Pennington v. State
| Decision Date | 28 December 1995 |
| Docket Number | No. F-93-968,F-93-968 |
| Citation | 913 P.2d 1356,1995 OK CR 79 |
| Parties | Michael L. PENNINGTON, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
STATEMENT OF THE CASE
Appellant, Michael L. Pennington, was tried by jury for the crime of First Degree Murder (malice aforethought) in violation of 21 O.S.1991, § 701.7, in Case No. CRF-91-386, in the District Court of Comanche County before the Honorable Peter Clinton Moore. The State filed a Bill of Particulars alleging three aggravating circumstances: (1) the defendant knowingly created a great risk of death to more than one person; (2) the murder was committed for the purpose of avoiding or preventing lawful arrest or prosecution; and (3) that defendant was a continuing threat to society. Appellant was represented by counsel. The jury returned a verdict of guilty and set punishment at death. The trial court sentenced appellant in accordance with the jury's verdict. From this Judgment and Sentence, appellant has perfected his appeal to this Court.
On October 21, 1991, James Principe and Bradley Grooms were working the late shift at a 7-11 convenience store located in Lawton at Fort Sill Boulevard and Rogers Lane. At approximately 5:00 a.m. that morning, Principe and Grooms were stocking shelves, with Grooms located toward the front of the store. During this time, a black male entered the store, went to the bathroom, and left. This male was wearing a black and white outfit with matching top and pants. Principe described the pattern as cow-like with black and white spots. About one minute after this male left the store, Principe while still stocking shelves in the back of the store, heard a loud bang. He stood up from his crouched position and noticed another black man wearing sunglasses standing just inside the door of the store looking in the direction of Grooms. Principe immediately heard Grooms exclaim, "Oh shit." With that, Principe ducked down and made his way to the back of the store.
As he was running, he looked back and saw the man again taking a step towards Grooms. At that point, Principe got a good look at the shooter and noticed he was wearing a black trench coat. As he continued moving to the back of the store, Principe heard another shot. Principe ran to the bathroom and locked himself inside.
While locked in the bathroom, Principe heard several more shots. Then he heard the front door buzzer, and then some voices. He heard the door buzzer again, and then came out of the bathroom and contacted the police. He then observed Grooms laying motionless between the first two aisles of the store. Principe later identified appellant as the black man who did the shooting.
During a canvass of the neighborhood for witnesses, an individual was discovered who could shed some light on what occurred while Principe was hiding in the bathroom and heard the sound of voices. Lynn Renee Smith had stopped at the 7-11, just after the shooting, to get a cup of ice. Coincidentally, she had known appellant for about three years and had seen him earlier that evening at the Peacock Lounge. As Smith pulled up to the store, she noticed appellant behind the cash register. Smith believed that appellant must work at the store. He asked her what she wanted. When she told him, he gave her a cup and she got some ice. She did not see anyone else while she was in the store, and she noticed that it appeared to be unusually quiet. Upon leaving the store, Smith drove to her sister's house located approximately fifty yards from the 7-11 and backed into the driveway. As she looked towards the 7-11, Smith saw appellant, wearing a black trench coat, leave the store and drive away in his car. Smith also testified that appellant was wearing a black baseball style cap, which he had on backwards. She further noted that he had on sunglasses, which were not mirrored, and described appellant as being about 5'5"' tall. She did not see appellant wearing the black trench coat in the store.
The neighborhood canvass turned up two other witnesses. Sylvia Smith (no relation to Lynn Smith) lived in the neighborhood in the area of the 7-11. Smith heard a gunshot between 4:30 and 5:00 a.m. As she looked out of her window, she saw two black males running up the street away from the 7-11. Jose Rodriguez lived almost next door to Sylvia Smith. He left for duty at Fort Sill about quarter after 5:00 a.m. on the same morning. He stated that he also saw two individuals running. He was unable to describe the second runner, but he was able to recall that the first individual appeared to have on a knee length black coat.
After leaving the store, appellant, who was a soldier stationed at Ft. Sill, returned briefly to the barracks and changed clothes. He then went to the airport and took the next available flight to Dallas with an ultimate destination of Akron, Ohio. Appellant was taken into custody the following day by Ohio authorities at the home of his wife in Akron. While in custody, appellant volunteered information as to the location of the shotgun. The shotgun was located in an orange duffel bag in the basement of the Akron residence along with a green compass pouch containing four shotgun shells. Subsequent ballistics tests conducted on the shotgun revealed that the five expended shells from the scene, and one expended shell found in the orange duffel bag, were fired from the shotgun found in the orange duffel bag. Another search was conducted the next day in the area where the duffel bag had been recovered. This time the police recovered a black baseball style cap, a three quarter length trench coat, and a gray and black sports sweatshirt.
The medical examiner, Dr. Boatsman, testified that the cause of Bradley Groom's death was a shotgun wound to the chest. Twelve pellet wounds were found in the left back and an exit wound in the back right area of the neck. An examination of the scene indicated that nothing was missing from the store after the incident. However, the cash register drawer had been pulled and pried upon, and also apparently fired at, since four large holes were in the front drawer area.
During the homicide investigation, the police had learned that appellant was absent without leave from his unit. They also learned of Priscilla Jordan, who was appellant's girlfriend in Lawton. From Jordan the police discovered appellant owned a shotgun which he kept in an orange duffel bag. With this information the police revisited the personnel at appellant's battery and obtained information that led them to the K-Mart store where appellant had purchased a Maverick Shotgun.
At trial, the defense called appellant. Appellant first described his early life and military career. He also described his problems with the premature birth of his child and his plans to leave the military. The morning of the 7-11 shooting, appellant decided to go home to Akron even though his discharge papers had not yet been processed. He testified, that in order to raise some money, he made a deal to buy some firearms to take home to sell. This deal was entered into with a man known only as "T." Appellant went on to describe his version of how the events unfolded in the early morning hours of October 21, 1991. "T" and two other black males got into appellant's car somewhere near the Peacock Lounge. The group rode around awhile to make sure they were not followed. Eventually they directed appellant to stop near the 7-11 on Fort Sill Boulevard. Appellant parked near a massage parlor and pawn shop close to the store. One of the men exited the vehicle saying he was going to get the stuff.
Some time passed, so appellant decided to go into the 7-11 to purchase some Lactaid milk. He took his $1,500.00 (to purchase the guns) with him, but left his gun behind in the car. He went on to testify that while he was in the store, "T" walked in carrying appellant's shotgun. "T" immediately began firing the gun. With that, appellant jumped behind the checkout counter. Then "T" came behind the checkout counter and told appellant not to worry, but to just give him the money he knew appellant had on him to purchase the guns. Appellant gave "T" his cash. After that "T" focused his attention on the locked cash register. "T" got mad and shot the cash register several times and tried unsuccessfully to yank it open. After that "T" ran out of the store with appellant's gun.
Appellant states that he remained in the store in a state of shock. He looked over and saw Grooms motionless and assumed he was dead. This is the point at which Lynn Smith entered the store and asked for the cup of ice. After she left, appellant got a grip on himself and ran out of the store. As he was running toward the car he saw his shotgun laying on the ground and picked it up as a reflex action. He then drove off in his car and went back to the post. Appellant stated that he did not call the police because he feared "T" who was a notorious gang member. "T" was never found or identified.
Additional facts will be discussed as pertinent to the assignments of error.
In his sixth proposition of error, appellant contends that the trial court deprived him of a fair trial and impartial jury by refusing to sustain appellant's challenges for cause against two jurors. After being accepted for cause, Jurors Cable and Lema indicated that they could not be fair and impartial jurors.
As a general assertion of law,...
To continue reading
Request your trial
-
Thornburg v. State
...we find the callous nature of the crime also supports this aggravating circumstance. See Pennington v. State, 1995 OKCR 79, ¶ 70, 913 P.2d 1356, 1371, cert. denied, 519 U.S. 841, 117 S.Ct. 121, 136 L.Ed.2d 72 (1996). As we find the evidence was sufficient to support the finding that Appella......
-
Williams v. Workman
...980 P.2d 1081, 1103 (Okla. Crim. App. 1999); Hamilton v. State, 937 P.2d 1001, 1012 (Okla. Crim. App. 1997); Pennington v. State, 913 P.2d 1356, 1373 (Okla. Crim. App. 1995); Walker v. State, 887 P.2d 301, 320 (Okla. Crim. App. 1994)). Similarly, Tenth Circuit precedent forecloses Petitione......
-
Van White v. State
...the neutrality of the prosecutor's explanation as a legal issue, and the review is only for clear error by the trial court. Pennington v. State, 1995 OK CR 79, ¶ 29, 913 P.2d 1356, 1365. We find no clear error. This supplemental evidentiary hearing claim of error is ¶ 29 In his fifth supple......
-
Gentry, In re
...P.2d 1081 (1996); State v. Muhammad, 145 N.J. 23, 678 A.2d 164 (1996); Nooner v. State, 322 Ark. 87, 907 S.W.2d 677; Pennington v. State, 913 P.2d 1356 (Okla.Crim.App.1995); Davis v. State, 598 N.E.2d 1041 (Ind.1992); People v. Clair, 2 Cal.4th 629, 828 P.2d 705, 730, 7 Cal.Rptr.2d 564 (199......