Allen v. State

• Decision Date: 15 February 1994
• Docket Number: No. F-89-549,F-89-549
• Citation: 1994 OK CR 13,871 P.2d 79
• Parties: Wanda Jean ALLEN, Appellant, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 79

871 P.2d 79

Wanda Jean ALLEN, Appellant, v. The STATE of Oklahoma, Appellee.

No. F-89-549.

Court of Criminal Appeals of Oklahoma.

Feb. 15, 1994.

Rehearing Denied March 30, 1994.

An Appeal from the District Court of Oklahoma County; Bana Blasdel, District Judge.

WANDA JEAN ALLEN, Appellant, was tried by jury and convicted of Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1983, § 1283), and Murder in the First Degree (21 O.S.Supp.1982, § 701.7) in Case No. CRF-88-6621, in the District Court of Oklahoma County. The jury found the existence of two aggravating circumstances and recommended punishment of death. The trial court sentenced accordingly. From these judgments and sentences Appellant has perfected this appeal. The Judgment and sentence for First Degree Murder is AFFIRMED; the judgment and sentence for Felonious Possession of a Firearm is REVERSED and REMANDED for a new trial.

Bob G. Carpenter, Oklahoma City, trial counsel, William H. Luker, Asst. Appellate Public Defender, Norman, appellate counsel, for appellant.

Sandra H. Stensaas, Asst. Dist. Atty., Oklahoma City, Wes Lane, Asst. Dist. Atty., Oklahoma City, trial counsel, Susan Brimer Loving, Atty. Gen. of Oklahoma, David Walling & A. Diane Blalock, Asst. Attys. Gen.,

Oklahoma City, appellate counsel, for appellee.

OPINION

LUMPKIN, Presiding Judge:

Appellant Wanda Jean Allen was tried by jury and convicted of Murder in the First Degree (21 O.S.Supp.1982, § 701.7), and Possession of a Firearm After Former Conviction of a Felony (21 O.S.Supp.1983, § 1283), Case No. CRF-88-6621, in the District Court of Oklahoma County. The jury found the existence of two aggravating circumstances and recommended death as punishment for murder and ten (10) years for felonious possession of a firearm. The trial court sentenced accordingly. From this judgment and sentence Appellant has perfected this appeal. We affirm the judgment and sentence for murder, but reverse and remand for a new trial on the firearm charge.

The charges against Appellant stemmed from the shooting of Gloria Leathers on December 1, 1988, in front of the police department in the Village, Oklahoma. Ms. Leathers and Appellant had been involved in a homosexual relationship, and Ms. Leathers did not wish to continue the relationship. After a dispute over a welfare check between Ms. Leathers and Appellant, Ms. Leathers decided to move out. Accompanied by police, she went to the residence the two shared and gathered some of her belongings. A dispute arose, apparently concerning the ownership of some of the belongings, and Ms. Leathers went to the police station at the suggestion of one of the officers at the house. Appellant followed in a separate car, and outside the station attempted to get Ms. Leathers to reconsider moving out. The shooting occurred during this discussion. Appellant fled and was not captured until December 5, the same day Ms. Leathers died from a single gunshot wound Appellant had fired into her abdomen.

I. PRE-TRIAL ISSUES

A.

In her fifth proposition of error, Appellant asks this Court to reverse because a record was not made during some pre-trial hearings, and some isolated instances during voir dire and trial. Specifically, she complains a record was not made of her district court arraignment; her counsel's motion to withdraw; hearings on the prosecution's motion to submit to tests and provide handwriting exemplars; hearings on her motion for a private investigator at public expense; her motion to suppress; and her motion for preparation of preliminary hearing transcript. She also complains of two lapses during the trial itself: one concerning a discussion of instructions; the other after Appellant testified during the punishment stage. We shall address each separately, but first we examine the rationale for a complete record.

Appellant cites Van White v. State, 752 P.2d 814, 820-22 (Okl.Cr.1988) and Kelly v. State, 692 P.2d 563, 565-66 (Okl.Cr.1984) in support of her claim that reversal is mandated when all proceedings in a capital case are not transcribed. In Kelly, Judge Brett wrote a special concurrence in which he submitted it was the responsibility of the State to assure all proceedings were transcribed in a death penalty case. He reasoned this Court could not conduct its mandatory sentence review pursuant to 21 O.S.1981, § 701.13 without a complete record of all proceedings. The portions missing in that case were all connected with the actual jury trial. Id. at 565-66. In Van White, this Court expanded on the rationale for the requirement. There, this Court reviewed Kelly and held that "in order to effectuate this Court's mandatory sentence review obligation under 21 O.S.Supp.1985, § 701.13(C)(1), a complete stenographic record shall be taken in all capital proceedings." Van White, 752 P.2d at 821. As in Kelly, Van White concerned itself with failure to transcribe proceedings during the actual jury trial.

Appellant has placed emphasis on the language "in all capital proceedings." While we do not retreat from our holding a complete record should be transcribed in all proceedings in which the death penalty is imposed, we must examine the underlying basis of the rule to see if failure to do so warrants automatic reversal, or whether such a failure can be harmless.

Oklahoma's modern death penalty statutes came into being in response to the Supreme Court's holding in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) that death penalty procedures such as Oklahoma's violated the ban imposed by the Eighth Amendment to the United States Constitution ¹ on cruel and unusual punishment. Essentially, the older procedure was constitutionally infirm because there was no way to distinguish cases which warranted the death penalty under the law. In response our Legislature adopted procedures similar to those found to be constitutionally acceptable in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and subsequent cases. Essential portions of the new procedure included a requirement of proof of aggravating circumstances to distinguish those deserving the death penalty from those who did not; and the requirement that this Court conduct a sentence review to determine:

1. Whether the sentence of death was imposed under the influence of passion, prejudice or any other arbitrary factor; and

2. Whether the evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in Section 701.12 of this title.

21 O.S.1991, § 701.13(C). From this, one can deduce the primary need for a complete record in all death penalty proceedings is to allow an appellate court to determine whether the factfinder imposed the punishment of death as a result of any improper influence, and whether the evidence supports such a finding. In other words, the portion of the mandatory sentence review that concerned this Court in Van White and Kelly dealt with issues at trial, as it is during trial the jury or judge actually makes the determination whether the death sentence should be imposed. Therefore, that is the essential portion of the proceedings this Court requires to determine if the sentence were imposed in violation of the Eighth Amendment. And while this Court is also required to consider "any errors enumerated by way of appeal," 21 O.S.1991, § 701.13(B), those other errors do not necessarily always implicate the Eighth Amendment--or any constitutional provision, for that matter. If alternate means exist for this Court to make a determination without the complete transcription, it will do so, and reversal is not warranted. See Van White, 752 P.2d at 819 (rejecting Appellant's argument that reversal was mandated because a motion hearing was not transcribed, as this Court could make a finding that the trial judge's ruling was supported by competent evidence without the transcript).

Appellant complains here the motion for preparation of a preliminary hearing transcript was not transcribed. While refusal to make a transcript available to an indigent defendant can be a violation of the defendant's right to Equal Protection under the Fourteenth Amendment, no such error occurred here, as Appellant received a copy of the transcript. Therefore, this Court does not need a transcription of the motion to determine a constitutional violation did not take place; and failure to transcribe the hearing is harmless error. 20 O.S.1991, § 3001.1.

Likewise, this Court can determine from the record Appellant appeared at arraignment, received a true copy of the information and the list of witnesses to be used at trial, waived reading of the information and pled not guilty, was denied bond and was given deadlines to file necessary motions. That is essentially all that transpires at arraignment, see 22 O.S.1981, §§ 451-470, and Appellant has presented no allegations in her propositions of error anything improper occurred at that time.

Concerning the motions for blood sample and handwriting exemplar, this Court has held such samples can be given without violating any constitutional rights of the Appellant so long as she is afforded notice and an opportunity to be heard. State v. Thomason 538 P.2d 1080, 1087 (Okl.Cr.1975); Elix v. State, 743 P.2d 669, 673 (Okl.Cr.1987). Here, the record reflects both were honored. In fact, the record shows Appellant agreed to provide blood samples.

We find no indication in the record Appellant's motion to suppress was argued or decided. However, we have examined both the motion and the entire record, and find nothing seized in violation of the Appellant's Fourth Amendment rights which was used against her at trial, and find her statement to police was not given in violation of her Fifth Amendment rights. We therefore determine any error in failing to transcribe the hearing was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)....