965 P.2d 391 (Okla.Crim.App. 1998), F-96-121, Fairchild v. State

Docket NºF-96-121.
Citation965 P.2d 391, 1998 OK CR 47
Party NameRichard Stephen FAIRCHILD, Appellant, v. STATE of Oklahoma, Appellee.
Case DateAugust 20, 1998
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 391

965 P.2d 391 (Okla.Crim.App. 1998)

1998 OK CR 47

Richard Stephen FAIRCHILD, Appellant,

v.

STATE of Oklahoma, Appellee.

No. F-96-121.

Court of Criminal Appeals of Oklahoma.

August 20, 1998.

Page 392

[Copyrighted Material Omitted]

Page 393

[Copyrighted Material Omitted]

Page 394

An Appeal from the District Court of Oklahoma County before the Honorable Major Wilson, District Judge.

RICHARD STEPHEN FAIRCHILD was tried by jury for the crime of Child-Abuse Murder in the First Degree in Case No. CF-93-7103 in the District Court of Oklahoma County before the Honorable Major Wilson, District Judge. Fairchild was sentenced to death, and perfected this appeal. Judgment and Sentence is AFFIRMED.

Sandra Stensaas, Patty E. Wallace, Oklahoma County Asst. Dist. Attys., for the State at Trial.

John Albert, Asst. Public Defender, for defendant at Trial.

Lee Ann Jones Peters, Appellate Defense Counsel, Capital Direct Appeals Div., Oklahoma Indigent Defense System, for Appellant on Appeal.

W.A. Drew Edmondson, Atty. Gen., Robert Whittaker, Asst. Atty. Gen., for Appellee on Appeal.

PER CURIAM:

¶1 Richard Stephen Fairchild was tried by jury and convicted of Child-Abuse Murder in the First Degree, 21 O.S.1991, § 701(C), in Oklahoma County District Court Case No. CF-93-7103. The jury found one aggravating circumstance in the second stage, that the murder was especially heinous, atrocious or cruel, and set punishment at death. The Honorable Major Wilson, District Judge, imposed the death sentence. The Appellant is before the Court on original appeal.

¶2 Three-year-old Adam Broomhall died as a result of brain damage caused when he was thrown against a table by his mother's boyfriend, Richard Stephen Fairchild, and hit the floor. This occurred in the early morning hours of November 14, 1993. Fairchild was intoxicated at the time, as was Adam's mother, Stacy Broomhall, who was asleep in the bedroom. Fairchild lived with Stacy Broomhall and her three children in Midwest City. The children accepted Fairchild as a father-figure and he assumed the role of disciplinarian.

¶3 Nothing unusual happened the day before Adam was killed. Fairchild and Stacy Broomhall drank beer all day long, as they usually did on Saturdays. That evening they visited her mother, Jena Fickland, who lived in north Oklahoma City. The kids watched TV and ate snacks in one room while the adults watched TV and drank beer in another. When they were ready to leave, Fickland insisted they were both too intoxicated to drive and arranged for her seventeen year old daughter, Charity Wade, to drive them home.

¶4 Originally Ms. Wade planned to stay overnight and baby sit. These plans changed when Fairchild made sexual advances toward her. She called her mother for advice on what to do, and after putting the kids to bed, she called a cab to take her home. Sometime later, Adam woke up crying and got out of bed. Fairchild "back handed" Adam in the mouth, splitting open his lip, to make him stop crying. Adam didn't stop crying, and Fairchild held him up against a wall heater, front and back. Adam suffered deep, grid-patterned burns on his chest and bottom, but didn't stop crying. Then, Fairchild threw Adam against a drop-leaf dining table, and when Adam hit the

Page 395

floor, he stopped crying. He also stopped breathing.

¶5 Fairchild tried to resuscitate Adam, and when this failed, he woke up Stacy Broomhall, and called 911. Paramedics arrived shortly and took Adam to Children's Hospital in Oklahoma City. He was placed on life support. Hours later he was pronounced brain dead and allowed to die.

PRETRIAL ISSUES

  1. Filing of the Bill of Particulars After Arraignment

    ¶6 The State did not originally seek the death penalty in this case. Two weeks before trial the State filed a motion to remand for further preliminary hearing for the stated purpose of alleging prior convictions. The trial court granted the State's motion. The day after the State filed Page Two, and ten days before trial, it filed a Bill of Particulars. Defense counsel requested and was granted a continuance.

    ¶7 Appellant argues in Proposition VIII the Bill of Particulars must be struck, because the State failed to show good cause for filing it after arraignment as required by Hunter v. State, 1992 OK CR 19, p 5, 829 P.2d 64, 65. The State did not follow the dictates of Hunter, and the trial court erred by allowing this late filing without a showing of good cause. The appropriate remedy here, however, is not the striking of the Bill of Particulars. The Hunter decision turned on the Court's concern that the defendant must have sufficient time to prepare for trial. Id. By granting the defense an adequate continuance, the trial court cured the error. No further relief is warranted.

  2. Competency to Stand Trial

    ¶8 The trial court granted the defense request for a competency evaluation and held a post-evaluation competency hearing. 22 O.S., 1991, § 1175.4. In Proposition XVI Appellant argues he was held to the unconstitutional standard of proving his lack of competency by clear and convincing evidence. See Cooper v. Oklahoma, 517 U.S. 348, 116 S.Ct. 1373, 134 L.Ed.2d 498 (1996). Fairchild is correct when he asserts this unconstitutional standard was in place at the time of his hearing, and that it was applied to him.

    ¶9 Evidence at the post-evaluation competency hearing consisted of the parties' stipulation that the examining psychologist would testify Fairchild was competent to stand trial as indicated in the report filed with the court. Forensic psychologist Kelly Shannon, Ph.D. reported to the court that Fairchild was able to explain the allegations against him and that he voiced a "favorable opinion" toward his attorney, he had an "average" courtroom knowledge, and no bizarre perceptions or beliefs toward the legal process were discovered. The psychologist concluded that in spite of a history of head injuries and chemical dependence, Mr. Fairchild was able to work with his attorney in a rational manner in his own defense. The only evidence supporting a finding of lack of competence came from statements by Fairchild's attorney to the effect he did not believe Fairchild could help adequately with his defense. Counsel gave no factual basis for this opinion, and no other evidence was presented. The trial court found Fairchild competent to stand trial.

    ¶10 Because Fairchild was subjected to the improper standard of proof, and some evidence of incompetence was presented at the hearing we will reweigh the evidence using the proper standard of proof. See Allen v. State, 1996 OK CR 9, p 47, 923 P.2d 613, 622 (reweighing generally); Davis v. State, 1995 OK CR 5, p 14, 888 P.2d 1018, 1022; Allen v. State, 1990 OK CR 25, 956 P.2d 918 (opinion on remand). The proper standard of proof is a preponderance of the evidence: that more likely than not, Fairchild lacked competence to stand trial. The opinion of counsel, unsupported by any facts, does not meet this burden. Therefore, applying the correct standard of proof, we find Fairchild did not carry his burden to prove incompetence, and he was competent to stand trial.

    FIRST-STAGE ISSUES

  3. Intent to Harm

    ¶11 Fairchild was charged by Information with First Degree Murder by "wilfully

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    (sic) and unlawfully ... injuring or otherwise using unreasonable force upon [the victim] inflicting mortal wounds which caused his death ..." [OR 1]. Early in the trial the question arose whether an intent to injure was an element of the crime charged. The prosecutor argued the specific intent to injure was not an element of the crime as charged, and the trial court agreed. As a result, the trial court denied the defendant's request for an instruction on voluntary intoxication since voluntary intoxication is a defense only to specific intent crimes. Crawford v. State, 1992 OK CR 62, p 51, 840 P.2d 627, 638. A determination of the mens rea necessary to support a conviction for child-abuse murder committed by the willful use of unreasonable force is an issue of first impression dispositive to this appeal.

    ¶12 Child-Abuse Murder is a special category of felony-murder statutorily defined at 21 O.S.1991, § 701.7(C):

    A person commits murder in the first degree when the death of a child results from the willful or malicious injuring, torturing, maiming or using of unreasonable force by said person or who shall willfully cause, procure or permit any of said acts to be done upon the child pursuant to Section 843 of this title.

    ¶13 Section 843, recodified at 10 O.S. Supp.1996, § 7115, sets forth the following acts: willfully or maliciously engaging in child abuse or neglect, willful or malicious injury, torture, maiming, or the use of unreasonable force on a child under the age of eighteen. Plain language, statutory definition, and judicial construction establish an element of specific intent in some, but not all of these methods. "Malicious", by definition, means with an intent to harm. The New Oxford Dictionary, 2d ed., 1989. So does "torture". Id. By statutory definition "maiming" includes a specific intent to injure. 21 O.S.1991, § 751; Post v. State, 1986 OK CR 30, p 16, 715 P.2d 1105, 1110. This Court has construed "willful injury" to include a specific intent to harm. Grady v. State, 1997 OK CR 67 pp 4-5, 947 P.2d 1069, 1071; Bannister v. State, 1996 OK CR 60, p 3-4, 930 P.2d 1176, 1178-9. Therefore, when the State charges a defendant with 1) maliciously committing any of the enumerated acts, 2) torture, 3) maiming, or 4) injuring a child, a specific intent to injure must be proven beyond a reasonable doubt.

    ¶14 This Court has not had occasion to determine whether the "willful use of unreasonable force" includes the mens rea of a specific intent to harm. We do so now.

    ¶15 By statutory definition the term, "willful", "implies simply a purpose or willingness to commit the act or the omission referred to. It does not...

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10 practice notes
  • 579 F.3d 1134 (10th Cir. 2009), 06-6327, Fairchild v. Workman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 31, 2009
    ...sentence to the OCCA, which, in 1998, affirmed, " [f]inding no error warranting reversal or modification." Fairchild v. State, 965 P.2d 391 (Okla.Crim.App. 1998). In 1999, the OCCA issued a superseding opinion reaching the same conclusion with somewhat different reasoning. Fairchi......
  • 187 F.3d 1193 (10th Cir. 1999), 97-6435, Bryson v. Ward
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 6, 1999
    ...a state of passion; and 4) the existence of a causal connection between the provocation, passion and homicide. See Fairchild v. State, 965 P.2d 391, 399 (Okla. Crim. App. 1998). The requisite "passion" must be "so great as to render the mind incapable of forming a design to e......
  • 262 F.3d 1066 (10th Cir. 2001), 00-6138, Miller v. Champion
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 21, 2001
    ...between the provocation, passion and homicide." Bryson v. Ward, 187 F.3d 1193, 1208 (10th Cir. 1999) (citing Fairchild v. State, 965 P.2d 391, 399 (Okla. Crim. App. 1998)). A conviction for manslaughter is not appropriate, however, if the homicide occurs after the actor has had a reaso......
  • 210 F.3d 389 (10th Cir. 2000), 99-6142, Grady v. Boone
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • March 15, 2000
    ...jury instruction issue concerning the definition of "willful," the magistrate judge determined that under Fairchild v. State, 965 P.2d 391 (Okla.Crim App.1998), the Oklahoma Court of Criminal Appeals no longer considers child-abuse murder--caused by the willful use of unreasonable......
  • Request a trial to view additional results
10 cases
  • 579 F.3d 1134 (10th Cir. 2009), 06-6327, Fairchild v. Workman
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 31, 2009
    ...sentence to the OCCA, which, in 1998, affirmed, " [f]inding no error warranting reversal or modification." Fairchild v. State, 965 P.2d 391 (Okla.Crim.App. 1998). In 1999, the OCCA issued a superseding opinion reaching the same conclusion with somewhat different reasoning. Fairchi......
  • 187 F.3d 1193 (10th Cir. 1999), 97-6435, Bryson v. Ward
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 6, 1999
    ...a state of passion; and 4) the existence of a causal connection between the provocation, passion and homicide. See Fairchild v. State, 965 P.2d 391, 399 (Okla. Crim. App. 1998). The requisite "passion" must be "so great as to render the mind incapable of forming a design to e......
  • 262 F.3d 1066 (10th Cir. 2001), 00-6138, Miller v. Champion
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • August 21, 2001
    ...between the provocation, passion and homicide." Bryson v. Ward, 187 F.3d 1193, 1208 (10th Cir. 1999) (citing Fairchild v. State, 965 P.2d 391, 399 (Okla. Crim. App. 1998)). A conviction for manslaughter is not appropriate, however, if the homicide occurs after the actor has had a reaso......
  • 210 F.3d 389 (10th Cir. 2000), 99-6142, Grady v. Boone
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Tenth Circuit
    • March 15, 2000
    ...jury instruction issue concerning the definition of "willful," the magistrate judge determined that under Fairchild v. State, 965 P.2d 391 (Okla.Crim App.1998), the Oklahoma Court of Criminal Appeals no longer considers child-abuse murder--caused by the willful use of unreasonable......
  • Request a trial to view additional results