983 P.2d 448 (Okla.Civ.App. 1998), 97-491, Wilson v. State

Docket Nº:F 97-491.
Citation:983 P.2d 448
Party Name:Michael Lee WILSON, Appellant, v. The STATE of Oklahoma, Appellee.
Case Date:December 31, 1998
Court:Court of Appeals of Oklahoma, Court of Civil Appeals of Oklahoma
 
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Page 448

983 P.2d 448 (Okla.Civ.App. 1998)

Michael Lee WILSON, Appellant,

v.

The STATE of Oklahoma, Appellee.

No. F 97-491.

Court of Civil Appeals of Oklahoma

December 31, 1998.

Rehearing Denied Feb. 22, 1999.

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An Appeal from the District Court of Tulsa County. Before the Honorable E.R. Turnbull, District Judge.

¶ 118 MICHAEL LEE WILSON, was tried by jury for Murder in the First Degree and Robbery with a Dangerous Weapon in Case No. CF-95-1024 in the District Court of Tulsa County before the Honorable E.R. Turnbull, District Judge. Wilson was sentenced to death for Murder in the First Degree and life for Robbery with a Dangerous Weapon and perfected this appeal. Judgment and Sentence for the crime of Robbery with a Dangerous weapon is REVERSED and REMANDED with instructions to DISMISS. Judgment and Sentence for the crime of Murder in the First Degree is AFFIRMED.

Joe P. Robertson, Kent R. Hudson, Indigent Defense System, Capital Trial Division, Tulsa, OK, for defendant at trial.

William LaFortune, District Attorney, Brett Swab, Assistant District Attorney, Tulsa, OK, for the state at trial.

William H. Luker, Julie L. Gardner, Appellate Defense Counsel, Capital Direct Appeals Division, Indigent Defense System, Norman, OK, for appellant on appeal.

W.A. Drew Edmondson, Attorney General of Oklahoma, Jennifer B. Miller, Assistant Attorney General, Oklahoma City, OK, for appellee on appeal.

OPINION

LANE, Judge.

¶ 1 Appellant, Michael Lee Wilson, was charged conjointly with the codefendants1 with the crimes of, count one, first degree malice murder and, in the alternative, first degree felony murder, 21 O.S.1991, § 701.7(A & B) and, count two, robbery with a dangerous weapon, 21 O.S.1991, § 801 in Tulsa County District Court, Case No. CF-95-1024. The State filed a Bill of Particulars alleging three aggravating circumstances. A jury trial was held before the Honorable E.R. "Ned" Turnbull, District Judge. The jury found Wilson guilty of first degree murder and robbery with a dangerous weapon. After the punishment stage, the jury found the existence of all three aggravating circumstances: the murder was especially heinous, atrocious or cruel, the murder was committed for the purpose of avoiding or preventing a lawful arrest or prosecution, and the existence of a probability that the defendant would commit criminal acts of violence that

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would constitute a continuing threat to society. 21 O.S.1991, § 701.12(4),(5) & (7).

I. FACTS

¶ 2 Michael Wilson and Richard Yost were employees at the QuikTrip convenience store located at 215 North Garnett Road in Tulsa, Oklahoma. Wilson and his friends planned to rob the convenience store at least two weeks before this crime actually occurred. The plan commenced on February 25, 1995. Wilson had completed his shift at 11:00 p.m. with Yost beginning his shift at that time. Wilson and his three friends came into the store during the early morning hours of February 26 and waited for the most opportune time to accost Yost. The QuikTrip surveillance camera captured the events as they unfolded. The video of the events is quite telling.

¶ 3 Yost was cleaning the windows on the coolers with Wilson and the codefendants surrounding him. As Yost was walking near a passage way to the back room, all four defendants attacked him and dragged him to the back room. One of the defendants, identified as Billy Alverson, came back out and picked up some items that were knocked from the shelves and kept watch for customers. A few moments later, Alverson and Richard Harjo walked out the front door of the store. While they were going out, Yost was yelling and screaming for help, possibly thinking that a customer had entered the store. Alverson and Harjo re-entered the store with Harjo carrying a black aluminum baseball bat. He carried the bat to where Yost had been taken. The surveillance camera picked up the sounds of the bat striking Yost. Circumstantial evidence showed that the baseball bat struck the handcuffs on Yost's wrists which Yost was holding above his head to ward off the blows. As the blows were being struck, Wilson walked from the back room, checked his hands, put on a QuikTrip jacket, got behind the counter and tried to move the safe. While Wilson was behind the counter, several customers came in. Wilson greeted them with a friendly greeting, sold them merchandise, then said "thank you, come again" or "have a nice day."

¶ 4 All this time Wilson continued to try and pull the safe from underneath the counter. He took money from the cash drawer and pulled money out of the currency change machine. At some point after this, Wilson left the counter area and took the video from surveillance camera recorder. The defendants then loaded the safes into Wilson's car using a dolly from QuikTrip.

¶ 5 Yost's body was discovered by Larry Wiseman, a customer, at about 6:00 a.m. Yost was laying on the floor in a pool of blood, milk and beer. Yost's ankles were taped together with duct tape. One handcuff was found near Yost's body. The other cuff was missing from the scene. Detectives learned that Wilson was at the store between the hours of 4:00 a.m. and 6:00 a.m.

¶ 6 Wilson failed to show up for work at the scheduled time of 3:00 p.m. on the same day. Officer Allen set up surveillance on Wilson's house and at about 4:00 p.m. he spotted Wilson get into a gray vehicle. The vehicle was stopped. Wilson was taken into custody. Also arrested were the other occupants in the vehicle: codefendants Alverson, Harjo, and Darwin Brown. Large sums of money were recovered from all of the defendants except Wilson.

¶ 7 Wilson was questioned by Detective Folks. He told Folks that they planned on robbing the QuikTrip and that he knew Yost would be killed. He said that they had been talking about the robbery for about two weeks. The plan was for him to assume the role of sales clerk once Yost was "taken care of."

¶ 8 Officers searched Alverson's place of abode where they discovered the drop safe, the dolly, QuikTrip glass cleaner, money tubes and the store surveillance video tape. A search was conducted of Wilson's house but nothing of value was discovered. The next day Wilson's mother called Officer Makinson to come to her house. Once there, the detectives found several items of evidence on the front porch, including the baseball bat, a bloody QuikTrip jacket with Yost's name on it, Wilson's Nike jacket matching the one worn in the store video and the other cuff of the set of handcuffs.

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¶ 9 Wilson raises twenty propositions of error in his appeal. These propositions will be addressed as they arose at trial.

II. DUAL JURY ISSUES

¶ 10 In proposition one, Wilson raises several sub-issues concerning the use of dual juries in this case. Although he was tried conjointly with codefendant Brown, each defendant had a separate jury deciding their fate.

¶ 11 In Cohee v. State, 1997 OK CR 30, Guideline 2, 942 P.2d 211, 213, a majority of this Court set forth Guidelines Governing Juries in Criminal Trials which included approval of the use of dual juries in cases where codefendants are charged. Very little guidance was given to trial courts in the implementation of this procedure except for the provision that:

[b]oth juries will be seated in the jury box and the evidence pertaining to both defendants will be presented to both juries simultaneously. Evidence admissible as to one co-defendant shall be presented to that defendant's jury only.

Cohee, 942 P.2d at 213. We now have before us Wilson's claim that the dual jury system is not authorized under Oklahoma law and the procedure violates a defendant's constitutional rights. We previously ruled, in an "Extraordinary Writ" action by Wilson's codefendants, that the trial court has the discretion to implement a dual jury procedure because Oklahoma law does not prohibit such a procedure.2 Under the theory of collateral estoppel (issue preclusion), "once a court has decided an issue of fact or law necessary to its judgment, that issue may not be re-litigated between the same parties or their privies in a suit on a different cause of action." Wilson v. Kane, 1993 OK 65, n. 23, 852 P.2d 717, 727.3 Therefore, the principle of collateral estoppel prevents Wilson from raising the issue of whether the dual jury procedure is authorized in Oklahoma. However, Wilson's arguments regarding the dual jury procedure's effect on his rights are ripe for review.

¶ 12 We first note that the jurisdictions which have approved the use of a dual jury system or multiple jury process require a defendant to show actual prejudice from the use of this novel approach to multiple defendant trials.4 We find this approach comports with Oklahoma law. The use of the multiple jury process is constitutional, and a conviction had with the use of the multiple jury system will be upheld absent a showing of specific prejudice.

¶ 13 Wilson first claims that the dual jury system has a chilling effect on effective cross-examination. He claims that this problem was magnified when the trial court instructed defense counsel that it is the responsibility of attorneys for the State and defense to advise the Court of testimony which will make it necessary to have the juries separated. The trial court told the attorneys that they would have to work a little harder and that the trial court did not anticipate that any of the attorneys would purposely taint the proceedings in front of the jury.

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¶ 14 Wilson claims that the spectacle of removing one jury...

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