, Appellant also retracted the admissions, and denied being inside either residence. Appellant denied being involved in a murder at 13th and Fonshill, despite the fact detectives had not told him Mr. Sheppard's house was located at that intersection and despite the fact Appellant told the detectives he had not heard anything about the murders in the news media. Toward the end of the interview, Appellant conceded he may have committed the murders, but could not remember.

Appellant had been staying with Walter Sam Ray, a man he met in prison. At that apartment, authorities found two box-type cameras which Mr. Sheppard's daughter identified as belonging to her father. Also found at the apartment was a watch which had belonged to Mr. Sheppard. Using chemical reagents, technical investigators discovered traces of blood on a shoe, sock and blue jeans, all belonging to Appellant and all found in a box of Appellant's belongings in Ray's apartment. Two hairs which were microscopically consistent with Mr. Sheppard were also found on one of Appellant's shoes found at the apartment.

At Mr. Sheppard's house, authorities found Appellant's fingerprints on a flashlight, a metal can, a watch case, and a carton of Salem cigarettes, the brand Mr. Sheppard smoked. Appellant's prints were also found on the charge receipt he signed at the Shepherd Mall J.C. Penney store. Authorities found a Viceroy brand cigarette butt on the kitchen floor. Appellant had a pack of Viceroy brand cigarettes when he was apprehended. Appellant is a non-secretor, meaning his blood type cannot be discovered in other bodily fluids such as saliva. No blood type could be detected from the Viceroy cigarette butt, indicating that if saliva were left on it, the person who did so could be a non-secretor.

Appellant in the police interview could not explain how his fingerprints could have been placed on the items in Mr. Sheppard's house. However, he did say if he had killed the man, his prints should have been found on the weapon, and he was certain they would not be. Authorities found a butcher knife in the draining board in the victim's kitchen. No prints were found on the knife, and there was no visible blood; however, when a chemical reagent was sprayed on the knife, the blade exhibited swipe marks which would be exhibited if blood on the blade had been wiped off.

II. PRE-TRIAL ISSUES

A.

For his first proposition, Appellant complains the authority used to determine competency is unconstitutional. A sizeable portion of pretrial proceedings focused on Appellant's competency. His attorneys complained he would not communicate with them and that he thought his lead attorney was a devil who wanted him dead. A non-jury competency hearing was afforded Appellant in December 1990 and January 1991 pursuant to sections 1175.1 through 1175.8 of Title 22, at the conclusion of which Appellant was adjudged competent to stand trial.

Appellant acknowledges a hearing was held, but complains the presumption of competency, combined with the requirement he show incompetency by "clear and convincing" evidence, 22 O.S.Supp.1985, § 1175.4(B), is such a harsh standard it is violative of his right to Due Process of Law. He argues the standard of proof on him should have been preponderance of the evidence.

It is a basic precept that statutes are presumed to be constitutional and the person alleging their unconstitutionality has the burden of proof. Newton v. State, 824 P.2d 391, 396 (Okl.Cr.1991); State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990); Nunley v. State, 660 P.2d 1052, 1056 (Okl.Cr.1983), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 179 (1983).

The statutory reference to "competency" covers two requirements: a defendant must have sufficient ability to consult with an attorney; and the defendant must be able to understand the nature of the charges and proceedings being brought against him. 22 O.S.1981, § 1175.1. The question of a defendant's competency can be raised by the defendant, his attorney, the prosecutor or even the court; however, it must state facts "sufficient to raise a doubt" in the court's mind of the defendant's competency. Any such application and sufficient notice must be provided the defendant and must contain certain facts and rights. 22 O.S.Supp.1983, § 1175.2. Once such an application is filed, the court must hold a hearing to examine the application. The court may also entertain other evidence pertinent to the question at that hearing. A court finding merit to the application must order an examination by doctors or appropriate technicians, who shall examine the defendant and determine if he can appreciate the nature of the charges; if he is capable of assisting his attorney; and other questions concerning the attainment of competency (if incompetent), whether the defendant is mentally ill, and whether he poses a threat to himself or others if released without treatment. 22 O.S.Supp.1990, § 1175.3. Following an initial determination by doctors or technicians and upon application, the court is required to hold a hearing on the competency issue. At that hearing, the defendant is presumed competent, and must...