Conover v. State
| Decision Date | 21 February 1997 |
| Docket Number | No. F-95-780,F-95-780 |
| Citation | 933 P.2d 904,1997 OK CR 6 |
| Parties | 1997 OK CR 6 Claudie Delbert CONOVER, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
April 3, 1997.
William (Bill) Hall, Pawhuska, for appellant at trial.
Ben Loring, Dist. Atty., Alicia Littlefield, Asst. Dist. Atty., Miami, for the State at trial.
Lee Ann Jones Peters, Oklahoma Indigent Defense System, Norman, for appellant on appeal.
W.A. Drew Edmondson, Atty. Gen., Robert Whittaker, Asst. Atty. Gen., Oklahoma City, for the State on appeal.
Appellant Claudie Delbert Conover was tried by jury and convicted of First Degree Murder (21 O.S.1991, § 701.7), Case No. CRF-94-302, in the District Court of Ottawa County. The jury found the existence of three aggravating circumstances and recommended the punishment of death. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal 1.
Appellant and co-defendant Gary Welch 2 were convicted of the first degree murder of Robert Hardcastle. On August 25, 1994, Appellant visited Larry Davis and his wife, Lynn, in Miami, Oklahoma. Davis lived in a duplex and the victim occupied the opposite half. When Davis admitted Appellant to his home at approximately 5:00 p.m., Davis observed Welch's car parked in front of the duplex. While dinner was being prepared, Davis heard "banging" noises coming from the victim's half of the duplex. Davis commented to his wife and Appellant that he hoped the victim was "winning his wrestling match." Appellant said something to the effect that "someone's getting a spanking over a deal".
Less than five minutes later, the victim ran by Davis' window. As he passed by, the victim was overheard to say "I didn't do it," or "I didn't do anything." When the victim reached Davis' porch, Davis could see he was covered in blood. Davis thought the victim looked as though he had been in a fistfight. His face was bloody and his nose looked as though it was broken. However, Davis did not see any gaping wounds on the victim's face. The victim's hands, forearms, shoulders, and chest were smeared with blood. Appellant and Davis started for the front door at the same time. Appellant went through the door first, pushing the victim away. Davis remained inside the house and closed the door.
The victim ran across the street to a ditch with Appellant and Welch chasing after him. Passersby saw the victim crouched in a fetal position in the ditch with Appellant holding him and punching him and Welch stabbing him. At one point, it looked as though Appellant was pulling and tugging at something on the victim. Appellant turned the victim over and repeatedly struck him in the face and upper body while Welch continued to stab and hit him. When a passerby stopped to look at what was going on, Appellant yelled at him to get out of there. When the gentleman failed to leave, Appellant ran up to the car, banged on the windows and, screaming profanities at the man, told him to get out of there, that it was none of his business. Appellant then ran off toward Welch's car.
Welch, who had remained with the victim, picked up a bottle from the ground, broke it on the street and stabbed and slashed the victim with the broken bottle. Appellant drove over to the scene, Welch jumped in the car and the two men drove off.
The victim managed to crawl out of the ditch to the side of the road. A police officer who had been notified of the altercation arrived at the scene. The victim, wearing only a pair of shorts twisted around one ankle, leaned up on one arm and told the officer that Gary Welch had done that to him. The victim told the officer to get Gary Welch. The victim asked for a drink of water several times and then collapsed. The victim died on the scene.
The police officer reported by radio that Gary Welch was a suspect. Shortly thereafter, Appellant and Welch were spotted just north of Miami. Upon seeing a marked police car behind them, the men threw a knife out of the passenger window of the car and then pulled over. Appellant exited from the driver's side while Welch occupied the passenger seat. Both men were covered in blood. Appellant also had a few abrasions and contusions about his upper body and face. When transported to the county jail, Appellant spontaneously said "Man, I don't know you, I just wanted a ride" to which Welch responded "Just shut up." Subsequently, a broken knife blade with blood on it was found near the scene where Appellant and Welch had been apprehended.
A subsequent autopsy of the victim revealed multiple stab wounds, including several wounds to the face and head. The cause of death was ruled as exsanguination (bleeding to death).
In his first assignment of error, Appellant contends the trial court never acquired subject matter jurisdiction over the case as the Information failed to allege all of the elements of malice murder; specifically, the element of "malice aforethought."
Any failure to allege facts constituting an offense may raise due process questions, but does not affect the trial court's jurisdiction. Parker v. State, 917 P.2d 980, 986 (Okl.Cr.1996). Jurisdiction is conferred on the trial court by the commission of a public offense where venue properly lies in that trial court. Id. As Appellant has not challenged venue, the jurisdiction of the trial court is not at issue. Since this is not a jurisdictional issue, it is not raised properly for the first time on appeal. Appellant did not object to the Information at trial, therefore, we review only for plain, reversible error. Robinson v. State, 900 P.2d 389 (Okl.Cr.1995); Simpson v. State, 876 P.2d 690 (Okl.Cr.1994).
Where an Information alleges an offense and pleads particular facts constituting the offense in ordinary language, such that a person of common understanding can know what is intended and prepare a defense to the charge, no due process violation occurs. Parker, 917 P.2d at 986. This Court will thus ask whether the Information gives the defendant notice of the charges against him and apprises him of what he must defend against at trial. Id. This determination will be made on a case by case basis, and this Court will look to the "four corners" of the Information together with all material that was made available to a defendant at preliminary hearing or through discovery to determine whether the defendant received notice to satisfy due process requirements. Id.
The felony Information filed against Appellant read in pertinent part:
MURDER IN THE FIRST DEGREE
... That said defendants, on the day and year aforesaid, in the County and State aforesaid, while acting in concert, each with the other, did unlawfully, willfully, and feloniously, without authority of law, and with a premeditated design to effect the death of one Robert Hardcastle, a human being, did then and there kill one Robert Hardcastle by means of a knife having a sharp and pointed blade, and a broken bottle which was sharp, with which the said defendants did cut, slash and stab the body of the said Robert Hardcastle, causing mortal wounds in the body of the said Robert Hardcastle from which mortal wounds the said Robert Hardcastle did languish and die, ... (O.R.1).
This Information set forth sufficient facts to give Appellant notice of the charge against him and to apprise him of what he must defend against at trial. That the term "premeditated design" to effect death was used instead of the term "malice aforethought" does not alter this conclusion. This Court has used the two terms interchangeably. Morgan v. State, 536 P.2d 952, 955 (Okl.Cr.1975); Gatewood v. State, 80 Okl.Cr. 135, 157 P.2d 473, 475 (1945). Using either term, it is clear in this Information that Appellant was charged with and had to defend against first degree malice aforethought murder. See Charm v. State, 924 P.2d 754, 759 (Okl.Cr.1996).
In a reply brief, Appellant asserts this Court should not apply Parker to his case as it was not the law at the time of the commission of the offense or at the time of trial. He asserts that in August 1994 (the date of the murder) and June 1995, (the date of trial) the law provided that any failure to use the term "malice aforethought" in a first degree murder Information did not properly charge the defendant with malice murder. In support of this assertion, Appellant relies on Pickens v. State, 885 P.2d 678 (Okl.Cr.1994) and Revilla v. State, 877 P.2d 1143 (Okl.Cr.1994). Both cases are distinguishable from the present case.
In Pickens, the Information had language appearing to allege malice aforethought murder along with language suggesting the allegation of felony murder. Taken as a whole, the language was ambiguous and no defendant could have known whether he was charged with malice aforethought murder or felony murder. In the present case, the language used is not ambiguous. Clearly, only the commission of an intentional killing is alleged. There is no suggestion, as in Pickens, that the killing could have occurred during the commission of a felony.
In Revilla, there was no allegation of premeditation or malice aforethought, the Information only stated the defendant "effect[ed] the death of the victim." The appellant claimed he did not know if he was charged with first degree malice aforethought murder or first degree child abuse murder. When read in its entirety, the omission of any specific mens rea clearly alleged the commission of first degree child abuse murder and not first degree malice aforethought murder.
The law at the time of the commission of the offense and at the time of Appellant's trial was as it is now: any failure to allege "malice aforethought" did not affect the trial court's jurisdiction. Therefore, Parker is properly applied to Appellant's case. See Miles v. State, 922 P.2d 629, 631 (Okl.Cr.1996). The Information in the present case is not ambiguous and...
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