Cargle v. State

• Decision Date: 22 December 1995
• Docket Number: No. F-94-763,F-94-763
• Citation: 1995 OK CR 77,909 P.2d 806
• Parties: Marcus L. CARGLE, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 806

909 P.2d 806

Marcus L. CARGLE, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-94-763.

Court of Criminal Appeals of Oklahoma.

Dec. 22, 1995.

Rehearing Denied Feb. 8, 1996.

An appeal from the District Court of Oklahoma County; Charles L. Owens, District Judge.

Michael Gassaway, Oklahoma City, Trial Counsel for Appellant.

Robert H. Macy, District Attorney, Fern Smith, Assistant District Attorney, Oklahoma City, Trial Counsel for Appellee.

Cindy G. Brown, Appellate Defense Counsel, Capital Direct Appeals Division, Oklahoma Indigent Defense System, Norman, Appellate Counsel for Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Robert Whittaker, Assistant Attorney General, Oklahoma City, Appellate Counsel for Appellee.

OPINION

LUMPKIN, Judge:

Appellant Marcus L. Cargle was tried by a jury in the District Court of Oklahoma County, Case No. CF-93-6982, and convicted of Count I and Count II, Murder in the First Degree (21 O.S.1991, § 701.7(A); and Count III, Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1992, § 1283). For the weapons charge he received a sentence of ten (10) years. The prosecution sought the death penalty on each murder count, alleging (1) The defendant was previously convicted of a felony involving the use or threat of violence to the person (21 O.S.1991, § 701.12(1)); (2) The defendant knowingly created a great risk of death to more than one person (21 O.S.1991, § 701.12(2)); (3) The murder was especially heinous, atrocious, or cruel (21 O.S.1991, § 701.12(4)); (4) The murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution (21 O.S.1991, § 701.12(5)); and (5) The existence of a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society (21 O.S.1991, § 701.12(7)). On Count II, the jury found the presence of all five aggravating circumstances; on Count I, the jury found all but number 4, that the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution. After making these findings, the jury recommended Appellant be sentenced to death for each murder count. The trial court sentenced accordingly. It is from this judgment and sentence that Appellant appeals. We affirm. ¹

I. FACTS

Richard Paisley was a woodcarver. He and his wife Sharon had moved into a house on North Westminster in far northeast Oklahoma City to study southwestern art forms. They planned to stay temporarily, then return to their families in the Carolinas. While in Oklahoma City, they apparently also sold marijuana. It was the prosecution's theory they sold bad marijuana to Appellant and his friends, and this sale led to their deaths.

The Paisleys' neighbor last saw Richard alive on September 24, 1993, when he came to the neighbor's house to borrow money. He said he needed $200 to save a trip into town, and he would repay the loan the next day. Richard offered the neighbor, Larry Dhooge, a couple of checks as collateral; Dhooge refused the offer, and loaned Paisley the $200. Dhooge sent his sons to the house the next day, a Saturday, to collect on the debt and to give the Paisleys a package addressed to them which had been delivered to the Dhooge house. The two boys found the bodies: Sharon was lying on the floor in the living room, Richard was lying in the doorway to the bedroom. Each had been shot in the head, and Richard had also been shot in the chest. The Dhooges recalled the Paisleys' lights were on and the television was off when they returned to their house between 11 and 11:30 p.m. Friday; usually, the lights were off and the television was on at that time.

Authorities got a break in the case in November 1993, when a man arrested for domestic violence sought to make a deal with authorities. In early October, the county jail inmate, Luke Jones, had been living with Appellant at Appellant's parents' house. Appellant had approached Jones and wanted to know if God would forgive him for murder. After being assured by Jones this would occur, Appellant said he had gone through some changes, and had killed a man and woman (whom he described as hillbillies from the Carolinas) out by Spencer, a municipality in northeastern Oklahoma County. Appellant said "Todd" had shot the man, and he had shot the woman. They had gone to the residence after the Paisleys had sold them some bad marijuana. "Todd" was later identified as Christopher Todd Williams.

Authorities arrested Appellant, who admitted being at the scene but denied killing anyone, blaming both murders on Williams. Appellant told them a third person, Christopher Todd Jackson, would corroborate this.

Instead of corroborating Appellant, Jackson told authorities essentially what Jones had said. They had gone to the Paisley residence to get money back for some bad marijuana. Richard did not have the money, but went to a neighbor's and returned with it in a few minutes. He returned the purchase price, saying he did not want any trouble. Williams then asked to use the restroom. When he came out, he was carrying a Tech-9 semiautomatic weapon. He approached Richard and shot him once in the chest. Richard lunged at Williams, who then shot him in the neck. When Richard fell to the floor and was attempting to crawl away, Sharon dived onto the floor from the couch where she had been sitting. At that point, Appellant pulled out a .22 caliber handgun and shot Sharon in the head twice, pausing between shots to unjam the pistol. Authorities discovered a .22 pistol inches away from Sharon's hand; it appeared Sharon was reaching into a box for the weapon when she was shot. As Appellant shot Sharon, Williams then approached Richard as he was crawling away, put the pistol to his head, and shot him a third time. Williams then took a television and a video cassette recorder from the residence.

Other facts will be introduced as they become relevant.

II. PRE-TRIAL ISSUES

A.

For his first proposition of error, Appellant contends he was denied his right to equal protection under the law when the trial court refused to provide a copy of his preliminary hearing transcript at State expense.

The State on appeal does not dispute the general principle of law that denial of a preliminary hearing transcript to an indigent defendant because he cannot pay for it violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. Roberts v. LaVallee, 389 U.S. 40, 42, 88 S.Ct. 194, 196, 19 L.Ed.2d 41 (1967). However, the State also points out a defendant's indigency alone does not relieve trial counsel from a duty to act with due diligence in acquiring the transcript. We have held an accused is entitled to a transcript of a preliminary hearing where: (1) defense counsel acted with due diligence to acquire the transcript; and (2) the transcript is necessary for cross-examination of witnesses at trial. McMillion v. State, 742 P.2d 1158, 1160-61 (Okl.Cr.1987); Wilson v. State, 701 P.2d 1040, 1041 (Okl.Cr.1985); Bryant v. State, 471 P.2d 948, 949 (Okl.Cr.1970). Failure to provide a transcript when these requirements are met will result in reversal of a subsequent conviction. Wilson, 701 P.2d at 1041. We therefore turn to the record to determine whether the conditions for the transcript were met. We find the following information pertinent:

The charge was filed November 15, 1993. Attorney Michael Gassaway appears to have been retained as the attorney of record from the beginning. On March 1, 1994, Gassaway filed an application to withdraw as attorney of record, citing lack of agreed payment (O.R.24). The record does not show a disposition of that motion; however, Gassaway represented Appellant at trial.

Appellant filed several motions on March 16, 1994 (O.R. 34-107). Request for preliminary hearing transcript was not one of them. On March 18, Gassaway filed a motion for the transcript, saying he would present a pauper's affidavit if necessary (O.R. 135). In response, the prosecution simply argued: "Defendant has private, retained counsel. The preliminary hearing in this matter was not lengthy." (O.R. 145). The district court on May 12, 1994, issued an order addressing several of Appellant's motions; the motion for a preliminary hearing transcript at state expense was not addressed (O.R. 153).

It is evident trial counsel did not act with due diligence in seeking the preliminary hearing transcript. When he filed his first application for the transcript, it was not accompanied by a pauper's affidavit. Since trial counsel had been retained, the affidavit would be necessary to show the court the defendant had no money for a transcript. This Court has stated that absent some specific showing of indigency by affidavit or testimony, this Court cannot speculate that the defendant was, in fact, without funds; this would be true even if counsel were court-appointed. Marton v. State, 809 P.2d 671, 672-73 (Okl.Cr.1991) (citing Cook v. State, 487 P.2d 1373, 1375-76 (Okl.Cr.1971)). Therefore, the trial court did not err even if it did not act on the first application.

A second application was filed May 31, 1994, accompanied by a pauper's affidavit (O.R. 175, 177). The docket sheet shows that on June 2, 1994, the motions for continuance and transcript at public expense were denied because defense counsel was not present. ²

The record shows an application to rehear defendant's motion for continuance and request for transcript at public expense was filed June 7, 1994 (O.R. 228). The court on June 10 issued an order denying both motions (O.R. 283). The order denying was not filed until June 20; trial began that same day. The issue was not raised on the record during trial proceedings.

We find trial counsel did not act with due diligence in pursuing his request. Counsel was not present on the day the motion was set for a hearing. Therefore, the trial court acted properly in denying the motion. See ...